A few months after Rockingham County Supreme Court Judge Tina Nadeau ruled it an illegally built structure, a three-car garage still stands at 2 Woodvue Road in Windham.

That’s because the property owners, Andrew and Christine Lane, are appealing the decision.

“There is no court order to tear it down and hopefully never will be. But worst case, we would probably just have to move it at the town’s expense since it was the town’s permits that allowed us to build it in its current location and obtain a certificate of occupancy,” Lane said. “Under the circumstances, it is questionable whether the town would consider it in their best interests to pursue such an order.”

The Lanes initially bought two contiguous lots that were consolidated into one large one because of the sewer location. To build the garage, the Lanes had to get a waiver from the town’s building inspector, who at the time said a culvert was not classified as a stream.

The culvert runs under Woodvue Road, displacing water in a small wetland area on one side of the road to the other into an area next to their property, which borders Canobie Lake.

The Lanes obtained a permit to build the garage in November 2003, but construction was delayed until December 2005, when the foundation was poured, because part of the plans overlapped the buffer zone with the lake’s edge.

The Lanes later changed the building plans and positioned the garage, which is completely separate from the house, so the front of it was perpendicular with Woodvue Road rather than parallel.

In May 2007, the Zoning Board of Adjustment granted the Lanes an equitable waiver, saying the building inspector who granted them the building permit did so under the erroneous thinking that the culvert wasn’t a stream, and therefore not protected by the Windham Water Shed Protection District.

The ruling Nadeau handed down on Jan. 31 of this year says otherwise, not only classifying the culvert as a stream that drains into Canobie Lake but stating the variance the Lane’s got to build the garage was the wrong type, and as such is not legally binding.

Al Letizio Jr., one of the opponents of the Lanes’ garage, said the placement of the garage violates the Windham Water Shed Protection District, which requires a 100-foot setback between buildings and water sheds.

Letizio lives at 5 Woodvue Road, diagonally across from the Lanes, and said it’s not a personal issue but one of property values, as the garage in an odd spot and painted a different hue than the house, he said.

Letizio added the structure stands two stories high and has picture windows facing the lake. “It’s pretending to be a garage,” Letizio said, adding the angle of the driveway to the garage would prevent someone from successfully parking inside it.

Christine Lane disagreed, and said while the garage is not currently in use, it will be used for storage purposes.

The Lanes didn’t receive a certificate of completion on the project until the end of September 2007, preventing them from using the garage or turning the power on for about two years after the garage was actually completed. Andrew Lane said he feels environmental laws are being manipulated in the case against him and his wife.

The equitable waiver granted by the Zoning Board states that the violation was an innocent mistake and further that correcting it would be far too costly. “The cost of correction far outweighs any public benefit, and it would be unfair to require the violation be corrected,” the zoning decision reads.

It also says the garage poses no private or public nuisance and is not threatening property values. The contention goes back years, with problems erupting after the Lanes put a tennis court on their property.

The state Department of Environmental Services investigated that, and decided the Lanes were not in violation of the Shoreline Protection Act.

When Letizio filed his own application to the Zoning Board to put an addition on his own home, the Lanes contested it at a public meeting to prove a point, Christine Lane admitted.