CEO rules permit not needed for controversial dock in China

by Mary Grow

China Board of Appeals members delved into a complex 58th Fire Road neighborhood dispute at their Sept. 7 meeting, ultimately denying Kevin Meader’s appeal of Codes Officer Paul Mitnik’s decision not to require permitting or removal of a controversial dock.

The final motion, approved 6-0 with Board Chairman Spencer Aitel abstaining, was that Meader’s appeal was denied because the dock is “grandfathered” and therefore the appeals board did not have jurisdiction.

An earlier motion made a finding of fact: the dock is grandfathered because testimony and evidence showed a dock had been in the same place for many years.

Yet another motion, approved by four board members before the final motion, said the right-of-way is not fully defined and therefore the appeals board cannot make a judgment. Board members Dale Worster and Michael Gee did not support the motion, saying the boundary is not an appeals board issue.

Meader and other residents of the subdivision who use the dock agreed on a few facts. The dock stands at the water end of a 15-foot-wide private right-of-way to China Lake; use and maintenance of the right-of-way is governed by an agreement among the residents.

The parties disagreed about whether the dock has been there since before China required permits for docks. If it has, it is “grandfathered” and can continue to be used, and when necessary improved, without a town permit.

Sheila and Brian Higgins, Christopher Pike and Stephanie Uhlman-Pike and Stan and Linda Rodrigue all said the dock had been there for many years – their now-grown children played on it. When the Higgins’ original wooden dock became too battered, Pike bought a replacement.

The Roderigues brought to the hearing an aerial photo showing the dock. Stan Roderigue said the photo dated from the days when the late Senator Edmund Muskie owned a China Lake home. (Biographies of the Senator refer to the family’s China Lake property in the 1950s and 1960s.)

Meader claimed the dock had been put in six years ago and was blocking half of the stairs to the lake. The rest of the right-of-way owners said there were no access or safety issues.

The exact location of the right-of-way is also disputed. During about eight years of argument – ever since the Meaders arrived, according to Sheila Higgins and Christopher Pike – involving lawyers and law enforcement personnel, two surveys were done locating the right-of-way boundary in two places five feet apart. A third survey has been commissioned but not completed.

Mitnik, in a written statement of facts that he summarized for the board, said Higgins did not need a permit to put the dock at the end of the right-of-way because the dock is grandfathered. A seasonal dock requires only one permit, not annual renewals, he said. Other issues, like the parties’ land use agreement, safety and trespass questions, he considers are not in his jurisdiction.

In 2016, according to the discussion, Meader put his own dock at the end of the right-of-way and Higgins put a dock off Roderigues’ land, with the Roderigues’ permission and an after-the-fact permit from Mitnik. Higgins said he moved his dock back to the right-of-way this summer because he did not want to continue having access over the Rodrigues’ land. Board of Appeals members found this information irrelevant to their decision.