Legal dispute 'not going to be discussed,' Zoning Board chair vows
By DAVID CARKHUFF/THE LACONIA DAILY SUN
GILMANTON — In about two weeks, the Zoning Board of Adjustment will revisit a request from Marshall and Carol Bishop, owners of the Gilmanton Winery, to receive a variance for their restaurant, but the board is expected to avoid any discussion of ongoing litigation between the town and the Bishops over their business.
On Thursday, March 16, at 7 p.m., the Zoning Board will resume a public hearing on the Bishops' request for a variance for their restaurant in the rural zone.
"Our board is strictly involved with the use of the property and that alone," said Betty Hackett, chairman of the Zoning Board. Hackett said the board will not allow discussion of a legal dispute between the Bishops and the Planning Board.
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 Zoning Board granted the special exception on Sept. 15, 2016.
"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.
The Planning Board request for declaratory relief argued that Gilmanton Winery exceeded the original site plan's 29 parking spots by expanding to 65 parking spaces without Planning Board approval, and that "the original approvals for the 'dining and function' facility were limited to no more than 24 customers per seating."
The Planning Board argued that, "upon information and belief, the Petitioners have been hosting events with upwards of 99 customers without returning to the Planning Board for further review. Such service is also a violation of the New Hampshire Department of Environmental Services regulations in that the Petitioners' current water system is not authorized for service of more than 24 customers."
The legal document also asserts that Gilmanton Winery held weddings and other events with approximately 500 to 800 customers over a single weekend without Planning Board approval; and that a grease trap was installed without board approval, but that a cart path/bridge to keep foot travel off the main road has not been built.
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."
Marshall Bishop said Tuesday that his attorney cautioned him not to speak about the case to the press. Efforts to contact attorneys for both parties were unsuccessful.
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."
A Nov. 22, 2016 letter from Fitzgerald to the Bishops' counsel "presumably intended to serve as a cease-and-desist order," which prompted the couple to seek a temporary restraining order, according to the Bishops' emergency petition.
In a joint stipulation on Nov. 23, 2016, the two sides withdrew their petitions, the Bishops their request for a temporary restraining order and the Planning Board its enforcement of the cease-and-desist order.
But at a Dec. 8, 2016, meeting of the Planning Board, Chairman Wayne Ogni said that the attorneys were "still working on the Gilmanton Winery," according to records of the meeting.
On Tuesday, when asked for an update, Roy Buttrick, a Planning Board member, said, "I can't really discuss it with you at this point."
At the Sept. 15, 2016, Zoning Board meeting, Bishop told the board that "if he had not become a Selectman this would not have come up," according to the meeting minutes, or record. "If he had been told to go to the ZBA he would have," Bishop told the board. "This is personal. Don't stop a business that has been going for 4 and a half years," the minutes read. "He questioned why the Planning Board didn't ask him to come back, and why didn't the Selectman also."
The Bishops have argued that for the five years their winery has been open, they have operated a thriving business, but that when Marshall Bishop defeated former Selectman Brett Currier in the 2016 election for a one-year seat for selectman, Currier and his wife waged a vendetta on him and his business. He also claims that Planning Board Chair Wayne Ogni is a friend of the Curriers. Ogni, according to meeting minutes, said he just wants to assure public safety by calling for the new site plan.
Hackett noted that while the case is pending before the Planning Board, the Zoning Board will act on the land-use code.
"He is looking to get things corrected," she said of Bishop, stating that he had not approached the Zoning Board in the past.
Nathaniel Abbott, Zoning Board vice chairman, agreed that the Zoning Board would act on the Bishops' request for a variance but would not delve into the legal dispute.
"I consider it to be a separate issue because we are a land use body of the town; we're actually seeking clarification to see if our decision is relevant to the other issue," Abbott said on Tuesday.
Perry Onion, member of the Zoning Board, made the motion to grant a special exception for the Bishops to have the restaurant in the existing building with interior alterations.
"The site is appropriate for the use because it has demonstrated its appropriateness over the past few years it has been operating as a restaurant, and it encourages additional uses related to farm land," the motion noted, according to minutes of the meeting. Onion found that the use "will not adversely affect the neighborhood because the site will be overseen by the Planning Board as it develops, and the abutters have not expressed concern," that "adequate and appropriate facilities will be provided for the proper operation of the proposed use as a license from the state is required to be renewed and an approval for septic construction is on file in event of septic failure" and that "there has been no evidence presented that there will be a nuisance or hazard created."
Conditions of the motion included the Bishops returning to the Zoning Board "to apply for and receive a variance to expand the restaurant/event space into the new construction" and that "the approval for construction of a septic must be kept up to date." The vote was 4-1.
Hackett said the board scheduled the March 16 hearing to give time for the litigation to be resolved. If anyone tries to bring up any of the legal issues, she said, that discussion will be halted. "It's not going to be discussed at any zoning board meeting that we have," she said.
Gilmanton Winery is the former home of "Peyton Place" author Grace Metalious, whose explosive novel about the secrets found in small-town New England was published in 1956. "The original portion of the house is probably early 1700s," said John Dickey, president of the Gilmanton Historical Society. "The book was such a sensation that she sold movie rights," allowing Metalious to afford the Cape-style house. The movie, filmed in Camden, Maine, brought her additional fame and fortune, Dickey said.