LACONIA — The owners of The Dive have been told they won’t be allowed to continue to operate near Winnipesaukee Pier without seeking additional approvals from the city.

The floating restaurant is built atop a barge, and the two-story nightspot and eatery stands out on the Weirs Beach landscape at 62 feet long and 22 feet wide. The Dive is equipped with restrooms, a kitchen and an upper-deck lounge offering a panoramic view of the lake.

It all passes muster with the Coast Guard, but city planners have decided The Dive needs a site plan amendment if it is to continue in stationary use at the pier.

During the summer season, The Dive motors to different sandbars on the lake where boaters congregate, drop anchor and swim. At night, The Dive returns to the dock at Weirs Beach, where it deploys its “spuds” from each corner into the lake bottom to keep it stable.

Landside customers come aboard via the pier at 263 Lakeside Ave., owned by East Coast Flightcraft. The Dive’s owners/operators, Jamison Merriam and Betsy Sullivan, have leased space from the pier since 2018.

At issue is the decision of Dean Trefethen — the city’s director of planning, community development and code enforcement — that The Dive’s practice of using the pier as a nightly port of call is an expansion of the pier’s use requiring approval of the planning board.

In a certified letter to the owner of the pier dated July 1, Trefethen said the property is in violation of zoning regulations as the use had been expanded by more than 500 square feet, so a site plan must be submitted for review within 30 days.

The Dive wants to appeal that decision, but among the issues the city’s zoning board of adjustment must decide is whether The Dive even has standing to bring an appeal.

Attorney William Woodbury of Laconia, who represents the business, asserts The Dive is acting with express authorization and assent of the property owner. He alternatively argues that as a tenant of the Winnipesaukee Weirs Pier LLC directly affected by the action taken by the city, The Dive has individual standing to mount an appeal.

Woodbury further asserts that the leasing of dock space cannot be legitimately viewed as an expansion of use of the pier’s property, as The Dive is neither a building nor a fixed structure.

He maintains that the city’s actual intent is to regulate The Dive’s use of public waters, an action preempted by state law. The use of lakes of 10 or more acres is controlled by the state, Woodbury wrote in the appeal, arguing Laconia lacks jurisdiction to regulate The Dive’s operation.

Woodbury claims the action taken by the city is not grounded in actual concern about the property owner’s alleged non-compliance with the zoning ordinance or site plan regulations, but rather “is based in an attempt to assuage the concerns of as-yet-unnamed individuals who have complained to various municipal officials about The Dive.”

According to Woodbury, The Dive has never been cited by any law enforcement entity, including Laconia police or the state Marine Patrol, for excessive noise or for impeding boat traffic.

As to allegations of view obstruction, he said, abutting properties do not have view easements, and, given its position when docked, The Dive “cannot legitimately be accused of hindering an abutter’s expansive view of Lake Winnipesaukee.”

The Zoning Board of Adjustment will hear the issue as an administrative appeal during its meeting at city hall on Monday at 6:30 p.m.

Thursday, December 05, 2019