Charan Industries/Village at Winnipesaukee

The second of two lawsuits that threaten the orderly development of Akwa Marina, the lakefront component of the Akwa Soleil project at The Weirs, went to trial before judge Harold Perkins in Belknap Superior Court yesterday.

Charan Industries of Garden City, New York, which sold the land on Centenary Avenue for the marina to the developer of Akwa Soleil — Stonefence Acquisitions, LLC of Bedford — last April, is seeking to extinguish an easement that provides access to the beach on the property to residents of the Village at Winnipesaukee, a condominium development on Route 3. Since perpetuation of the easement would be inconsistent with the plans to develop the marina and restrict its use, Dick Mailloux, the general partner of Stonefence Acquisitions, joined the suit.

Meanwhile, Belknap County Superior Court Justice Larry Smukler has yet to issue a decision in a suit brought against Charan Industries, Stonefence Acquisitions and the City of Laconia by 18 property owners along Centenary Avenue. The property owners claim that four lots on Epworth Avenue, with some 75 feet of shoreline right where the marina clubhouse is planned, are encumbered by easements and rights-of-way that ensure their access to the lake. They further allege that the four lots are bound by covenants that restrict their use solely to residential development.

In court yesterday, attorney Bill Philpot, representing Charan Industries sought to demonstrate that although there was once an easement that afforded residents access to the beach, the firm terminated it when, for more than 20 years, residents of the Village at Winnipesaukee failed to fulfill its terms. Robert McDermott, the chief financial officer of Charan Industries since 1977, testified that he learned of the easement when his firm acquired the property in 1982. He explained that in return for access to the beach, the agreement stipulated that the Village at Winnipesaukee would contribute half the annual budget for maintaining the beach, but not more than $2,000 without the consent of a majority of residents. Likewise, the Village at Winnipesaukee was obliged to carry a liability insurance policy that named Charan Industries among the insureds.

McDermott said that each spring, beginning in 1983, he sent a letter to the Village at Winnipesaukee with a copy of the budget for maintaining the beach. He testified that the letter was sent to an address supplied by employees of Charan Industries working at the property on Brickyard Mountain. From 1983 to 1999, the letters went unanswered, McDermott said.

According to McDermott. in 2000 Alvin Nix, the attorney representing the residents at trial, requested a copy of the easement and the rules and regulations governing the beach, without, however, indicating any willingness to comply with the terms of the easement, either by making a payment or providing proof of insurance.

By 2002, Charan Industries was contemplating the sale of the property to Stonefence Acquisitions. McDermott testified that he instructed Philpot to terminate the easement at the request of the buyer. Philpot wrote to the Village at Winnipesaukee and virtually simultaneously received a check for Doris Boghosian, president of the Village at Winnipesaukee Whole Owners Association, for $6,000, which represented the cost of the easement for 2000, 2001 and 2002. On McDermott's instructions, the check was returned. McDermott testified that there was no offer to pay for more than three years and that Nix questioned whether the resident owed anything at all.

On cross examination Nix sought to show that McDermott's correspondence with the Village at Winnipesaukee went astray and, for nearly two decades, nothing was done to trace it. McDermott agreed that his letters were addressed to the Village at Winnipesaukee Time Share Owners Association — not the Whole Owners Association — at 243 Endicott Street. Only the termination letter was sent to P.O. Box 5276, Weirs Beach, NH, a mailing address provided by Nix. When Nix asked why the chief financial officer of a company owning 85 properties in 17 states with annual revenues of $80 million did not pursue the $34,000 in arrearages, McDermott replied that "the amount was a relatively minor one financially."

Under questioning from Nix, McDermott admitted that his letters did not explicitly ask for $2,000, but instead attached the annual budget for beach with the implication that the Village at Winnipesaukee pay half, which at least since 1999 amounted to more than $2,000, their maximum obligation under the easement. Likewise, he explained that he could not provide copies of the letters to residents between 1983 and 1998 because they were destroyed when Charan Industries sold its headquarters in 2002.

"This is confusing isn't it?' Nix asked. "On whose part?" McDermott replied. "Charan," Nix declared, explaining that the firm asked for more than $2,000, mailed to the wrong address and wrote to the time share owners not the whole owners.

When attorney Michael Murphy asked Mailloux to assess the impact of the easement on his plans to develop the property, Nix objected, insisting that the issue before the court was whether the easement should be extinguished, not whether the developer would be inconvenienced. However, Perkins allowed the testimony. Referring to a plan of the marina, Mailloux explained that if the easement was upheld, it would be very difficult to segregate members of the marina, who were entitled to use the boat slips and cabanas, from residents of the Village at Winnipesaukee. He suggested that the easement represented a major obstacle to his plans for the property.

The trial is expected to conclude today.