Suit over Sunapee ski area slated for court in AprilBy PAUL FEELY
New Hampshire Union Leader
January 11. 2014 8:24PM
GOSHEN - A lawsuit filed seven years ago by operators of the Mount Sunapee ski area against the state is scheduled to go to trial this spring.
According to Carole Alfano, public information officer for the state's Judicial Branch, the case of Sunapee Difference LLC v. the State of New Hampshire has been scheduled for trial in Merrimack County Superior Court on April 14 and 21. A final management conference between representatives of both sides is scheduled for March 31.
The lawsuit centers on Sunapee's ability to expand the ski area it leases from the state into property it purchased in Goshen, on the west side of Mount Sunapee State Park, to further develop the ski resort.
Word of the trial start date comes as residents of Goshen prepare to vote in March on a proposed zoning amendment that would establish a Recreation District "to accommodate the needs of year-round recreational and other uses within the leasehold area of Mount Sunapee Resort," according to a meeting notice posted on Goshen's website.
While the town is looking at creating such a district, Goshen officials said the proposed district isn't prompted by any resort expansion proposal.
"There is absolutely no proposal on the table, nothing at all that has been filed with the town," said Goshen Planning Board Chairman Doug O'Clair. "All this district would do is allow the resort, if the state ever approves a Master Development plan and they do have a proposal to expand or make changes there, this would allow them to seek approval from one board in town instead of multiple ones."
He said the idea to create a Recreation District was generated a few years ago, when Mount Sunapee General Manager Jay Gamble sought approval to add a zipline feature. The application went through multiple boards, and when mistakes or omissions in the wording of documents were found, additional meetings from each board involved were required.
"The Recreation District would allow for one-stop shopping in the future for plans like that," said O'Clair. "There is no loosening of the regulations, just streamlining to one board. There is no change in the height, setback or density requirements. This is not about a proposal for development, but to streamline and recognize the unique use of Mount Sunapee and provide a method of control."
Asked whether he knew of any condominiums planned for the Mount Sunapee resort, O'Clair said: "Nothing has been proposed at this time. The economy cannot justify building condos.
"Any time anything having to do with the resort appears on an agenda,'' he added, "there are people who think it's about condos, but that's not the case here."
O'Clair said the upcoming trial will likely have to play out before any talk of expansion at the resort would come up.
In 1998, the state agreed to lease Sunapee for 20 years with a 20-year option to Timothy and Diane Mueller or their successors and required them to file capital improvement requests on a regular basis.
In the lawsuit, Sunapee maintains former state Department of Resources and Economic Development Commissioner Robb Thomson made representations the lease would cover the entire state park. But when then-Gov. Jeanne Shaheen and the Executive Council approved the lease in 1998, there were buffer zones located to the north and west, preventing any expansion.
Sunapee sued after Gov. John Lynch later refused to present an amended lease for Mount Sunapee State Park - expanding the ski area to include the entire park - to the Executive Council for approval. The buffer areas prevent Sunapee from connecting to property it purchased in Goshen for an expansion. The ski area cannot be expanded on the east because of an old-growth forest.
Last April, the state Supreme Court handed down a 5-0 decision partially reversing a superior court decision and allowing the matter to go to trial.In a 20-page ruling, the court said Lynch, who had campaigned strongly against the expansion, had the right to not allow the amended lease to go before the Executive Council for a vote. But in the unanimous decision, the jurists also said superior court Judge Nicole Nicolosi should not have granted the state summary judgment in the case, resulting in it being dismissed, because there were factual disputes to be settled at trial. Among those disputes was Sunapee's claim that the state committed fraud when Thomson allegedly made representations the lease would cover the entire park.
Sunapee's general manager, Donald MacAskill, testified at a deposition that he spoke to Thomson three or four times and was told "that the leasehold would include the land around the perimeter of the lifts and trail network. And, specifically on the north and west side, would be coterminous with the state park boundary."
According to the Supreme Court ruling, Thomson said in a deposition he did not recall ever telling anyone the lease included the park's boundaries on the north and west. At the same time, he said he never told anyone responding to the Request for Proposal that there were buffer zones on the north and west in the area the state was leasing.
"We conclude, therefore, that Sunapee raised a genuine issue of material fact as to whether Thomson knowingly made a false representation or concealed a material fact relating to the leasehold's northern and western boundaries," the court said.