Freedom – December 21, 2008 – In a two-page order, the State Supreme Court has reversed and remanded the Superior Court ruling that denied unlimited outdoor boat storage at Ossipee Lake Marina. The order means the case will be re-tried in Superior Court in the New Year.
According to the order, Superior Court Judge Edward Fitzgerald erred in applying the standards of a key state zoning case when he ruled that the Freedom Zoning Board of Adjustment was “unreasonable” in considering the marina’s application for a special exception because the new application was for the same use as requested in previous applications.
The zoning case in question is Fisher v. Dover, which limits the number of times an applicant can request approval for the same special exception. State courts have held that zoning boards cannot “reach for the merits” of an application unless a material change in circumstances has occurred, or the new application is for a use that is materially different in nature and degree from what was originally requested.
In its order, however, the High Court said zoning boards may allow a new application to be heard for a use that is substantially the same as the previously requested use if the application is materially different.
In January 2007 the Zoning Board approved a special exception authorizing marina owner Kevin Price to store an unlimited number of boats outdoors despite two denials of outdoor boat storage by previous Boards. Price argued, and the current Board agreed, that the new application was materially different because the boats would be stored behind a fence.
Those opposing the application, including abutting property owners Keenan Realty Trust and YMCA Camp Huckins, argued that the previous applications proposed storing boats in a designated screened courtyard with a latticework gate, and that the only difference in the new application was the word “fence.”
Also opposing the application were former Zoning Board members who had voted to deny the marina’s previous applications. They said Price agreed to an outdoor storage limit when he was granted a special exception for indoor storage in 1997. The 1997 agreement capped indoor boats at 225 with no more than 10% of that number outdoors. The limits were upheld by a State Superior Court judge in 2003 after Price sued the town to have them overturned.
The new trial, which has not been scheduled, further delays closure on an issue that spans a decade and has seen repeated accusations that the Selectmen have failed to enforce town laws at the business, including outdoor storage limits.
In a November 2006 ZBA hearing, Selectman Donna Cupka, whose husband is a marina employee, argued in favor of granting a special exception for unlimited outdoor storage, saying the business “should be able to store as many boats as they can fit, within their setbacks.” Cupka, who said she was speaking as a resident and not as a town official, added that the marina had been storing more than 100 boats outdoors “with the approval of the Selectmen.”
In a separate case, the New Hampshire Department of Environmental Services two weeks ago charged Price with illegally changing the location and size of the marina’s docks and increasing the number of boat slips. The agency ordered him to remove all of his docks from the lake within 10 days and not put them back until he brings the business into compliance with State laws. The agency also cited Price for not having required leak monitoring devices in the underground lines that supply gasoline to fuel pumps on the shore.
A history of legal issues at Ossipee Lake Marina can be found by clicking here.