Gorham ATV case before Supreme Court on March 28

Plaintiffs argue use of the trail was an 'unconstitutional' taking of their rights as property owners

Six years after a group of Gorham homeowners sued the town and state over ATV access in their neighborhood, the case has ended up before the NH Supreme Court. The court has scheduled oral arguments for Thursday morning, March 28.

Homeowners in the Lancaster Road/Crestwood Drive neighborhood filed suit against the NH Department of Transportation, the NH Department of Natural and Cultural Resources and the town of Gorham in March 2018.

The plaintiffs charged the state and town opened part of the Presidential Rail Trail and an adjacent parking lot to ATVs and then expended access to include a section of Lancaster Road without consulting them in advance as abutters.

The plaintiffs argued the impact of the noise, dust and bad behavior from OHRV use ruined their quiet enjoyment of their homes and constituted an unconstitutional taking of their rights as property owners.

Grafton Superior Court Justice Lawrence MacLeod, hearing the case because of a conflict by Coos Superior Justice Peter Bornstein, denied requests for a preliminary injunction and for a summary judgment by the parties. An attempt at mediation also failed.

Following a three-day bench trial, MacLeod ruled in February 2022 that the defendants’ decision to permit ATV access constituted an unconstitutional taking by inverse condemnation and the plaintiffs were entitled to “just compensation as damages.”

The plaintiffs sought a total of $3.1 million in compensation: $947,958 to Nancy and Bruce Neil, $817,647 to Audrey and Rene Albert, $692,954 to Sandra Lemire; and $681,799 to Diane and Michael Pelchat.

The plaintiffs also sought $422,443.37 in attorney’s fees and costs.

In a decision issued on Feb. 6, 2023, MacLeod ruled no damages were owed. He pointed to testimony that property values had actually increased because ATV activity had spurred an economic boom and made Gorham a more desirable place to live. MacLeod noted the home of Lois and Harry Stearns, original plaintiffs in the suit, had been appraised at $270,000 in 2018 and sold for $380,000 in October 2022.

The judge said plaintiffs had cited emotional pain and suffering because of the ATV traffic but he said damages in a condemnation do not allow recovery for annoyance and emotional distress. Without having met the burden of proof on their damage claims, McLeod said the plaintiffs are not entitled to attorney’s fees and costs.

Finally, MacLeod said the plaintiffs sought to reverse the decision to allow ATV use on the Presidential Rail Trail and along Route 3.

“The decision to close the trail and prohibit OHRVs from being used in Gorham is a political matter ultimately and therefore beyond the constitutional role of the court,” he concluded.

The plaintiffs filed a motion for reconsideration of their request for damages and the court denied the motion. On May 1, 2023, the plaintiffs filed an appeal with the Supreme Court and it was accepted 30 days later.

In his motion to the Supreme Court, the plaintiffs’ Attorney Arthur B. Cunningham charged the history of the case showed politics was the controlling factor.

He said MacLeod declined to issue an injunction when the case was first filed because the public could be impacted even though the trail siting violated state law. Cunningham said he was denied the opportunity to question N.H. Recreation and Cultural Resources Commissioner Sarah Stewart about the political influence of ATV manufacturers, rental agencies and other businesses with a vested interest in promoting ATV trails. He called MacLeod’s decision to quash the subpoena to depose Stewart “an act of unseemly political deference.”

The attorney alleged then N.H. Bureau of Trails head Chris Gamache had a relationship with the ATV manufacturer Polaris while he served the state. Gamache would leave the Trails Bureau to go to work as trails manager for Polaris in 2020.

In the end, Cunningham said “politics left the plaintiffs no relief at all. The state,” he said,” choose ATV promotors at the expense of the quiet enjoyment of plaintiffs.”

The defense disputed the charge that state and local officials have not acted in good faith, noting a section of the rail trail was paved to reduce dust. The state has now closed the Route 2 parking lot to OHRV trailering, opened a new parking lot and access point on Route 16, and created a trail connector on private property connecting Route 16 to the rail trail.

The Supreme Court hearing was originally scheduled for March 14 but the parties agreed to reschedule until the later date after one of the attorneys in the case underwent an unexpected surgery over the weekend. Oral arguments can be streamed live at courts.nh.gov/our-courts/supreme-court/oral-argument/live-stream.

This article is being shared by partners in The Granite State News Collaborative. For more information, visit collaborativenh.org.