Temporary Relief for Berry Bay Condo Owners

Freedom — January 9, 2009 — The cease and desist order has been lifted on Berry Bay’s Houle Road condos, temporarily.

What happens next is up for debate. Steve Ingham and Carlton and Rhonda Lane – new owners of recently condominiumized buildings on Berry Bay in Freedom – along with Robert Houle, former owner of the entire property and current owner of one of the year-round units on the property, appeared before the Freedom Select Board last month in response to a cease-and-desist order issued by the town’s Zoning Officer. The order stated that the owners of the seasonal units were not allowed use of the units between October 14th and May 14th.

More specifically, meeting minutes indicate, Ingham and the Lanes asked the Select Board for “relief from the cease and desist order” and for “a ruling as to if the units are seasonal.”

Board Chair Donna Cupka moved to vacate the cease and desist for a period of 45 days, until January 28, 2009, thus allowing the owners use of their property through the holidays. The motion passed 2-1, with Cupka and Board member Jim Brown voting yes and Board member Les Babb voting no. Babb felt that the decision wasn’t within the proper purview of the Select Board.

This is just the latest chapter in an ongoing debate about the Houle property.

The entire property – a 2.7 acre lot, a .9 acre lot, two year-round buildings, and three seasonal buildings – had been owned for years by Robert and Sharleen Houle. The Houles and their attorney, Randy Cooper, first approached the Freedom Planning Board in October 2006 with preliminary plans for the Berry Bay Condo Association: a major subdivision application that would condominiumize the buildings and merge the two lots into one, thereby allowing the buildings to be individually owned and the land to be commonly owned.

Issues Raised
From that first conversation and continuing through subsequent Planning Board meetings, several issues were repeatedly raised. While Cooper said that the application asked for a change of ownership and not a change of use, Barry Rollins, an abutter to the Houle property, said that “his problem with the project had to do with a change of use.” (Rollins is a member of the Freedom Planning Board. Meeting minutes show that he recused himself from Planning Board discussions and votes and spoke during the public comment portions of the meetings.)

The property’s driveway was also a problem. Planning Board members were concerned that the driveway, which is a designated private road known as Houle Road, would some day become a town road, with the town responsible for its year-round maintenance.

The definition of “seasonal” proved to be a sticking point. The October 2006 Planning Board minutes refer to the units “seasonal,” but as Cooper noted at the May 2007 meeting, the Freedom Town Ordinance does not contain a definition of seasonal.

Despite these ongoing concerns, by May 2007 the Planning Board was prepared to act upon the application. The Board held the application against a three-point test, a test called “Factors to Consider Regarding Extension of Nonconforming Use” and given to it by town counsel.

Three Votes
First factor: “Does the proposed use reasonably reflect the nature and purpose of the current nonconforming use?” The Board voted yes, 6-1, with Les Babb (Selectman’s representative on the Planning Board) voting no.

Second: “Is the proposed use merely a different manner of using the original nonconforming use, or does the proposed use constitute a different use altogether?” The application passed this test, 4-3, with Babb again in opposition, along with Anne Cunningham and Geraldine Lippincott.

Finally, “Does the proposed use have a substantially different impact upon the neighborhood?” The application passed this test with another 4-3 vote, with Babb, Cunningham, and Lippincott again in opposition. Those voting against the application seem to share a concern that any full-time use of all five buildings on the property would indeed substantially impact the neighborhood.

It is interesting to note that before even proceeding with the three-factor test, the Planning Board and town counsel had a conversation about the relevancy of the test. Counsel had explained that the test is to be used when deciding if an expansion of a nonconforming use is permitted or excessive and added “that he now hears from the applicant that they are not seeking year-round use, as it is simply a change of ownership and the three point test may not need to be addressed.”

Babb, stating that he sees the buildings as three tourist or seasonal homes and two year-round homes, moved that the test did apply to the decision at hand; the motion passed and the Planning Board proceeded to administer the test.

The application passed the test (though not unanimously or even overwhelmingly) and the condo conversion was approved. The final plan was to include language stating that the two lots would be merged into one, that the condo association would “be responsible at all times for summer and winter maintenance of Houle Road,” which would “remain a private driveway and [would] not become a public way at any time in the future,” that improvements made to any of the units would not expand the unit’s footprint, and that any garages built on the property would be “for accessory use only” and would not include “living space.”

Ordinance Updated
After approving the Berry Bay condo conversion in May 2007, the Planning Board took up the issue of the definition of “seasonal” and updated the “seasonal/new dwelling section” of the ordinance.

The ordinance was amended, March 2008, to state that: “All pre-existing non-conforming seasonal uses shall be permitted to be used to the same temporal extent as they have been used on a continuous and uninterrupted basis until abandoned or discharged. The burden shall be on the property owner to establish the season or periods of the year in which the use has existed. In the absence of evidence to the contrary, seasonal summer use shall be presumed to be May 15 through October 14; and seasonal winter use shall be presumed to be October 15 through March 1 for each calendar year.”

That’s all well and good for the town’s zoning ordinance, but where does that leave the new condo owners? They seem to want to be able to use their condos during the winter months, but once the Zoning Officer’s cease and desist order goes back into effect after January 28, 2009, they will presumably have to vacate their properties.

What happens next for them? During the second week of January, the Select Board is meeting in a non-public work session with the town attorney to discuss the issue. For now, all parties seem to agree that while a change of ownership did occur, the status of any change of use remains unclear, or at the very least, up for debate.

[Cynthia Davis is a contributing writer]

Temporary Relief for Berry Bay Condo Owners

6 thoughts on “Temporary Relief for Berry Bay Condo Owners

  • January 9, 2009 at 9:00 am

    I wonder how well the septic system works for all those units…if it has ever been updated…if it contaminates the lake at all ????

  • January 11, 2009 at 11:24 am

    There are 3 systems on the property. All systems are currently working fine. In the event a system should fail a plan has been put in place per the approval of the Planning Board and the Berry Bay Condo Association. The Association is also required to have the systems pumped and inspected every 2 years. Are all other dwellings in Freedom required to live up to that standard? The Berry Bay Condo owners are being responsible and mindful of any septic concerns.

  • January 12, 2009 at 11:19 am

    Regularly pumping the sludge out of your septic tank is important and in the owners best interest. Everyone should be as responsible & mindful. Replacing a failed septic system on a waterfront lot isn’t going to be cheap. My understanding is that the honey trucks now have to go to N. Conway to dump. A sanitary municipal processing facility closer to the land of septic tanks & camper traffic might be a money maker.

    If Freedom does not provide some adjustment for less then full and fair use in the property tax assessment then the owners might be able to demonstrate that the agreement puts an unfair tax burden on their compromised asset and they are due a tax abatement.

    Hold Fast
    Don MacLeod

  • January 16, 2009 at 6:49 am

    Does the final plan or decision of the Planning Board include the words “seasonal use with dates”?
    If not, the Zoning officer had no standing to issue a cease-and-desist order, Due to the fact that the town Ordinance did not include the definition of seasonal use at the time the plan was approved.
    The statement of town Counsel ” “that he now hears from the applicant that they are not seeking year-round use, as it is simply a change of ownership and the three point test may not need to be addressed.” what does that mean , did the applicant make that statement to the Planning Board ?
    I guess it really comes down to the decision of the Planning Board ,does it or not include the words seasonal use with dates?

  • January 26, 2009 at 9:24 pm

    The final plan says nothing about seasonal use nor does the tax card. The deed to the property has no restrictions. They now realize the units have been used outside of the summer season but are trying to get the owners to sign off on weekend use only and school vacations outside of the summer season. The unit owners bought a piece of property and are now being told when they can use them. Is this policy going to apply to all property owners in Freedom that only use their property now in the summer? Someday when they may decide to retire in Freedom will the Town tell them that their property had only limited use in the past and they can only use it in that manner going forward. This is completely unjust and unlawful.

  • January 27, 2009 at 1:18 pm

    R Lae: This situation would not apply to all owners of seasonal properties in Freedom. The reason occupancy is at issue in this case is because of the change in the status of the buildings to condo units, which required a discussion of use. It has been reported that either the owner or his attorney told the Planning Board there would be no change in use, meaning the units would remain seasonal. It is possible that the application would have been denied had he or his attorney stated that the units would be sold as year-round dwellings — year-round use arguably having a greater, and potentially adverse, impact on the surrounding area. For most properties, simply winterizing a seasonal building would not create the same issues found in this case. It has not been reported (that we know of) what the new owners of these units were told by the seller. That, it seems to us, is the real issue.

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