Our Shed and Gazebo

Notice of Violation on permits that are 4 years old, why now??

Below is a summary of the administrative appeal to the CEO’s decision to issue a notice of violation.

SUMMARY ADMINISTRATIVE APPEALS LETTER – 296 WADLEIGH POND RD. STRUCTURES

We purchased our property in 2019 with an old shed and gazebo both of which had been on the property for ~25 years.  These structures only became an issue when a dispute with the neighbors (John & Linda Houy) arose over them placing a large amount of fill by the roadside and waterfront which diverted a significant amount of storm water onto our property causing flooding and erosion.  In an attempt to cover up what they did and keep us quiet, they accused us of placing fill under our shed, producing a dump truck picture they kept on file for over a year and a half (taken while we were friendly) until an opportunity presented itself.  When that complaint was investigated and disproven, they then focused on the proximity of our new shed to the lake (the location which was suggested by Linda Houy).  The reason for targeting the shed is because it is also used as a playhouse for our son besides storage (making this personal).  Only when the Houy attorney reached out to DEP did our gazebo become an issue as well. 

This newly cited “violation” by the current CEO, is not because of an environmental concern over these smaller structures (8×10) that have been present for ~ four years now.

The information listed below will explain the reasons for vested rights for these structures.

1. In a letter dated September 28, 2020, the Town of Lyman through its Code Enforcement Officer (CEO) informed us that we had earned vested rights on the placement of our shed.  The CEO extensively researched our property and the placement of our shed.  For example, she even contacted the Land Surveyor who prepared the 2018 Boundary Survey, which we presented along with our permit application, and confirmed the accuracy of our measurements.  She summarized her research in the letter and deemed the placement of the shed vested and informed us that no further action would take place.

The replacement of the shed and gazebo were permitted on April 29, 2019 and received final approval 8/14/19.  There was a 30-day appeal period associated with that permit.  There were no timely appeals to that permit.  The Town would be seeking to invalidate a building permit more than four years after the appeal period.  Due to these facts alone, the shed and gazebo’s placement lawfully vested. 

The letter from the CEO is over three years old.  All appeal periods have lapsed.  The notice of violation is untimely and moot.

2. With respect to the shed:  The Lyman Shoreland Zoning Ordinance states that “There are provisions for allowing an 80 square foot shed within the buffer zone with a permit from the code enforcement office”, which we have.

3. After the Houys complained about our shed, the CEO did several on-site inspections and admitted that she erred in not asking for a site plan (greatest practical extent) when discussing the relocation of the shed closer to the pond.  Given that this was not common practice, if the Town wants to implement new protocols prior to granting permits that should be done moving forward, not retroactive to our permit.

4. The Town will likely be equitably estopped from requiring us to remove the shed and the gazebo, (we relied on a permit issued by the Town CEO and expended a considerable sum of money on construction costs based on such reliance.  We had no reason to suspect that re-building the shed and gazebo were unlawful and we thought we had taken all the appropriate steps by applying for a permit and abiding by the instruction of the CEO) (Exhibit 11).  In addition, after receipt of an untimely complaint, the CEO informed us that no action would be taken. 

5. The shed and gazebo are moveable structures (on blocks, not a concrete foundation) as marked in the mortgage survey (12/28/18) attached to our permit application (Exhibit 3) and cause very minimal, if any, disruption to the environment. Unlike the Houys recent garage “loft storage” addition, which was permitted and involved excavation and placement of a new concrete foundation within 50ft. of the pond.  If our shed and gazebo are such serious violations (we are being threatened with possible fines up to $2500 per violation per day), how could the Houys have received a building permit afterwards?

6. Historic photographic evidence supports “vested rights” of our shed and gazebo since they pre-existed shoreland zoning ordinances. 

Our gazebo

 The Town and Mr. Kalinich from the DEP have previously accepted this exact picture as evidence to grant our neighbor’s docks grandfather status. We are just asking for the same status for our gazebo which can be seen behind the water skier. 

Our shed

The left picture was an exhibit submitted as discovery by the Houys in our Small Claims Court case against them to attempt to prove that their T-shaped dock was present before Lyman adopted SZO. A historic shed on our property also appears in the picture and is where our current shed sits today.

7. The abutters are not affected by these structures.  The old run down gazebo and shed were present when the Houys purchased their property in 2010 until we replaced them in 2019.  In addition, the Houys wrote a letter to us in 11/9/20 stating that “the shed and gazebo did not bother us, in fact they looked very nice”.

8. Why is the Town/DEP so focused on our structures? The Town/DEP should help it’s residents navigate the many rules, not actively try to invalidate permits.

  • The Town/DEP has gone back about 25 years in the file to try to find something that they can use against us.
  • They are scrutinizing our building permit application looking for anything that might “…be favorable to the Town’s position”. For example, arguing the definition of the word “gazebo” or the type of building permit selected (replacement vs. new).
  • Apparently we made a post-permit modification to our shed: we were accused of attaching a porch. As you can see from the picture, this is not an attached porch, but a step/platform, used to get in and out of the shed.

In conclusion, we feel that we have earned vested rights on both structures.  We relied on the permits issued by the then CEO that we obtained in good faith and spent a considerable amount of money replacing those historic structures.  The ordinances are in place to protect the shoreland, these small, moveable structures have minimal, if any, effect on the environment or anyone else. 

The message the Town/DEP is giving regarding permitting.

  1. If you receive a permit, many years later, the Town/DEP can scrutinize your application and issue a violation if a neighbor makes a complaint. If you fail to comply, you may be threatened with fines and having your property marketability effected;
  2. If you don’t get a permit, depending on who you are, the Town/DEP will either ignore the violation or aid you in skirting around the ordinances (as they have done with the neighbors in grandfathering their boat docks and discussing issuing a permit by rule for their excavation and concrete fill for their garage addition);
  3. Is the Town now going to retroactively evaluate all past permitted structures? Will this later extend to other permit types in the Town?