Oneida County weighs closing boathouse permit loophole

Oneida County officials are considering changes to the county’s boathouse permitting process after discussing a potential loophole that could allow applicants to clear the shoreland area without ever constructing the boathouse that the permits are intended to authorize.

During a discussion at the June 10 zoning meeting, zoning staff described a recent inquiry from a property owner who wanted to know whether obtaining a boathouse permit could provide a legal way to excavate an area that otherwise could not be cleared.

The only thing was, the property owner wanted to do so without actually building the boathouse.

“I recently had a conversation with a property owner who apparently had contacted several tree services, and none of the tree services wanted to remove the stumps within their access and viewing corridor because it was going to damage their equipment due to the number of rocks in the area,” assistant zoning director Todd Troskey told the committee. “So, without my bringing it up, the person asked about applying for a boathouse permit and then not actually going through with construction of the boathouse.”

Troskey said he thinks he convinced the property owner to talk with other tree service companies, but he said it wasn’t the first time the matter had come up.

“I had a situation where someone had taken out a boathouse permit, and they never actually installed the boathouse,” he said. “In dealing with that complaint, I brought the situation to the committee, and at that time the determination was made that we don’t really have any enforcement capability in a situation like that, where somebody gets a boathouse permit, does the excavating, and does not actually go ahead with construction of the boathouse.”

And it would likely come up again, Troskey said.

“People are smart, and they look for these avenues,” he said. “I just wanted to bring it back to the committee and get your opinions on what would be reasonable for something like this.”

Supervisor Bob Almekinder said he thought it would come up more than occasionally.

“This is going to spread like wildfire,” Almekinder said. “Pretty soon, we’re going to have 35-foot flat spots all over the lakeshore. Once somebody takes out the permit, does the excavating, and then says, ‘I’m not building my boathouse because I can’t afford it,’ what are you going to do? Once word gets out that all you need is a $500 boathouse permit to clear and level the shoreline, this is going to become a problem.”

Zoning committee chairman Scott Holewinski said that if an applicant openly admits he has no intention of building the permitted structure, county officials should simply refuse the permit.

“My opinion is, if they tell you they’re taking out a boathouse permit, you deny the permit and have them go to the Board of Adjustment if that’s what they want to do,” Holewinski said. “They’re telling you, ‘I don’t want to build a boathouse. I just want to remove the stumps and all that.’ They’re just taking out the permit to get the excavation done.”

But Troskey questioned whether the existing ordinance provides a legal basis for such a denial.

“The only thing that I maybe have an issue with would be, what would I be denying the permit on in order for them to be able to appeal that denial of the permit?” he asked. “That’s the only concern I have.”

Mum’s the word

While it might be easy to deny a permit to someone who declares they have no intention of building a boathouse, not everyone would be so forthcoming, Almekinder said.

“If somebody takes out a boathouse permit and doesn’t say anything, but in the back of their mind they have no intention of building it, but they are just not saying it, then what?” he asked.

Troskey again raised the legal issue: “What’s in the ordinance that could be the basis for denial of that zoning permit application?”

Almekinder said the issue wasn’t denial in his scenario.

“If they take the permit out, do the excavating, and then never build it, is there some avenue where we can require them to restore the lakeshore?” he asked.

Based on conclusions when the matter came up about five years ago, Troskey said the determination was that the county wouldn’t have any way to do that, and Holewinski said it was bound to happen.

“If I wanted to take out a permit to cut the trees down, I’m only allowed to grind the stumps to the level,” he said. “But if I take out the boathouse permit, now I’m allowed to stump it and everything and prep it. So if they come in, we can’t stop them if they take out the permit, and they don’t say they’re going to do this, or they say, ‘Well, I ran out of money, and I can’t build it.’ That’s going to happen.”

Almekinder again said word would get out and that it would happen on a regular basis.

“How do we stop what somebody’s thinking?” Holewinski wondered.

The committee asked county corporation counsel Chad Lynch for guidance about whether existing law would permit officials to reject such applications before any excavation took place.

Lynch said there was a difference between applicants who openly admit they do not intend to construct a boathouse and those who remain silent.

“Regarding someone telling you they’re filling out an application based on false information, I think those false statements could provide a basis for denying the permit,” Lynch said. “Essentially, they are putting false information on a permit. As far as preventing this, if they don’t say anything, I don’t believe we can require them to prove they have the funds to complete the project. If something happens, I don’t see how we could enforce that if they never admitted their intentions.”

Holewinski acknowledged the practical difficulty the committee faced.

“So we can’t stop everybody when they figure out some little way to get around the ordinance,” he said. “We keep making more rules, but then we have to make more rules to cover those rules. If somebody comes out and says, ‘I want to take out that boathouse permit, but I’m not going to build the boathouse,’ that’s a legitimate reason not to give them the permit, isn’t it?”

Lynch said he thought so, but he would have to double-check.

“How many people are going to be dumb enough to actually say that?” Almekinder asked, to which several people replied, “Evidently one.”

Supervisor Billy Fried wondered if inspections might make a difference.

“Outside of this specific instance, I’d love, as a lake property owner, the opportunity to clear an area and have a nice flat thing, but I think we’re protected that if someone takes a boathouse permit, isn’t there a pre-admittal and a final inspection of them typically?”

Fried said the permit allows them to build a boathouse for a specific purpose: storing boats. 

“So if someone would go ahead and not actually end up building the structure and put a bunch of deck chairs or something out there, isn’t there still a leg for you to stand on?” he asked.

Holewinski replied that it was not about denying the permit, but about what to do after they take out the permit: “They cut the trees, stump it, excavate it, flatten it out, and they got a nice yard down to the water. They don’t put any structure in.”

And if they say they ran out of money after it was excavated, Almekinder said, what are you going to do?

Troskey said he was always looking at what his denial or what the issuance of citations would be based on per the ordinance: “In this case, the way I see it, there’s no avenue for me either to deny the permit or issue citations.”

Fried sought clarification: “So if you go there and it’s been excavated but isn’t being used as a boathouse, that’s not enough for a citation?”

“I don’t believe so,” Troskey said.

Fried suggested some type of financial assurance might solve the problem.

“Then are we looking at requiring them to post a bond guaranteeing they’ll build the boathouse before they do the excavation?” he asked. “Is that the answer?”

Holewinski said he thought it just might be.

The committee also briefly discussed permit timelines, observing that zoning permits require projects to substantially commence within prescribed periods and that proposed changes could extend those deadlines to three years.

Still, committee members conceded that commencement timelines alone would not resolve the issue if excavation occurs but construction does not follow. Ultimately, the committee decided that staff should investigate whether a bonding requirement or similar financial guarantee could be legally imposed as a condition of boathouse permits.

“I think staff should work with Chad, if it’s a possibility that a boathouse permit requires them to put up a bond to build a boathouse, that would resolve that situation and work with Chad on bringing us something,” Holewinski concluded the discussion.

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.