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The Planning Board is busy assembling its committee which will draft their new zoning ordinance for Tamworth. Members of the public were invited to be interviewed to be on the committee at the Planning Board’s most recent meeting. Subsequent to talking with everyone who attended, Planning Board chair Dom Bergen stated they would be convening a couple people to deliberate on who would be “open minded” enough to be on the committee. When prompted as to whether these deliberations would be public, Bergen stated “No, just a couple guys are going to meet. It’s not going to be…well, you tell me, am I making a mistake? We’re just going to meet to deliberate.” Planning Board member Tom Cleveland responded in jest to Bergen “Whatever you do is right.” Other Planning Board members have since stated that the final choices the couple Planning Board members (Tom Cleveland and Willie Farnum were selected to deliberate in private) come up with would be put before the full board for a vote.

Privately deliberating on government committee appointments flies in the face of RSA 91-A, New Hampshire’s “open government” statute. Section 91-A:2-a particularly refers to communications outside of meetings as a no-no. That said, it really doesn’t matter who ends up on the committee or how they get there: the Planning Board will generate whatever zoning ordinance they please in the end – if not fully so this round, eventually. But as long as the state government has provided for a means of more openness, it ought to be fair to ask that the Planning Board go along with making their process for increasing government control publicly available for scrutiny.

The Planning Board will be putting off their latest of several attempts at getting land use regulations put through in town till the 2011 town meeting. We encourage the Planning Board to spend many, many more years perfecting their zoning ordinance, as Tamworth’s residents will get left alone all the more if the Planning Board’s time is spent on paperwork and meetings rather than on enforcing their capricious rules.

Agriculture was the focus of the final land-use forum that the Planning Board put on, led by unofficial Tamworth land use regulation facilitator Nicole Maher-Whiteside – hereafter affectionately anointed Tamworth’s Zoning Queen. Despite a handful of comments in support of more regulation at the meeting, local hard-working farmers brought forth a theme of personal responsibility, communicating with one’s neighbors, objections to burdensome taxes, a desire for Tamworth’s agricultural landscape to be of actual working farms rather than a “museum landscape” through town government, and a recognition that the only tools that town government has with which to do anything positive are to “get out of the way” with regulations and taxes.

Of particular note, coming from three of the local farmers present:

What can we do outside of government that can facilitate that [neighborly] communication?…

You could create a whole set of regulations that tried to impose a certain kind of landscape, but it could all be fields that are mowed but aren’t worked….

I could live with seeing [agricultural land] protected [through government], but far better, far better to have people living on that land farming it….

So what do you do though then when you’ve got some nice rules in place, regulations that keep agriculture land agricultural land, but you can’t afford to be there to do an agricultural endeavor? If we were given Red Gables Farm today, we would have to move because we could never afford to live there…So how can the town encourage people with agricultural interests to come here and get a piece of something to do something with?…I think people passing through with an interest in agriculture are going to keep right on going when they look at the real estate brochure….

There are young families out there, who, if they had access to some of this land, could do a good job of making it productive. If not make their whole income from it, make a substantial portion of it. But they can’t do it without help. And I don’t look to the government to do it; frankly, that has to come from the private sector; it has to come from the good will of the people to figure out how that’s going to happen….

As Tamworth’s Zoning Queen herself put it:

What I’ve heard so far is that the big thing is to stay out of the way; to not make rules that you can’t have livestock here, you can’t have a farm here, you can’t do this, you can’t do that….

I’m really hearing pretty loud and clear, actually, that we need to be more careful about making too many rules.

After months of dressing up the Planning Board’s desire for more power and control over people’s property through their “mandate from the people” in their “master plan”, and after holding six zoning meetings that several Planning Board members lamented were sparsely attended (the nerve of people not being interested in their important work!), Planning Board member Tom Cleveland committed a political faux pas at their most recent meeting, where he proclaimed: “Who doesn’t want [a land use ordinance]?!…doesn’t want an ordinance at all? Well there’s gonna be an ordinance! Tough tooties. There is going to be an ordinance.” Other Planning Board members were quick to point out that they would only be writing the ordinance and it is 51% of the voters who will decide if the Planning Board will gain more control over 100% of the properties in Tamworth.

At one zoning get-together, two Conservation Commission members weighed in on the subject:

Bill Batchelder: “I think there’s a misconception about zoning. A lot of people seem to think that zoning tells you what to do with your land. And it doesn’t. Zoning tells you a few things that you might not be allowed to do without special permission. The idea that the town is going to tell you what to do with your land, is just totally incorrect.”

Ned Beecher: “Land use restrictions are sort of based on that principle, as I understand it: we sacrifice something as an individual for the greater good.”

Clearly the town government’s good intentions are being misconstrued: you are to sacrifice your private property rights for the collective good, but you may be allowed to seek special permission from the bureaucrats. Who wouldn’t be yearning for that peachy arrangement?

Never fear though, it shouldn’t be too onerous, as Planning Board member Nicole Maher-Whiteside stated: “We’re going to start with something small, and think that it’s not going to get bigger: you’re right, it’s logical, it gets bigger. But I think if we can start with something that’s reasonable we may be able to head in a direction that doesn’t allow it to snowball into things that a majority of people don’t want.” – this is the promise with every new endeavor at every level of government, and one would be hard pressed to find a single instance where this promise was upheld over the years.

For all the purportedly awful scenarios that have been dreamt up that more government control of private property is supposed to prevent, the biggest problem on the horizon is a bunch of control freaks on this and future Planning Boards.

Club Motorsports, FOCUS, and the Town of Tamworth took their battle to the New Hampshire Supreme Court once again. Despite the conflict of interest that one might envision when trying to solve one’s problems with government via the government court system, recent cases continue to stack up in favor of CMI and property owners in Tamworth.

The bottom line is that either CMI will be back starting fresh with the Planning Board if the trial court’s decision is upheld (the Supreme Court’s decision is pending as of this writing), or they’re in for being tied up in court even longer. On its face, it would seem that government-control types win either way, and the Planning Board will simply do a better and more thorough job of hosing property owners such as CMI the second time through. That said, it’s clear that CMI sees the recent trial court ruling as a victory (words like “unlawful” and “unreasonable” are stated in the court order with regard to the Planning Board), and the recent Supreme Court appeal has shown their opposition to be fretting about the “logisitical nightmare” and “impossibility” involved in the Planning Board complying with the trial court’s decision.

Planning Board member David Little was present for the oral arguments given at the NH Supreme Court, ostensibly there to support Club Motorsports in their defense of their right to utilize their property, as he himself has gone above and beyond even CMI and engaged in some brave and noble civil disobedience, openly flouting the town government and ignoring the Tamworth Wetlands Conservation Ordinance on his own property. [Just kidding folks, Dave regularly speaks out in support of the TWCO and gleefully participates in the enforcement of it. (Well, with as much glee as Dave has in him, which doesn't strike one as very much.) A bit of a double standard for Planning Board members, eh?]

Also of note is that for one of the largest matters of litigation that the town has ever seen, the town was not represented in front of the Supreme Court. Richard Sager, the town’s attorney, either intentionally or through ineptitude, reportedly didn’t get paperwork filed properly with the court and the attorney for FOCUS was the sole representation for the town – seems to be not quite on the up-and-up to let an attorney with separate clients and interests be the sole representation in front of the NH Supreme Court in a suit that the town is named in. [Political joke of the day: What do you call a lawyer with an I.Q. of 50? ....Senator.]

What this all serves to illustrate is the lengthy and expensive disaster for local families and businesses that one small land-use ordinance, such as Tamworth’s Wetlands Conservation Ordinance, causes in the hands of a Planning Board. Lot line rearrangements and Tamworth’s ecosystem would get along just fine without their wise “planning” every month, and did for many decades when Tamworth didn’t have a Planning Board. The Planning Board clearly doesn’t think they have enough power and control since they are mobilizing yet again to get more land use regulations pushed through this year; the abuse of CMI is a shining example of why that ought not happen.

The Planning Board submitted in their 2010 budget request a need for $21,000 for their legal expenses, or rather, a whopping 60% of their entire $35,070 budget request. Not a bad system to be able to take money from local families and businesses and use it to defend their all-knowing “planning” when those same families and businesses object to their wise “planning” and take them to court over it.

[Update: Town attorney collecting 60% of the Planning Board's budget can't even make it to a Supreme Court case to stick up for the Planning Board's "unlawful" and "unreasonable" actions.]

In new case law, pertinent to recent Planning Board rulings against Club Motorsports in town, a Strafford County Superior Court judge rules that Planning Board decisions based upon sentiments that the project doesn’t “seem like an appealing situation” or that it could potentially pose a “quality of life issue”, as stated by two members of the Dover Planning Board with regard to a new subdivision application, are “unlawful and unreasonable”.

In response to their most recent endeavor in obtaining a Special Use Permit from the Tamworth Planning Board, CMI writes “the Planning Board denied CMI’s SUP application for the wetland impacts associated with the motorsports country club without providing an explanation for the denial, and without deliberating and ruling on the impacts associated with the access ways”. The Planning Board’s own minutes from that meeting corroborate CMI’s account of the events leading to the SUP denial: no discussion amongst the board, and a flat-out denial with no explanation.

Since, as in the noted Superior Court Case, CMI has complied with and exceeded all requirements put forth by the DES, the EPA, and the Army Corps of Engineers, one can only only assume that either the Tamworth Planning Board is a herd of primates mindlessly voting Nay on every Special Use Permit that comes before them (and this has not been the case), or that it boils down to the racetrack posing a “quality of life issue” and that the track doesn’t “seem like an appealing situation”. Given this recent Superior Court ruling, the Planning Board is in even less of a good legal position than they were, and the taxpayer’s of Tamworth are picking up the tab for the ensuing court battle over their subjective application of the TWCO.

Tamworth Planning Board chairman Dom Bergen and his colleagues are ramping up for another go at zoning in Tamworth. In interviewing applicants to be appointed to a vacancy on the Planning Board, Bergen stated that the “Master Plan” is taking them in the direction of zoning, and as part of their vetting of applicants, asked each what their opinions on zoning would be if they were to be so chosen to be voting members on the Planning Board.

As if the land use controls they already have in place via the TWCO haven’t given them enough free reign, the Planning Board and other government-control types in town are looking for you to come beg them for their permission to start a business on your property, build a home for the in-laws, or to be able to raise a few chickens depending upon what “zone” or another you’re in. Even if the Planning Board had the nicest, most reasonable, liberty loving members on it, implementing laws that are dependent upon the niceness and reasonableness of a select few or “the will of the people” is never a healthy path to go down. And that is just the path Dom Bergen and his colleagues appear to be interested in taking Tamworth down.

On the bright side of things, New Hampshire is one of the few states that still has towns without such onerous land use controls in place, and Tamworth is only one of a handful of towns in New Hampshire not to have comprehensive zoning. It would be a shame to see that distinction be taken away in favor of more government control of private property.

From the Planning Board January 28, 2004 meeting minutes, regarding current Planning Board member David Little’s disregard for the TWCO:

“It is a problem that significant work was done but no one had a chance to check or look at it. The application should have been in so that people could check or at least look at it.”

Little failed to get approval or review of his wetland impacts under the TWCO. Little did file for and receive a permit from NH DES for the wetland impacts, according to the NH DES OneStop project information site.

We are certainly the last to object to Planning Board member’s use of their own private property that is in conflict with the TWCO, and simply suggest that the Planning Board ought to be so gracious as to let the rest of the town do the same without using the force of government to coerce families and businesses into compliance with their subjective control of private property, as they have done many times over since this case in 2004.

One day, the Lord came unto Noah, who was now living in Tamworth.  He said,

“Once again, the earth has become wicked and over-populated, and I see the end of all flesh before me.  Build another Ark and save two of every living thing along with a few good humans.”

He gave Noah the blueprints, saying, “You have 6 months to build the Ark before I will start the unending rain for 40 days and 40 nights.”

Six months later, the Lord looked down and saw Noah weeping in his yard – but there was no Ark.
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