Freedom — May 31, 2009 — Recurring issues at Ossipee Lake Marina comprised the bulk of the agenda at last week’s Freedom Select Board meeting as both Alvino Road and boat storage were discussed, but the Board wasn’t able to make any decisions without legal counsel.
At the May 18 meeting, Freedom Zoning Officer Ned Hatfield sought direction from the Board regarding Alvino Road. The opening between the road and the marina is kept chained closed and is supposed to be unused by the Marina and its guests. According to Hatfield, he receives frequent complaints that the chain is down and that the entrance is being used.
“This thing has been an issue for a long time” and he thinks “it needs to be resolved.”
As the meeting progressed, however, it became clear that it wasn’t the chain that was the issue; it was the Zoning Officer’s authority to investigate complaints about the chain.
Donna Cupka, who served on the Select Board until last March and is the wife of Marina manager Tim Cupka, responded from the floor to Hatfield’s comments. She remarked that “they [the Marina] have no intention of using” Alvino Road and then she asked, “Is not Alvino Road a private road?”
Select Board Chair Les Babb picked up that idea and asked, “Is it a private road or a Class VI road?” He and Cupka both believe that town documents identify the road as private. Referencing a Freedom ZBA ruling from a few years ago, Babb asked, “should it [Alvino Road] have been in that [decision]? Probably not, because it’s a private road…that’s where it gets muddy.”
The ZBA decision, dated July 12, 2002, addressed an appeal of the Marina requesting a special exception for approval of a bathroom building. The ZBA granted the special exception with four conditions, including: “Alvino Road’s back entrance be accessible for emergency vehicles only.”
Select Board discussion last Monday indicated that since the road is a private road and not a Class VI Road, access to the road shouldn’t have been a consideration in the ZBA decision. Hatfield asked that if that’s true, then does he as the Zoning Officer have the authority to enforce the chaining off of the entrance? The Board directed Hatfield to seek advice from the Municipal Association and to report back.
Until then, he was directed to continue to investigate complaints while fostering a “good working relationship” with the Marina.
Also on the agenda was Kevin Price, owner of Ossipee Lake Marina, to “discuss Marina court case.” That’s the Superior Court decision – Guckert NH Realty Trust v Town of Freedom, ZBA, dated April 24, 2009 – in which Judge Steven M. Houran found that “the Marina is a preexisting, nonconforming use, and that the [Freedom] ZBA thus erred when it approved a special exception for accessory use.”
In other words, the ZBA shouldn’t have replaced its earlier decision to limit the Marina’s boat storage with approval for unlimited outdoor storage.
According to Houran’s decision, “this case arises from an application filed by the Marina on September 15, 2006 for a special exception to construct a fence and to modify the 1997 decision to allow for unlimited outside storage of boats and trailers within the fenced area…the ZBA held three public hearings and ultimately granted the application on January 23, 2007.” It was the 2007 ZBA decision that the petitioner appealed to Superior Court.
In 1997, the ZBA granted the Marina permission to construct two buildings for inside storage of at most 225 boats and also permitted the outdoor storage some additional boats, specifically, 10 percent of 225 (or 23) boats. In 2007, the ZBA granted the Marina unlimited outdoor boat storage. Why? A new fence constructed by the Marina made the 2007 circumstances materially different than the 1997 circumstances.
At the Freedom Select Board meeting on May 18, Price wanted to know if the town was going to appeal Houran’s decision. According to Price, “we’ve gone this far” and he “think[s] the Superior Court has made some assumptions.”
Donna Cupka, speaking from the floor, suggested that the Board “continue to appeal it.” She “would love this [boat storage issue]…be put to bed.”
Once a final decision is achieved, “good, bad, or ugly, it’ll be finished either way.”
Freedom taxpayers might be thinking that the Houran decision did indeed put the boat storage issue to bed. But it didn’t, not until the Select Board makes its decision about an appeal. The Select Board’s motives for appealing on behalf of the town weren’t discussed at Monday’s meeting.
Before proceeding either way, the Select Board wants to seek town counsel and will meet as soon as possible with Attorney Peter Malia and the Freedom ZBA Chair. As of the May 18 board meeting, there were 10 days left in the appeal period.
The Freedom Select Board has been criticized in the past for spending taxpayer money on this case. Babb asked Price, “How much of the financial burden [of an appeal] are you willing to take on?”
Price answered that “if it comes down to a financial burden, I’ll take that off your shoulders,” seeming to offer to foot the entire legal bill.
Babb mentioned that it might not be common knowledge around town that the Marina paid for half the cost of the previous appeal.
The Freedom Select Board meets on Mondays at 7 p.m. on the second floor of the Town Office building on Old Portland Road.