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DES alleges Wakefield board member broke wetlands rules

February 11, 2010
WAKEFIELD — The New Hampshire Department of Environmental Services (DES) has cited a Conservation Commission member with doing landscaping on a property on Great East Lake that may not be in compliance with the state's wetlands and shoreline laws.

Independent contractor, Relf Fogg, who is a conservation commission member, performed landscaping work for a property owner on Doc Morrison Road, who was also having a home built.

In a Letter of Deficiency dated Dec.1, 2009, Jeffrey Blecharczyk, of the DES Wetlands Bureau, wrote to the homeowner and Fogg that DES personnel observed several deficiencies in regards to compliance with RSA 483-B (Comprehensive Shoreline Protection Act) and RSA 482-A (fill and dredge wetlands). DES conducted an inspection of the property on Oct. 30.

The deficiencies alleged by DES are as follows:

— Approximately 314 linear feet of stone retaining wall was constructed in the bed and banks of Great East Lake without a permit or approval from the DES Wetlands Bureau.

— Two beaches, one sloped measuring approximately 31 feet by 15 feet, on perched measuring approximately 26 feet by 13 feet located behind a retaining wall were expanded and or constructed without a permit or approval from the DES Wetlands Bureau.

— An impervious patio with fire pit was constructed on the property extending within 20 feet of the reference line (full pond elevation).

— Impervious walkways were constructed in excess of the allowable six-foot width.

— On or about June 5, 2009, DES received a complaint that multiple docking structures were installed on the property. DES has no record of any permits for docking structures on the property.

On Tuesday, Blecharczyk stressed in a phone interview that DES is in fact-finding mode and no decisions have been made in this case and DES is working with all the parties involved to find a resolution. Deficiencies regarding the retaining walls and beaches pertain to the Wetlands Act and deficiencies regarding patios and walkways involve the Shoreline Protection Act, said Blecharczyk.

Fogg was given 60 days to file a response — and he did, said Blecharczyk. Fogg did the landscaping as an independent contractor and not in his capacity as a conservation commission member.

In an interview, Fogg said he was under the impression that what he was doing would be allowed based on conversations he had with town officials and members of the Acton Wakefield Watersheds Alliance.

Fogg also said the work actually improves the land environmentally and will solve preexisting erosion problems. However, Fogg said he should have verified with the state that the job he was doing would comply with state laws.

"I'm the guy doing the work," said Fogg. "All the responsibility falls squarely on my shoulders. If I'm not in compliance I'm willing to get in compliance without a fight."

In August, Fogg wrote Blecharczyk an e-mail explaining his efforts to ensure his work would meet state requirements. In July, Blecharczyk had written Fogg to notify him that DES received a complaint about possible violations on the property.

"I had confidence in that direction because of the numerous public meetings with town officials and an established town-subsidized entity called the Acton Wakefield Watersheds Alliance, at which Linda Schier, its Director, and Adam Shoukimas, its technical director, would often state that property owners are allowed to do certain property enhancements methods without permits under certain conditions using specific practices, and that information seemed to logically apply to my approach at Doc Morrison Road," wrote Fogg to DES. "This belief was fortified by the experience of sitting on Wakefield's Conservation Commission and witnessing correspondence back and fourth between AWWA and the State of New Hampshire DES, in which, indeed no permits were necessary on projects much more intrusive along shoreline areas and wetlands than my project appeared to be to me."

Further, Fogg wrote that the town's building inspector and shoreline compliance officer visited the jobsite a total of five times and they saw no violations.

Code Enforcement Officer Arthur Capello confirmed that Fogg's work began prior to enactment of the latest version of the Shoreline Protection Act in April of 2008. The town issued a building permit for the house on the property (which assumes landscaping will be done) on March 3, 2008.

Capello said he couldn't say if the amount of work that Fogg did after the house was built exceeded the amount that would be grandfathered under the existing building permit.

Efforts to reach the homeowner or his attorney, Anthony Turco, of Danvers, Mass., were unsuccessful by this week's deadline.

Martin Lord Osman
Brewster Academy
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