Club Motorsports must get town permit

December 8, 2005

Club Motorsports must get town permit

Rockingham Judge rules for Focus: Tamworth, says company must apply to planning board December 08, 2005

by TERRY LEAVITT

Editor

TAMWORTH — Focus: Tamworth has recently won two victories in its fight to hold Club Motorsports to stricter town and state regulations of its proposed driving facility.

This week in Rockingham Superior Court, Judge Kenneth R. McHugh found that the motorsports company must apply for a special use permit from Tamworth Planning Board under the town of Tamworth's wetlands ordinance.

Charles Greenhalgh, spokesman for Focus: Tamworth, said he is pleased to have the court uphold local control.

"Right now how this project goes forward is back in the lap of the town," he said.

Jim Hoenscheid, spokesman for Club Motorsports, said yesterday that he was not ready to comment on the court ruling because the company has not had time to review the court order.

After beginning the town wetlands application process in 2004, the company backed out of it, eventually saying that it would not apply for the town permit because it did not need to. The company took the position that it was unnecessary because Club Motorsports had to go through a more strict application process in applying for state and federal permits.

A number of Tamworth residents, working with Focus: Tamworth, sued the company to force it to comply with the ordinance. The court order in the case, Maud Anderson et al. v. Motorsports Holdings, LLC, was issued Monday, Dec. 5. Both parties had asked for a summary judgment in the case.

In the court order, McHugh noted that Motorsports Holdings proposes to build a private racetrack on the north-facing slope of Mt. Whittier, along with associated support structures, and a hotel and restaurant. He reviewed the N.H. Department of Environmental Services wetlands permit.

The town ordinance states, in part, "Where any provision of the wetlands ordinance is in conflict with State and Federal law or regulation, or other town ordinance, the more stringent provision shall apply." Club Motorsports has received a state dredge and fill wetlands permit, a site specific alteration of terrain permit and a water quality certificate, as well as a permit from the U.S. Army Corps of Engineers.

Judge McHugh found, however, that New Hampshire state law does not prohibit a town from having more restrictive rules on wetlands, and that "The [Tamworth Wetlands Conservation Ordinance (WCO)] is a narrative ordinance that can be read to unilaterally block all development that will negatively affect a wetland or aquifer in the town of Tamworth, unless a special use permit is issued by the planning board."

According to the order, "It is the simplicity of the [ordinance] — its plain language of intent to 'prevent the development of structures…on naturally occurring wetlands' and 'protect water supplies and existing aquifers' — that persuades the court that the ordinance could prove, once applied to this project, to be far more stringent than state or federal wetlands law….Since Sections A, D(3), and E(1)(c) of the WCO can be read to prohibit the racetrack's construction altogether, regardless of state and federal approval, the local ordinance must therefore set a different more stringent, standard for wetlands protection than its state or federal counterparts."

Club Motorsports also argued that the planning board has never, since the ordinance was enacted in 1992, required the issuance of a special use permit, so that to require the company to do so would be unfair.

But the judge found that there is no evidence of a similar project in the past for which such a permit might be required. "On the record before the court, its project seems to exceed all other developments in Tamworth since 1992 in both size and scope," McHugh wrote.

The court therefore ordered Club Motorsports to apply for and obtain a special use permit from the town before proceeding with development of the motorsports park. McHugh noted that either party still has the right to appeal the planning board's decision on the project "for either errors of law and/or unreasonableness in reaching a decision, whatever that decision may be."

The court ruled in favor of Club Motorsports in its argument that it did not have to comply with the town's hazardous waste ordinance, enacted in 1981, since that has been preempted by state law.

Settling on water quality

Last week, Focus: Tamworth announced that the group had signed an agreement with Club Motorsports to settle its appeal of the company's state water quality certificate. Five additional conditions will now become part of Club Motorsports' 401 Water Quality Certificate, issued by N.H. Department of Environmental Service.

Greenhalgh said Focus: Tamworth appealed the certificate because of concerns about the possibility of gasoline being spilled on the site.

In the settlement, Club Motorsports agreed to change its proposed mobile fuel distribution system to a stationary system, and agreed to incorporate better spill control and more elaborate drainage and runoff control structures, all changes the appeal asked DES to require. The only request Club Motorsports did not agree to, he said, was the request for a permanent ban on use of the gasoline additive MtBE (methyl tertiary-butyl ether) on the site. The company agreed to a ban until Jan. 1, 2007, when a state ban is scheduled to take effect. But Greenhalgh said Focus: Tamworth is still concerned about the issue, since the law could change or exceptions could be made.

"We are disappointed that CMI did not agree with our assessment of the extreme environmental hazards of MtBE," he said.

Hoenscheid said Club Motorsports is pleased that it could reach an agreement over the permit. He said the company could not agree to the limitation on MtBE because it would not be fair to hold the facility to a different standard than the many gas stations that exist in the surrounding area.

Focus: Tamworth still has concerns about the potential for the proposed track to violate the town's noise ordinance, and is considering an appeal of the U.S. Army Corps of Engineers permit, which was granted in August.