Lake Legal Cases Grind On

Is there an end in sight for the lake’s long-running court cases? Recent legal filings show there is movement, at least. In an April 11 Superior Court order, Judge James D. O’Neill gave environmental violator Donald R. Lee Sr. 60 days to present DES with a plan to remediate the damage he caused to Ossipee Lake by repeatedly altering the course of the Lovell River.

The judge’s order is in response to a Motion for Contempt filed against Lee by The Bluffs Association a year ago. The lake group charged that the Massachusetts resident was purposely dragging his feet in complying with the court’s September 2006 order to “forthwith” hire an engineer and produce a plan and timetable to remove tons of debris from Bradford Cove and restore the natural flow of the Lovell River into the lake.

Court records show that one month after the 2006 ruling Lee filed a motion to delay the judge’s order, and then submitted a proposal to DES in May 2007 that the State Attorney General said was not approvable because it “did not include plans or an adequate description of activity proposed.”

Judge Picks the Plan
After the Attorney General’s ruling, Lee’s attorney submitted a motion to compel DES to develop the remediation plan instead of his client. That prompted DES to file as an intervener in the case, saying it objected because the agency was not a party to the initial action and Judge O’Neill had, in any event, instructed Lee to provide the plan.

In his new order, O’Neill denied Lee’s motion to compel DES to create the remediation plan and instructed him to proceed “forthwith” with the “preferred alternative” plan that experts in the 2006 trial agreed was “the most reasonable approach.”

The judge’s ruling is the latest in a case that has been ongoing since 1988 when Lee began building walls along the Lovell River to create a sandbar. If the remediation plan is implemented, it will be the largest-ever environmental clean-up on Ossipee Lake, with experts saying the price tag could approach $1 million. The court has ruled that the cost is Lee’s sole responsibility.

Freedom Files in Marina Case
In Freedom, meanwhile, Town Attorney Peter Malia last month filed a State Supreme Court appeal in support of the Zoning Board’s January 2007 decision to approve a special exception for Kevin Price to store an unlimited number of boats at Ossipee Lake Marina.

In November, Superior Court Judge Edward Fitzgerald overruled the Board’s decision, saying what it approved in 2007 was the same as what it denied in 2002 as adverse to the surrounding residential area, which includes homes, a beach club and Camp Huckins.

Fitzgerald wrote that the Board should not have considered the new request because it was not materially different from the previously-denied application, and because there had not been a change in circumstances. Both criteria are part of a two-part test designed to prevent applicants from repeatedly applying for the same special exceptions in the hope of a different outcome as board members change over time.

In his Supreme Court appeal, Malia argued that the Zoning Board acted in good faith and was correct to consider the new application. While acknowledging that increased boat storage was part of what the Board denied in 2002, he argued that the new application was materially different because it proposed to put the boats behind a fence.

Long-Standing Issue
Boat storage has been an issue at the marina since the current owner purchased the property in 1997 and was granted a special exception to construct two storage buildings, subject to a limit of 225 boats inside and 23 boats outdoors. In complaints to the Selectmen over a nine year period, lake residents said the business was routinely ignoring the outdoor limit.

At a November 2007 Zoning Board hearing, Selectman Donna Cupka conceded that the marina had been storing more than 100 boats outdoors “with the approval of the Selectmen,” adding that she felt the business “should be able to store as many boats as they can fit, within their setbacks.” Cupka, whose husband works for the marina, said she was speaking as an individual and not as a town official.

In a public letter last year, the vice-chairman of the 1997 Zoning Board, Don Bossi, called the approval of unlimited boat storage at the marina “one of the worst decisions I have ever seen,” adding it would allow the business to store boats “without any thought about fire, vehicle access or neighborhood economic and environmental impact.”

Additional information on both of these cases can be found on the Alliance’s website. From the home page, click on “The Lake” tab and then click on the “Legal” tab.

2 Comments

  1. Steve Foley 13 years ago May 3, 2008

    Great report on the Ossipee Bluffs Association.

    REPLY
  2. Don MacLeod 13 years ago May 5, 2008

    Let’s not forget the pre-grind grind of now being test cases for the new regulatory confusing Comprehensive Shore Land Protection Act. Is the town also going to cover the marina’s cost for that expense?

    Hold Fast

    REPLY

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