Abutter lawsuit puts car wash project on hold


July 28, 2011
OSSIPEE— Construction of a new car wash in Ossipee has been put on hold, following a revoked building permit July 12. A hearing is scheduled for today, July 28, in Carroll County Superior Court at 2 p.m. to determine what, if any, work can be done to secure the construction that has already been done while a lawsuit makes its way through the court system.

In a letter from the town's zoning officer, David Senecal, APB 760, LLC was informed their building permit approved April 28 was being revoked "because there is litigation pending in the Carroll County Superior Court, the outcome of which may affect the validity of the approvals provided to you by both the planning board and the zoning board of adjustment….Please cease and desist from any further construction on the site."

The pending litigation is a 38-page lawsuit filed by the Mountain Grainery against the town's zoning board and the Town of Ossipee. Initially, there had been two lawsuits against the planning board and one against the zoning board filed in superior court but those have been combined into one.

The car wash located at 760 Route 16 adjacent to the thrift store Resale Connection, is already a construction site with a partial foundation poured. The owners of Mountain Grainery, listed in the suit as a Delaware limited liability company, are suing the town and land use boards because they disagree with the site plan review and variances that were granted to approve the project. When a town land use board approves a project moving forward, abutters have 30 days to appeal their decision, though the lawsuit alleges the zoning board does not have rules that establish that time limit.

The suit alleges that ABP 760, LLC has not met conditions established by the zoning board including a copy of a hydrogeological study, a special use permit, and major site plan review.

A review of the planning board and zoning board minutes appear to reveal that representatives from Mountain Grainery came to the zoning board in September 2010 seeking a variance so they could build a car wash on their lot at 755 Route 16. The minutes indicate the applicant "was not prepared to present their case to the zoning board of adjustment," presented an incomplete plan and the case was continued to the Oct. 12, 2010 meeting. On that meeting date, zoning board members received a letter from Mountain Grainery stating they were withdrawing their application for a variance. Then, at the Nov. 9, 2010 meeting "an owner of Mountain Grainery" spoke out against construction of the car wash variance application submitted by ABP 760, LLC. At that same meeting, the zoning board unanimously granted ABP 760, LLC's variance requests. Mountain Grainery filed for a rehearing of the ABP 760, LLC approval but that request was denied by the zoning board.

After also going through the site plan review process and getting an approved special use permit by the planning board in addition to the variances, ABP 760, LLC was given a final go-ahead by way of an approved building permit in April and construction at the site began almost immediately. Now it appears the project is on hold until Mountain Grainery, LLC versus Town of Ossipee case is heard in Superior Court, currently scheduled to begin in January 2012.

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