Ossipee Lake Marina

This case began in 1997, includes Superior Court and Supreme Court rulings, and remains active. The legal focus is compliance with state and local laws as they relate to the limits of operating a grandfathered business in the lake’s residential zone. Information has been compiled from public documents and newspaper articles. Click on the blue links for detailed information or access to original documents. Enter “Ossipee Lake Marina” in the search box to the right for the latest news stories.

Chronology

1997

Bayview Marina starts the summer season with a new name, Ossipee Lake Marina, and a new owner, Ossipee Realty Corporation, whose principal is Kevin Price. The marina is a non-conforming use in Freedom’s General Residential District.
High-intensity lighting is installed, illuminating surrounding residential properties and much of Broad Bay.
In August the marina baffles the lights to direct them away from the lake in response to resident complaints.
The Zoning Board of Appeals (ZBA) schedules a hearing on the marina’s application for a special exception to construct two 50′ x 200′ boat storage buildings.
On October 9 the ZBA grants the special exception subject to specific conditions, including the location of the buildings, the number of boats allowed inside and outside the buildings, parking restrictions, green spaces, set-backs and buffer zones.

1998

On February 24 the marina applies to the ZBA for a special exception for a “sandwich shop” described as “accessible by land with enough parking available.” Bay residents oppose the request as an impermissible expansion of a non-conforming use under zoning law. The ZBA denies the application on March 26.
On April 10 the marina appeals the ZBA decision and on April 28 the ZBA denies the appeal.
In May a new high intensity light is installed on a pole on the property and aimed directly at Broad Bay. The baffles on the original lights are removed so that they too shine toward the lake and surrounding properties.
On June 26 the marina purchases three acres of adjacent residential property from Constantino DiPrizio, a parcel known as Lot 42. Within days waterfront trees and vegetation have been cut down and removed, wetlands filled and a road constructed just feet from the shoreline connecting to a new customer parking lot. Residents contact town selectmen and the Freedom Conservation Commission.
On July 7 North Broad Bay Association sends a letter to the marina asking them to reduce the lighting. The marina does not respond.
On August 11 the Freedom Conservation Commission sends a letter to the N.H. Department of Environmental Services (DES) and to the selectmen alleging violations of state environmental law and local zoning at the marina.

1999

The shoreline parking lot has been expanded and a large swath of the hillside has been removed to create a second parking lot on Lot 42, the former DiPrizio property. Additionally, a new access road has been built connecting Alvino Road to the two parking lots. Lot 42 is now the main parking area for the marina complex.
On October 8 the state issues septic permit # 1999020992 for the marina to build a septic system and field on Lot 42.

2000

A new three-stall cinderblock bathroom building on Lot 42 is open in time for the summer season.
In June a state inspector tells the marina and its contractor they must re-file to obtain “approval for operation” of the septic system governed by permit # 1999020992. This is due to discrepancies between the approved design and the final construction of the system.
On October 24 the marina applies to the town for a permit to build a structure on Lot 42 and on October 30 the Town issues Building Permit #00139. The permit does not specify what is to be built, but there is a notation at the bottom of the document reading “Septic App # 1999020992.” This is the state septic permit for the already-constructed bathroom building.
In November, area property owners request additional information from the town on building permit #00139, including the required description of the building and general plot plan. The town says the information cannot be found.
In November the state says it has not received a corrected septic design and has not issued an “approval for operation” for the septic system serving the already-operating bathroom building.
In November lake residents give the selectmen a four-page summary list of documented environmental and zoning violations at the marina and a list of potential remedies for those violations.

2001

During the winter, a large boat storage building on the marina property collapses under the weight of the snow. The town later establishes that the collapsed building was constructed without required ZBA review and approval.
In a January 25 letter to Price, the selectmen detail possible zoning violations at the marina including illegally constructed buildings, the use of Lot 42 for commercial purposes, and expanded food sales. The selectmen direct the town’s code officer to establish the facts by March 1, and they direct Price to apply by February 23 for “after the fact” ZBA approval of the bathroom building and the collapsed boat storage building. The selectmen also state their intention to enforce the provisions of the ZBA’s 1997 special exception for boat storage starting July 1, 2001.
In a May 8 letter to Price, the selectmen ask for closure on issues that are “still outstanding” from their January letter, including applying for “after the fact” ZBA approval for the collapsed boat storage building. They reiterate that all provisions of the ZBA’s 1997 special exception for boat storage will be “strictly enforced” starting July 1, 2001, but they add that they have decided “not to pursue” the other issues detailed in the January 25 letter. Presumably the issues not to be pursued include use of Lot 42 for commercial purposes, including roads, parking lots and the bathroom building as this issue is not mentioned in the letter.
The marina adds additional high intensity pole lights to illuminate the parking lots and docks, bringing the total number of such lights to five. A soft drink machine is positioned on the gas dock where its colored lights reflect on the lake throughout the night.
Broad Bay residents note that the marina has installed a dock on the shoreline of the former DiPrizio property and is berthing boats there and elsewhere along that property.
On June 21 DES issues a Letter of Deficiency to the marina detailing violations of RSA-482-A, the state’s wetlands law. The letter is the result of the Conservation Commission’s 1998 letter.
On August 10 Price applies to the ZBA for a special exception for expanded boat storage. At the ZBA’s August 28 hearing residents and ZBA members ask questions about the unresolved issues identified by the state and the town, including commercial activities on Lot 42 and compliance with the ZBA’s 1997 special exception conditions for boat storage. The ZBA decides it cannot rule on the application until it has more information.
On August 29 the ZBA sends Price a four-page summary of information that must be provided to the town before the ZBA can consider and rule on his August 10 application.
On September 5 North Broad Bay Association asks the ZBA by letter to help resolve the issue of the marina’s lights.
On September 24 the marina withdraws its request for a special exception to construct additional boat storage buildings.
On October 3 an attorney representing abutting property owners sends a letter to the selectmen requesting the release of all information obtained as a result of their January and May letters to the marina, including the facts established by the zoning code officer and any enforcement actions taken by the town. The selectmen do not respond.
After conferring with Town Counsel the selectmen send Price a letter on October 15 recommending that he apply to the ZBA for “after the fact” zoning approval for the parking lots, the bathroom building and the shoreline “work road” constructed on Lot 42, the former DiPrizio property. They state they will “have to consider enforcement proceedings” within 30 days if he does not comply or appeal. They also state that “allegations have been made” that the marina is not in compliance with the conditions imposed by the ZBA’s 1997 approval of a special exception for boat storage, and that food sales have been expanded despite the ZBA’s 1998 rejection of such an expansion. They state that the code officer “will be investigating these allegations.”
On October 24 Broad Bay residents provide the selectmen and ZBA members with pictures detailing the marina’s lack of compliance with the terms of the 1997 special exception for boat storage and its expansion of commercial operations to Lot 42 without ZBA approval.
On October 26 DES accepts the marina’s plan to restore the wetlands filled in 1998 on Lot 42. DES mandates an initial monitoring report by a qualified wetland consultant by December 1, 2001. Bay residents receive a copy of the plan and note that it includes a new raised boardwalk covering the shoreline “work road” and extending the full length of the shoreline of the former DiPrizio property.
On November 6 Price’s attorney sends a letter to the selectmen taking issue with the town’s interpretation of the conditions of the ZBA’s 1997 approval of a special exception for boat storage. He also states his intention to meet with the town to discuss “some alternative plans” regarding the marina and the incorporation of Lot 42.
On December 3 Mr. Price and his attorney meet with Selectman Krebs to outline the marina’s plans to apply for “after the fact” approval of commercial operations on Lot 42. They also state their intention to apply for approval to construct additional boat storage buildings and a boardwalk running the length of Lot 42′s shoreline. Krebs states that the Town Planning Board must first review the plans.
On December 7 the company responsible for restoring the wetlands filled by the Marina asks DES to extend the deadline for compliance with the restoration plan. On December 17 DES grants an extension to June 15 for submission of the initial monitoring report.
On December 21 Broad Bay residents inform the town that more than 60 boats are stored outside the marina’s buildings despite the Town’s stated intention to enforce the law by July 1. The limit imposed by the ZBA in 1997 is 10% of the number of boats stored inside the buildings, to a maximum of 23.

2002

In a January 12 letter, property owners take state and town officials to task over the Marina’s “wetland restoration plan” which includes covering the area with a wooden boardwalk on concrete footings to accommodate marina customers accessing boat slips. The letter questions how covering an environmentally damaged area with a man-made structure can be considered a “wetland restoration,” and it reminds the selectmen that customers accessing boat slips on the property violates zoning since the marina does not have ZBA approval to operate on Lot 42.
On January 22 Price and his attorney meet with the town to present two possible directions for developing Lot 42: applying to create a “new” marina and applying for “after the fact” approval of what has already been done on the property without approval. At a combined ZBA-Planning Board “discussion only” meeting, residents state their opposition to both plans, saying neither can meet the general standards criteria for special exceptions in the zoning ordinance. The lack of state and town enforcement of known violations is again noted for the record.
On February 3 Broad Bay property owners count the boats stored outdoors at the marina and find almost triple the number permitted by the 1997 ZBA ruling. Town officials are notified.
Responding to public complaints DES sends a letter to Price revoking its previous approval of a boardwalk as part of the plan to restore the wetlands filled on Lot 42. The letter reiterates June 15 as the deadline for submission of an initial monitoring report on restoration progress.
On March 12 the Price applies to the ZBA for a special exception to zoning. If granted, the exception would expand the pre-existing marina use to include Lot 42 and authorize new buildings to accommodate 54,520 sq. ft. of inside boat storage, new parking lots and other expansions. The town sets a hearing date for March 26.
A new organization, the Broad Bay Alliance (BBA), is announced on March 18 to oppose additional commercial development on Broad Bay, including the proposed expansion of Ossipee Lake Marina.
On March 23 the Conway Daily Sun publishes a major article on the background of the marina situation and the legal issues it presents.
On March 26, abutting property owners, YMCA Camp Huckins, North Broad Bay Association, BBA members and other lake and town residents tell the ZBA that the proposed expansion fails to meet key legal requirements under state law and local zoning. Freedom’s fire chief says he is concerned for public safety and Green Mountain Conservation Group details the potential harm to the lake’s shoreline environment, which is unique in the state. The ZBA postpones a decision until May 28. The Independent and the Sun both cover the hearing.
In a letter to the ZBA on April 24, Attorney Fay Melendy details the legal issues raised by marina’s proposed expansion of its non-conforming use and its request for “after the fact” approval of its expansion onto residential Lot 42, concluding the law does not support either.
On May 3 BBA issues a press release saying building permits were issued for the marina between 1997 and 2000 without the required zoning permits and without standard information, thereby allowing expansion of the marina’s grandfathered non-conforming use without ZBA review and approval.
At the May 28 ZBA hearing the marina’s application is denied as an impermissible expansion of a non-conforming use and for failing to meet five of the 20 criteria required by the ordinance, including demonstrating that the proposed use would not have an adverse impact on the character on the surrounding area.
At the June 3 selectmen’s meeting the town counsel recommends that the town “defer formal enforcement” of the ZBA ruling for 21 days to allow the marina to submit “individual applications to the ZBA for each specific issue”.
On June 6 the town counsel is quoted in the Conway Daily Sun as saying that the marina has the right to “scale down the plan and resubmit it” to the ZBA.
On June 10 BBA faxes a letter to the selectmen saying it was stunned to read town counsel’s public comments. The organization says it believes the applicant does not have the legal right to re-apply for what has already been denied. The letter calls on the selectmen to enforce the May 28 ruling.
Attorney Melendy appears at the June 10 selectmen’s meeting in support of the BBA letter and asks the selectmen to enforce the ZBA ruling. The president of North Broad Bay Association makes the same request by phone. The selectmen vote to issue a cease and desist order prohibiting the use of Lot 42.
On June 11 the town’s code enforcement officer issues a cease and desist order directing the marina to stop using Lot 42 or face fines of $250 per day.
At the June 17 selectmen’s meeting Price asks the town to lift the cease and desist order, and the selectmen agree to consider doing so as a “good faith effort” after speaking with the town counsel. The Selectmen also meet with ZBA chairman Jim Breslin and request that the ZBA hold a special session to consider the marina’s new applications because “they would like matters resolved before the next regular meeting [of the ZBA] at the end of July”.
On the morning of June 24 BBA faxes a letter to the selectmen informing them that the marina violated the cease and desist order by using Lot 42 on June 22 and June 23. The minutes of the selectmen’s meeting that evening make no mention of the marina or the violation.
On June 25 DES confirms that the marina’s required wetlands restoration progress report is overdue despite a six month extension of the original due date. Bay residents tell the agency and town that restoration has not started.
On June 26 the marina submits five new applications covering separately and individually all aspects of the consolidated expansion plan that was denied by the ZBA on May 28. The ZBA sets a special hearing date for July 9.
On June 29 the marina replaces the high intensity commercial lights with smaller pole lights.
At the July 1 selectmen’s meeting Price again requests that they suspend the cease and desist order so he can use Lot 42 during the holiday weekend. The Selectmen vote 2-1 to do so.
On July 3 the selectmen suspend the cease and desist order and state their decision is “to protect the health of property owners around the lake” and is “in the interest of safety”.
On July 3 BBA faxes a letter to the selectmen stating that the property owners of Broad Bay know of no public health or public safety issues that would justify suspending enforcement of the ZBA’s ruling. BBA asks the Selectmen to explain their action to the public, and it issues a press release.
At the July 9 special hearing the ZBA reverses its May 28 ruling and votes to grant “after the fact” approval to operate the parking lot and bathroom building constructed without required zoning board approvals on residential Lot 42 between 1998 and 2000. The approval is conditioned on closing Lot 42′s access to Alvino Road and other provisions. In the ruling the ZBA denies all other expansions including the commercial use of Lot 42, stating the board’s denial “would not result in unnecessary hardship to the property owner” who can “continue to function as a marina without the variance.” Also: “Granting the variance [for the use of Lot 42] would not benefit the public interest. In fact, the potential impact on the neighborhood would be detrimental to the public interest.”
On July 14 BBA issues a press release on the hearing and again calls for the selectmen to explain their actions in the cease and desist matter.
On July 19 Price appeals the ZBA’s denial of additional buildings for boat storage by filing with the state Superior Court.
On July 19 Broad Bay property owner Kathleen Keenan appeals the ZBA’s approval of the use of the Lot 42 bathroom and parking lot. BBA joins in the appeal.
On July 31 ten additional Broad Bay property owners appeal the ZBA’s approval of the bathroom and parking lot. BBA joins in their appeal as well.
At an August 19 hearing the ZBA upholds its July 9th decisions regarding Lot 42. BBA attorneys are denied the opportunity to make an oral argument and the ZBA debates just one of the two legal motions presented. The hearing lasts 15 minutes.
On September 3 Price submits to DES the required initial monitoring report on progress to date in restoring the wetlands he filled in 1997.
On September 15 BBA appeals to state Superior Court to overturn Freedom’s decision to approve the use of the Lot 42 bathroom and parking lot. The appeal is announced in a press release on September 25. The marina appeals to Superior Court to overturn the ZBA’s denial of the other proposed expansions.
A December 12 count of boats stored outdoors at the marina shows compliance with the limits established in 1997 by Freedom’s ZBA.

2003

On January 16 DES issues a Letter of Compliance indicating that the wetlands the marina filled in June 1998 have been remediated to the state’s satisfaction.
In April, BBA becomes Ossipee Lake Alliance (OLA) and announces a series of programs including lake water quality monitoring and milfoil prevention.
On September 18 the town of Ossipee approves a variance for Price’s Harts Mountain Trust to establish a boat sales and storage business on rural property on Route 16 near Boulder Hill. The planners stipulate that the approved plan must be completed within five years.
On October 3, Superior Court Judge James D. O’Neill hears briefs filed by Price and two groups of lake property owners, all disputing various aspects of the decisions made by the ZBA.
On December 31, an order from state Superior Court upholds the ZBA’s denial of additional boat storage buildings on the marina property. The court’s ruling also upholds the ZBA’s “after the fact” approvals of the bathrooms and parking lots illegally constructed on Lot 42.

2004

On January 28, Price appeals the Superior Court decision to state Supreme Court.
On March 11, Price withdraws his appeal, effectively ending the court case.
On August 8, lake residents report that 12 boats are docked on the shoreline of Lot 42.

2005

On July 5, lake residents complain to OLA that boats are docked for the second year on the Lot 42 shoreline.
On July 11, Selectman Les Babb tells an OLA official the marina plans to dredge Danforth Brook during the autumn drawdown.
On July 20, OLA sends a letter and pictures to Selectman Babb reporting the boats docked along Lot 42. The letter also states that DES has not approved the apparently planned dredging in Danforth Brook.
On July 25, the selectmen rule that the boats on the Lot 42 shoreline are a state issue, not a town issue, citing RSA 42A2-8b. A check of state laws shows that RSA 42A2-8b does not exist.
An August 22 letter from OLA to former ZBA chairman and now-Selectman Breslin reiterates that marina boat slips are not permitted on the shoreline of Lot 42, and adds that the marina is storing boats on Lot 42 and using Alvino Road for customer traffic, both of which violate the ZBA’s 2002 rulings and Superior Court ruling.
On September 13, marina employee Tim Cupka’s wife, Donna, is appointed an interim selectman to replace John Krebs, who resigned.
Responding to comments by Selectman Babb and marina employee Tim Cupka that the marina will start dredging this month, OLA sends Babb a letter on September 26 stating that DES has never received an application to dredge.
On October 17, the selectmen rule boat storage on and along Lot 42 is permissible “for boats owned by the marina that are for sale or rent.” Selectman Cupka recuses herself from the decision.
On October 17, the selectmen rule the marina’s use of Alvino Road is permissible because the traffic flows from bass fishing tournaments create a “safety issue.” Selectman Cupka recuses herself from the decision.
On October 17, the marina applies to DES to dredge Danforth Brook.
On November 4, Attorney Fay Melendy sends a letter to Town Attorney Peter Malia on behalf of abutting property owner Keenan stating that boats are moored on the shoreline of Lot 42 without ZBA approval and despite “a specific finding that general marina uses had not been granted for this lot.”
On November 11, OLA sends a letter to DES stating concerns that dredging Danforth Brook could spread milfoil into Broad Bay. It asks DES to require a performance bond if dredging is approved.
On December 18 OLA sends a letter to the selectmen stating the selectmen’s interpretations of the 2002 ZBA rulings “have no basis in law.” It also states that the marina is storing 140 boats outdoors on the property in violation of the ZBA’s outdoor limit of 23 boats.

2006

Responding to a complaint by a Broad Bay resident, the selectmen instruct the code enforcement officer to meet with marina employee Cupka to discuss outdoor boat storage. The code enforcement officer’s February 9 report states there are 23 “outside storage client boats” on the property, 101 “marina owned boats,” and 19 “client boats for servicing.”
On February 10, DES issues a letter on the marina’s dredging application stating that from “a cursory review of the application… the project as proposed in not approvable.” It further states that only $570 of the $5,820 application fee was received, and notes a long list of requirements that must be included with the remaining application fee if Price wants DES to complete its evaluation of the application.
On February 26, OLA sends a letter to more than two dozen past and present town zoning officials asking them to intervene with the selectmen to prevent a lawsuit against the town for failing to enforce the ZBA’s 1997 and 2002 rulings.
On March 2, OLA issues a news release saying the selectmen are damaging zoning by undermining ZBA rulings that they instructed the town attorney to defend in state court less than two years ago.
On March 6, the selectmen send letters to OLA officials, past ZBA members and others who have expressed concern over the selectmen’s actions requesting that they attend the March 20 selectmen’s meeting to discuss the allegations.
On March 20, the selectmen convene the meeting and Chairman Babb announces that no public comments will be heard. Babb calls OLA director David Smith a “hostile complainant” and alleges that he told Babb “he was going to put the Marina out of business.” Babb then reads a letter from the town attorney stating that the marina must abide by the ZBA’s limits on outdoor boat storage and the use of Alvino Road. Public comments ensue from those attending despite Babb’s statement that there will be no discussion. Selectmen Babb and Breslin state that all further concerns should be sent to the town by letter to the selectmen by April 24th.
In a letter to area newspapers on March 28, OLA’s board of directors condemn Babb’s statement about OLA’s director and say they will continue to “hold public officials accountable for their actions.”
On April 18, a letter to Chairman Babb from Attorney Fay Melendy is hand-delivered on behalf of town resident Chuck DePew. The letter asks the selectmen to enforce the 2002 ZBA and 2003 Superior Court decisions on the marina, including the restrictions on the use of Lot 42 and Alvino Road.
On April 27, former ZBA members Bill Stoops and Frank Seabury, who participated in the marina decisions, issue a public letter questioning the selectmen’s apparent overruling of decisions that were “lawfully derived through a fair process supported by a majority of the public.”
On May 1 the selectmen hold an “open forum” regarding the marina. Selectman Babb says “the selectmen agreed they could have boats to repair and marina owned boats that would not be included in the 23″ boats permitted outside the buildings. Marina employee Cupka says there were 101 boats stored outside the buildings during the winter, not 143. Selectman Babb corrects that number to 103. Marina attorney Randy Cooper says his client has three options: “to appeal the [ZBA] decision, go back to the ZBA with another application or change the zoning ordinance, and maybe that would be the easiest.”
On May 22 the selectmen rule the marina has the right to beach boats along Lot 42 “as long as there is not a charge for doing so.” Marina employee Cupka says the boats in question are marina rental boats and asks “will this be a problem with the public seeing this as a commercial use?” Selectman Babb says “only if the renters walk across the lot to the boats.”
On August 28 marina employee Cupka asks the selectmen if he can use Alvino Road for a fishing tournament on September 2 and 3, “or what the fine would be.” Selectman Breslin says “a one-time exception is reasonable in terms of public safety.” Selectman Babb says such an exception would need to be posted on the agenda ahead of time. No decision is made.
On September 2 and 3, the Marina uses Alvino Road for participants in a fishing tournament. Lake residents report the incident to the police.
On September 8, Ossipee’s Planning Board sends Price a letter asking for an update on his proposed Route 16 boat sales and storage facility. Price does not respond.
In October the marina applies to the ZBA for a special exception to construct a boat wash facility on Lot 42. The application further seeks to reverse previous ZBA decisions by permitting the use of Alvino Road and “unlimited outside boat storage within a fenced in area.”
The ZBA hears the application on November 28. A letter from Freedom Conservation Commission is read saying the state no longer favors boat washes, and the marina withdraws that part of the application. Abutting property owners, lake residents and the director of Camp Huckins speak in opposition to expanded boat storage citing environmental damage, adverse impact to the character of the area and fire danger. Green Mountain Conservation Group submits a letter asking the town to conduct an environmental impact study. Selectman Cupka, wife of marina employee Cupka, says the marina has been storing more than 100 boats outside “with the approval of the selectmen” and “should be able to store as many boats as they can fit, within their setbacks.” She adds that she is speaking as an individual, not as a town official. The meeting is continued.
At the December 12 continuance meeting, marina attorney Cooper files a brief stating his client does not have to meet the adverse impact provision of the ordinance because marinas are permitted by special exception. Former ZBA member Don Bossi cites the danger of fire and asks the board why they are re-considering an issue that was decided in 1997. Others express concerns about the environmental and economic impact to the surrounding residential neighborhood. Marina owner Price says he is being “economically hung” by storage restrictions. The ZBA notes that Fire Chief Gene Dow has not attended either meeting. The meeting is continued to January 23.

2007

On January 2, DES sends a letter to the ZBA saying it has been following the marina expansion issue because the marina is the site of the lake’s first milfoil infestation. The agency says “extensive thought and planning will be necessary” by the town to ensure that an expansion will not increase the spread of milfoil.
On January 17 DES sends a second letter to the ZBA noting that shoreline erosion and boating carrying capacity are issues the board should consider as part of the marina’s application.
On January 19 Attorney Melendy files a brief on behalf of abutting property owner Keenan asking the ZBA to reject the application for reasons that include adverse impact and previous ZBA rulings denying additional storage capacity. The brief also refutes claims made by marina attorney Cooper.
On January 23, the ZBA overturns its own 1997 and 2002 rulings and approves Price’s application, voting 3-1 that unlimited boat storage will not have an adverse impact on the surrounding residential area.
On January 29, former ZBA vice-chairman Don Bossi calls the approval “one of the worst decisions I have ever seen,” saying the new ruling will allow the marina to store boats “without any thought about fire, vehicle access or neighborhood economic and environmental impact.”
On February 12 abutting property owner Keenan files an appeal for a re-hearing, which is denied. Keenan appeals the ZBA decision to state Superior Court.
On June 26, lake residents contact code enforcement officer Ned Hatfield to report the marina is again using Alvino Road and Lot 42 in violation of ZBA rulings.
On July 8, Hatfield confirms the marina’s use of Alvino Road and Lot 42 and writes in his report: “This is a repeat violation of the previous year, and for this violation there is a fine of $275. Future use of these facilities will be considered as a separate violation for each boat or vehicle and an appropriate fine will be assessed for each occurrence.”
On July 17, the Ossipee Planning Board sends Price a second letter asking for a progress report on the Route 16 boat sales and service project. The letter notes that Price did not respond to the previous letter and the project must be completed within five years.
On August 20, Price pays the $275 fine for using Lot 42 and Alvino Road “under protest” and asks for “clarification” of the violations. The selectmen agree to put the check in a safe and not cash it “until the matter can be resolved.” The check is subsequently returned to Price.
On September 18, Price appears before the Ossipee Planning Board and says he cannot find a dealership for the property. The board calls the property “unsightly” and Price concedes it is an “eyesore.” At the board’s request he agrees to “bring it to grade” and baffle the bright light. Code enforcement officer Dave Senecal says the variance will expire in a year and the property will revert to a rural designation if the site plan does not move forward.
On November 15 a Superior Court judge overrules the Zoning Board’s January approval of unlimited boat storage at the marina, ruling that the application was “substantially the same” as what the ZBA has already turned down.
On November 21 it is observed that access between Lot 42 and Alvino Road has been blocked by a chain and a sign indicating “emergency vehicle access only.”
On December 4 the Freedom Selectmen vote 2-0, with Selectman Cupka abstaining, to appeal the Superior Court ruling to the State Supreme Court. The town will argue the case alone as marina owner Price does not file as an intervener in the case.

2008

On April 2 Freedom Town Counsel Peter Malia files a brief with N.H. Supreme Court, arguing that the 2006 application was materially different from previous applications because “it was the only application that proposed outside boat storage inside a designated fenced in area.”
In a July 10 Letter of Deficiency, DES’ Oil Remediation and Compliance Bureau cites the marina for not having leak monitoring equipment for the underground lines that supply gasoline to the shoreline gas pumps, saying the business “is not currently eligible for reimbursement of clean-up costs incurred should a spill occur at your facility.” The agency also says registrations for the above-ground gasoline storage tanks and storage areas are “out of date and inaccurate,” monthly inspections are not being conducted and documented and a “high level alarm” for the system is inoperable.
On September 8, marina employee Tim Cupka tells the selectmen the chain blocking access to Alvino Road was taken down by vandals during Labor Day weekend, and he was concerned that the town code enforcement officer knew about it before he did. He said the town’s monitoring of Alvino Road for the marina’s compliance was “a waste of money” and he should be responsible for telling the town when the chain is down, not the code enforcement officer. The selectmen agree.
On November 17, the State Supreme Court cites an error in the Superior Court’s denial of unlimited outdoor boat storage at the marina and remands the case to the lower court to be re-tried.
Citing illegal increases in boat slips and the size of docks, DES issues an Administrative Order on December 9 giving the marina 10 days to remove its docks from the lake. The business is told it must either bring the docks into compliance with its state operating permit or else apply to the State for approval to modify the permit before putting docks or boats in the water. The business removes it docks from the lake.

2009

On January 8 marina owner Price appeals the DES Administrative Order to the state Wetlands Council claiming, among other things, that he “only recently” obtained a copy of the 1988 state permit that governs the operation of his business and, in any event, the 1988 permit is no longer valid. The Council rules on January 16 that the appeal document is “insufficient.” The marina subsequently revises and re-submits it.
On February 2, the boat storage case is argued again in Superior Court.
On March 24 the Wetlands Council meets and agrees to consider the marina’s motion for appeal. A pre-hearing conference on the matter is scheduled for May 20.
On April 24, a Superior Court judge overturns the ZBA’s 2007 approval of unlimited boat storage at the marina, saying it was an impermissible expansion of a non-conforming use.
On April 30 the marina requests a rule waiver from DES before submitting the permit application required by the Administrative Order. The rule waiver document asks DES to waive its dock size and width standards citing, among other things, the marina’s legal requirement to meet Section 15.2 of the federal Accessibility Guidelines for Buildings and Facilities of the Americans with Disabilities Act of 1990. [Note: Section 15.2 was replaced by different standards in 2004 and is no longer valid, and the standards are voluntary, not legally required].
On May 14, DES signs an interim consent order with Price that allows him to put his docks back in the lake for the summer while his appeal of the Administrative Order is heard. DES says no action has been taken on the rule waiver request.
At the May 18 selectmen’s meeting, town zoning officer Ned Hatfield seeks direction from the board regarding enforcement of the Alvino Road prohibition. Chairman Babb and ex-selectman Cupka begin a discussion about whether the road is public or private, and Babb asks “should it [Alvino Road] have been in that [ZBA decision]? Probably not, because it’s a private road…that’s where it gets muddy.” Babb instructs Hatfield to ask the State Municipal Association for guidance and tells him to continue investigating complaints while fostering a “good working relationship” with the marina.
At the same May 18 meeting, ex-selectman Cupka and marina owner Price lobby the selectmen to appeal the Superior Court’s denial of the January 2007 ZBA decision. Board Chairman Babb asks Price how much he is willing to pay toward a town appeal. Price says he will take the financial burden “off your shoulders.” The board agrees to discuss the issue with town counsel, who files an appeal the following week.
On May 20 the Wetlands Council convenes its scheduled pre-hearing conference on the marina’s appeal of the DES Administrative Order. Marina owner Price arrives an hour late and the hearing commissioner arrives not at all. The pre-hearing conference is continued to a future unspecified date.
The Sun and the Independent publish a public letter from Ossipee Lake Alliance saying there’s nothing “muddy” about the reason for the Alvino Road decision, citing town rulings and meeting minutes. The letter also cites town documents showing how the selectmen have repeatedly avoided enforcing the ruling.
On June 3 the selectmen vote 3-0 to appeal the boat storage case to State Supreme Court and confirm their agreement to let marina owner Price pay for it. The Independent reports that the first check from Price for $2,000 will be “put in escrow.”
On June 14 the Alliance sends a letter to the selectmen and town counsel stating Selectman Babb’s recent statements about Alvino Road are “part of a pattern of the selectmen ignoring, marginalizing, questioning and in other ways undermining this and other similar zoning board rulings in order to permit expansions of the marina that have been lawfully denied.”
On June 21 the marina uses Alvino Road for a fishing tournament. The code enforcement officer and selectmen are notified.
On July 8, almost seven years to the day after the ZBA’s 2002 Alvino Road restriction, Price and his attorney ask the selectmen to overturn it as “illegal,” saying the zoning board had no jurisdiction because it is a private road. The selectmen say they will rule on the request on July 20.
On July 14, the Alliance publishes a summary of public documents showing a majority of state and local issues at the marina remain unresolved years, and in several cases more than a decade, after being identified.
At the July 20 selectmen’s meeting, Selectman Boyle says it would be “unwise” for the board to rule on Price’s request at this time, and he recommends that “the parties” enter into binding arbitration. His motion is not seconded and there is no vote. Selectmen Brown and Babb say Alvino Road’s status as public or private is “irrelevant” because the real issue is Lot 42, which the ZBA ruled cannot be used to access Alvino Road. Babb says the selectmen have a responsibility to enforce the rulings of other boards and he and Brown deny Price’s request.

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