Akwa Soleil

LACONIA — The developer of the Akwa Soleil project was dealt another blow this week when a group of 16 property owners at The Weirs won the right in Belknap Superior Court to use a small beach intended as part of an exclusive marina. The decision by Judge Harold Perkins came on the heels of an order issued earlier in the week by the NH Department of Enviromental Services stopping work on the Akwa Vista portion of the project for allegedly having failed to control erosion and illegally discharging into Lake Winnipesaukee.

The property owners, most of whom live on or near Centenary Avenue, filed suit against Stonefence Acquisitions of Bedford, the developer of Akwa Marina, one of the three elements of the Akwa Soleil complex, and the City of Laconia as the owner of Epworth Avenue, a paper street, which it intends to transfer to the developer. The suit also named Charan Industries of Garden City, New York, the firm which sold the property to Stonefence in April 2004.

The residents claimed that the construction of the marina ignored their easements and rights-of-way over Epworth Avenue and Lakeshore Drive as well as the waterfront adjacent to them, an area stretching some 75 feet along the shore of Lake Winnipesaukee and reaching some 85 feet inland, which Perkins dubbed "Little Beach." They alleged that four lots and Epworth Avenue, all slated for development, are encumbered by both "prescriptive and implied easements and rights-of-way" that ensure their access to the lake and by "restrictive covenants" that limit use of the properties exclusively residential development.

To establish their prescriptive right to the beach, the residents had to demonstrate that they openly used the property, that the owners knew or should have known they were using it and that they exercised their right without the owner's consent. In court the residents testified that they had used the beach for more than 25 years and cleared the ground of brush and created a sandy beach for recreational use. Perkins found that the residents' use of the beach amounted to trespassing and was open and obvious to its owners from 1975 until 2003, when a fence was erected and the property was posted.

Perkins ruled that the residents established a "prescriptive easement" to the beach, which they can transfer with their property to their heirs or to buyers. However, he cautioned that the easement must be used "in a reasonable manner" and encouraged the residents to "continue to act as good neighbors and care for Little Beach as they have in the past."

The residents further claimed an easement over Epworth Avenue and Lake Shore Avenue between Fisk Avenue and Epworth Avenue, both part of the Winnipesaukee Camp Meeting Association (WCMA), which originally laid out the residential community and associated roadways in 1874. They claimed that the WCMA created an implied easement in all the roads within the original subdivision which was conveyed to subsequent owners when the property was transferred. The city, which owns Epworth Avenue, countered that any easement the residents may have enjoyed was extinguished when the street was abandoned.

Again Perkins ruled for the residents, finding that although the upper reach of Epworth Avenue became impassable, residents continued to use the lower stretch to go to the beach.

Finally, the residents claimed that the property of the WCMA was transferred according to "a common scheme of development" governed by the rules and regulations of the association, which stated that "no portion of these grounds shall be used for any purpose foreign to the objects of this Association...nor for the erection or use of buildings for stores, boarding houses, hotels, cabins, stables or garages without the consent of the Association." The deed was later amended to require a permit from the WCMA to use any property "for other than a private residence."

The WCMA was dissolved in the early 1980s, but the residents claimed that the restrictions apply to the land between Centenary Avenue, Epworth Avenue and the lake, along with other property owned by Stonefence where the marina is planned to be built. The "common scheme of development," they argue, entitles every owner of a parcel encumbered by the same restrictions to enforce those restrictions against the owner of any parcel.

Perkins ruled that WCMA did not intend to transfer the authority to enforce the restrictions when it sold its properties and that the restrictions, which were designed to serve the WCMA's religious principles, lapsed when it was dissolved. Consequently, he denied the residents' petition to stop Stonefence from developing its property on the western side of Epworth Avenue.

Regina Nadeau, a member of the legal team representing the residents, said that "we're very pleased with the court's deliberations, but we have not had an opportunity to discuss the order with our clients." Calling the case "awfully complex," involving numerous parties and requiring considerable research, Nadeau commended her fellow attorney Philip Bonafide for his "excellent job" in arguing the case.

Charles Cleary, who represents Stonefence, could not be reached for comment.

The Planning Board approved the site plan for Akwa Marina in 2003, acknowledging that the property rights in dispute must be resolved between the parties. Meanwhile, The New Hampshire Department of Environmental Services has withheld its decision on a wetlands permit for the project pending the resolution of the disputed property rights.

Another suit, brought by residents of the Village at Winnipesaukee claiming an easement to another parcel of waterfront property — which Stonefence plans to include in Akwa Marina — is currently being litigated before Perkins but after two days of testimony, the trial was recessed to a future date.