Gallus and Kenney Defend Law That Killed Tamworth Ordinance

Tamworth — May 11, 2004 — Sen. John Gallus is standing behind a bill that if left unchallenged will exempt a developer of a proposed racetrack in Tamworth from an ordinance recently passed to regulate it.

The senator, who sponsored by the bill, says it all comes down to an issue of property rights, and how much control the state should be able to delegate over development of private establishments, like the one proposed by Club Motorsports Inc., (CMI) versus those that are open to the public such as the track in Loudon.

“There is a big difference between the Loudon track and Tamworth,” Gallus said, noting that roughly 100,000 spectators come out to watch the Loudon races. CMI, on the other hand, wants to build a multimillion dollar ‘motorsports country club’ on 250 acres off Route 25, to include a 3 mile long winding road course on the base of Mount Whittier where owners of fast, expensive cars could exercise their machines.

Gallus was the primary sponsor behind Senate Bill 458, which defines CMI-type developments, and specifically exempts them from the current laws on the books which give towns the ability to adopt regulations relating to racetracks. He says the bill was not meant to undermine local control, and argues that communities still have other tools at their disposal for that purpose, including zoning ordinances. He also points out that the developers need to get a host of permits for construction. “There are still hoops [the developers] have to jump through,” he says.

But others argue that the law altogether undermines the rights of towns to control their destiny in the face of these establishments, including local state representatives.

Rep. Harry Merrow of Ossipee, who also serves as a selectman in that town says: “This bill in effect renames the track as something other than a racetrack and then goes on to remove any authority of the selectmen to provide any control over it. Although by definition it is readily apparent that this was designed to apply to the track in Tamworth, it would apply to any track in the state that met this definition. In other words, it takes authority away from the town, which I am not in favor of.”

Likewise, the New Hampshire Municipal Association, a watchdog group for local municipalities, has a statement titled ‘A Loss of Local Control’ posted to its website. It says, “The bill was apparently touted as not taking away local control, but it exempts certain activities from existing local regulatory authority – the specific authority that Tamworth residents just happened to exercise in their March 2004 town meeting.”

The bill has special implications for Tamworth, since the community — currently the only one in the state where a private racetrack is being proposed — has no zoning.

Just this past September, a majority of residents of this small, rural town, decided at a special town meeting against adopting emergency temporary zoning. They argued that zoning is costly for taxpayers, promotes elitist agendas and that property owners should be able to do what they wish.

However, residents appeared to show that they favor having some control over regulating the facility when they adopted, by an overwhelming margin, a racetrack ordinance during annual meeting in March. But that ordinance was based on state statutes that SB 458 now exempts the developers from. The Tamworth ordinance passed just days prior to the signing of SB 458 into law by the governor.

News of its passage only came to surface last week because an anonymous letter was sent to the chair of the conservation commission in Tamworth, John Mersfelder.

Merrow, along with Reps. Mark McConkey and David Babson, also of Ossipee, attempted to tag an amendment to a bill on the floor during session last week in hopes of repealing the newly-adopted law, but that effort failed.

As this year’s session is drawing to a close, individuals connected with a citizens group opposed to the track, Focus: Tamworth, are meeting with Concord officials to figure out what courses of action are available to them to take.

Sen. Joe Kenney of Wakefield was also slated to meet Monday with some of its members. Kenney heads the senate transportation committee, which the bill first came in under.

LIke Gallus, Kenney apparently stands behind the changes, saying the old racetrack law was not meant to apply to CMI-type developments, which have now been defined under the new law. He said he was unaware of the timing of it all.

He has expressed a willingness to work with Tamworth to address concerns it might have, but says he can not walk away from the definition that the state adopted.

Aside from the debate over the right of towns to control how they grow versus the right of property owners to do what they want with their land that sparked by the bill, is the controversy over how it passed through the legislature. The bill apparently got passed state reps — at least those representing Tamworth — as well as watchdog groups who would typically lobby against such a bill. It was introduced in January and signed into law by March.

The statement issued by NHMA states: “While the bill went through the full schedule of notice and public hearings, it certainly remained under the radar screen for many with concerns and moved through the system with unusual speed, signed by the governor on March 5th and becoming Chapter 4 of the 2004 session laws.”

It concludes: “We believe it sets a dangerous precedent for seeking legislative relief from local regulation in pending cases where existing municipal and state appeal processes should be used to resolve disagreements.”

Merrow says: “As to how and why this happened I will reach no final decision until I have had a chance to review all the facts. Had I realized what it was at the time I would have done my best to see that it was defeated. It is too late to do anything about this now but unless someone beats me to it I will file a bill to repeal this in the fall.”

The state representative goes on to explain that the bill was placed on what is called the “consent calendar” after passing through the senate transportation committee, full senate and then the house transportation committee. The consent calendar, Merrow explains, “is normally reserved for what is hoped to be bills that the committee members nearly all agree on and that it is felt that the full house will agree on. It comes with a committee recommendation of either ought to pass, or expedient to legislate.”

Any member can pull an item off the consent calendar and place it on the regular one for discussion and debate on the floor, but this did not happen. Instead, all of the items on it were approved by a voice vote.

Merrow said he has no excuse for missing the bill, but relayed a copy of it as it appeared on the consent calendar on Feb. 19. “I would just ask that you review it and then ask yourself if you would have associated this with the Tamworth Racetrack,” he wrote in a prepared statement.

The item reads as follows: “SB 458, relative to private driving instruction and exhibition facilities. OUGHT TO PASS. Rep. Robert J. Letourneau for Transportation: This bill defines driving instruction and exhibition facilities. These are facilities that provide instruction and training for safe driving skills and adverse weather driving techniques. These facilities can also exhibit vintage motor vehicles. This bill clarifies where these facilities fit with respect to current law, so that existing state law, which applies to professional spectator facilities, does not apply to private instructional facilities. Vote 13-0.”

Gallus defends the process that the bill went through, and notes that it went through the whole legislative process with two public hearings. “This is not a bill that was railroaded through,” he said.

The municipal association, he said, has a lobbying arm that should have been on top of things, and that Gallus believes had to have been aware of the legislation. “They weren’t asleep,” he said.

The senator said he introduced the bill initially after a house representative asked him to, although he can not recall which one. The filing period for the house had just ended, Gallus explained.

As for why the senator from Berlin had an interest is legislation that would have an immediate affect on Tamworth, Gallus said individuals had approached him about doing similar projects up north in his neck of the woods, which he described as being “economically under served.”

He said he knows of at least two similar projects, but noted they are much more preliminary than what CMI is working on in Tamworth. Gallus said he is not at liberty to disclose who the other parties are or where they are considering the developments.

While conceding that the bill did pass into law relatively quickly, the senator pointed out that there are deadlines to meet in Concord.

Gallus and Kenney Defend Law That Killed Tamworth Ordinance