Weirs property owners get injunction

A group of property owners along Centenary Ave. at the Weirs, who filed suit in Belknap County Superior Court to forestall the Akwa Marina project, were granted a preliminary injunction. The plaintiffs claim that the project ignores their easements and rights-of-way over Epworth and Lakeshore avenues together with the waterfront adjacent to each, an area running some 75 feet along Lake Winnipesaukee and reaching some 85 feet inland.

On September 18, following a hearing and conference in chambers, Judge Larry Smukler issued an order requiring Stonefence Acquisitions of Bedford, the developer of the project, Charan Industries, the owners of the land, and the City of Laconia, the owner of Epworth Avenue which it intends to transfer to the developer, to grant the plaintiffs access to the disputed parcel. In particular, he ordered them to unlock the gate in the fence off Fisk Avenue and leave it unlocked pending further orders by the court. Smukler's order makes the plaintiffs responsible for maintaining the property in its present condition and removing any refuse and prohibits them from engaging in any site work.

Smukler found that "limited preliminary injunctive relief will have a minimal impact on the respondents (the developer and property owners), while denial of such limited injunctive relief will have a substantial impact on the petitioners."

In their suit the plaintiffs allege that four lots and Epworth Avenue, which are 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 restrict the use of the solely to residential development.

The property in question was part of the "Winnipesaukee Camp Meeting Association," which originally laid out the residential neighborhood and associated roadways. The property 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 of or use of buildings for stores, boarding houses, hotels, cabins, stables or garages without the consent of the Association." The deed was subsequently amended to require a permit from the Association to use any property "for other than a private residence."

The "Winnipesaukee Camp Meeting Association" was dissolved in the 1980s, but the plaintiffs claim that the legal principle of "common scheme of development" — that is, if every lot in a subdivision is encumbered by the same restrictions, then every owner of a parcel has a right to enforce the restrictions against the owner of any other — entitles them to enforce the restrictions set forth in the deeds. In other words, the plaintiffs challenge the right of Charan Industries or Stonefence Acquisitions to put the property to commercial use without their consent.