Freedom Selectmen Appeal Marina Case to Supreme Court

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.

Freedom Selectmen Appeal Marina Case to Supreme Court

17 thoughts on “Freedom Selectmen Appeal Marina Case to Supreme Court

  • December 19, 2007 at 1:22 pm
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    Is there a way to determine if there’s a correlation between all the litigation Freedom has undertaken on behalf of this private commercial interest, and the huge rise in real estate taxes in town?

    Has Freedom released the costs of all the marina-related litigation? Is this information public record?

  • December 19, 2007 at 1:34 pm
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    The town has bent all the rules for their marina friend and now they want the taxpayers to pay for an appeal that will benefit him and him alone. These people have brought shame to a town that used to be known for ethical leadership, and they should be voted out of office.

  • December 19, 2007 at 1:55 pm
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    Why should he have to pay for an appeal? He already paid for the Board.

  • December 19, 2007 at 3:01 pm
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    Whose budget pays for this? The school system? The library? The roads department? Apparently money is no object.

  • December 19, 2007 at 6:56 pm
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    I’d like to hear from the Selectmen. An unwanted and illegally zoned boat dump doesn’t seem the right sort of issue to go falling on swords over.

    Why are they still pushing for this?

  • December 24, 2007 at 1:46 pm
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    He has the only full size marina on the lake. Myself and others that spend our summers on the lake need his facalities. If there isn’t a place for us to store our boats we won’t be spending our money in Freedom.

  • December 26, 2007 at 2:40 pm
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    Jim, where do you spend money in Freedom other than the marina?

  • December 27, 2007 at 8:46 am
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    Thank goodness for the Marina,if we didnt have it us poor folk would only be able to watch the Rich people enjoy the lake. The regular people of freedom need there ability to access the lake,and have there boats at the lake the same as the flatlanders. Glad to see the marina is offering a piece of paradise for us.

  • December 30, 2007 at 4:44 pm
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    I spend all summer on the lake. I buy everthing I need from April though Nov. in Freedom and the surrounding towns. I pay ONLY PAY TAXES ON MY CAMPER because I rent at the Bluffs at Danforth Bay. Some day I hope to move to the area. I agree with Gerry without the marina only the weathy people can enjoy the lake. I have enjoyed the lake for over forty years. I find these million dollar mansions on lakes more of a problem then a marina.

  • January 1, 2008 at 4:24 pm
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    Wow, I didn’t know there were million-dollar mansions on Danforth Pond; ours cost $5 grand when we built it.

    Anyway, who said there shouldn’t be a marina? We’ve used it since Clancy owned it. This has nothing to do with rich or poor — what it’s about is that the law applies to everyone, including very rich people like Kevin Price.

    Most interesting is that good New Hampshire people are suggesting that residential taxpayers should bear the costs of ILLEGALLY EXPANDING a private commercial interest in addition to paying the costs of cleaning up the milfoil that’s driving down everyone’s property values and driving away tourist dollars. Apparently we’re living in a Communist state, where private property owners are required to pay to make certain Freedom residents even richer. Who knew?

    Why can’t Price play by the rules, like everyone else, including all the previous marina owners? Why should the taxpayers foot the bill for this appeal? This is America — let him pay for his own damn appeal.

  • January 1, 2008 at 4:32 pm
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    Certain people are making tons of money and making others pay for it just because they got there friends elected and were all paying for it. They will make there money and leave us to clean up the mess to.

  • January 1, 2008 at 8:27 pm
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    Your right he is a rich guy getting money while we pay for it. Its like russia with his buddys in charge making everyone else pay for him to make money but everyone is afraid to say so.

  • January 1, 2008 at 10:34 pm
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    Why should we pay for him. They are taking my money and giving to Kevin Price. He should pay his own bills. No one made him make his marina bigger but he did now he wants everyone else to pay for it. I need this money to pay for my kids I have enough trouble without paying for his marina.

  • January 2, 2008 at 5:47 pm
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    Hi
    Tom I wish I could build something on the lake today for 5.000. I look at lake front cottages all the time on Ossippe they are all about 500,000 and up. I can see all your points being that you are tax payers. I don’t really know enough about the issues so I’m not gonna comment anymore.

  • January 2, 2008 at 11:21 pm
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    Jim, I agree — I couldn’t afford to buy there now, no way. That’s what I’m talking about, this whole rich city people thing is a crock. Our taxes went way way up this year, and they were due DECEMBER 14TH. The week before Christmas. Plus they’re asking us to pay to clean up the milfoil that we had nothing to do with. So I’m not only paying to clean up after the boats the marina puts in the water, I’m paying for his legal bills. It’s crazy. My boat has never been in any other lake so the milfoil didn’t come from me.

    You can comment you want, its a free country — those of us that use the lake are on the same side. When you get your place some day you’ll be mad too when the bill comes in the week before Christmas, then a week later you read that the town is paying for his legal bills.

  • January 21, 2008 at 4:18 pm
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    Did anyone file a complaint while this third building was being built? If so why were they allowed to complete construction? Were permits required for this construction? If they weren’t, it seems that Freedom must craft and enforce a properly designed permitting process.
    If they were, how did it get to this point with regard to the legalities? Thanks for your answers!

  • January 21, 2008 at 5:47 pm
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    It is unclear if anyone filed a complaint during construction of the third building. After it fell, it was found that the Building Inspector had issued a permit for the third building despite the ZBA’s limit of two. To the best of our knowledge the Building Inspector has never explained why he did so.

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