The Court agreed with both of CMI’s arguments. First, the Court ruled the Tamworth Planning Board violated the Right to Know Law by conducting an illegal meeting. The Court further stated that during the illegal meeting, several recused members discussed the merits of the CMI permit application: a clear violation of CMI’s right to a fair and unbiased review. Second, the Court ruled the Planning Board did not provide a meaningful review of the CMI application, failing to provide a reason or support for their denial of the application. The Court described the Planning Board’s after-the-fact process to justify their denial as “haphazard.” On September 24, 2009, CMI filed a motion for Limited Reconsideration with the Superior Court requesting that the Court grant CMI the SUP for access to their property.
In this access application, CMI sought approval for two wetland impacts and one wetland buffer impact in order to build two access roads onto their 251 acre property from Route 25. The SUP application requested approval to fill only 674 square feet of wetland and cross a wetland buffer area for the construction of the two access roads. In one location, CMI was replacing an existing culvert which accounted for 300 square feet or almost 50% of the total amount of impact area requested. The proposed access roads utilized preexisting access ways that already impact the wetland areas. CMI was looking to improve and slightly widen the preexisting access ways. Given the size of the low-value wetlands, the location of the preexisting access ways, and the low impact engineering methods proposed, the requested impact areas were minimal. However, as noted by the Court, the Planning Board did not provide a meaningful review of the application. Despite repeated requests by CMI, the Planning Board did not discuss the merits of the application or review the three (3) impact areas during the public hearing. The only recommendation offered to CMI was from the Tamworth Conservation Commission (TCC). The TCC agreed that CMI should be allowed to impact over 1,112 square feet of wetland for the construction of the two access ways.
“For the second time in slightly over a year, the New Hampshire Superior Court has recognized the rights of CMI to receive a fair and proper review under the TWCO and that the Tamworth Planning Board clearly violated these rights” said CMI President Jim Hoenscheid. “For CMI and all Tamworth landowners, we were pleased the Court confirmed that the Planning Board violated the Right-to-Know Law and that recused Planning Board members should not discuss the merits of our application. At this time, we are reviewing all our legal options concerning the Town’s admitted violation of the Right-to-Know Law. Unfortunately for CMI, this is not an isolated incident. For example, at the October 24, 2007 Planning Board meeting, immediately following the public hearing on CMI’s application, recused members openly discussed the CMI hearing and recommended the Planning Board make substantive changes to the official minutes of the hearing. One recused member changed the public testimony of the Chairman of the Tamworth Conservation Commission from what the Chairman actually stated to what the recused Planning Board member ‘thought the Chairman meant to say.’ Given the past actions and comments of the Town, CMI will never receive a fair and unbiased review by the Town.
While we were pleased the Court once again ruled in our favor, we remain baffled that the Planning Board denied us a permit. The TWCO states in Section E.1.(a), that an applicant should receive a permit for wetland impacts associated with “streets, roads, and other access ways,… if so located and constructed as to minimize any detrimental impact to such uses upon the wetland.” If treated equally and fairly, CMI should have received a permit from the Planning Board over two years ago. Firstly, we utilized access ways that already impact the wetlands. By incorporating these preexisting access ways that bisect the wetlands, we did not create any new wetland impact areas. Clearly the impacts associated with the access ways were located properly and minimized any detrimental impact to the wetlands because the impacts already existed. We requested approval to slightly widen and improve the access ways by adding an appropriate storm water management system. Secondly, at significant expense, we incorporated environmentally sensitive design elements including engineered slopes, retaining walls, and a head wall insuring the impacts associated with the construction of the access roads far exceeded the construction minimization standard. If CMI used typical engineering practices, as allowed by the Planning Board in other approved SUP approved applications, the impacts would have exceeded 2,200 square feet or over three times CMI’s proposed impact. Again, the TCC found that CMI should be allowed to impact at least 1,112 square feet of wetlands and wetland buffers for the construction of the two access roads. CMI then further reduced the amount of impact associated with the two access ways by over 40% to only 674 square feet.
It is logical and appropriate to compare how other SUP applications and land owners have been treated in Tamworth. No other landowner in Tamworth has ever been denied a wetland permit in order to build access roads. Moreover, no other land owner in Tamworth has ever been denied a SUP permit, period. Since the town first started to enforce the TWCO in 2004, in direct reaction to the CMI project, the Planning Board has approved at least five (5) applications totaling nearly 26,000 square feet of wetland impacts for access ways. The approvals ranged from 1,700 square feet to 12,000 square feet. Prior to 2004, the Town did not object to ten (10) land owners filling approximately 95,000 square feet of wetland impacts for access ways and road ways. No other access road, either before or after the Town started to enforce the TWCO, adopted the environmentally-conscious engineering designs proposed by CMI. Clearly, there remains a bias against our company and any plans we have for our property and that is why we asked the Court to reverse the Board’s decision and grant our permit outright.”
Complete wetland delineations on CMI’s property were agreed upon by New Hampshire Department of Environmental Services (NH DES), the US Army Corps of Engineers (ACOE) and the TCC after numerous site visits and the review of multiple wetland and soil scientists. CMI has secured all required federal and state environmental construction permits for both the construction and operation of their motorsports country club. In 2004, the 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 ACOE granted CMI a federal wetland permit in August 2005 to proceed with the construction. In February 2008, the US District Court denied Focus Tamworth’s appeal of the federal wetland permit ruling their arguments were “unpersuasive.” In 2009, the NH DES and the ACOE each granted extensions to the CMI’s state and federal wetland permits.
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. Editors – If you have any questions, please contact Jim Hoenscheid at (603) 437-3278 x207 or email him directly at jimh@clubmotorsports.com.
