State Denies Marina Appeals, Upholds Zoning Decisions

Freedom — January 9, 2004 — In a complex case involving issues that began in 1997, a state Superior Court judge has upheld a decision by Freedom’s Zoning Board of Adjustment (ZBA) to deny business expansions proposed by Ossipee Lake Marina on Broad Bay.

In a 40-page ruling, Judge James D. O’Neill sustained the ZBA’s July 2002, decision to deny construction of additional boat storage buildings on the property as an impermissible expansion of a non-conforming use. The issue began after the ZBA granted the Marina’s owner, Ossipee Realty Corporation and its principal, Kevin Price, a special exception in 1997 to construct two new boat storage buildings. The approval was subject to a restriction of 225 boats stored indoors on the marina property and no more than 10% of that number stored outdoors.

After the two buildings were constructed, a third building was erected with a building permit but without the required zoning approval. After it collapsed in a snowstorm, Price applied to rebuild it and to further expand the business and his application was denied. Appealing to the state, the marina’s attorney, Randall Cooper, argued that the language of the 1997 special exception implied town approval for the construction of an unlimited number of buildings to accommodate up to 225 boats. The court sided with the ZBA in rejecting that argument, thereby upholding the town’s decision.

In a second aspect of the case, the court denied the appeal of two groups of lake property owners who argued that the ZBA had violated state and local law by granting “after the fact” special exception approvals for bathrooms and parking lots that the marina illegally constructed between 1998 and 2000 on adjacent residential shorefront property known as Lot 42.

Attorneys for the property owners, Fay Melendy and Glen Graper, argued that the ZBA erred as a matter of law when it approved commercial uses on the property in July 2002, after denying the same uses just two months earlier. Judge O’Neill denied the appeals and sustained the ZBA’s decision.

Unless the decisions are appealed, the state court rulings conclude years of legal wrangling that began when the marina was purchased from receivership in 1997 and the new owner began to expand it. While some of the expansion was authorized, much of it violated state and local laws. After the town documented the violations, it mandated that they be brought before the ZBA as applications for “after the fact” special exceptions to zoning.

In March 2002, the marina complied but embedded the requests for approving the violations in an application for a sweeping business expansion plan. More than 200 people braved an ice storm to oppose it at the initial public hearing on the matter. After the hearing was continued to May and testimony was concluded, the ZBA denied the application for an array of reasons, including finding that the plan would have an adverse impact on the surrounding residential area.

In June, the Marina filed a motion for a rehearing along with three separate applications for special exceptions and an application for a variance, all related to the rejected plan. At a public hearing on July 9th the ZBA denied the motion for  a rehearing, in essence sustaining its denial of additional boat storage buildings. It approved, however, the applications for special exceptions for the already-constructed bathrooms and parking lots on residential Lot 42. The Board’s decisions on July 9th set the stage for the appeals that have now been resolved by the state.

During the seven years since the marina issues began, numerous violations of state and local laws have been addressed and resolved on the property. In June, 2001, the New Hampshire Department of Environmental Services directed the marina to remediate wetlands the business had filled on the shoreline of Lot 42, and the remediation was successfully completed in the fall of 2002.

In addition, by the end of 2002 the marina complied with the provisions of the 1997 special exception in regard to outdoor boat storage limits, designated parking areas, and green space buffer zones. The commercial lights that were erected and directed at Broad Bay were removed and replaced with a less intense lights aimed downward.

In September, 2003 the marina’s principal, Kevin Price, trustee of an entity called Harts Mountain Trust, was granted conditional approval by the town of Ossipee for a variance to construct a 100’ by 50’ showroom with 16 parking spaces, and two two-story 200’ by 50’ boat storage buildings on 10 acres of land on Route 16. A variance was required because the property is zoned rural and the proposed use is commercial. The property has a billboard on it advertising Ossipee Lake Marina.

In granting the variance for commercial use, Ossipee’s zoning board stipulated that there be no deed restrictions on the property, that exposed surfaces be well maintained, and that the color of the building be neutral and the roof not be reflective. Additionally, Price was directed to paint the building every five years and the town zoning officer was directed to review compliance every five years.

State Denies Marina Appeals, Upholds Zoning Decisions