The vote to expand Mount Sunapee in Newbury is scheduled for Wednesday’s Governor and Council meeting, but it is unclear what will happen now after a lawyer representing Friends of Mount Sunapee pointed out serious flaws in the contracts that are up for vote.
Hopkinton Attorney Arthur Cunningham’s legal analysis was delivered to the Governor and Council early Monday asking them to carefully review his concerns.
“The documents that govern the West Bowl Expansion are legally insufficient for a transaction of this significance,” Cunningham said.
Cunningham said portions of the contracts are confusing, will invite litigation, violate existing state laws, allow for condominium development 50 feet from the park, and would let the developer simply walk away and not finish it.
“The operator uses multiple entities as signatories to the controlling documents,” Cunningham said. That creates legal confusion and makes supervision and enforcement of operator responsibilities difficult, he said.
“For example, it will be difficult and expensive to audit the books and records of the multiple entities to ensure that the proper rent is being paid,” Cunningham said.
Executive Councilor Chris Sununu recused himself from the Mount Sunapee expansion vote on Tuesday at the request of the New Hampshire Sierra Club and Friends of Mount Sunapee.
“Above all else, elected officials must be transparent and impartial in their deliberations on public projects. As CEO of Waterville Valley Resort, I will recuse myself from voting on the Mt. Sunapee expansion proposal so as to avoid even a perceived conflict of interest,” Sununu said.
Gov. Maggie Hassan’s spokesman, William Hinkle, responded when asked whether the Mount Sunapee expansion vote will go forward at Wednesday’s regular meeting.
“A councilor will have to make a motion to remove the item from the table, which then must be seconded. I expect such a motion to be made a tomorrow’s meeting,” Hinkle said.
Attempts to reach Jeff Rose, commissioner of the Department of Resources and Economic Development, who held a work session last week to explain the expansion plan to the Executive Council, were unsuccessful.
A link to Attorney Cunningham’s letter and analysis are posted in full at the end of this story.
Cunningham said the expansion project would require logging, excavation and heavy construction in an area of the park that violates the Native Plant Protection Act.
Cunningham said the Amendment requires careful analysis. “It has many confusing and ambiguous paragraphs that favor the operator,” Cunningham said.
Certain language “means that the operator has no duty whatever to proceed with the project that the Governor and Executive Council have been asked to approve. So why is DRED asking for approval of the project now?” Cunningham said.
The language qualifying what revenue is subject to the rent obligation is ambiguous, he said.
“The language allows the operator to decide what revenues will be charged the 3% rent, allowing the operator to exclude summer event revenues and revenues relating to the development on private land, including housing, lodge retail sales, rentals and the like,” Cunningham wrote.
Another paragraph closes with language that the 3% is payable “as long as TSD operates the ski area.”
“In other words, if The Sunapee Difference, LLC no longer operates the ski area, the 3% obligation vanishes,” Cunningham said.
Catherine Bushueff, a volunteer with the Friends of Mount Sunapee, said: “We think this plan absolutely needs to be rejected.”
Bushueff was concerned that the documents do not prevent slopeside condo development on the adjacent and adjoining land to Mount Sunapee State Park. “The documents actually anticipate private development, commercial and residential development. It just has to be 50 feet from ski terrain,” Bushueff said.
If development is to occur at Mount Sunapee, it should be up to local people to weigh in on what they would like to see happen, she said.
“Our state parks and land are not supposed to be used to incentivize and encourage ski sprawl surrounding them. That is what this will do,” Bushueff said.