Meeting Nov. 8, town planning board members voted to deny the permit application on the grounds that the proposed racetrack does not meet the criteria of the town wetlands ordinance because it is not a generally permitted use and would affect the wetlands.
The appeal, filed in Carroll County Superior Court, claims that the Planning Board decision was "unlawful and unreasonable," in that after closing the public hearing the planning board devoted little time to discussing the application's details either among board members or with the applicant before making a decision. The appeal further charges that the decision did not address any specific problems with the application, failing to state any specific grounds for disapproval and thereby "making it impossible for the petitioner to improve or modify its application and making it impossible for a court to review the merits of the decision."
The company submitted its application to the town under the Tamworth Wetland Ordinance earlier this year. The company had originally submitted a town application in 2004, but pulled it before it was reviewed by the planning board. When citizens of the town sued to have the company apply for a town permit before going ahead with the project, Club Motorsports attorneys argued that the company did not have to submit a town application because it had already gone through a much more rigorous application process with the state Department of Environmental Services and the U.S. Army Corps of Engineers. The court ruled in December of 2005 however, that Club Motorsports did have to apply for a town permit. That ruling was appealed to the N.H. Supreme Court. The appeal was placed on hold while the company was in the process of applying for a town permit, but the company has stated that it is now proceeding with that appeal as well as the appeal of the planning board decision.
Club Motorsports, being represented by the law firm Devine, Millimet and Branch, has asked the court to either reverse the decision of the planning board and grant the permit or remand the matter to the planning board for reconsideration.
Streets and access ways
In the appeal, attorneys for Club Motorsports also said that the board acted improperly in denying all of the wetlands impacts, since some, particularly those for "streets, roads and access ways," have clearly been allowed by the town in other cases and to not make the same allowances for Club Motorsports would amount to selective application of the town wetlands ordinance.
The new application for a special use permit requests planning board approval only for construction of the streets, roads and other access ways outlined in the original application. Conservation Commissioners reviewed the application preliminarily at their regular monthly meeting Monday night, but having just received it did not discuss the matter in detail.
Board members briefly discussed the possibility that members may have to recuse themselves from review of the permit application, since they had done so for the previous application. But board members were unclear as to whether they were bound by that decision in regard to the new application since the new application makes no mention of a track or any other motorsports-related facilities. Commissioners did note, however, that the layout of roads is identical to what was presented in the previous permit application.
Minimal impact or none?
The original application identified "16 minor wetlands impacts throughout its 251 acre property" adding up to less than three-quarters of an acre of wetlands to be affected by proposed construction. In court documents, attornies for Club Motorsports say the planning board erred in rejecting all 16 wetlands impacts.
"Not a single one was approved, not even access to the property to allow Petitioner to get to the property's uplands, which is clearly contemplated and allowed under the [Tamworth Wetlands Ordinance] and has been granted in every other application that has ever been reviewed by the [Tamworth Conservation Commission]," states the appeal.
In the new application, six wetlands impacts are identified, as they would be affected by roads and access ways. The application also includes a brief excerpt from the transcript of the Nov. 8 planning board meeting in which planning board chairman David Goodson said more than 150 roads and access ways that affect wetlands have been allowed by the planning board in the past.
"Well, in the past, we and the Conservation Commission have allowed access roads onto properties within wetlands with no problem. I believe since this ordinance was done, about 150 of them. So, I don't see how we can say you couldn't make the access road these access roads. If you've done it for one, you have to do it for all, and we've done it, I believe, about 150 times since this ordinance was done."
The conversation, with town attorney Rick Sager continues, concluding that Goodson believes permits for roads and access ways have been treated differently than permits for "uses not otherwise permitted in the Wetlands Conservation District," which board members decided could only be permitted if they were not in conflict with "any and all the purposes and intentions listed in Section A of the Wetlands Conservation District Ordinance."
Running through the list of purposes and intentions, planning board members Nov. 8 identified places where the project was in conflict with them, and based their overall rejection on this determination.
Attorneys for Club Motorsports said the way it is being interpreted, they said, makes no allowance for any impact on wetlands.
They argue that this too was a mistake, that purposes and intents sections of such ordinances are not intended to be used in that way, that the board went far beyond looking at wetlands impacts, and used the wetlands ordinance as a substitute for zoning, taking into consideration environmental affects that could not be clearly tied to wetlands in any way. For example, they argued, the board considered how a fence around the proposed racetrack would affect the movement of wildlife in the area. Since the fence does not have any affect on the wetlands, they argued, there was no reason to consider that affect.
They further argue that the company was denied due process by the decision, that they had a right to expect the review to include a discussion of sections of the application that were permissible and a "negotiation" about how to change other sections in order to gain a permit.
They noted, "The New Hampshire Consititution requires that land use boards provide assistance to all their citizens seeking approval under zoning ordinances."
The next meeting of the planning board is scheduled for Dec. 27.