Freedom — December 19, 2007 — On a 2-0 vote with one abstention, Freedom’s Board of Selectmen has decided to appeal the November Superior Court ruling that reversed the Zoning Board’s removal of boat storage limits at Ossipee Lake Marina.
Marina owner Kevin Price is not an intervener in the appeal, which means the town will argue the case to the Supreme Court alone. Several area attorneys contacted by the Alliance estimate the cost of the appeal could reach $5,000.
The Selectmen’s vote took place on November 26 after a five minute non-public discussion, according to the meeting minutes. Donna Cupka, whose husband is a marina employee, abstained from the vote. Selectman Les Babb informed the Zoning Board the next day, saying Town Attorney Peter Malia believes the ZBA did “a good job in its decision and process” despite the town’s defeat in Superior Court.
On November 15, Judge Edward Fitzgerald ruled that what the Zoning Board approved this year was “substantially the same” as what it turned down in 2002 as having an adverse impact.
In reversing the Board’s decision, Fitzgerald cited case law in Fisher v. Dover which prohibits individuals from repeatedly applying for the same use in the hope of obtaining a different outcome as board members change over time. Town records show the marina has made six Zoning Board applications regarding boat storage since purchasing the property in 1997.
Owner Not Part of Case
As the appeal moves forward, the individual with the most at stake in the case, marina owner Price, will not be a party to the proceeding.
Although Price’s 2006 application to be free from boat storage limits set the case in motion, court records show that he did not file as an intervener after the Zoning Board’s approval of his application was appealed by neighboring property owners. As an intervener, Price would have had the same legal status in the case as the town. By not filing he forfeited his right to participate, including the right to appeal, leaving responsibility for the case to town officials.
An attorney familiar with municipal cases says it is unusual for an individual with a substantial interest in a town legal matter not to intervene to ensure that his personal interests are protected in the proceeding.
Community Interest Questioned
Attorney Fay Melendy, who represents one of the marina’s neighbors in the case, questioned what community interest was being served by the town mounting a Supreme Court challenge of a decision that did not break new legal ground.
“The Superior Court said the 2007 Zoning Board did not have the right to overrule decisions made by the Board in 1997 and 2002 that put limits on boat storage,” she said.
“In essence, the judge ruled that the town had already resolved the issue and the new decision was invalid. By appealing to the Supreme Court the town is going against its own history in this matter.”
The genesis of the marina boat storage case is the Zoning Board’s 1997 approval of a special exception for Price to construct two storage buildings provided that the number of boats on the property was capped.
After area residents complained to town officials that a third building had been constructed and the cap was being violated, Price applied to the Zoning Board for relief from the limits in 2002 and was turned down, a rejection that town officials successfully fought to uphold in Superior Court in 2003 after Price sued.
The limit of 225 indoor boats and “no more than 10% additional” boats stored outside the buildings stood until the current Zoning Board scrapped it in January, prompting the co-chairman of the 1997 ZBA to call the decision “one of the worst [town] decisions I have ever seen.”
Additional background on this case and related legal issues can be found by clicking here.