The Edgartown conservation commission recently prevailed in a long-running legal dispute with a Chappaquiddick property owner over whether he could build a boardwalk over a salt marsh bordering Cape Pogue Pond.
Theodore Roosevelt 4th had sued the commission, challenging its denial of his plan to build a 169-foot elevated boardwalk across the marshland. The case dates to 2009, when Mr. Roosevelt, a seasonal homeowner on Chappy, built a 141-foot walkway across the marsh without obtaining approval from the conservation commission.
Subsequently he applied for permission to replace the unpermitted boardwalk with a 170-foot elevated walkway across the marshland. In July 2014 the plan was denied and an enforcement order was issued to remove the illegal boardwalk, court records show.
The conservation commission administers two wetlands bylaws: the state wetlands protection bylaw and also a town wetlands bylaw which is more stringent than the state law. Mr. Roosevelt appealed the denial to the state department of environmental protection, which administers the state wetlands bylaw, and the superior court, which is the avenue of appeal for the town wetlands bylaw.
The state DEP overruled the conservation commission and issued a superseding order, but this year the superior court upheld the commission after first remanding the case back to the board for more detailed fact finding.
The final ruling was issued late last month.
Without approval on both fronts, the project could not go forward.
Edgartown conservation commission agent Jane Varkonda said the unpermitted boardwalk has since been removed. “There is nothing out there now,” she said.
She also noted that the conservation commission sometimes allows boardwalks across marshland if the property owner has no other way to reach the beach. “The commission will at least take that into consideration,” she said. “But the Roosevelts have an ability to get to the beach without going across the salt marsh.”
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