Laconia Citizen
Apr 6, 2007

Lawyers argue Tamworth racetrack case at high court

CONCORD — The state Supreme Court heard oral arguments Tuesday in the marathon legal, political and regulatory battle between the owners of a proposed 3.1-mile, Le Mans-style racetrack in Tamworth and area residents who want to keep it out.

An abutter to the future facility, and 34 residents of Tamworth, Chocorua, Wonalancet and Sandwich, sued Club Motorsports to force it to apply for a Tamworth wetlands permit, a hazardous waste permit, and subdivision approval.

Those are in addition to its state and federal environmental approvals. The racetrack lost in Rockingham Superior Court last year on the issue of applying for the wetlands permit and appealed to the high court.

The racing complex would occupy about 250 acres on the south side of Route 25 near Mount Whittier Ski Area in the middle of the huge Ossipee aquifer that feeds the water supplies of 28 towns in New Hampshire and Maine. Critics warn that the future 1,000-member, private country club for avid sports car owners might spill gasoline, antifreeze, oil and other toxic material into nearby wetlands, including the Bear Camp River downhill on the other side of Route 25. It would also pave or build roofs over an estimated 145 acres.

Tamworth is one of the last 10 or so towns in the state that lack a comprehensive zoning ordinance, but opponents of the track have made full use of the local wetlands rules and a noise ordinance.

The proposed Valley Motorsports Park would also include a hotel, a restaurant, car repair shops, garages and parking lots. Jim Hoenscheid, the company president, said construction crews have done some authorized land clearing, but the rest of the project is on hold until the courts act. He declined to say how much his investors have spent already, but his lawyer, attorney Tom Quarles, said the amount has been "substantial."

Quarles told the high court Tamworth officials never invoked their wetlands ordinance until this one project arrived four years ago.

"In the past they felt the state regulatory process was enough," Quarles said. "Applying the ordinance to us alone is discriminatory enforcement."

Attorney Andrew Serell spoke for Anderson and the other plaintiffs. He said this was by far the biggest development the town had ever seen. It has since used the ordinance on every project with a wetlands impact, big or small.

Quarles said the broadly worded, confusing and contradictory wetlands ordinance is so vague that different people could come to different conclusions about what it means.

"That's a violation of due process," he said.

Justice James Duggan asked Serell what the town's criteria are.

"Do you just figure it out case by case?" he asked.

Serell said officials have to meet a standard of being fair and reasonable.

"This court can decide if it has been applied that way," he said.

Many of the plaintiffs are members of FOCUS: Tamworth, a group of citizen activists who have dogged the project in several regulatory venues. Saint Andrew's-in-the-Pines Episcopal Church and the Episcopal bishop of New Hampshire are plaintiffs as well.

The Association of Counties and the state's Local Government Center joined the case to protect the powers of municipal boards to shape their towns. Their legal briefs say state and federal laws do not pre-empt a local land use control like the Tamworth ordinance.

The conservation commissions in Tilton, Wolfeboro, Wakefield, Ossipee, New Durham, Moultonborough, Madison, Hampton Falls, Freedom, Kensington, Brentwood and a dozen other towns wrote letters to the association asking it to enter the case.

Their lawyer, Jed Callen, left the oral arguments confident his side would win because the lower court opinion by Justice Kenneth McHugh was well reasoned.

"It's an enormous project, and it will have a huge impact on the entire ecosystem," Callen said. "But if they win this case, they still have to pass the noise ordinance."

Quarles challenged the legal standing of most of the high court plaintiffs, who are not direct abutters to the site and may have filed their motions too late to participate. The lower court admitted them as parties.

In a parallel legal case, racetrack owners applied for a special exception to the town's wetlands rules and lost before the Planning Board. That decision is under appeal.

Chief Justice Broderick asked Quarles why he submitted to the Planning Board process with a Supreme Court appeal in the works. Quarles said it was a simple matter of time and money. A win in either appeal would end the matter.

Broderick asked what would happen if the high court decided the plaintiffs had no standing in Maud Anderson v. Motorsports.

"Where does that leave you?" Broderick asked Quarles.

"We would be in a world of hurt," he said. "We'd have no way to contest the ordinance itself."

Quarles said the track never challenged the legality of the wetlands ordinance as part of the new litigation. That's what the Supreme Court case was supposed to resolve.

Both sides agree the Planning Board wetlands case would become moot if the track wins its high court appeal in a way that nullifies the ordinance.