China board denies appeal over shoreland wall

by Mary Grow

By a 3-2 vote the China Board of Appeals has upheld Codes Officer Bill Butler’s denial of Brent and Cathy Chesley’s application for a permit to build what documents call a retaining wall along the shore of China Lake.

The Chesleys and their attorney, David Pierson of Eaton Peabody, told board members at their Aug. 27 hearing that run-off from the property is seeping through the rip-rap that currently is supposed to prevent run-off into the lake. As a remedy, the Chesleys had engineer A. E. Hodsdon, of Waterville, design a wall with steel sheet plates, concrete facing and granite blocks. Written testimony submitted by an abutter says the wall would be 34 feet long.

Brent Chesley is co-owner of a construction firm capable of building the structure. He provided details about materials and construction, which was planned to be done after the water level is lowered in the fall.

The state Department of Environmental Protection issued a Natural Resources Protection Act permit for the wall. One requirement of the NRPA permit is that the project meet all applicable local requirements.

Butler denied an application for a local permit, saying he lacked authority to issue it and the Chesleys needed to apply to the planning board. He also told the board of appeals he believes state regulators made an error when they issued the NRPA permit. During his 24 years as a DEP employee, he reviewed a lot of retaining walls, he said.

The principal arguments were over how the wall should be defined in relation to China’s land use ordinance, and what ordinance section or sections applied to the project. The answers the board majority reached determined that a planning board permit is needed.

Related arguments were over how high the wall is – the Chesleys said seven feet, Butler said nine feet – and whether it is below China Lake’s high-water mark. Butler’s nine feet include granite footings that are below the water level.

If the wall is defined as a permanent breakwater projecting into the water, as Butler argued, it needs a planning board permit.

Attorney Pierson called the project “shoreline stabilization.” China’s ordinance does not regulate shoreline stabilization, he said, so the state permit is all that is needed.

After an hour and a half of discussion, board member Virginia Davis summarized her view: the structure should be defined as a breakwater, because retaining walls are not allowed within 25 feet of water bodies; as a breakwater, its footings extend below the normal high-water line; therefore China’s ordinance requires a planning board permit.

Davis then made a motion to deny the appeal, because the codes officer was correct in saying that he lacked authority to issue the permit. The motion was approved with Davis, Lisa Kane and Anthony Pileggi in favor and Robert Fischer and new member Jeffrey LaVerdiere opposed. Michael Gee was absent, and Chairman Spencer Aitel abstained, as he habitually does unless his vote is needed to break a tie.

Aitel said the board of appeals decision did not require planning board action. The Chesleys can decide whether to seek a permit from the planning board. Their other option, he said, is to appeal the board of appeals’ decision to Superior Court.