EASTHAM — Eastham is the only town on Cape Cod that prohibits the use of pressure-treated wood in marine environments under its wetlands protection bylaws. But according to an environmental attorney who is currently battling the town’s conservation commission on behalf of a local builder, the bylaw is illegal because it conflicts with the Mass. building code.

The debate arose when a new house overlooking Cape Cod Bay at 345 Harmes Way was found to be sitting on 22 foundation pilings made of pressure-treated wood. Construction of the house has been completed, and owners Gary and Jan Ross of Oakland, N.J. have their occupancy permit.

What the project lacks, however, is a certificate of compliance from the conservation commission; such a certificate is issued when all the conditions specified in a project’s wetlands permit have been met.

The Eastham Conservation Commission served local builder Tim Klink, president of Coastal Companies, with a wetlands bylaw violation notice and an accompanying enforcement order last November related to the foundation pilings he used at the Rosses’ house. The commission said it had received a letter of complaint regarding Klink’s use of pressure-treated wood.

Klink was ordered to come up with a handful of measures he could take to remedy the violation, and one of those options, said commission chair Karen Strauss, should be replacement of all the pilings. Klink was given until Feb. 27 to prepare his response. The commission also ordered Klink to provide receipts related to the pilings that would clarify what the wood was treated with.

Klink, who supplied the commission with a letter about the wood from his project engineer, argued that the pilings did not violate the bylaw. If they had, he said, he wouldn’t have used them.

“I’ve said it all along: why would I risk 24 years and the reputation of my firm to do that?” Klink said in a phone interview. “Come on. That’s ridiculous.” He took the position that he did not need to provide the documentation and options for remedies the commission has asked for.

Klink hired Boston attorney Glenn Wood to represent him and Tetra Tech, an engineering firm, to test the pilings and the area surrounding them.

Town Manager Jacqueline Beebe meanwhile asked attorney Alexander Weisheit of KP Law, the firm that represents the town, to look into the legality of the town’s wetlands bylaw related to pressure-treated wood. In his emailed response, Weisheit said that, while the conservation commission can enact regulations and bylaws that are more stringent than those in the state’s Wetlands Protection Act, “such regulations may not directly conflict with otherwise applicable state laws.”

“In my opinion, the application of the commission’s regulations to prohibit the use of [pressure treated wood] could be subject to legal challenge as preempted by the Code,” Weisheit wrote, referring to the state building code.

Wiesheit added that it was also his opinion that the commission should consider amending its regulations to say that “it had a strong preference” for non-pressure-treated wood and to back that up with a scientific study.

During a tense discussion at the March 12 meeting of the conservation commission, Klink’s attorney told the commissioners to “stand down,” rescind the enforcement order, and grant a certificate of compliance for 345 Harmes Way at its next meeting.

“You’ve been told by town counsel at least twice,” Wood said. “The commission has no jurisdiction over pressure-treated wood. It is utterly preempted by the state building code, so your interest in enforcement is completely illegal and therefore a baseless inquiry.”

Strauss did not agree. “Whether the regulation is legal or not, it’s still a matter we are investigating and reviewing, and it is not something we are prepared to discuss without our counsel,” she said.

Strauss said the email laying out the opinion from Wood’s law firm that the state building code preempts the local wetlands law arrived the same day as the commission’s meeting, so members did not have adequate time to review it.

In one exchange, Conservation Agent Alex Bates and Strauss discussed the possibility of the town taking its own samples of the wood pilings to determine their composition since they had not received the documents they had requested from Klink.

“Your enforcement orders are moot and unenforceable; therefore, we are not forwarding any information on pressure-treated wood, and we are not giving access to the property,” Wood said.

The attorney also cited a request for a minor project change that Klink submitted in June 2021. The submission included a first floor and framing plan for 345 Harmes Way that indicated that pressure-treated pine pilings would be used.

Bates, who only recently became the town’s conservation agent, said that he would look back through the records because he did not recall the pilings being mentioned in that change request. “That doesn’t even matter,” Wood responded, “because, again, you have no jurisdiction over pressure-treated wood.”

Strauss’s fellow commissioners did not participate in the discussion with Wood, although the chair asked at one point if anyone else would like to speak. There was no discussion of next steps, with Strauss simply saying the commission would “move on” to the next matter on the agenda.

Strauss declined to speak with the Independent about this story, as did Hillary Greenberg-Lemos, Eastham Director of Health and Environment, likely because the case appears to be headed toward litigation.

While the town’s attorney and town hall staff can weigh in on the debate over the legality of the town’s prohibition of pressure-treated wood, the conservation commission, which enacted the wetlands bylaws, will make its own decision.

“If they make a decision that’s illegal,” said Klink, “then we have no choice but to sue the town.”

Further discussion of 345 Harmes Way was not part of the commission’s subsequent meeting on March 26. But a house at 1 Nycoma Way, the subject of a similar complaint over the use of pressure-treated foundation pilings, was on that meeting’s agenda.

The pilings in the new case were also installed by Klink’s company. In his update, Bates said that the complaint is being kept “off to the side” while the commission works through the Harmes Way case.