Ossipee — November 18, 2007 — A Superior Court judge has overturned the Freedom Zoning Board of Adjustment’s January approval of unlimited boat storage at Ossipee Lake Marina. In an order signed on November 15, Superior Court Judge Edward Fitzgerald ruled in favor of abutting property owner Kathleen Keenan’s appeal in the case, saying the special exception use the Zoning Board approved on January 23 was “substantially the same” as the use the Board denied in 2002.
The court ruling stems from marina owner Kevin Price’s application last year to eliminate limits imposed by the Zoning Board in 1997 when it authorized the Londonderry resident to store boats at the Broad Bay business. The limits restrict storage to 225 vessels inside designated buildings and no more than 10% additional vessels outdoors.
Those who were opposed to modifying the restrictions, including former members of the Zoning Board, said Price willingly accepted the limits in exchange for approval to store boats on the property. They also pointed out that the Board had already ruled that additional boat storage at the site would have an adverse impact to the surrounding area when it denied Price’s 2002 application to build new storage sheds.
Keenan’s attorney argued that there was no material difference between additional boats stored in new sheds and additional boats stored behind a fence, and the court agreed. In striking down the Zoning Board decision, Fitzgerald wrote that “the ZBA’s determination that the applications were different was unreasonable.”
Three Hearings Held
The Zoning Board’s approval of expanded marina operations came after three public hearings were held. In addition to citing the town’s previous zoning rulings on the storage issue, those opposed to the plan raised issues about environmental impact and fire danger. Town Fire Chief Gene Dow declined to attend any of the hearings to address residents’ concerns, but later submitted a letter to the Board approving the plan with several contingencies.
Speaking at the second hearing, Price argued that he was being “economically hung” by the 1997 limits. Asked at a previous meeting why he was requesting a zoning change in Freedom after Ossipee granted him a variance to store boats on a 10-acre parcel on Route 16, marina worker Tim Cupka told the Board it was “too expensive” to store more boats in Ossipee.
After the Board voted 3-1 that Price’s plan would have no adverse impact to the surrounding area, the vice-chairman of the 1997 Board, Donald Bossi, wrote a public letter calling it “one of the worst decisions I have ever seen,” adding that the ruling would allow the marina to store boats “without any thought about fire, vehicle access or neighborhood economic and environmental impact.”
The latest court ruling is part of a long line of issues surrounding town officials’ handling of zoning violations at the business. Between July 2005 and January 2006 the town’s Selectmen issued a series of decisions that former Zoning Board members said undermined the intent of their 1997 and 2002 rulings.
After the town’s Code Enforcement Officer, Ned Hatfield, sent a memo to the Selectmen in January 2006 reporting there were more than 100 boats stored outside the storage buildings, the Selectmen ruled that the business was in compliance with the limit of 23 outdoor boats because all but 23 were owned by the marina’s customers, not the business.
That decision and several others like it prompted former Zoning Board members William Stoops and Frank Seabury to issue a public letter saying “the Selectmen appear to have unilaterally overruled ZBA decisions that were lawfully derived through a fair process supported by a majority of the public and validated by a State Superior Court judge.”
Two months later, at the March 20 Selectmen’s meeting, the Selectmen withdrew their controversial rulings and read a letter from Town Counsel Peter Malia saying the marina must comply with the Zoning Board’s 1997 and 2003 decisions, including not using Alvino Road or Lot 42 and staying within the outdoor boat storage limit.
Notwithstanding Town Counsel’s letter, violations at the marina have continued. According to the Carroll County Independent, the town fined Price $275 in August after Code Enforcement Officer Hatfield reported that he was using Alvino Road. In a letter to Price, Hatfield wrote that “this is a repeat offense and future use of these facilities will be considered as a separate violation for each boat or vehicle and an appropriate fine will be assessed for each occurrence.”
Price appeared at the August 20 Selectmen’s meeting with a check but said he was paying the fine “under protest,” prompting the Selectmen to agree not to cash it until his concerns were resolved. Since then, area residents report the marina has continued to use Alvino Road and Lot 42.
What’s the world coming to when a business owner can’t put his employees on the zoning board so they can overturn their own town’s ordinances to allow him to break the law? Clearly he’s being “economically hung” by these decisions. It’s obvious that he’s barely scraping by, in both his old and new locations, and that if he isn’t allowed to expand without limit — without regard to the law, safety, and everyone else in the vicinity — he’ll go broke. That’s why he has so many boats. In two locations. Because he’s on the verge of going out of business. Clearly.