ConCom Facing Lawsuit Over Enforcement Order

By: William F. Galvin


HARWICH – The conservation commission will be doing battle in court over an enforcement order issued this past summer relating to an addition it estimates to be nine feet from a wetland. The commission issued the enforcement order after the work was done without a building permit.

Conservation Administrator Amy Usowski said she was busy this past week preparing documents for the suit filed by the property owners in Barnstable Superior Court challenging the enforcement order issued under the town’s Wetland Protection Bylaw.

The property is located at 30/24 Lothrop Rd., down a dirt road, in the Herring River watershed. It is owned by Jeffrey A. King and James M. Kelly. The property owners constructed a 10-by-12-foot addition to the cottage and an 8.5-by-32-foot porch along the edge of a wetland without a building permit.

The notice the commission sent to the property owners stated, “the commission found that this activity was in direct violation…of the No Disturb Zone of the bylaw, which states ‘No substantial activity, that will result in building within or upon, filling, removing or altering of the land, shall be permitted, with the following exceptions; maintenance of an existing permitted structure; (or) an activity that has been expressly allowed by a variance from the conservation commission.”

“This work that was completed was not maintenance of an existing structure, it was new construction. This work was completed without a permit, and thus never granted a variance,” Usowski told The Chronicle.

The complaint filed on behalf of the property owners by Centerville-based attorney Paul Revere III states the property was developed with a single-family residence and a connected cottage under an order of conditions issued by the commission in 1985. In that order of conditions a wetland delineation cited the cottage as being located no closer than 41 feet to the nearest wetland.

The complaint states the approved cottage was rectangular with dimensions of 30 feet in length and 20 feet in width. The 20-foot width was fairly parallel to the edge of the wetland and the approved design included a retaining wall which extended closer to the wetland than the building.

“For reasons which are unclear, the cottage which was actually constructed did not cover the whole 20-by-30-foot approved footprint, but rather a 10-by-12-foot portion located on the southwest corner was never constructed,” the complaint states.

King and Kelly purchased the property in 2013 and in 2016 began construction of the 10-by-12-foot addition to the cottage in the footprint area of the previously approved 20-by-30-foot cottage.

The complaint states the wetland in question is an isolated patch of phragmite grasses within the lawn and does not meet minimum size to be regulated as a wetland. It further states there is no basis for the conclusion that the construction of the addition or the porch is within 50 feet of a salt marsh, the no-build buffer zone specified in the town bylaw, or that the construction altered any wetland.

The complaint also charges the commission does not have the authority to prohibit the plaintiffs from submitting an after-the-fact notice of intent under the bylaw.

The suit charges the issuance of the enforcement order was a violation of constitutional provisions, in excess of the commission’s authority and based on an error of law. It seeks remand back to the commission, providing attorney costs, and any other relief the court deems necessary.