Freedom – July 7, 2009 – Appearing at Monday night’s Freedom Selectmen’s meeting, Ossipee Lake Marina owner Kevin Price and his attorney, Michael Scott, argued that the town zoning board did not have legal jurisdiction when it limited the marina’s access to Alvino Road from adjacent residential property known as Lot 42.
The zoning board ruling in question was made on July 9, 2002 and was upheld in state court.
Price presented the board with two documents – a legal opinion written by his attorney and a land survey – that he said show Alvino Road is not a town road. As a result of it being a private road, he argued, the zoning board should not have restricted his access to it as a condition attached to its “after the fact” special exception approval for him to use a bathhouse and parking lot he constructed on Lot 42 without required approvals.
Arguing against changing the ruling, attorney Fay Melendy, who represents abutting property owners, detailed the history of the issue and the zoning ordinance requirements that made it necessary for the ZBA to limit access to the road as a condition for approving the limited use of Lot 42 for the bathhouse and parking lot.
Melendy said that at the same time the ZBA approved use of the bathhouse and parking lot it denied all other use of Lot 42 as part of the business. To access Alvino Road from the shorefront, cars, trucks and trailers must travel across Lot 42.
In the 2002 decision, ZBA Chairman, and former selectman, James Breslin wrote that the zoning board’s denial would “not result in unnecessary hardship” because Price “can continue to function as a marina” without Lot 42. The chairman also cited the potential impact on the surrounding residential neighborhood, saying that granting approval to use Lot 42 as part of the marina “would be detrimental to the public interest.”
Price sued the town over the matter in state court and lost. Several years ago, town attorney Peter Malia reviewed the ZBA decision at the selectmen’s request and instructed the officials they had an obligation to enforce the ruling, a decision Board Chairman Les Babb read into the selectmen’s meeting minutes. This summer, lake residents have again filed complaints with the selectmen saying Price is using Lot 42 and Alvino Road.
Addressing Price on Monday night, Select Board Chairman Babb said he believes the question of whether Alvino Road is a town road or a private road has no bearing on the legality of the zoning board’s restriction.
Several times during the approximately 40-minute discussion, Selectman Neal Boyle suggested that the issue should be resolved by attorneys Melendy and Scott instead of by the town. He urged the two attorneys to come up with a “compromise” that would stop “costing the town so much money.”
The board agreed to review all of the relevant materials again and render a decision on Price’s request at the July 20 selectmen’s meeting.