Carroll County Independent
April 26, 2007

Club Motorsports case before Supreme Court

by Terry Leavitt
Editor

TAMWORTH — Club Motorsports' appeal of the decision that it must file an application for a town wetlands permit went before the state Supreme Court earlier this month.

Oral arguments in the case (2006-0008 Maud Anderson et. al. v. Motorsports Holdings LLC) were heard by the Supreme Court April 3; each party had 15 minutes in which to present arguments and respond to the justices' questions.

Attorney Thomas Quarles of Devine Millimet and Branch represented Motorsports Holdings.

Quarles said the Motorsports case is a unique one in its factual, procedural and legal issues. He noted that Tamworth is one of about 20 towns in the state that has no general zoning, and that zoning has been voted down three times, including one time in which a zoning vote was brought before townspeople in response to Club Motorsports project.

"What we feel [the town] is attempting to do in this matter is conflate an existing ordinance — it's wetlands ordinance — into a general zoning ordinance and improperly apply it and broaden its scope to act as a general ordinance, which it doesn't have the right to do," Quarles said.

He said the motorsports company has gone through very rigorous federal and state wetlands applications and been approved, and the town brought into play what he called a dormant ordinance. Although it had been originally approved in 1988 and updated in 1991, Quarles said the Tamworth Wetlands Ordinance had never been enforced once in 15 years. Quarles said the town ordinance is poorly drafted, calling it confusing and contradictory. He called the use of the ordinance discriminatory since it had not been applied in the past.

Club Motorsports initially announced its plans in 2003. The company filed an intial permit application in 2004, but withdrew it. A group of Tamworth citizens then brought suit against the company and won a superior court judgement requiring the company to apply for a permit.

When the case was heard in the lower court, Judge Kenneth R. McHugh found that the company had to apply for a town permit because the town's ordinance could be more stringent than state or federal regulations.

The company appealed, but also decided to apply for a town permit last summer. That permit application was denied last fall, and the company has filed an appeal in Carroll County Superior Court.

Attorney Andrew Serrell of Rath, Young and Pignatelli, represented Maud Anderson et. al., which brought the original suit in superior court in 2005.

Serrell said that simply because the ordinance had never been enforced prior to this project, that did not mean the town was being discriminatory in using it now. Since it began enforcing the ordinance, he said, the town has used in seven other projects.

Serrell said, the proposed project "involves the largest project ever proposed for the town of Tamworth by a wide margin. It involves a three-mile race track that will impact 17 different wetlands areas, and 31 areas within the wetlands buffers." The total wetland buffer areas are more than three acres, he said and involves blasting a half million cubic yards of earth and moving a million cubic yards of earth. In total more than 130 acres of land will be affected by the project and 45 acres of impervious surface will be added to the land, which sits over the recarge area for the Ossipee aquifer. The project is also located on Mount Whittier, adjacent to 200,000 acres of protected land in the Ossipee Mountains.

The court asked Quarles, "Is there a part of the wetlands ordinance that you acknowledge, however small, that is stricter than teh state and federal ordinances?"

Quarles said no. "It really seems to be an apples and oranges situation in terms of how these regulartory schemes are structured. The federal and state schemes are very broad. They're very comprehensive. My oponent admits that the state and federal schemes are more comprehensive than the Tamworth Wetlands Ordinance."

Serrell argued that the town ordinance can be demonstrated to be more stringent than state or federal regulations in that it addresses both wetlands and buffer areas, and in that it focuses on prevention of damage to wetlands rather than mitigation of damage. Further he said, state and federal regulations allow for mitigation of affects on wetlands through the protection of lands in other towns, while Tamworth's wetlands ordinance does not.

Justices raised the question of whether the parties (Maud Anderson et. al.) who filed the original case in superior court had standing in the case to bring a declaratory judgement. State law gives legal standing in a case to people who are agrieved, but questioned whether that meant citizens have the right to force their town to enforce an ordinance. Justices said they had recently determined in another case that citizens do not have that right.

Serrell said he believes the question is moot both because the Club Motorsports had agreed that one person was an abutter and so had legal standing, and because the company has since applied for a permit with the town, and that was the reason for the original court case.

"I think the standing argument is moot because they have applied for a permit and been denied," Serrell said. "The only issue in the case is they need to apply for a permit. Now that they have applied for a permit, I don't think there is anything that can turn the clock back."

A justice asked why the company would apply for the permit if it was contesting the need to make such an application.

"It's simply a matter of dollars and cents and time," Quarles said. "We thought we might be able to acheive the permit, defend it on appeal in superior court and this issue would be moot. But that isn't the way the cookie crumbled."

He asked the court to rule on the merits of the case, and said from his clients perspective the issue of standing had been waived, unless the court decides it must make a ruling on that issue.

The N.H. Supreme Court has not yet issued a ruling in the case.