Under siege in the courts and at town hall, racetrack back before legislature

As legal battles on hold for supreme court ruling, bill would form study committee on CMI plan

Nate Giarnese

CONCORD—A long wait for a ruling from the state supreme court is holding up two legal actions in a grueling battle over plans for a first-in-the-region racetrack on Mount Whittier.

Meanwhile, legislators are debating a possible long-range solution. A new bill backed by a local lawmaker would form a bicameral committee in the state capitol to study local control over the type of motor sports club added to the state's law books in 2004 under intense lobbying by track builder Club Motorsports Inc.

The current law, which remains hotly contested by local activists and some Democratic and local Repubilcan statehouse members, created an entity now known in legalese as a private instructional driving facility. This often-challenged designation was applied to the Derry company's plans for a twisting road course and hotel on the side of a mountain in zoning-free Tamworth. The new legal designation exempted the controversial driving facility from a town racetrack ordinance.

On Tuesday, the New Hampshire State Senate held a hearing on the legislation, which would form a study committee. The Senate bill, backed by Ossipee State Rep. Harry Merrow, was opposed at Tuesday's committee hearing by track supporters but praised by opponents, including selectman Willie Farnum, who stepped down from a leadership role with citizens' group Focus: Tamworth before his election last year.

An attempt to repeal the private driving club exemption failed in the senate over a year ago. Farnum and others were told repeatedly that testimony of Tamworth's three selectman on behalf of CMI weighed heavily in the company's successes in the legislature. But now, the selectboard has turned over and become less sympathetic to CMI. Farnum has been joined by the Rev. Tom Abugelis, who before his election issued a stern warning that locals would defend their hometown against the threat of risky development.

Since navigating around the town rule by way of state government, CMI has found its plans stalled at town hall, and in the courts. The track proposal failed to meet permitting hurdles and ran up against lawsuits. The company now is awaiting a key decison by the state's highest court.

Environmental watchdogs, led by Focus: Tamworth, sued CMI to force them to comply with a town wetlands ordinance, which CMI has called inapplicable In fact, the company also has complained that other local laws are unfair, and along with some longtime residents has blamed activists for tilting town government against the developers.

Even so, a superior court judge ruled in favor of the citizens' group, sending CMI before the planning board last fall for a special use permit. The application, including large underground catch basins and other highly technical environmental protections measures, was rejected by the board.

But even as CMI met repeatedly with the planning board, it was appealing to the state supreme court to challenge the lower court's decision that sent the company after the local permit. That appeal, which will be heard by the state's top judicial body early next month, could affect all related legal action.

Now, the planning board has complained in a fresh court filing that it would have refused to accept a second application filed by CMI had the company not disguised its intentions.

After planners in November rejected CMI's blueprints, including massive abutments that would have lifted sections of track over mountain streams, CMI sued. But it also returned two months later asking only to build a road to access their 250 acres on Mount Whittier. Saying little more than that the company wished to explore “development options,” CMI cut out the hotel and track, but left in identical, if fewer, stream crossings, according to planning board attorney Rick Sager.

Pressed by planners, CMI had at first refused to say whether building a racetrack remained its goal, even as it stood at the forefront of two court cases holding back groundbreaking. Sager said the fact that the first denial was mired in litigation would have precluded the planners from accepting any further applications that were understood to be related to the track.

“The respondent has subsequently admitted that the preferred use of the property continues to be a racetrack,” Sager wrote.

Due to a well publicized “acrimony” on both sides of the matter, Sager repeated his oft-stated prediction that any decisions by the town board are guaranteed to draw appeals.

The board now has a May 30 deadline to act on CMI's latest application filed in December. (Selectmen granted a 90-day extension.) Sager has asked the courts for an additional respite until 45 days after the supreme court issues it decision, which will happen after the court hears the Focus: Tamworth case on April 3.