Would repeal of SB 458 stop racetrack?

Legislators unsure, but Kenney says the issue of local control should be 'revisited'

Nate Giarnese

TAMWORTH—Legislators admit they do not know if repealing SB 458 would force Club Motorsports Inc. to comply with Tamworth's racetrack ordinance, or if the proposed 251-acre motorsports park would be grandfathered.

Rep. Harry Merrow of Ossipee, who filed a House bill to "flat out repeal" SB 458 on September 20, says he doesn't know under what legislation the CMI project would fall, grandfathered or otherwise, should the repeal pass the House and the Senate. "I honestly don't know," Merrow said. "I have gotten answers both ways depending on who I talked to."

SB 458's prime sponsor, Sen. John Gallus, and Sen. Joe Kenney, chair of the transportation committee that reviewed the bill, also say they are unsure. "It's a legal issue, I'm not sure," Gallus said.

"I honestly don't know," said Sen. Joe Kenney, chair of the transportation committee that reviewed SB 458. "I suspect that is a legal question that only a qualified attorney or court system could answer.

Kenney, who took heat for not anticipating that SB 458 would gut Tamworth's race track ordinance, acknowledged by email the unintended consequences of the bill. "In retrospect, five months after it became a major topic in Tamworth, I now do believe that aspect of local control has to be revisited out of respect to Tamworth which has no local zoning," he said.

He explained the history of SB 458 from his perspective. "It passed the House (400 members) and Senate (24) to include both parties unanimously at the time.  There was no opposition from the New Hampshire Municipal Association or any environmental lobbying groups.  At the time, it seemed reasonable that myself as the Senate Transportation Committee Chairman that I would support the new definition of this new recreational sport.  We have done that in our committee many times on other pieces of legislation when it comes to defining new transportation subjects." 

Senate Bill 458 took effect May 4, and "defines private driving instruction and exhibition facilities and exempts such facilities from local regulation of motor vehicle race tracks." The bill has grated on selectmen and legislators since its unanimous passage in March in what opponents complain was a back door deal sped through the legislature pushed by CMI.

Merrow says it shouldn't be interpreted that because he sponsored the repeal that he is against the race track. "I've said all along I'm not against racetrack, I'm against the town losing local control," Merrow said. There are twenty-two towns in New Hampshire that like Tamworth, do not have zoning ordinances. Merrow argued that because of SB 458 these towns would also find themselves powerless to impose local restrictions should a similar non-exhibition racetrack attempt to set up shop within their boundaries. "If you put this type of track in any town," he said. "That town would not be able to pass ordinances of any kind."

Sherry Young, an attorney with the Concord firm of Rath, Young and Pignatelli, representing local citizens' group, Focus: Tamworth, called the repeal "complex" due to the timing of the law's passage. Because SB 458 was signed by the governor a few days before Tamworth approved its race track ordinance at town meeting, she said, CMI has never been subject to the town ordinance. Should the law be stuck down, the ordinance would be tested for the first time, according to Young.

FOCUS: Tamworth spokesperson Kate Vachon said the group believes CMI will be subject to the racetrack ordinance should the state law be overturned.

Young explained, "My sense is that the RTO as it is on the books is effective because the ordinance deals with operations."

The ordinance also requires CMI to meet several conditions prior to construction, and to apply for a license to build with the town. This has raised hackles at CMI , prompting the Derry developer to cry zoning in a town supposedly without any. CMI contends that any restriction on building is unabashed zoning.

Company spokesman Scott Tranchemontagne cited statements by Tamworth town counsel which likened the ordinance to a mini-zoning ordinance, and language borrowed from an emergency temporary zoning ordinance rejected by voters in October of 2003. "The RTO that was ultimately issued began with good intentions," he said. "It is now a full zoning ordinance and includes a site plan review. It is not legal and not workable from our perspective."

"Let's say SB 458 never passed," he said. "We didn't believe we were subject to the (RTO) because our facility is so different from a racetrack.

"We're not a racetrack, we're a motorsports country club," he explained. Club Motorsports supported SB 458 to distinguish professional Loudon-style racetracks from private practice courses, such as the club's proposed three-mile course on the face of Mount Whittier, he said. "We are landowners in town. It's perfectly appropriate for us to talk to state reps.

"We talked to a lot of different state reps. and senators about our project, which I might add is exactly what Focus Tamworth is doing," he said.

Tranchemontage said the company hasn't looked into what a successful repeal would mean. "The bill is a long way away," he said. "I'm sure we'll give an opinion on it. We still think that the legislature acted wisely in modifying state law... we are different from a big speedway."

He said CMI does not know exactly when ground will be broken on the mountainside site. "All we have done is cut logs around the land where the road course will be constructed," he said. "We will only develop based upon what our permits allow." CMI purchased 251-acres on the North side of Mount Whittier in Tamworth in 2003.

Should SB 458 be struck down, CMI will probably be able to break ground, or continue construction if already underway, regardless of what the Tamworth ordinance says, but may be subject to its operational clauses. "You can not put restrictions on construction if its already constructed," Young said. "You can't change the game on a project that has already been planned.

"While they may not have any question of an initial license, I still think the question of operation will apply... hours, noise, light, or nuisances that would interfere with the health and safety of the community," she said. "A good portion is a possible health and safety issue."