Timber Hill Farm operators ask judge to reconsider ruling


GILFORD — The Gilford Planning Board set itself up as a "super" zoning board to illegally overrule the Gilford Zoning Board of Adjustment and prohibit weddings at Timber Hill Farm, according to a new court filing in what has become a protracted battle over agritourism.
The operators of Timber Hill Farm filed two motions with Belknap County Superior Court Friday, arguing that a Feb. 14 court ruling that barred the farm from hosting weddings created "competing and contrary interpretations of the Gilford Zoning Ordinance that control the use of the property."
In a Feb. 14 ruling, Belknap County Superior Court Judge James O'Neill overturned a Gilford Zoning Board decision that concluded that, under the town's zoning ordinance, weddings were permitted agricultural uses at Timber Hill Farm.
A neighbor, Monique Twomey, sued to prevent weddings at the Gilford farm, located at 263 Gunstock Hill Road, overlooking Lake Winnipesaukee.
Twomey took the case to court after the Gilford Zoning Board reviewed an appeal of an administrative decision, a cease-and-desist order dated Aug. 26, 2015, relating to a section of the Gilford Zoning Ordinance governing agriculture. The order barred weddings at Timber Hill Farm.
The Zoning Board voted against the cease-and-desist order, finding that weddings and other farm-to-table events at Timber Hill Farm were permissible under "other commercial agricultural activity." Judge O'Neill vacated the Zoning Board's decision, finding that the board improperly interpreted "agriculture" as defined by the town's zoning ordinance.
In separate filings on Friday, Andrew and Martina Howe, operators of Timber Hill Farm, asked the court to clarify and reconsider its Feb. 14 ruling.
The seven-page motion for reconsideration argues that the Planning Board attempted to "subvert the power and authority of the ZBA by deciding that it had the legal authority to interpret" the zoning ordinance; and that "there is nothing in the enabling statutes that provides the Planning Board with the legal authority to countermand a valid ZBA decision regarding the use of the property."
"The Court's decision in this case legitimizes an illegal and unlawful attempt by the Gilford Planning Board to ignore the law dealing with challenges to a ZBA decision," the motion reads.
In the two-page motion for clarification, the Howes argue that the Zoning Board's decision of Dec. 22, 2015 — finding that weddings and similar activities are permitted agricultural uses under the Gilford Zoning Ordinance — was not appealed to the Superior Court in time. At that time, the Zoning Bard had overturned an earlier Planning Board decision.
This motion for clarification also argues that the court took competing views — recognizing on one hand that the Zoning Board on Sept. 29, 2015, interpreted the zoning ordinance and that the definition of agriculture included "farm to table" events, but on the other hand that the Zoning Board's decision of Dec. 22, 2015, was unlawful and unreasonable, creating a conflict.
"It is necessary for the court to identify which decision is controlling and why," the motion reads.
This motion also asks what is included in the court's definition of weddings.
The Howes charge that Twomey piggybacked "on the unlawful and improper decision of the Gilford Planning Board." Their motion for reconsideration asks the court to affirm the Gilford Zoning Board's decisions.
More broadly, the court filings warn that the ruling, if unaltered, could create uncertainty in the zoning and planning process because when an applicant didn't like a decision of the Zoning Board, they could simply convince the Planning Board to arrive at a different interpretation.

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Is the Corner Slice flag history?

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A need for advertisement prompted the Corner Slice to install a 15-foot "open" flag on the property at a key intersection in Gilmanton. On Monday, this smaller version of the flag adorned the business. The pizza restaurant and gas station is located in Gilmanton's historic district. (David Carkhuff/Laconia Daily Sun)

Gilmanton business faces historic district review after having to remove large banner saying store is open


GILMANTON — A 15-foot flag with the word "open" on it has been taken down at the Corner Slice, a business that faced a host of regulatory hurdles before it opened last summer. Now, the freestanding "open" banner is at the center of a discussion about historic district regulations of businesses.
The Corner Slice restaurant and gas station, open from 6 a.m. to 8 p.m., is a place celebrated for its pizza and subs. A freestanding vertical flag with the word "open" on it once attracted customers from nearby Route 140 and Route 107, but town staff told owners Henry and Rachel Vigeant to take it down.
"They have to either meet general guidelines or ... get a variance to meet the zoning ordinance. Large signs — and by large I mean bigger than 9 square feet — are only allowed in the business district," said Annette Andreozzi, land use administrator for Gilmanton.
"These 'open' flags are kind of a conundrum in the historic district," Andreozzi said. "They're really not a problem in the business district because most of them meet the size of signs, and they're really not concerned about flags under the zoning ordinances, but in the historic district we need to clarify that."
Andreozzi said the Corner Slice "was trying to do something that didn't fit into the rules," prompting review by the Gilmanton Historic District Commission. At a meeting at 7 p.m. on Tuesday, March 7, the commission is scheduled to conduct two discussions, one with the proprietor of the Corner Slice and the other among commission members for "possible clarification of sign regulation," according to the agenda.
On Monday, a small "open" flag dangled outside the Corner Slice.
Rachel Vigeant said the larger 15-foot flag was up for about two weeks before she and her husband took it down.
"This building has a lot of history, and we're really trying to keep it alive here," Rachel Vigeant said.
Noting decorations and a "rustic feel" that the business has embraced, Vigeant said, "We definitely support the history of this building."
According to Gilmanton's historic district ordinance, "All signs visible from the exterior must have HDC approval. Signs shall not exceed 9 square feet. Signs placed on the exterior of the building or on the grounds shall be made of painted wood and shall be designed and hung in a manner appropriate to the buildings or grounds involved. Because of the exceptional unity of architectural design present in Gilmanton, it shall be the duty of the Commission to protect this unity by requiring that all exterior changes, additions, new construction, and land usage conform as much as possible to the standards set forth below. These regulations cannot possibly cover all possible proposed changes. Unique situations will have to be evaluated by the Commission on a case-by-case basis."
The ordinance does not mention flags or banners.
The historic district includes property in the Corners, from where Route 140 and Route 107 meet, reaching 400 feet on either side of both roads. "It's like a big cross," Andreozzi said.
The Corner Slice banner was not attached to the building but freestanding on the property, according to the business.
This is not the first time the Vigeants have faced regulatory challenges.
The Corner Slice sought a change-of-use from convenience store to restaurant when the Vigeants acquired the property at 518 Province Road. During months of permitting, Henry Vigeant said zoning approval posed particularly frustrating challenges, according to press accounts at the time. A drawn-out state septic design review also delayed the Corner Slice's opening until a grand opening in August 2016, according to press accounts.

Formerly the Corner Store, the building functioned for an estimated 60 years as a hub for the community. The Corner Store closed in 2015.

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Dead man’s statements up to judge in case of Center Harbor family trial

By BEA LEWIS, For The Laconia Daily Sun

LACONIA — A Center Harbor man charged with looting the investment accounts of his terminally ill father is slated to stand trial next month.

Keith Fitzgerald, 51, who worked as a private equity consultant, is accused of stealing more than $827,000 by shuffling money from accounts jointly titled to himself and his father, into accounts he exclusively controlled.

In October, Fitzgerald was scheduled to accept the terms of a plea deal and be sentenced, but backed out the day of the scheduled hearing. The terms of the proposed agreement were never publicly disclosed.

Assistant Attorney General Attorney Jesse O'Neill who is prosecuting the case filed a motion last week asking that comments the defendant's father, Clifford Fitzgerald Jr., 79, made shortly before his death of liver cancer on Sept. 15, 2010, be admissible at trial.

Statements the elder Fitzgerald made to his children, Clifford III, Hope, Heather and his daughter, Alexandria, from a second-marriage, show the defendant's financial transactions were done without his approval,
the state asserts.

As proof of motive, the prosecutor has also asked the trial judge to allow the jury to hear evidence that the defendant was in dire financial straits at the time of the alleged thefts.

O'Neill wants the jury to know that the defendant had filed for bankruptcy both personally and for his business, owed the IRS more than $72,000, and that one of his former clients had successfully sued him over his handling of a $475,000 investment to a business for which Fitzgerald claimed to be raising capital. Fitzgerald allegedly used $200,000 of his father's money to settle the lawsuit.

The prosecutor has also asked the trial judge to bar the jury from hearing that a probate court found that Fitzgerald breached his fiduciary duty to his father's estate and ordered that he repay $767,683.

He argues that the outcome of the probate case is not relevant, and will only serve to confuse the jury by making them think the question of the defendant's guilt or innocence on the criminal charges were already decided by a probate judge.

Two days before he died, after Clifford Fitzgerald Jr. had returned to New York, his son, Clifford III, and daughter Hope, spoke with him on the phone. When Hope told him she'd found out that the defendant had made a payment to Cessna Finance, the elder Fitzgerald's response was, "Oh, we've got a problem."

The state is also seeking the court's permission to introduce evidence at trial that Fitzgerald Investments LLC listed assets of $1.9 million and liabilities of $1.3 million in bankruptcy filings, but failed to include a $625,000 secured claim.

His personal bankruptcy filing showed assets of $242,230 and liabilities of more than $1.2 million including $97,000 in credit card debt to American Express, the prosecutor claims.

A jury is scheduled to be picked on March 20 at 9 a.m. The trial is now set to begin in Belknap County Superior Court either that same week or the next, and is expected to last up to a week. Judge Larry Smukler will preside.

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