Freedom – August 17, 2009 – During the past three years, the Town of Freedom has spent more than $20,000 on legal fees and court costs associated with the ZBA’s controversial January 2007 decision to abandon the boat storage limits it previously set for Ossipee Lake Marina.
The information is contained in a report obtained by a group of citizens, including past and present town officials, who applied for it under the provisions of the New Hampshire Right to Know Law.
Included in the $20,496.82 legal tab is close to $6,000 for the Town Attorney to advise the selectmen and ZBA on the boat storage issue from April 2006 through March 2007; and $14,500 for court appeals and court appearances to defend the ZBA’s decision, which has been overturned twice by two different Superior Court judges, most recently in April.
The selectmen have voted to appeal the case to State Supreme Court, where it is expected to be heard next year.
In January 2007 the ZBA approved marina owner Kevin Price’s application to store an unlimited number of boats at the site. In doing so, the board overturned the limit it established in 1997 to protect the surrounding residential community by capping the number of boats that can be kept outside the confines of the storage buildings. Price sued the town over the limit in 2002 and lost.
Critics of the current ZBA, including members of the 1997 and 2002 boards, said abandoning the outdoor storage limit was contrary to town law and the 2002 court decision. They also pointed out that the town has now paid the same attorney to argue both sides of the issue in court – defending the limit and defending abandoning it.
The release of the report on the town’s legal costs comes amid questions about the selectmen’s agreement to allow marina owner Price, who lives in Londonderry, to pay some of the town’s legal bills in the case.
The report shows Price paid $2,500 in December 2008 toward the town’s court appearances and appeals, and paid another $2,000 on June 16 to be held in escrow toward the cost of the anticipated Supreme Court appeal.
The citizens’ group applied for the information on legal expenses after the selectmen in June approved the Supreme Court appeal, which will be the fifth court appearance on the issue in seven years.
The selectmen said their 3-0 vote to appeal was “to support the ZBA” in its decision to approve Price’s application, adding that both the board and Town Attorney Peter Malia believed the ZBA “had done everything correctly.” Malia has represented the town throughout the boat storage case, including the 2002 court case.
The selectmen’s decision came two weeks after Price and former Selectman Donna Cupka, whose husband works for Price, urged the board to appeal to the High Court to “put the matter to bed.” Since Price never applied to the court to be an intervener, he has no legal standing in the case, meaning decisions about appeals are solely up to the selectmen.
Asked by Board Chairman Les Babb how much he was willing to pay for the appeal, Price said he would take the financial burden “off your shoulders,” seeming to imply he would pay all costs. Babb said it was “not well known in town” that Price had paid for part of the previous appeals, according to a newspaper account of the meeting.
In its letter to the selectmen, the citizens’ group said a financial accounting would be “in the best interest of the community” to “clear the air” on the cost of the boat storage case to taxpayers “and the appropriateness of Mr. Price’s payments.”
Legal Issues Cited
Two attorneys who have been following the Freedom case say it is not illegal for elected officials to accept money from a private citizen to pay for a town court case, even if the individual has a vested interest in the outcome.
But the attorneys cautioned that the practice raises ethical questions about how such decisions are made and whether there is a community benefit to the action or simply a private one.
“The pattern of the selectmen’s decisions in regard to the marina over time would be fair game if there were an ethics investigation prompted by the board’s decision to appeal the case in this instance with the business paying for it,” said one of the attorneys on the condition that he not be quoted by name.
The attorney also said that accepting private money to fund a town court appeal could establish a precedent that might result in a lawsuit against the town if officials deny a similar offer to fund a court appeal in the future.
“It’s a slippery slope that I would advise a client to avoid,” the attorney said.
Agreeing with that caution, the second attorney also saw another issue.
“The town is still the litigant in the case even if someone else is paying the bill,” she said, also asking that she not to be quoted by name since she is not a party to the lawsuit.
“The court has already ruled against the town several times in this case. If it decides the new appeal is without merit, the town could be on the hook to reimburse the abutters for legal costs and possibly damages unless there’s an agreement that the marina will pay all costs under all circumstances once the case goes to trial,” she said.
“It all depends on what’s in the agreement between the town and the marina.”
Sounds to me like the town was paying the wrong attorney for advice. 🙂
Nah, I LOVE having my taxes go towards this. In fact, I want to pay MORE. Do I send the check to Town Hall, or directly to the marina?
Is it true that the town could be on the hook for legal costs and damages if the court decides this is a meritless appeal? Did the Town Attorney advise the town of that possibility, as part of the advice he gave for $6,000?
How could the Town Attorney support this appeal and say he believed the ZBA “had done everything correctly” when it was he who represented the town in 2002 – arguing the exact opposite side of the issue – and won? How can that be?
He more than anyone would understand the legal basis for the town’s position in 2002. How could they have “done everything correctly” if they’re going against that position? Especially at THIS stage, when we’re talking about an appeal?
What could possibly have been the legal basis for advising that the town should appeal? And did he advise the town of the possible liability of continuing this case?
I haven’t purchased one cents worth of gas or merchandise at the marina since all of this started. Unless they start to sell vomit bags, I won’t do so in the future either.
I too have avoided the marina since all this has happened. They will never get one more cent out of me.
Give this guy a break All he is doing is making a living Some of the folks [complaining] knew there was a marina here when they bought there lake front property With extra fees taxes and more he needs to be able to get more revenue You all know if you were him you would be doing the same thing
Yeah, give the guy a break – doesn’t everyone in Freedom get the town to spend $20,000 in tax money to expand their business?
I know I would, if I could. But somehow I think they wouldn’t for me. For some reason, when it comes to the marina, the price is right.
Maybe they would do it for me. Tell you what, let’s find out — I just this f***ing moment decided to put a f***ing airport on my f***ing property. I should be able to, considering that I paid one f***ing quarter of the money the town spent on the marina’s case in property taxes last year alone. How could they not support me?
How about it, ZBA and B.O.S? Ready to pick up the tab for my fight against the f***ing FAA?
C’mon, let freedom ring — and let everyone else pay for it.
You people not buying your gas from this marina are in for a rude awakening when the ethanol in the other guys gas screws up your engine. Ossipee Lake Marina sells “marine” gas, NO ethanol. I have already had to repair three carbs on small engines due to ethanol. As for the rest of this nonsense it’s clear to me that this site is here solely to wreak a vendetta on the marina. How much time and donations do the Alliance spend chasing the marina? If really want to help the lake, move on, the subject is getting old. The marina is a necessary business on the lake and unless they are dumping toxic waste into the lake they need to run a business. No one else on the lake fixes boats. He should be allowed to store boats on his property.
Just an FYI…most boats today can handle up to 10% ethanol with no problem. I used to buy my boat gas from OLM but found that the additional $1 plus/ gallon was not worth it. However I do agree that he should be able to run his business without unfounded restrictions from the local or state gov.
It is interesting to note how even small town governments work with taxpayer money. No battle or cost to fight it is ever too big when the money comes out of the taxpayers pocket…
I guess I now understand why my abatement was denied…even in the face of a crumbling real-estate market the town insists that my property has not depreciated 1 penny…just spectacular. Does anybody know when we will have the next revolution?????
There appear to be two Dons here. Don #2, the marina can already store hundreds of boats inside the buildings. The issue is whether it should also be able to also store hundreds of additional boats outside the buildings. Do you not understand the difference or are you trying to mislead people like the owner likes to do? The regulations in place in 2002 were agreeable to the ZBA, the abutters and the lake community. Do you recall that there were three public hearings and a court battle spanning two years? It was all over and done seven years ago! Only the marina was unhappy, and since then the owner has played the selectmen for suckers and dragged them into a legal and ethical mess, including forcing taxpayers to pay for a losing legal battle that’s based on twisting and warping our own town laws in favor of this one guy. If they had just said no, none of this would have been necessary. BTW, I assume you were joking about the idea that he should be able to do whatever he wants unless he’s putting toxic waste in the lake.
Bethany I guess you don’t read so well. I DO NOT think anyone should do what ever they want on the lake, or anywhere else for that matter. I said he needs to run a business. In order to run a business he needs to store boats on HIS property. As long as there are alleys between them and a privacy fence around them (which would also hide the weeds) what does it matter? We do have a wonderful fire dept in case of fire and nobody directly abuts where the boats are stored. It would take a lot for a fire to jump the street and most of the winter there is snow on the ground. I think all of you and him need to find middle ground and grow up. This started because a neighbor wanted a piece of land and didn’t get it. If someone sat across the street from any of you all the time I’m sure they would be able to find something you do that is wrong in the eyes of others. This site was started to “put him out of business” that I do know.
As for locals comments, if you leave ethanol in your engine for more than a few weeks you will have problems without additives, and I had my property appraised this spring and it did NOT depreciate I don’t know if that’s good or bad.
In closing the marina has cost the town a lot of money, but so have his enemies here. If you would get off your high horses and maybe find a middle place here then move on. This is a childish game being played. I do not work for him or hang out with him, these are my opinions from watching this since it started.
Don #2, you are so right that I “don’t read so well” because I’m getting up there in years, but I surely read your original comment correctly. It suggests that unless he’s pumping toxic waste into the lake he should be able to do whatever he wants to do to “run a business.” I thought you were joking, but your new comments show you weren’t. By asking “what does it matter?” you disrespect the 1997 and 2002 ZBA members who read the law and set the limit around it and then fought in court to defend it; the hundreds of people from the lake and from the village who attended three public hearings to support the limit; and the surrounding residential community, who thought the 2003 court order would end the the matter so there could be peace between them and the marina. I’ll say it again: if the selectmen had simply enforced the court decision no one would be talking about this today. Price played the selectmen for suckers, and shame on all of them. By the way, for someone who claims to have observed this case from the start (really, since 1997?) you have your facts wrong about this being about someone wanting a piece of property. Even Mr. Price stopped trying to convince people of that lie. I say all of this to you with respect, even though your comments (“childish”? “grow up”?) to me were disrespectful. Let’s just agree to disagree.
I mean you no disrespect Bethany. I have been to town meetings and seen first hand how nasty neighbors are to each other. God forbid this one have more than me etc. it goes on and on. I can handle a good argument but some town meetings are way too mean spirited.
I have followed this since this website was started showing lights facing the lake from the marina. (which i never saw, but I won’t say they weren’t there) I don’t own a boat. There are a handful of houses within proximity to the marina property that has been there for years I might add. Boats stored end to end inside his property wouldn’t affect any one of them so long as a fire truck can pass through for safety. This whole thing goes way deeper than boat storage. I’m speaking from an observers perspective I don’t have voting privileges but I have been around since 1986 and always kept up with town happenings. Again I mean you no disrespect and apologize for that but I will agree to disagree.
For what it is worth, there is an additive made by Sta-bil for marine use to address the ethanol. I bought it at the Mobil on Rt. 25. How many people have had serious problems with their engines? I have. I’m hearing a lot of stories after my experience. I have seen a lot of boats being towed out there as well. If you had a problem please post on this blog.
I heard that the biggest complanier is Prices neighbor. Why would you build a mansion next to a marina??????? Leave the marina alone.
By the way does anyone know if the marina is current with its real estate taxes? While the selectclowns are spending 20K, Price at one time was not paying his taxes. Maybe we all should do the same.