Gilmanton Winery wins approval for restaurant

03 21 gilmanton winery ZBA

Gilmanton Zoning Board of Adjustment members (from left) Nathaniel Abbott, Elizabeth Hackett and Perry Onion review a variance request from Gilmanton Winery to operate a restaurant. Marshall and Carol Bishop, owners of the Gilmanton Winery, received their variance for an associated restaurant, but the board added conditions, including compliance with site plan regulations, a topic enmeshed in litigation and controversy. (David Carkhuff/Laconia Daily Sun)

A condition for site plan approval runs up against lawsuit between Bishops, Planning Board

GILMANTON — Marshall Bishop, newly re-elected as a town selectman, received more good news Thursday, March 16, when the Zoning Board of Adjustment granted him a variance to run a restaurant at his winery.
With last week's vote, Marshall and Carol Bishop, owners of the Gilmanton Winery, have acquired all of the pertinent permissions — a special exception and a variance — provided by the town's land use authority, the Zoning Board of Adjustment.
"A variance is permission granted to use a specific piece of property in a more flexible manner than allowed by the ordinance; a special exception is a specific, permitted land use that is allowed when clearly defined criteria and conditions contained in the ordinance are met," according to the New Hampshire Office of Energy and Planning.
There's a rub, however. The latest approval of a variance came with a condition that Marshall Bishop "fulfill site plan review requirements," a condition that clashes with an ongoing legal standoff. Bishop is not scheduled to appear at the Planning Board for a site plan update and actually is in the midst of litigation with the town challenging that requirement.
Planning Administrator Diane Marden confirmed that nothing is on the agenda before the Gilmanton Planning Board involving the Bishops and their winery.

Based on the ongoing litigation, town staff are not commenting on the Gilmanton Winery regulatory process, according to Town Administrator Heidi Duval. But it's clear that something has to give.
The legal battle started months ago.
On Jan. 20, the Planning Board, through attorney Paul Fitzgerald of Wescott Law of Laconia, submitted a "respondent's answer and request for declaratory relief" at the Belknap County Superior Court. In this document, the Planning Board asserted that the Gilmanton Winery has been operating "a full service restaurant with onsite food preparation without appropriate approvals from the Planning Board."
The Planning Board asserted that a special exception granted to Gilmanton Winery by the Zoning Board "provides that the 'site will be overseen by the Planning Board' and the Petitioners have refused to return to the Planning Board for such oversight and review."
The Planning Board asked the court to find that the Bishops are not in compliance with "laws, ordinances and Planning Board approval conditions" and that the Bishops must submit a new site plan application to the Planning Board to "bring the winery into compliance."
In an emergency petition for a temporary restraining order, the Bishops argued that the Planning Board, in a letter from Oct. 27, 2016, "threatened a cease and desist order if Mr. Bishop did not submit a new site plan application by October 26, 2016, for review at the Planning Board's November 10, 2016 meeting. Notably, the letter did not cite any specific violations within the Planning Board's authority or any justification for requiring a new site plan application."
The Bishops, through their legal counsel, Bianco Professional Association of Concord, asked the Planning Board to "specify the particular regulations or laws it alleges the Winery has violated and the supporting allegations that would justify forcing the Bishops to begin site plan approval anew."
This legal dispute remains before the Belknap County Superior Court.
Elizabeth Hackett, chairman of the ZBA, said the board scheduled the March 16 hearing to give time for the litigation to be resolved.
On Thursday, Brenda Currier asked the ZBA why the variance request had been rescheduled while the litigation remained unresolved.
Hackett said she called the New Hampshire Municipal Association to seek legal counsel.
"The lawyer was very familiar with what is going on because of the things in the paper and all the rest, and said that absolutely this variance, whether we give it or not, has no bearing on what would happen with the Planning Board, so we decided to go forward," Hackett said.
"I was given carte blanche to go ahead and do this," she said.
In further questioning, Currier reviewed meeting minutes to point out references to the site plan review, wondering why Bishop had not returned to the Planning Board.
"You granted a special exception, and you led us all to believe that once that was done, Mr. Bishop would then go up to the Planning Board and meet with them, and they could do what they needed to do," Currier said.
"There is not anything to do with the winery on the Planning Board's agenda. I just feel that you're putting the cart before the horse here," she said.
Hackett explained that the Planning Board would review details of operation while the Zoning Board would consider land use law.
"The Planning Board approves the whole plan, we do not. We are concerned with the use of the property alone," Hackett said.
Currier objected, saying, ""Even though you have no jurisdiction over the other board, it just feels like that's being forgotten," referring to the Planning Board's role.
Currier then challenged Zoning Board member Nathaniel Abbott, asking why he had not recused himself. Abbott said the question was whether the Bishops could use the property for what they want to do.
When Currier began to respond, he said, "I'm not asking to debate with you."
Abbott said, "I have a right as a citizen to my opinion and to develop it in any way I choose," and declined to recuse himself.
"I have nothing to personally gain from my vote tonight," Abbott said.
Abbott then launched into an overview of town planning and changing attitudes. He described a shift toward a business-friendly tilt on boards. The Gilmanton Winery, he said, "is on a property that actually has a really significant historical importance in the standpoint of this town, which puts it in a unique and difficult position."
The Gilmanton Winery, in the former home of Grace Metalious, who wrote the famous and controversial novel, "Peyton Place," should be given consideration as a landmark, Abbott said.
"I think the town should frankly be shaking Marshall Bishop's hand and thanking him for bringing a business into this town that's bringing notoriety, it's bringing fame. Do I think he gets to snub his nose at the laws and ordinances of the town? Absolutely not."
Abbott argued that a "regulatory snafu" caused the current situation involving the Gilmanton Winery.
Numerous cases before the ZBA involve properties that are out of compliance with zoning, many predating the zoning code, he said.
"But I did want to state my belief about what the town's attitude should be toward businesses that bring a lot of value and good notoriety and operate well and distinguish themselves."
Currier said, "Personally, as a taxpayer, I feel the snubbing is happening, and that's why the town is in court, and it's costing me money because of the snubbing."
Bishop said he could not speak freely because of the litigation, but he said, "I feel like I have not done anything wrong."
Bishop said he was granted a dining facility with the authority to have five dinners a week and to have bus tours and functions.
"I want to set this right," Bishop said.
Bishop described the directions he received, which he said he followed.
Under a septic plan, Bishop said the New Hampshire Department of Environmental Services requested he install a 2,000-gallon tank and take the old tank and use it as a grease trap.
Bishop said he uses portable toilets for events.
"It's preposterous that we would even have 500 to 800 people a week in there," Bishop told the ZBA. "The most we've had was about three years ago, 175, but that was with a tent outside," he said.
Zoning board member Perry Onion urged a condition that Bishop go before the Planning Board for site plan review.
The timing, Onion said, would be up to the Planning Board.
Abbott said, "I just feel as though we're reaching in where we don't really have a place to reach in."
Onion disagreed, so Abbott suggested a "compromise." The applicant must fulfill Planning Board site plan review requirements, he said. Onion said this condition would give Bishop room to avoid returning to the Planning Board.
"Then you go back to what happens if he thinks he has?" Onion said.
Hackett said, "Then, it's a Planning Board issue, not ours."
Abbott made a motion that the variance be granted allowing the Bishops to use new construction for a restaurant in the rural zone, with other conditions to include limits on daily service until a state-approved water system is installed; and limits on food service until state-approved septic systems are installed.

Opechee Flasher seeks to overturn jury verdict

LACONIA — A former homeless man from Concord who was recently convicted by a jury of two felony counts of exposing himself at Opechee Park on Labor Day in 2014 has asked a Belknap County Superior Court judge to set aside the verdict.

A jury found Daniel King, 53, guilty of two counts of indecent exposure in February after a five-day trial that saw four juveniles, multiple Laconia Police officers, and an Internet technician testify against him.

In his motion to set aside the verdict, King argues the judge sits as the "thirteenth juror" and decides whether the prosecution has carried its burden of persuasion has been met. He said the trial judge has more discretion than the jury and, according to the N.H. Supreme Court, the weight of evidence "is not determined by mathematics (or the amount of evidence) but depends on the effect of inducing belief."

King said the facts presented to the jury did not support a conviction. He noted three of the four juveniles picked different men out of a photo array and all provided different descriptions of where they were that day and what exactly they saw.

He noted the state's key witness said she took off running after she saw the man and later described him to police as wearing a black jacket, having glasses on his head, and a scar or piercing on his face. King said the grainy video shots taken from the school do not show a man with a black coat or glasses. The defense said King doesn't have a scar or piercings on his face.

He said the middle school technician said there were no issues with the camera that day and a police officer testified that he kept all of the video that showed "movement" that day.

King also argues the positions of the tapes do not sustain the complaints made by the children and one of the Laconia Police officers said the surveillance video was not sufficiently detailed and, more importantly, was not synchronized in time with the incident.

He noted that the first girl who saw him called her mother at 4:10 p.m. before she called 911. But the man who was headed toward the correct path was spotted on the camera at 4:10:52 and would have had to have been in a different place to expose himself to her before she called her mother.

Additionally, he said police had the names of 10 additional children at the beach that day but the investigating detective didn't reach out to them until Sept. 23, meaning the kids all had time to discuss what they saw before being interviewed by police. King also points out that two of the children reported an indecent exposure later that evening at the same spot.

King also said that his decision to leave the state was not evidence as to his guilt and the judge gave those same instructions to the jury. During his interviews with police, he denied all of the accusations.

"Certainly Mr. King's actions and statements alone cannot lead one to conclude beyond a reasonable doubt that he was the man seen by the kids on Sept. 1," wrote King's attorney, Eric Wolpin. "Even placing those actions and statements in the broader picture presented at trial, the inability of police or lay witness to definitively identify Mr. King as the man who was on the video or definitively identify Mr. King in the photographic lineup as the man that exposed himself, doubt remains."

"The jury failed to give the evidence its proper weight and the court should set aside the verdicts in this case," he concluded.

In her objection, Assistant Belknap County Attorney Carley Ahern said the state presented four of the eight children who were walking as a group when King walked in front of them and exposed himself. Two said he was touching or rubbing himself.

She said two of four picked him out of a police photo array and the two who didn't said one only saw his profile and one didn't see him. One of the two who didn't pick him out wears glasses and the other said he wasn't looking at the man's face. She said the girl who identified King from the line up also identified him at court.

Ahern said the state disagrees that the footage was "grainy and insufficient" and that it was shown to the jury both normal size and enlarged. She also noted that during deliberations, the jury spent extra time reviewing the footage.

She said the camera footage noted the placement of King's car and it noted there is no tire on the back of it and there is no tire on the back of the car he used to own. She said the camera noted King running to his car, which explains why there were no children videoed in this place. She said the video footage noted the size, shape and appearance of the man and the jury viewed him both at trial and on the video.

She noted that only one officer responded, and after speaking with the children and noting where they said they saw him run, he went in that direction in "hot pursuit." He didn't have the time to take names of the witnesses at that moment.

Ahern said when King was told by police they had video of him and his car, he ditched the car in Maryland and took buses, eventually taking him to Hotsprings, Arkansas. where he was arrested by U.S. Marshals.

She said that he had initially offered an alibi defense whose testimony "really fell apart" during the trial.

Legally she argues that a jury verdict must "be unreasonable" for the trial court to set it aside and the court should not set aside a jury's verdict unless the failed to give the evidence its proper weight.

She said the New Hampshire Supreme Court will uphold the decision because the trial judge is in a better position to observe the proceedings that it will be.

She said the children were credible because their testimony was candid, their appearance led the jury to find them credible, that they didn't exaggerate or embellish, that they were consistent with regard to the exposure, and there was no reason for them to lie or make up the incident.

" is clear that the jury correctly weighed the evidence in this case such that its 'guilty' verdicts were not a miscarriage of justice, and should be allowed to stand."

The court will hear oral arguments on the motion on Tuesday at 9 a.m.

Department heads call county cuts ‘irresponsible’ and ‘like a kick in the head’

LACONIA — Belknap County Commissioners, maintaining that both the Corrections Department and Sheriff's Department are not adequately funded, are asking the Belknap County Delegation to reconsider the $27.487 million budget it adopted Monday night.
Commissioners Glen Waring (R-Gilmanton) and Hunter Taylor (R-Alton) met Wednesday night with Corrections Superintendent Keith Gray, Sheriff Mike Myers and Nursing Home Administrator Shelley Richardson to discuss the budget cuts and their impact on their departments.
The commissioners agreed that the cuts threaten the ability of both the corrections department and the sheriff to carry out the statutory and constitutional obligations placed on their departments.
Gray said this week that he will not open the new 18,000-square-foot, 64-bed Community Corrections Center this September unless he has the money to adequately staff it. He made the statement after the delegation Monday night rejected by a 7-5 vote a motion by Rep. Tim Lang (R-Sanbornton) to restore $95,400 which had been cut from the proposed Corrections Department budget.
Gray has maintained that he cannot safely open the annex without two additional staffers. Lang's motion would have restored the $55,400 for the two positions and $40,000 for dietary department at the jail, which Gray had added to his original $3.964 million budget request.
"I felt like the rug had been pulled out from under me," said Gray, who said that without adequate manpower both the staff and the inmates will be at risk.
He also cited potential liability issues which the county could face with inadequate staffing if someone is injured in an incident. And he said that the cut places in jeopardy the possibility of obtaining $450,000 in grant funding over a three-year period for programs at the community corrections center.
He said that the county delegation knew when it unanimously approved an $8 million bond in November 2015 for the corrections center that additional staffing costs were estimated at $650,183 annually.
Gray said that the cut was "a kick in the head to my staff " and said that the commissioners should look at the building program currently going on and decide whether they may have to stop it before old portions of the current jail are taken out of service as the change would be irreversible after that.
Commissioner Taylor said that cuts appear to be arbitrary and capricious and were made without considering their impact.
Sheriff Moyer said that the $126,736 which was cut from his budget endangers the department's ability to carry out its duties, which include serving civil process papers and court security. The cuts removed one full-time deputy position and one full-time dispatcher position and cut overtime by $10,000.
"It was totally reckless. No member of the delegation spoke to me at all about the cut or its impact. It came as a shock to me when I found out that they were making that cut." said Moyer.
Commissioners also discussed a $290,810 revenue the delegation had included in the budget which is based on legislation which has not yet passed on retirement program costs in which the state would pay part of what is now being paid by counties and local governments.
Commissioner Waring said that the funds are not assured and cannot be counted as a revenue. County Administrator Debra Shackett said that the latest information she has is that the county will only realize a $75,000 savings if the legislation is passed.