A state legislator said she will ask the attorney general to
explore
whether the state can recoup legal fees from Mount Sunapee Resort for
the suit it filed and lost over ski area expansion.
State Rep. Ricia McMahon, D-Sutton, called "frivolous" the suit brought
20 months ago by the leaseholder of the state-owned ski area in
Newbury.
She said tens of thousands of dollars have been spent by the
taxpayers to defend the suit brought by Tim and Diane Mueller, owners
of The Sunapee Difference LLC.
The suit claimed that through a surveying error, the described
leasehold area did not show the park's northern and western boundaries.
The company asked the state to correct a leasehold description, which
would allow it to expand, and/or pay compensatory damages. It also
alleged the contract was breached when Gov. John Lynch refused to bring
the matter to a vote before the state's Executive Council.
Merrimack County Superior Court Judge Diane Nicolosi found in
the state's favor earlier this month, dismissing the case. On Friday,
she entered a written order.
"Although there are substantial facts in dispute in this case,
the court finds that the disputed facts are not material ..." she
wrote.
In 2001 the company proposed an expansion of trails and a lift
after obtaining an option on private property in Goshen. That property
is adjacent to the park, but a distance from their leasehold boundary.
The company asked the state to extend the leasehold out to the boundary
so that it could do such a development. Gov. Lynch said he would not
support the expansion of the leasehold area to allow for private
development and has never allowed it to come to the Executive Council
table for a vote.
Sunapee argued that the governor effectively deprived it of a benefit of the lease.
The judge disagreed.
"There is nothing in the lease to suggest that the governor must
take the futile step of presenting to the Executive Council a proposal
which he knows he will not approve. Moreover, contrary to the
petitioner's argument, the governor cannot be forced to seek advice of
the Executive Council when his mind is fully made up on the issue. The
governor is the supreme executive magistrate," the judge wrote. "To the
extent members of the public disagree with a governor's agenda, the
views may be expressed in the voting booth."
The Muellers have operated Mount Sunapee since 1998.
They recently sold ownership of Okemo Resort in Vermont and Crested
Butte in Colorado to CNL Properties, along with their assets at Sunapee.
The Muellers will continue to operate all three resorts under the purchase agreement with CNL. ###
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November 2009 Newsletter