Kenney Says SB 458 Was Needed to Clear Up Confusion

Tamworth — May 9, 2004 — While it has yet to withstand legal scrutiny, a senate bill signed into law two months ago appears to have exempted the controversial private race track proposed for Route 25 from an ordinance the town adopted to regulate it during its annual Town Meeting.

Critics of the project say Senate Bill 458 takes away local control. “The local town passed an ordinance to control the development,” said Chris Greenhalgh, a spokesman for Focus Tamworth, a group opposed to the race track. “And the developer, not being satisfied with it, went to the legislature and got a law passed that specifically exempts them from having to abide by it.” And further, Greenhalgh argues, the law got through the legislature in a way that those most affected by it weren’t even aware of it.

“That’s certainly not local control, or the NH way, that I’m aware of,” said Greenhalgh, who is an attorney with Cooper Deans and Cargill law firm in Conway.

But Club Motorsports Inc. spokesman, Scott Tranchemontagne say the town has other means of control. And he claims the ordinance adopted by the town was overly restrictive and sought to stop the project, not simply regulate it.

“It doesn’t give towns the right to adopt an ordinance that’s so restrictive we can’t even build,” he said.

The ordinance was created over the course of several months and passed at the Tamworth Town Meeting. CMI was involved during each step of the process, and they were allowed to make lengthy presentations during recent public hearings.

What Senate Bill 458 does, specifically, is define the type of project that CMI wants to develop as being different than the racetrack facilities that the state statute under which Tamworth adopted its ordinance under speaks to. In doing so, the bill appears to exempt CMI’s facility from the town’s ordinance.

Sen. Joe Kenney of Wakefield, who voted for the bill and who chairs the transportation committee that it came through under, says the original statute created in the 1960s was meant to address Loudon-type facilities. CMI’s facility would be a private non-spectator establishment for amateur racers. It would also act as a driving school, say the developers. Kenney said Carroll County is not the only location where the motorsports group may potentially want to set up such facilities, and so laws needed to be clarified.

“This was an opportunity for the legislature to define what it is,” he said, “because there seemed to be confusion at the local and state level about what a private sports club facility is.” He said communities’ local zoning ordinances would still apply to the project. However, Tamworth has no zoning.

Asked if he was aware of the affect the law would have on Tamworth’s town ordinance, Kenney said, “I was unaware of the timing of it – that’s all I’ll say.” The timing of its passage into law was just days before annual meeting.

Focus Tamworth does not know exactly where it’s headed right now, according to Greenhalgh, but they already have people communicating with Concord officials. One major question still looming, which no one could answer with certainty, is whether Tamworth’s ordinance would be grandfathered from the bill because it did not become effective until May 4, although it became law in early March. Its still too early to say what would happen if CMI wanted to start constructing tomorrow, he said.

Kenney says he’s willing to work with the town to address any concerns it has, and he’s already got a stack of letters to that effect. “I’m willing to do what town officials would like me to do in regards to the legislation,” he said. But, he said, he cannot “step away” from the definition that the state has adopted for defining CMI’s project.

The primary sponsor of the bill was Sen. John Gallus, who left messages back and forth with a reporter, but could not be reached before deadline. Most other sponsors do not have local ties. In fact the politics behind this all are just as interesting as the bill itself.

While it passed through the full senate in the regular course of business, it passed the full House as an item on the ‘consent calendar.’ This usually contains about 25 or so bills that typically warrant little discussion either because they are housekeeping measures, or bills that have been worked on for so long they are likely to have a lopsided vote, explained Rep. David Babson of Ossipee.

Babson, who says he takes responsibility for missing the bill, also points out that it came under language that referred to a driving school and exhibition facility – nothing that triggered him to move to take it off the consent calendar for discussion as he could have done. Senate Bill 458, along with a host of others, passed together as one sweeping voice vote in the house back in February.

“It was very skillfully handled, and it came in under the radar and we missed it,” he said.

Reps. Mark McConkey and Harry Merrow, also representing Tamworth, apparently joined Babson during a recent session in trying to repeal the bill by adding an amendment to a bill currently being discussed. However, Babson said that attempt failed because the bill has to be germane, and there are few left since the session is coming to a close, although Kenney said there are still some transportation bills left to discuss.

The bill also slipped by the watchful eyes of lobbyists and other groups who would undoubtedly have spoken up about the legislation. “This thing was so well orchestrated it snuck past the municipal association, which is the world’s greatest watchdog when it comes to municipal affairs,” Babson said.

The representative says he is “absolutely opposed” to the bill as it takes away local control, and the process by which it was passed through. “It isn’t about whether or not you favor the racetrack,” he said, “it’s about the process and the way it was handled.” But Kenney says there were opportunities for public comment – two hearings – and there was no opposition voiced, and little discussion. The bill went from through the transportation committees on both the senate and house level. It was roughly two months from the time the bill was introduced to the time it was signed into law by Governor Benson.

News of it all did not surface until last week. That was only because John Mersfelder, chair of the Tamworth Conservation Commission, got an anonymous letter in the mail. He said he traced it back to Concord, specifically, a law firm known for lobbying against such projects. But lawyers there, he said, told him it wasn’t them who sent the letter.

CMI, which plans to build a 3-mile long road course at the base of Mount Whittier, has been a central point of controversy for residents here and across Carroll County. In Tamworth, the proposal sparked another battle last year over zoning, which was lost by a close vote during a special meeting to adopt emergency zoning. Subsequent to that, an ordinance to regulate racetracks was worked on for months and then adopted at annual meeting.

Everything seemed on hold for months until recently, when the Derry-based developer began the process for getting wetlands permits from Department of Environmental Services and Army Corps. of Engineers. A public hearing held two weeks ago by DES officials saw nearly 500 people come out, nearly all who opposed the agency granting the permit.

“A lot of people, and the conservation commission feel that we’ve been very open in our process through the wetlands hearings and we’ve given everyone an opportunity to participate,” says Mersfelder. “It’s been a complete above board and democratic process and irrespective of what has happened we’ll continue in all other operations to use that same transparent and democratic process.”

Kenney Says SB 458 Was Needed to Clear Up Confusion