Judge Close to Dismissing Westward Shores Case

Ossipee — December 17 — A Carroll County Superior Court judge is giving parties in the lawsuit that pits Westward Shores campers against the campground and town of Ossipee only until toward the end of this month to persuade her not to dismiss the case.

Since 2015, Northgate Resorts of Grand Rapids, Mich., has owned the campground, which has frontage on Bearcamp River and Ossipee Lake, though its subsidiaries Northgate Ossipee LLC and Northgate Ossipee Lessee.

Two years after Northgate bought it, the town told the new owners that Federal Emergency Management Agency said that Ossipee could not keep its discounts on flood insurance unless Westward Shores campers brought their sites into compliance with the town’s Floodplain Development Ordinance.

Apparently the structures campers had built — sheds, carports, decks, lean-tos, etc. — were out of compliance. Northgate told its campers those structures would have to be removed by October 2018. The campers responded by going to court.

An amended complaint, filed in June by over 90 individuals, requested that the court:

  •  Order that the structures don’t have to comply with the FDO because they were built before the FDO was adopted.
  •  Order that the status quo be maintained through the case, meaning that the structures aren’t to be removed.

A subset of 21 individuals also made a class-action claim against Northgate saying it “engaged in unfair or deceptive business practice” by implying such structures were grandfathered and not saying they would have to comply with FDO.

Carroll County Superior Court Judge Amy Ignatius held a hearing on the class action on Sept. 19 and issued a 10-page interim order Dec. 9.

Ignatius declined to take up whether the 21 plaintiffs could sue as a class. She doubted whether the court was the right place for the dispute to be dealt with.

“In the course of considering the issues in this case — particularly those related to the plaintiffs’ pending requests for preliminary injunctive relief and class certification — the court has come to doubt whether the action presents claims for relief that are fit for judicial recommendation,” wrote Ignatius.

“Specifically, it appears that (1) there are adequate administrative remedies available to the plaintiffs with respect to their claims for relief against the town, and (2) that until they exhaust such remedies, their consumer protection claims against Northgate are premature.”

Instead of dismissing the case, Ignatius gave the parties 15 days to file any objections to dismissal.

The Sun emailed attorneys from each side to see what they intend to do. Town attorney Rick Sager of Sager & Smith, PLLC said he hasn’t decided. The campers’ attorney, Patricia Panciocco of Panciocco Law in Bedford, and Northgate’s attorney, Roy Tilsley of Bernstein Shur, did not respond as of press time.

As for administrative remedies, Ignatius suggests that the campers could take their issue about compliance with the FDO to the Ossipee Zoning Board of Adjustment.

Ignatius also said that Sager said at the hearing that the town was only reacting to pressure from FEMA when it asked Northgate to bring the sites into FDO compliance, but that no longer seems to be the case.

Sager said recently FEMA changed its tune regarding the need to bring the sites into compliance. The town had first been given an October 2018 deadline, which was subsequently moved to October 2019. Then FEMA told the town there was no deadline.

“Originally we were dealing with a gentleman at FEMA, Anderson, I think his name was,” said Sager.

“Now, he has been promoted or moved to a different part of the U.S. government, and the person I’ve dealt with more recently is saying there is no firm deadline, that FEMA doesn’t have a right to inflict a firm deadline. So, that’s where we are right now.”

Ignatius said it appears that the campers could simply get an “administrative decision” from FEMA that would cause the town to “refrain” from pursuing FDO enforcement.

“The plaintiffs’ Consumer Protection Act claims are based on Northgate purportedly misrepresenting that the structures were grandfathered and not disclosing that the structures would need to be brought into compliance with the FDO,” she said.

“However, these claims will not ripen until the town finally determines that one or more of the structures is not “grandfathered” and that enforcement action will be taken absent FDO compliance.

“And if the town ultimately decides otherwise, then these claims will be moot. For these reasons, the court is inclined to dismiss this action in its entirety without prejudice,” Ignatius wrote.

 

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