Judge denies injunction against Club Motorsports


August 25, 2011
TAMWORTH— Selectmen here have voted 2-1 to drop the case against Club Motorsports, Inc. regarding potential violations of the town's wetland ordinance.

Back in June, selectmen had voted to accept the findings of soil scientist Greg Howard of North Country Soil Services, including Howard's summary conclusion that "There were seven (7) apparent violations of the Tamworth Wetlands Conservation Ordinance (TWCO) observed on the project site. A number of other deficiencies were noted on the site that if left uncorrected will likely result in impacts to wetland areas, surface waters and the 25-foot buffers creating additional violations of the TWCO."

Selectmen also voted at the time to send Howard's report to the planning board and instruct the town's attorney Richard Sager to file with the court and take all other "reasonable measures" to ensure CMI be enjoined from violating the Tamworth Wetlands Ordinance and seek penalties and attorney's fees.

Tamworth's request for preliminary injunction against Club Motorsports was denied in Superior Court in Ossipee by Judge Steven M. Houran in an order handed down July 29.

Based on that decision, Tamworth Selectmen discussed in non-public and then voted in the public meeting to withdraw the case. Selectmen John Roberts and Robert Abraham both voted in favor of dropping the case while William Farnum opposed. Roberts and Farnum had voted in favor of sending the matter to court back in June with Abraham voting against accepting Howard's report without Howard being at the meeting to answer questions about it and without Club Motorsports' representatives being able to voice their opinion about Howard's findings.

On Aug. 16 a motion to drop the case was filed in Superior Court and on Aug. 17 that motion was granted. This also cancelled a motion that FOCUS:Tamworth had filed asking to be named an intervener (party in the case) that was scheduled to be heard Aug. 29.

According to an e-mail received from Jim Hoenscheid of Club Motorsports, "Overall, this is a very positive outcome for Club Motorsports and our project. The decision also benefits Tamworth and all Tamworth landowners as it confirms the jurisdiction of the TWO (Tamworth Wetlands Ordinance). The jurisdiction of the TWO is limited to wetlands, waterbodies and a 25-foot buffer around wetlands. There is no 25-foot buffer around waterbodies. Since the very beginning of project and with the start of construction last July, Club Motorsports' construction activities have avoided wetlands, waterbodies and the 25-foot wetland buffer. Club Motorsports will continue with construction outside the jurisdiction of the TWO while we appeal the denial of our two SUP (Special Use Permit) applications."

As part of Club Motorsports, Inc. answer to Tamworth selectmen's request for a preliminary injunction, CMI had asked the judge to throw out the case not only because they felt they had not violated the TWO but also because Farnum was involved in the vote to send it to court. The judge chose not to consider that matter as part of the injunction hearing. "Motorsports asserts that a member of the Board who cast the deciding 2 to 1 vote was required to disqualify himself from participating but did not. Motorsports alleges that this Member is or was a member of a group formed for the purposes of preventing Motorsports' development of its property and that he has made prior statements in strong opposition to the Motorsports project. Motorsports asks that the court determine that the decision of the Town by its Board of Selectmen to file this litigation is void because of the participation of this Member of the Board. The town does not appear to contest that this Member of the Board would be disqualified if the Board had acted ion the Motorsports matter in a quasi-judicial capacity, see RSA 43:6 but asserts that the Board was not acting in a quasi-judicial capacity, RSA Chapter 43 does not apply, and this Member of the Board was not disqualified from participating. The court declines, without prejudice, to take up or determine this issue in connection with this preliminary proceeding," reads Houran's decision.

CMI's request for reimbursement of its legal expenses to answer to the town's request for preliminary injunction was denied by the judge.

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