Freedom – May 31, 2009 — Is the Ossipee Lake Marina boat storage case headed to the State’s Supreme Court? While there are signs it is, a final decision by the selectmen has not been made, and the issue may be aired at tomorrow night’s Select Board meeting at 7 p.m. in Freedom’s Town Office building.
The Selectmen have the option to proceed because the firm handling the town’s legal matters for marina issues met the court’s 30-day deadline last week by filing an appeal of the April 24 Superior Court ruling that overturned the ZBA’s approval of unlimited boat storage at the business.
The appeal remains just an option, however, because the Board has not yet taken a formal vote on whether to proceed, according to town sources.
If the Board does proceed, it will be the fourth trip to the State Court system for the case, which began in January 2007 when the Zoning Board overturned the limits on outdoor boat storage that previous Zoning Board rulings had established over a period of ten years.
Abutting property owners appealed the decision, and in November 2007, Superior Court Judge Edward Fitzgerald overturned the ZBA, saying the marina’s request was not materially different from what the ZBA had denied in previous cases.
The Selectmen appealed to the High Court, which ruled that the lower court made an error that required the case to be re-tried. Both sides returned to Superior Court this past February, and a new judge, Steven Houran, on April 24 again overturned the ZBA, ruling that their decision was an impermissible expansion of a non-conforming use, which is prohibited by the town’s zoning ordinance.
As the deadline for an appeal of Judge Houran’s decision neared, marina owner Kevin Price and ex-selectman Donna Cupka, whose husband is a marina employee, appeared before the Selectmen on May 18 to urge them to appeal so the boat storage issue could “be put to bed,” as Cupka put it.
“How much of the financial burden [of an appeal] are you willing to take on?” Selectman Les Babb asked Price, according to an account of the meeting in the Carroll County Independent.
“If it comes down to a financial burden, I’ll take that off your shoulders,” Price replied, seeming to offer to foot the entire legal bill, according to the newspaper. Selectman Babb then told the meeting “it might not be common knowledge around town that the Marina paid for half the cost of the previous appeal.”
Babb’s apparently off-handed comment stirred a number of postings from town residents on Ossipee Lake Alliance’s website, with several writers questioning whether such an arrangement is legal and wondering how much the Londonderry resident has paid the town.
Asked by the Alliance for an opinion, an attorney with extensive municipal experience, who asked not to be quoted by name, said he could not answer the question because he has never had a similar situation arise. At the least, he said, it would raise ethical questions and might set a precedent that other citizens could seek to exploit.
Since the Selectmen have not officially voted to appeal, it’s unclear whether the town or marina owner Price will pay the bill if the case returns to court. In an unusual twist, Price is not a party to the lawsuit because he never applied to the court to be an intervener. That leaves decisions about appeals in the hands of the Selectmen.