Freedom – January 4, 2009 – Now that the State has forced Ossipee Lake Marina to take its docks out of the lake, what comes next? State officials have outlined two options for the business, and legal experts say both will require changes in how the marina operates.
After a year-long investigation, DES in December charged owner Kevin Price with knowingly changing the location and size of the marina’s docks and increasing the number of boat slips, violations of State law that could result in civil charges and criminal penalties.
In an Administrative Order, with a copy to the State Attorney General, DES gave Price ten days to remove his docks from the lake and told him he would have to apply for approval to put them back, a process that could take months.
But docks are just one of Price’s problems with the State. The Oil Remediation and Compliance Bureau has threatened him with fines of up to $2,000 a day for failing to comply with the State’s secondary containment regulations for the underground pipes that feed gasoline to the fuel dock from above-ground storage tanks.
In a Letter of Deficiency, the Bureau said the marina’s violations make it ineligible for reimbursement of clean-up costs if there is an underground fuel spill. A related inspection report cited the business for 17 violations of State regulations, including having inaccurate and out of date registrations for gas tanks and storage areas, failing to conduct and document required monthly inspections and not having a working fuel leak alarm system.
History of Violations
While Price is no stranger to controversy, the scope of the State’s charges, including the order to remove his docks from the lake, eclipses his previous problems with authorities.
In the 11 years since he purchased the property in a bankruptcy proceeding, the Londonderry resident has pursued an aggressive business expansion agenda despite strong opposition and despite State and local laws that do not favor such expansions.
While Price’s actions have been welcomed by some, including boat owners who keep their vessels at the marina year-round, they have infuriated many more. He has amassed a lengthy list of environmental and zoning violations, ignored the directives of local officials and sued the Town of Freedom, his neighbors and other residents who oppose him.
Compounding matters, the Freedom Board of Selectmen’s inconsistent enforcement of violations at the business has publicly divided former town officials against current officials. The Town’s handling of a single issue – outdoor boat storage – has dragged on for a decade and featured the Town Attorney arguing in court against outdoor storage one year, and arguing in favor of it in the same court a few years later.
But those are local issues. By drawing the State’s attention to his business, Price now faces a more demanding audience in Concord.
State Governs Operations
Marinas operate by approval of the State, and Ossipee Lake Marina’s approval is tied to a 1988 Court Order that settled a lawsuit with a previous owner who “condominiumized” the boat slips and began selling them illegally. At about the same time the owner ran out of money, he was taken to court.
When the State resolved the case it issued a Court Order that formed the basis of a DES Wetlands Permit authorizing the marina to operate legally. The Wetlands Permit, which was in effect when Price purchased the property, authorized 66 boat slips at docks whose dimensions and locations were explicitly established.
The basis of the State’s main charge against Price is that he knowingly violated the Wetlands Permit by rebuilding, expanding and relocating the docks and by adding new boat slips without required State approvals.
The State has given Price two options for applying to put docks and boats back in the water. One is to bring the docks and slips into compliance with the Wetlands Permit, and the second is to apply to DES for approval to alter the location and configuration of the docks.
Attorneys familiar with the case say compliance with the Wetlands Permit is the easier of the two paths and could probably be accomplished by summer. They also say it might lessen the possibility of State fines in the matter.
It would require Price to reduce the size of the docks to their approved dimensions and return them to their approved locations, away from abutting property owners to the north and to the south and away from the center of Danforth Brook. It would also require him to downsize the fuel dock and reduce the number of slips to 66, which is approximately a dozen fewer than documented in the State’s investigation.
Pursuing the second option is another matter altogether. Chief among the challenges of requesting approval to alter the location and configuration of the docks is that State law does not favor such changes.
Env-Wt 402.21 prohibits DES from approving “any change in size, location, or configuration of any structure unless the applicant demonstrates, and the department finds, that the modification is less environmentally-impacting or provides for fewer boat slips and less construction surface area over public submerged lands…”
State law also requires 25 feet of shoreline for each slip, a standard the business may already exceed with its 66 grandfathered slips. An applicant can apply to increase slips if he can prove the increase is in the public interest; but the law goes on to state that “high demand for slips shall be insufficient to establish a public interest.”
Legal specialists say an application to modify the existing Wetlands Permit could take months to write and many more months, perhaps a year or more, for reviews and appeals to be heard. During that time, the Administrative Order states that the business may not put docks or boats into the water.
Then there’s Lot 42. In its investigation the State found that Price had expanded dock space not only by rebuilding and enlarging the docks, but by creating a virtual marina of boats along the shoreline of adjacent property known as Lot 42.
Lot 42 has its own history. Price purchased the parcel in 1998 and within days began moving his business onto it without required State and local approvals; illegally building parking lots and a bathroom building, and filling wetlands and cutting trees and vegetation in the State-protected shoreline buffer.
Price obtained “after the fact” approval for the parking lots and bathroom building and settled his Lot 42 wetlands issues with DES. But he has continued to defy the ZBA ruling that prohibits use of the property as part of the marina, variously holding customer events on the lot and funneling car and truck traffic from the shoreline to Alvino Road, whose use the ZBA also prohibited.
Price’s Lot 42 violations also include developing its shoreline as dock space. Pressed by town residents to rule on the Lot 42 boats, Freedom’s Selectmen declared it was a State issue, but nine months later granted Price approval to use the shoreline for boats.
In December, DES clamped down, saying the boats and docks along Lot 42 are an illegal expansion of the marina’s scope of operations under the Wetlands Permit.
Resolution of long-standing Lot 42 issues will figure in whichever option Price pursues. Bringing dockage into compliance with the Wetlands Permit will require him to stop using Lot 42’s shoreline, which has had as many as a dozen boats at a given time tied to docks and trees.
Alternatively, if he applies for approval to alter or reconfigure the docks, State law requires that he first comply with “all local land-use controls for marinas.” Such an application could re-open any number of unresolved land use issues on the marina property itself, and it would have specific implications for Lot 42. That’s because while Lot 42 remains classified as residential land, it is incorporated as part of the marina property for assessment and tax purposes.
Land use experts say that before applying to alter or reconfigure the docks, Price would first have to resolve the Lot 42 issue by providing the State with evidence that he is in compliance with the ZBA’s restrictions; or else he would have to obtain special exception approval for marina uses on the parcel, which is something the ZBA has denied twice before because of adverse impact to the surrounding area, a ruling upheld by a Superior Court judge.
For conservation and environmental groups, an even larger issue looms on the horizon. That issue is addressing the State Oil Remediation and Compliance Bureau’s Letter of Deficiency, including meeting State requirements for secondary containment of oil spills and having a working alarm system for fuel leaks.
State and local organizations, including DES itself, have previously expressed their concerns at the public hearings that have been held on Price’s various marina expansion proposals. In regard to the gas tanks, their concerns are general – the danger of a fuel leak – as well as specific – the marina is in a residential area on highly transmissive soils and is adjacent to a State well-head water protection area.
The State regulations that govern above-ground petroleum storage facilities are separate from the regulations that govern marinas, including docks. But the State’s marina regulations require that any proposed changes avoid “leakage or spills of fuels, lubricants, waste products, or other pollutants,” something that could potentially link resolution of the gasoline storage tank issues with the dock issues.
A DES official says the agency sent the Letter of Deficiency to Price after he missed the initial deadline to respond. The official says the business has told the agency it has hired a contractor to assess compliance issues but has not reported any material progress on resolution.
A history of legal issues at Ossipee Lake Marina can be found by clicking here.