The Court Finds the Planning Board’s Denial Was Unreasonable

Second Consecutive Favorable Court Ruling for Club Motorsports

TAMWORTH, NH – On August 1, 2008, the Carroll County Superior Court ruled in favor of Club Motorsports (CMI).  The Court ruled the Tamworth Planning Board was unreasonable in their review and denial of the CMI’s Special Use Permit application under the Tamworth Wetland Conservation Ordinance (TWCO). 

CMI sought approval for sixteen (16) wetland impacts related to the construction of access ways, parking areas, and the road course.  The Court found the Planning Board failed and was unreasonable in voting on the project as a whole and not the requested wetland impact areas.  The Court found the Planning Board acted unreasonably when the Planning Board failed to provide CMI with any assistance or guidance on the application. 

The Court stated that as the applicant, CMI should have been provided guidance on the application to determine if there was the possibility of having a workable plan that could comply with the TWCO.  The Court stated that New Hampshire municipalities have a responsibility to provide guidance to an applicant as to whether a “workable plan acceptable to both sides” is possible.  Finally, the Court also found the Planning Board failed in its discussion and voting to distinguish between the wetland impact areas requested for access ways and the wetland impacts requested for non-access ways.

“We are very pleased that the Court has recognized the rights of CMI as an applicant to receive a proper and fair review under the town’s wetland ordinance” said CMI President Jim Hoenscheid.   “The TWCO must not be used as a general zoning ordinance or site plan review.  Under the TWCO, each application must be reviewed based on the request to impact a wetland area and not on a project wide basis.  The name on the application or the public’s view of the applicant must not influence the Planning Board’s responsibility to review the wetland impact areas requested.  We are also pleased the Court confirmed the responsibilities of a town and it’s planning board in reviewing an application.  Lead by the opposition group, FOCUS Tamworth, several members of the Planning Board and the Tamworth Conservation Commission unsuccessfully argued the Planning Board could simply deny a wetland application based on an entire project, or deny the application without providing a reason or without trying to work on a possible acceptable alternative plan.  This argument was rejected by the Court. The Court ruled the Planning Board’s decision to vote on the project as a whole was unreasonable and failed to provide CMI with any assistance or guidance on the application.  In our opinion, this decision by the Court supports the statement that when CMI is afforded an independent and comprehensive review, CMI has been successful at proving the project's wetland impacts will not harm the environment.  Furthermore, we have been able to prove the construction and the operation of the facility will not harm the surrounding environment.”  

The Court also noted that in this case the Planning Board did not determine as to whether or where the Town’s ordinance is more or less stringent that the State and Federal regulations.  In the Maud Anderson Supreme Court decision, the Court ruled that the Planning Board needed to review the TWCO on a section by section basis and determine what regulations were more stringent, the local ordinance or the state and federal regulations.  In this decision, the Court points out this fact for the Planning Board’s consideration for any future application reviewed under the TWCO. 

CMI is currently appealing the town’s denial of the second permit application filed on December 8, 2006 under the TWCO seeking approval to access the property (see CMI press release dated 11/19/2007 for more information.)   CMI filed this application in response to the Planning Board’s failure to review the wetland crossings associated with access ways and roads in the first application filed on August 2, 2006.    In this recent decision, the Court stated the Planning Board failed during its discussion and voting on the CMI application to distinguish between the wetland crossings associated with access ways from the wetland crossings associated with non-access ways.  Furthermore, the Court confirmed that in the TWCO there are separate standards applied to impacts to wetlands for access ways or road ways than for impacts to wetlands for uses not otherwise permitted in the ordinance.  

Complete wetland delineations on CMI’s property were agreed upon by NH DES, the US Army Corps of Engineers and the Tamworth Conservation Commission after numerous site visits and the review of multiple wetland and soil scientists. CMI has secured all required federal and state environmental related construction permits for both the construction and operation of the motorsports country club.   In 2004, the New Hampshire Department of Environmental Services (NH DES) issued both a “Wetlands and Non-Site Specific Permit” and an Alteration of Terrain or “Site Specific” Permit to CMI.   In 2005, NH DES issued a Water Quality Certificate that further demonstrates CMI’s ability to protect both surface and ground water resources.  After an eighteen month review, the United States Army Corps of Engineers (ACOE) granted CMI a federal wetland permit in August 2005 to proceed with the construction.  This past February, the US District Court denied Focus Tamworth’s appeal of the federal wetland permit ruling the arguments were “unpersuasive.”

A first-of-its-kind concept for New England, the Valley Motorsports Park development is located in wooded land on the north face of Mount Whittier off Route 25 in Tamworth, approximately two miles west of the intersection of Routes 25 and 16.  Described as a “ribbon through the woods,” the road course would be available for use by its members, much like a golf course country club.  The $28 million purpose built development includes a more than three-mile, 18-turn, European-style road course for motorsports enthusiasts to develop and practice their driving skills and attend performance and safety driving schools.  For more information on Valley Motorsports Park or Club Motorsports, Inc., visit www.clubmotorsports.comor call (603) 437-3278. 

Editors – If you have any questions, please contact Jim Hoenscheid at (603) 437-3278 x207 or email him directly at jimh@clubmotorsports.com.