A Chappaquiddick property owner’s long-running bid to build a boardwalk over a salt marsh near Cape Pogue Pond has been sent back once again to the Edgartown conservation commission by the Massachusetts Court of Appeals.
In a memorandum decision issued earlier this month, a three-judge appellate panel scolded the commission for failing to back up its conclusion that the walkway sought by Theodore Roosevelt 4th would violate a town bylaw designed to protect historic or natural views.
The decision reverses a superior court ruling issued in October 2015 that had upheld the conservation commission’s decision to deny the boardwalk.
The dispute between Mr. Roosevelt, a seasonal homeowner on Chappy, and the conservation commission dates to 2009 when he built a 141-foot walkway across the marsh without first obtaining approval from the conservation commission.
He later applied for permission to replace the unpermitted boardwalk with a 170-foot elevated walkway across the marshland. That plan was denied in July 2014 and an enforcement order was issued to remove the illegal boardwalk. Conservation officials confirmed last year that the original boardwalk had been removed.
In its Dec. 5 decision, the appeals court noted that the conservation commission’s action relied on a town bylaw that imposes tougher standards than the state Wetlands Protection Act. The bylaw cites two additional interests the town seeks to protect: recreation and preservation of historic or natural views and vistas.
But the court said the commission’s findings contained a “startling absence of evidentiary support” that the walkway would be visible to the public and, even if it were, that it would cause any harm.
The case was sent back to the conservation commission for further proceedings consistent with the appeals court decision.
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