Court remands motorsports case to town


By Bea Lewis
Saturday, April 10, 2010

The N.H. Supreme Court has sent a disputed wetlands claim involving a proposed country club and motorsports facility back to the local planning board.

Ruling on an appeal by abutters to the proposed private driving and exhibition facility on the north face of Mount Whittier in Tamworth, the high court determined that the land use board failed to provide adequate grounds for denying a special use permit under Tamworth's Wetland Conservation Ordinance.


In a 16-page opinion written by Chief Justice John Broderick Jr., the high court on Friday upheld Carroll County Superior Court Judge Steven Horan's decision to remand the case to the planning board.

Club Motorsports Inc. owns approximately 250 acres of land about two miles west of the junction of routes 25 and 16 and has plans to build a private country club and motorsports facility, including a "3.1-mile long, European-style road course" and structures to support the repair, servicing, and garaging of racing vehicles. Plans also call for a hotel, restaurant, access road, and parking facilities.

Construction would involve dredging and filling 14,759 square feet of wetlands and would affect 16,952 square feet of intermittent streams. In total, construction would affect at least 16 distinct wetlands areas.

A first-of-its-kind concept for New England, the $28 million Valley Motorsports Park development would feature a road course that would be available for use by its members, much as a golf course country club operates, according the CMI Web site www.clubmotorsports.com.

CMI previously obtained a dredge-and-fill permit, a site-specific alternation-of-terrain permit and a water quality certification from the N.H. Department of Environmental Services. The company also has obtained a wetlands permit from the U.S. Army Corps of Engineers.

As part of its approval, the DES required CMI to provide a conservation easement on 107 acres of land in neighboring Sandwich to mitigate the negative environmental impact of the project.

The latest appeal to the high court was sparked after CMI applied for a special use permit under Tamworth's Wetlands Conservation Ordinance. CMI withdrew its application before the Tamworth Planning Board had completed its review.

Subsequently, Tamworth residents sought a declaratory judgment in Carroll County Superior Court, seeking a ruling that CMI would have to obtain a special use permit before beginning construction. The court ruled that the town was a necessary party to the action and notified the municipality that, whether or not it participated, it would be bound by the result.

The town chose not to participate.

The trial court ruled that, regardless of CMIs' acquisition of state and federal permits, it needed to apply for a special use permit under the town's wetlands ordinance.

CMI appealed, arguing, among other things, that relevant state and federal regulations were more stringent and comprehensive than the town ordinance. It also argued that the ordinance, by its own terms, was not applicable to the project and, therefore, no special use permit was required.

The Supreme Court rejected the argument, holding that CMI was obligated to obtain the local permit.

Before the Supreme Court issued its decision, CMI applied for the town permit. The Tamworth Planning Board denied that application, stating that the proposed project did not meet five of seven "Section A criteria under the WCO."

CMI appealed to Carroll County Superior Court which gave a green light to certain abutters and residents of Tamworth to intervene. Judge Steven Horan conducted a hearing in June 2008, during which one witness, Jim Hoenscheid, the president of CMI, testified. The parties presented offers of proof and legal arguments. Subsequently, the trial court vacated the planning board's decision and remanded the matter. The intervenors appealed to Supreme Court, and CMI cross-appealed.

In the latest case, the high court found that the planning board had not issued a written decision that outlined its reasons for denying CMI's application for a special use permit.

The opinion also stated, "Further, the WCO is not a zoning ordinance under which the planning board determines whether a proposed project constitutes an appropriate use of land. Rather, it sets forth a regulatory permitting scheme governing the use of and impact upon wetlands. Thus, the planning board's task is to review the application, and identify any deficiencies it perceives regarding particular wetland impact areas."

The ruling continued, "Under the circumstances of this case, we hold that casting separate votes on each of the seven Section A criteria with respect to the project as a whole, without providing reasons, explanations or findings directed to adversely affected wetland areas or buffer zones, does not constitute an adequate statement for the grounds of disapproval necessary to comply with RSA 676:4, I(h). Because the November 8 minutes do not satisfy RSA 676:4, I(h), we hold that the record supports the trial court's ruling to vacate and remand."

Attorney Thomas Quarles Jr. argued the case last October. Attorney Andrew Serell represented Amy Berrier and other interveners.

Associate justices Linda Dalianis, James Duggan, Gary Hicks and Carol Ann Conboy concurred with the opinion.

For more information call (603) 437-3278 or visit clubmotorsports.com
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