Freedom – July 14, 2009 – A new review of public documents shows the extent to which state and local issues at Ossipee Lake Marina remain unaddressed, unresolved or tangled in litigation years, and in several cases more than a decade, after being identified.
The summary, which is based on meeting minutes, complaints and written decisions by state and local officials, including court rulings, highlights three main violations of state regulations, two of which are unresolved; and six local land use issues, of which four remain outstanding.
The review of documents also reveals the high level of litigation that has surrounded the controversial business under its current owner, Kevin Price of Londonderry. During Price’s twelve years of ownership, land use issues at the marina have been before a state court judge four times, with a fifth court appearance expected later this year.
The summary report comes one week after Price told Freedom’s selectmen a 2002 zoning board ruling limiting his access to adjacent Alvino Road is illegal and should be dropped. It is the second request Price has made in three years to be relieved of restrictions that were imposed on his business by the zoning board between 1997 and 2002.
The restrictions Price has questioned are conditions that were attached to special exception approvals that the zoning board granted to allow him to make expansions and improvements to his property, which is a grandfathered business in the town’s residential district.
The longest-running local land use issue identified in the summary report is boat storage, which stems from a 1997 zoning board decision that authorized Price to construct two large buildings for up to 225 vessels on the condition that he keep no more than 10% of that number outside the buildings.
After receiving approval, Price constructed three buildings instead of two. Town officials did not discover the un-permitted building until it collapsed in a snowstorm and the marina owner applied to rebuild it, a request the ZBA denied.
Despite the denial, Price continued to winter as many as 120 boats outside the confines of the two approved buildings, according to a report by the town’s code enforcement officer and complaints filed with the selectmen between 2000 and 2007.
Price sued the town over the boat storage limits in 2002 and lost. But in 2006 the current zoning board agreed to abandon the 1997 limits and authorized “unlimited” boat storage at the site. That decision has been overturned twice by two different Superior Court judges but remains in litigation.
By the end of this year, boat storage issues at the business will have been before a state court judge five times in the past six years.
The small parcel of residential shoreland known as Lot 42 is at the center of another marina legal morass, according to public records. Price purchased the 2.4 acre plot from the DiPrizio family in 1998 and began moving the marina’s operations onto it.
During the first year, a bathhouse was built without required zoning board approval and put into use without a state-required “approval to operate” certificate for the septic system. State-protected wetlands were filled to create a parking lot and shoreline work road, resulting in the marina’s first violations of state regulations.
After being called to account, Price applied to the ZBA in 2002 for approval to use Lot 42 as part of a major business expansion. While the plan was denied by the town, separate “after the fact” approvals were issued for the limited use of Lot 42 for the already-constructed bathhouse and parking lot, an approval that the meeting minutes state was made possible only because the board denied access to Alvino Road from the residential lot.
Price again sued the town and lost in state court in 2003. In the ensuing six years, however, lake residents have repeatedly filed complaints with town officials, saying Price has continued to use Lot 42 and Alvino Road.
Town selectmen are expected to rule on Price’s request to be relieved of the Alvino Road restriction at their July 20 meeting. The 1998 state wetlands violation was resolved in 2003 after Price remediated the damage under DES’ supervision.
In an issue that has never been explained or addressed, a review of public records by lake residents in 2002 revealed that the building inspector approved permits for the marina between 1997 and 2000 that were almost entirely lacking in required information. As a result, marina buildings in the shoreline district of the property were rebuilt and expanded without the required approval of the zoning board through the special exception process.
The expansions included the fuel dock, the main office building, the maintenance and showroom building, and a small building that was turned into a convenience store, according to records obtained at the time.
In a 1997 example, the town inspector issued a permit that states “rebuild building and rebuild fuel pump house.” The permit lacks a plot plan and contains no information on the work to be performed or which “building” on the property was to be rebuilt.
In some instances local issues at the marina have overlapped with state issues, as is the case with the marina’s fuel dock, which was rebuilt without zoning board approval or the approval of the state’s Department of Environmental Services, which has jurisdiction over a variety of matters at the business from wetlands to underground tanks to dock space.
After a close to year-long investigation, DES in December issued an Administrative Order charging the business with violating its state operating permit by rebuilding, expanding and relocating its seasonal boat docks, and rebuilding and expanding the fuel dock.
DES also said Price had illegally increased the marina’s boat slips from 66 to 78 by using the shoreline of Lot 42, creating another instance in which state and local violations intersect. State law requires that boat slip increases have the approval of local zoning officials as well as DES, and Price had the approval of neither according to state and local records.
The December Administrative Order, which was approved by the office of the State Attorney General, required Price to remove his docks and boats from the lake and not return them until complying with the terms of his state operating permit or applying to the agency to modify it.
Instead, Price appealed the Administrative Order to the State Wetlands Council, saying that he had “only recently” obtained a copy of the 1988 state operating permit for his business, and that the permit had, in any event, “ceased being applicable” when it was replaced by a 1993 permit that is based on a 1992 plan, a copy of which he “has been unable to locate” despite “diligent effort.”
In May, DES signed a consent order allowing the marina’s docks and boats back in the water temporarily while the appeal is heard. At the same time, Price filed a waiver request asking DES to approve changes in the size and location of his docks without going through the public permitting process.
The State Wetlands Council has not yet set a date for a pre-hearing conference on Price’s appeal of the Administrative Order, and DES’ Wetlands Bureau has not yet acted on the waiver request, according to state officials.
Most of the public documents in the summary report are available in an online archive that is maintained by the non-profit lake organization Ossipee Lake Alliance.