Tamworth, track builder say no to Focus intervention in latest lawsuit

Town lawyer: Don't bog down case

Nate Giarnese

OSSIPEE—A band of townspeople worrying that a racetrack will degrade their woods and waters has asked to join ranks with their town in fighting a lawsuit brought by track builder Club Motorsports Inc.

But both the Tamworth town attorney and the embattled developer are demanding that most of the group stay out of the latest court battle over the besieged building plans, which have been buried for years in political baggage, and remain stymied by a wider legal war.

“I don't think it is helpful for the cases to have a bunch of people in there who would lengthen the trial,” said Rick Sager, the local attorney defending the planning board. It's on behalf of the planning board that the group has filed to intervene.

CMI sued the town board after its rejection last fall of the company's application to lay three miles of asphalt at a forested 251-acre site on Mount Whittier. It sought to place arches over stream beds, and eventually erect a hotel, to create the region's first exclusive country club for driving enthusiasts. But planners found CMI's plans didn't pass muster under a town wetlands ordinance.

The company's appeal is a latest legal foray in the more than four-year-old, deeply politicized saga, in which a past board of selectmen refused to back a separate lawsuit filed against CMI by the citizens' watchdog group, Focus: Tamworth.

Now, a groundswell of area residents, including Focus members, a Ph.D. in the environmental sciences and a local church, complain in legal intervenor filings that the quality and value of their property will plummet if CMI is allowed to carve its park into the side of a mountain.

But all but two on the list of 54 who filed in the local court to formally join the town suit are not direct abutters, and should not be allowed to intervene, say Sager and CMI in their objections.

“If you're a direct abutter, fine,” Sager said.

Indeed, even CMI did not object to St. Andrew's in the Valley Episcopal Church, one of two abutters asking a judge to let it sign on. Its case was bolstered by the Right Rev. Gene Robinson, the Bishop of the Episcopal Church in New Hampshire. The church has complained that cars would drive peace-seeking parishioners from its outdoor sanctuary and otherwise disrupt worship.

Mount Whittier has long been viewed by some as destined for development. While many say the time is ripe for the track's promised economic boost, given meticulous environmental protection measures, others fear the ambitious road course will be out of place amidst the hushed pines.

CMI wrote in a court filing that the lengths it went to to avoid environmental impacts are “certainly unrivaled in Tamworth and probably for the entire state.”

Despite intense lobbying by its opponents, state and federal environmental police have approved building permits, “rejecting Focus's attacks and expert testimony,” the company said.

The track would overlook a highway where noise from thundering trucks would all but eclipse the street-legal cars of its members, the developer has said.

At a slew of public hearings over the last four years, fiery rhetoric has flooded high capacity arenas, often splashing over into emotional pontifications: from personal attacks, to poetry ruminating on the sanctity of the mountains.

“I just want to make sure the planning board doesn't get bogged down,” Sager said of his decision to object to the interventions.

Focus spokesperson Kate Vachon, continued to insist her group, which is also fighting CMI in federal and state court cases, is the not development-resistant machine described by its critics.

“What we are most interested in is regulating the track to avoid adverse impact on Tamworth,” she said.

Much of the track's future litigation hinges on a pending appeal before the state supreme court in a suit involving some of the same players. Justices heard oral arguments earlier this month in CMI's appeal of the superior court suit won by Focus and the church that forced CMI to apply for the town wetlands permit.

The suit said CMI, though having earned state and federal environmental permits, must also earn the planning board's permission to build, citing the authority of the local ordinance. CMI argued the law had been dredged up from relative obscurity, and that federal and state guidelines are more stringent — claims town planning and conservation officials deny.

CMI Vice President Jim Hoenscheid complained in an e-mail last month that the planning board's decision was unfair.

“In the past, the Planning Board stated that if an applicant meets the requirements of state permit, the applicant should receive a local permit,” he wrote.

Should the high court undercut the ordinance, however, CMI may no longer need the town permit, potentially removing perhaps the most obvious grounds for the parties to continue wrangling the suit against the town. It has been on hold pending the appeal.

“It may be that the supreme court rules the wetlands ordinance is invalid,” said Sager, who has asked the board's decision deadline on a second tuned-down application be extended until after the higher court rules. “It will give us a good road map.”

He said the court's ruling may not come down until September.

Meanwhile, a statehouse bill that would form a committee revisiting local control by towns over driving clubs like CMI's was sent back to a Senate study committee last week and may not be voted on by the full legislature until next year, Vachon said.

Focus is also awaiting word on the status of its lawsuit filed in federal court that appealed a broad-based environmental approval issued to CMI by the U.S. Army Corps of Engineers. The federal permit, granted after an exhaustive series of hearings and expert sound studies, is under challenge over its noise limits.