Attorney Suggests Findings of Facts In OHRV Suit
By Thomas P. Caldwell, InDepthNH.org
GORHAM — The attorney representing homeowners who are suing the town and state for allowing off-highway recreational vehicles to interfere with their “right to the quiet enjoyment of their homes” has filed a post-trial set of “Findings of Fact and Conclusions of Law” for the court to consider.
Attorney Arthur Cunningham of Hopkinton wrote, “The failure of any State and Town decision maker to appear at trial is an admission of the merits of plaintiffs’ claim. The craven silence of the decision makers responsible for plaintiffs’ ongoing misery entitles plaintiffs to compensation for the diminished value of their homes, now and in the future.”
Gorham Town Manager Denise Vallee responded to an email request for comment: “As representation for the Town of Gorham, Selectperson Judith LeBlanc attended the first day (Wednesday, Oct. 20th) of the trial and I attended on both the second and third days (Thursday and Friday, Oct. 21st and 22nd). We both sat immediately behind Attorney Cunningham. We were not subpoenaed to testify.”
She added, “This case has been going on for several years and started prior to my being appointed as Town Manager. I cannot comment with first-hand knowledge on what the Town considered for alternate routes prior to or throughout the length of this case.”
Cunningham claimed that Commissioner Sarah L. Stewart of the state Department of Natural and Cultural Resources was the person most responsible “for the ongoing injury to the plaintiffs’ quality of life and damage to the value of their homes,” but noted that she refused to appear and testify in the case, defying a subpoena that had been issued.
He said Stewart would have been asked about the unilateral right of Pike Industries, Inc., to terminate its land use agreement which, he said, “would end OHRV use of the Route 16 trailhead and Corridor 19/ Smitty’s Trail. The Attorney General falsified the extent of witness Stewart’s knowledge to keep Stewart from testifying. The Court quashed the subpoena.”
Cunningham also called out Christopher Gamache, chief of the Bureau of Trails at the time, for failing to follow the procedures for the siting of recreational trails outlined in state statutes. Citing several laws requiring notification of abutters, avoidance of conflicts with residential areas, and other safeguards to ensure that trails would not create a burden for residents, the attorney said Gamache ignored many of the requirements. Noting that Gamache was employed by Polaris while serving on the Bureau of Trails, he said the chief failed to separate those loyalties from his duties with the state.
According to Cunningham’s recap of the trial, Gamache testified that the state is not required to go through the entire statute for laying out trails, claiming that “rail trails are not subject to the criteria.”
A request to the Bureau of Trails for confirmation of that fact went unanswered on Dec. 15.
Cunningham said that, during the trial, Police Chief P.J. Cyr testified that the team effort between the Gorham Police Department, the Coos County Sheriff’s Office, and N.H. Fish and Game still was insufficient to handle all the OHRV complaints because of staffing issues, and he said he reported that to the Gorham Board of Selectmen.
All this proved that the plaintiffs’ case had merit, Cunningham argued. “The State and Town have refused to fix the problem even though the State admits that the OHRV traffic in plaintiffs’ residential neighborhood is the largest in New Hampshire.”
The plaintiffs — Lois and Harry Stearns, Nancy and Bruce Neil, Mark and Heather Malia, Audrey and Rene Albert, Priscilla and Albert Bergeron, Sandra Lemire, Diane Holmes, and Michael Pelchat — say the case began on June 6, 2011, when the Gorham Board of Selectmen voted to allow OHRVs to travel through their residential neighborhood, using the state-owned rail trail and parking lot. On June 17, 2013, the selectmen added Lancaster Road to the approved OHRV route, which is part of the state’s 1,000-mile Ride The Wild trails system.
The lawsuit was filed in Coos County Superior Court in early 2018. It later was transferred to Grafton County Superior Court when Peter Bornstein recused himself from the case and Judge Lawrence MacLeod took over.
The state has claimed immunity in the case, which Cunningham said leaves the plaintiffs with no relief but “monetary compensation for the loss of the value of their homes.”
MacLeod ruled in late 2018 that the nuisance claim against Gorham could move forward, along with the inverse condemnation claim against the state and town. Inverse condemnation is the taking of someone’s property without compensation.
Two attempts to move the case to the state Supreme Court were denied.
At the heart of the case is the noise and pollution caused by the hundreds of OHRVs that travel the route, but the homeowners also noted the disrespect shown by some of the riders.
Audrey Albert said one trail user was trespassing and urinating in her yard and, when she asked him to leave, he told her, “If you don’t like it, why don’t you move? I’m here to ride.”
Lois and Harry Stearns reported threatening actions by four riders who stopped across the brook from their home.
Diane Holmes documented a number of complaints that residents made at the May 5, 2014, selectmen’s meeting that she said have gone unaddressed.
Nancy Neil provided documentation of multiple calls to the Gorham Police Department about misconduct in front of and behind her home.
“The State and Town’s ongoing sanction of the OHRV trailhead and trails will continue to ruin plaintiffs’ right to the quiet enjoyment of their homes each OHRV season hereafter and will constitute a compensable taking each successive year until the OHRV trailhead and trails are removed from plaintiffs’ neighborhood,” Cunningham concluded.
T.P. Caldwell is a writer, editor, photographer, and videographer who formed and serves as project manager of the Liberty Independent Media Project. Contact him at liberty18@me.com.
