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.”