Ossipee—September 9, 2019—The class action lawsuit filed last year by Westward Shores campers against Northgate and the Town of Ossipee inched forward last week with a court ruling on one issue, and an order for the parties to appear in court on September 19 to address a second.

On the first issue, Superior Court Judge Amy Ignatius ruled that the campers have standing in the case as it pertains to Count III of the multi-count lawsuit. Count III asks the court for a declaratory judgment that the improvements the plaintiffs made to their camping units constitute a lawful non-conforming use under Ossipee’s zoning ordinance.

The issue of standing arose when the judge, on May 13, dismissed Count III, saying the plaintiffs’ filing failed to establish that they had been “impaired or prejudiced” by the town. 

“The court recognizes that the defendants, both the Town and Northgate, have taken certain actions that, in the future, might assist them in making an adverse claim against the plaintiffs’ right or title,” she wrote. 

“However, the complaint itself demonstrates why such actions are not sufficient to confer standing. The complaint asserts that the plaintiffs have been left wondering what will happen next—whether the Town will take enforcement action, or whether Northgate will take action to oust them from their campsites. Plainly, these concerns, while no doubt distressing, are entirely hypothetical and therefore cannot form the basis for standing in a declaratory judgment action.”

In dismissing Count III “without prejudice,” the judge gave the campers 30 days for an opportunity to amend their complaint to show allegations of actual injury. Their amended complaint, filed in June, added allegations stating that Ossipee worked with Northgate to advise campers what was needed to bring their units into compliance after FEMA told the town it could lose access to favorable flood insurance rates if the campground’s violations were not addressed. 

In addition, the plaintiffs alleged in their amended complaint that at a Northgate meeting for campers this May, they were given an October, 2019, deadline to comply with the ordinance or be removed from the property. Subsequent to the meeting, one of the plaintiffs allegedly contacted Ossipee’s Code Enforcement Officer, who, according to the amended complaint, confirmed the deadline and said it was “final.”

The Town objected to the plaintiffs’ motion to amend, arguing that any enforcement actions it might take would be against Northgate, and not the campers. But the judge rejected that argument and ruled in favor of the plaintiffs: “It can reasonably be inferred from the facts alleged in the amended complaint that the Town has worked in conjunction with Northgate to ensure the plaintiffs’ compliance with the Town zoning ordinance and FEMA regulations,” she wrote in affirming the plaintiffs standing in regard to Count III. 

Class Action Certification

The plaintiffs in June also filed an amended motion seeking class action certification, and Northgate opposed class status, specifically on Count V of the campers’ complaint. Count V alleges that Northgate “willfully and knowingly” violated the state’s Consumer Protection Act (CPA) by engaging in unfair and deceptive business practices. 

With respect to Count V, Northgate is alleged to have facilitated the sale of 23 camping units on a commission basis without advising purchasers that the campground was in discussions with state and local officials to either “phase out” such structures or require expensive modifications.

Northgate asked the court to distinguish between the 23 members asserting the CPA claim and the class at large, and argued that it should make its determination of class based solely on the smaller group. The judge ruled the distinction was “irrelevant,” writing that the law permits a class to be divided into subclasses and each subclass treated as a class.

Northgate further argued to the court that “individualized questions” in regard to the CPA claim would “predominate over questions of fact or law that are common to all members of the class.” In this, the judge found merit.

“The plaintiffs allege that Northgate represented that certain improvements had characteristics or qualities that they did not in fact have,” she wrote. 

“However, it is unclear whether these representations were made verbally by sales representatives to individual plaintiffs, or whether Northgate generally advertised to the public that the improvements had certain characteristics or qualities. In the first scenario, the court believes that individualized inquiries of fact would plainly predominate over common questions of fact or law.”

To resolve this particular issue on class action certification, the judge deferred ruling and called for an evidentiary hearing at which the plaintiffs “should be prepared to produce sufficient evidence… that individualized inquiries will not predominate over common questions of law or fact.”

The hearing is scheduled for September 19 at 3 p.m. at the courthouse in Ossipee.