Bluffs Association vs. Donald Lee

Bluffs Association vs. Lee This case began in 1988 and remains active. The legal focus is the enforcement of state environmental laws as they pertain to the intentional alteration of flow of the Lovell River, causing the huge sandbar shown at the left. The following article is from the winter 2007 issue of Ossipee Lake Report. Type “Bluffs Association” in the search box to the right for the most recent news stories.

Lee Case Verdict Years in the Making

Ossipee — January 1, 2007 — After a Superior Court judge ruled in favor of the Bluffs Association in its lawsuit against neighboring property owner Donald Lee, the group’s victory celebration was sweet but low-key. As the members of this property owners association in the northwest quadrant of the big lake know all too well, the decision requiring Lee to remediate the environmental damage he caused to the lake is a milestone in a process rather than the end of the story.

It is a story that is now in its 19th year – a period of time that underscores the personal sacrifices and financial costs that are required to confront a determined environmental violator. Documents from the Superior Court trial show that Lee began tampering with the flow of the Lovell River in 1988 when he constructed a breakwater consisting of 300 concrete blocks buttressed and backfilled with 108 cubic yards of sand and gravel. Running along the southern bank of the Lovell River, where Lee owns two lakefront lots, the wall extended some 50 ft. into the lake.

When it was finished, Lee applied for a retroactive permit from what was then known as the Wetlands Board, now part of the N.H. Department of Environmental Services (DES). As part of his filing with the agency, Lee included a sketch accompanied by a statement telling officials that the intended result of the wall was the formation of a natural point of land within two or three years. After reviewing the application and visiting the site, the state rejected his application in June 1989 and ordered him to tear down the structure and remove the sand.

Back on the lake in August to check on progress, state inspectors reported that much of the wall appeared to have been dismantled and the concrete blocks were stacked on the shore above the high water mark. Sensing compliance, the agency decided not to impose a fine. Instead, it sent Lee a letter warning that any future work in the lake would require a state permit.

An Altered Landscape

Time passed and bit by bit the wall began to return. Residents of the adjacent 110-family Bluffs Association observed that what Lee had predicted would happen was in fact happening: a point of land was forming in the lake. They called DES, and state agents returned to the site in July 1994 to find a vastly altered landscape.

What had been a traditional fan-shaped delta at the terminus of the Lovell River had become a huge sandbar extending far into the lake and curving north to form a distinctive hook. Faced with this man-made impediment, the river had changed course. Instead of distributing its flow evenly in a delta as it entered the lake, the river was now dumping its spoils directly into the Bluffs Association’s beach and boat basin, which was starting to fill up.

That fall, DES wrote a letter to Lee saying his response to the agency’s previous directive was insufficient, and it again demanded that he remove the wall and accumulated sand. In a November 1995 follow-up inspection, however, state officials found no evidence of compliance. Six years after the first report of the violation, the agency was forced to concede that Donald Lee had continued to build walls and his walls had materially changed Ossipee Lake.

Financial Strains

Faced with a growing threat to its property and keenly aware of the complexities of environmental law, the Bluffs Association prepared for a protracted battle. Leisure time on the lake was replaced by hours of work, and for one long-time Bluffs resident the commitment included a three-month leave of absence from his job.

“It was the only way the basic research could be done,” says Association officer Kent Robards, who spent the time rooting through files in Concord. “I promised my family that I would see this though so that one day my grandchildren could enjoy Bradford Cove the way it was before it was destroyed.”

The question remained, however: was the damage being caused solely by the breakwaters or could a case be made that some of the damage was from natural causes as Lee claimed? It was a question only a team of environmental specialists could answer, and ground-penetrating radar reports, aerial photos and bathymetric surveys began to accumulate like the debris from the river that continued to fill the Association’s swimming hole.

Hanging over the process was the issue of money. Association members were used to paying annual dues for essential expenses like road repairs, but now they were being asked to cover thousands of dollars in additional costs with no clear idea of the outcome or the final bill. In a neighborhood saddled with high local taxes where more than half the residents are retired, the pain of the additional debt was palpable according to Bluffs Association president Steve Foley. Still, the neighborhood stuck together and pressed ahead.

The Building Continues

As 1999 came to a close and the country celebrated the new millennium, Lee continued to build breakwaters without permits. DES documented two new walls in May 2001 including a 70-ft. behemoth made of concrete and stone. The agency responded with a Letter of Deficiency, a missive mandating that he remove the structure by October 15 and document the process in photographs. Lee ignored the letter and 2001 passed into 2002.

Plainly as exasperated as the members of the Bluffs Association, DES followed up with a stronger directive in April 2002. In an Administrative Order it set a deadline for Lee to remove the walls by June 1st and hire a hydrologist to create a restoration plan. Lee appealed, and another summer passed.

DES heard the appeal in December 2002 and rejected it in June 2003, following up with another letter to Lee reiterating the terms of the Administrative Order requiring him to remove the wall and hire a hydrologist. This time, however, the state added several additional requirements, including paying the hydrologist to monitor the site for five years and removing enough material from the sandbar to re-establish the river’s original flow. The agency set a deadline for having a sand removal plan in place before the 2003 lake drawdown.

In November 2003 Lee sent a letter to DES agreeing to comply, but he never did. The wall remained, the hydrologist was never hired and the plan to breech the sandbar never materialized. It was the final straw. The officers of the Bluffs Association filed suit against Donald Lee in Superior Court. Right behind them at the courthouse was the New Hampshire Attorney General’s office with a similar filing on behalf of DES.

The Trial

During the four-day trial Lee admitted to the court that he had built, dismantled and re-built numerous breakwaters on the lake and that he had failed to comply with the state’s 2003 Administrative Order to tear down the walls, hire a hydrologist and breech the sandbar. He also conceded that his walls had contributed to the environmental damage in Bradford Cove, but he objected to being held accountable for all of it. Some of the debris, he said, was the result of shoreline erosion and other natural processes. In addition, he established that the Bluffs’ boat basin had historically required periodic dredging.

Lee, whose permanent residence is Beverly, Massachusetts, told the court he had spent 48 years at the lakeside vacation property his father purchased decades ago. He called the Bluffs Association a well-financed bully that had defamed him.

On September 27, 2006 Judge James O’Neill ruled in favor of the Association and directed Lee to remove the sandbar and re-establish the original flow of the Lovell River. If implemented, it will be the largest-ever environmental remediation on Ossipee Lake and could cost close to $1 million. Lee did not appeal the verdict.

Next Steps

When Donald Lee was first cited for changing the flow of the Lovell River, Ronald Reagan was president and “Die Hard” was playing in local movie theatres. Nineteen years later the damage remains but Bluffs Association spokesman Foley is optimistic, saying his organization is working closely with DES to ensure Lee’s compliance.

As always, however, money continues to hover over the process. Foley says his organization has already spent more than $200,000 in research and legal expenses and he expects there will be more bills, including one to dredge Bradford Cove once the river returns to its natural flow.

As for Lee, who says he is financially strapped, he faces a new trial in the spring against the State Attorney General’s office. A loss in that trial could subject him to fines of up to $10,000 a day for the period of time during which he ignored the state’s Administrative Order.

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