Moultonborough boathouse case heading to Supreme Court

MOULTONBOROUGH — A local couple has encountered choppy waters after deciding to move their boathouse 10 feet back from the shoreline.

Despite having been approved — twice — by the local zoning board and the state board that oversees water pollution control, a neighbor's complaint and interdepartmental differences have the case heading to the New Hampshire Supreme Court over the issue of the building's height.

Bryan and Linda Corr have been locked in a dispute with the New Hampshire Department of Environmental Services for the last two years after someone sent in photographs of the boathouse under construction on their Long Island property.

When the Corrs purchased their waterfront home at 46 Deerhaven Road, it came with a collapsed boathouse at the edge of the channel. They decided to restore the boathouse and hired a civil engineer to help them navigate the approval process.

“What was there before was an eyesore,” Bryan Corr said in a telephone interview.

Their first step was to go to the town of Moultonborough to seek a variance allowing them to rebuild on the same “footprint” and to obtain a building permit, both of which the town granted. They then applied for and received a wetlands permit from the DES Water Pollution Division.

In the course of designing the new structure, Corr said he asked the town’s building inspector what would be required to move it 10 feet back from the lake and learned they would have to go back before the zoning board.

“It was better for everybody,” Corr said of the decision to move the boathouse further inland. “It would give the neighbors a better view looking across the channel, and better for me because it would not be on top of the water.”

The first sign of trouble came during the second ZBA hearing, when a neighbor complained of not being aware that the original approval had been granted.

Still, the zoning board unanimously approved the proposal to move the building away from the water’s edge, setting a height restriction of 32 feet. Corr explained that, because of the slope of the land, the new structure had to be 27 feet high on one end and 14-15 feet high on the other.

“The abutter did not pursue a statutory appeal,” according to attorney John Cronin, leaving the Corrs to seek a new permit from Environmental Services, which the agency granted.

The building project was well underway when a DES inspector stopped by the site in response to a neighbor’s complaint. The agency subsequently issued a cease-and-desist order based on the structure being higher than the original boathouse.

“Of note,” said Cronin, “is the DES paperwork does not request any information on height.”

An administrative order that the agency issued on Nov. 3, 2017, pointed out that the original wetlands notification included the statement, “Replace an existing shoreland structure which was collapsed by snow load with a new structure in exact location and height.”

It continued, “On February 9, 2017, DES received photographs showing an accessory structure under construction on the Property. The structure under construction appeared to be more than 12’ in height, and greater in height than the original structure.”

The document then quoted a water quality administrative rule stating “an accessory structure located in the waterfront buffer shall not exceed 12 feet in height.”

The letter, signed by Commissioner Robert Scott, ordered the height reduced to 17 feet – the approximate height of the original structure — a requirement that meant “complete demolition and reconstruction of the structure” according to an unnamed architect that Scott quoted.

Mitigation

In his response, attorney Cronin noted that the new boathouse did not create any additional impervious surfaces and stated, “The height of the roof does not result in any negative impacts to the public water body known as Lake Winnipesaukee.”

He also noted that his client offered to make additional wetland plantings and drainage improvements as an alternative remedy, but the department would not accept the mitigation offer.

The reconstructed boathouse, measuring 18x38.2 feet, is not a “small accessory structure,” Cronin argued, saying the DES’ approach “would prohibit the same basic use of land for a less impactful category of development for no legitimate governmental interest.”

In May 2018, the Corrs appealed the decision to the Wetlands Council, calling the DES ruling “a perfect example of government overreach into private property rights.”

The Wetlands Council is one of four environmental councils and two environmental boards that are "separate and distinct" from the New Hampshire Department of Environmental Services but work closely with the agency. Among its other responsibilities, the Wetlands Board serves as an appeals board for permitting disputes.

In his arguments for overturning the DES decision, Cronin wrote, “To maintain compliance with building codes, the structural modifications suggested by DES would result in a structure that is 3 feet tall above the foundation.”

Robert Roseen testified as a wetlands expert on behalf of the Corrs, telling the council that moving the building back from the water’s edge was a benefit to water quality and the shorefront, and that the building’s height has no negative impact on water quality.

The Wetlands Board sided with the Corrs, overruling the DES.

“[T]he Council’s deliberations focused on the concept that once the new structure was relocated further back from the reference line than the original boathouse, it should be treated as a ‘nonconforming structure’ … rather than an ‘accessory structure’ and subject to different rules,” wrote hearing officer David F. Conley.

“Because there are no statutory or regulatory rules addressing the height of such a nonconforming structure, as compared to the 12’ height restriction on ‘accessory structures’, the Council determined that the Order should be remanded to the Department for its consideration….”

When DES appealed the decision, the Wetlands Board again ruled against the agency.

“RSA Chapter 483-B serves to protect the water quality in public waters,” the ruling stated. “There is no restriction on height in the minimum standards and it is not clear how such a restriction serves to protect the quality of public waters.”

Supreme Court appeal

The department appealed the case to the New Hampshire Supreme Court, arguing that the “Wetlands Council decided to grant the appeal based on a contradictory interpretation of RSA 483-B:11, … an issue outside the scope of the hearing and not before the council to decide.”

The state Supreme Court accepted the DES appeal on Feb. 11, setting a date of April 12 for the Wetlands Council to file a certified copy of its hearing record.

A call to the Department of Environmental Services seeking comment on the case was referred to Kate Spiner, director of communications for the Attorney General’s Office. After researching the case, she wrote in an email: “We are unable to comment as this is an ongoing case.”

“I’ve already won this twice,” Corr said, “and it’s becoming costly financially. I did nothing wrong, and it’s farther away from the water than what it was. We’ve been at a standstill for two years now. I have to finish this thing. The attorney’s fees and delays are ridiculous.”

Cronin said it is unusual for DES to appeal a Wetlands Council decision, but not unheard of.