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Zoning Board of Adjustment Minutes 10/13/09
October 13, 2009 Meeting

Members & Staff Present:   Diane Chauncey (Staff)        Doug Crafts (Member)
Ron Haggett (Member)    John Giffin (Member)     John Kendall (Chair)
Peter Moore (Planner)   Frank Scales (Member)                                                                                                   
Members & Staff Absent:   Don Winchester (Alternate)    

Public Attendees:
Annie Law (North Branch)                Robert Cleland (North Branch)           
Shelly Nelkens (Resident)               Ben Pratt (Resident)
Margaret Warner (Resident)      Joe Koziell (Resident/Planning Board)                   
Steve Noble (Resident)          Loranne Carey Block (North Branch)      
Michael Pon (The Villager)              Josh Bond (Ledger/Transcript)
Marshall Gale (Resident)                Richard Block (North Branch)
Gordon Webber (Resident)
Jack Kenworthy (Eolian Renewable Energy)
Drew Kenworthy (Eolian Renewable Energy)

Location: Little Town Hall

·       Review materials
·       Review October 6, 2009 minutes
7:15 Continued Public Meeting:

The meeting was a continued Public Meeting for an Area Variance request by Antrim Wind Energy, LLC, for the height of a meteorological (met) tower proposed to be constructed on property located at 354 Keene Road (Map 212, Lot 30) in Antrim, NH located in the Rural Conservation District. Chair Kendall opened the meeting at 7:14pm, introduced himself and the other Board members. He explained that the public hearing had been closed and that the Board's deliberation would begin. The Board would not be taking any information from the Public Attendees, unless the Board felt additional information was necessary. All information that had been submitted to the ZBA Members is available at Town Hall.
The Board began a discussion of the evidence that had been previously submitted and their rationale for approving or disapproving the Area Variance.

Mr. Crafts felt that the way in which the application had been written bothered him.

Mr. Giffin said that the application had been submitted properly according to Town Counsel and the Local Government Center. The Small Wind Energy Ordinance was the only ordinance that addressed a meteorological tower. The variance is for a tower not a wind farm.

Mr. Moore  read two definitions of  towers:
        Meteorological Tower- includes the tower, base plate, anchors, guy wires and hardware,  anemometers (wind speed indicators), wind direction vanes, booms to hold equipment for  anemometers and vanes, data loggers, instrument wiring, and any telemetry devices that are      used to monitor or transmit wind speed and wind flow characteristics over a period of time for  either instantaneous wind information or to characterize the wind resource at a given location.         For the purpose of this ordinance, met towers shall refer only to those whose purpose are to    analyze the environmental factors needed to assess the potential to install, construct or erect a       small wind energy system.

        Tower - The monopole, guyed monopole or lattice structure that supports a wind generator.

Mr. Giffin said that a Met Tower has no height limits.

Mr. Haggett referred to the Supplemental Regulations (Article XIV-H. Height Regulation Exceptions,). Special industrial structures such as cooling towers, elevator bulkheads, fire towers, tanks and water towers that require a greater height than allowed in the district may be erected provided:
        a.  The structure shall not occupy more that twenty five (25) percent of the lot area
        b. The yard requirements of the district in which the structure is erected shall be increased by        one (1) foot for each foot of height over the maximum height permitted.
He reasoned that certain uses are height sensitive. The met tower is a permitted use. The met tower needed the height in order to be effective.

Chair Kendall was concerned about the height limitations stated in the ordinance.

Mr. Haggett said that the met tower is an accessory use. The ordinance does not fit exactly and therefore bits and pieces of the ordinance have been used in order to adjudicate the application. The proposal is height dependent.

Mr. Giffin said: "If the height variance were denied then it would effectively prohibit anyone from having a met tower in any district due to the height sensitive nature of such towers. They would all need to be over the tree canopy or the 150' height.”

Mr. Haggett said it could be argued either way; there are substantial grounds to deny or grant the variance.

Chair Kendall questioned its industrial use and if it is an allowable structure.

Mr. Moore said that in the rural conservation district, it could be an accessory use for a permitted use – only sees it for small wind.

Mr. Haggett and Mr., Giffin concurred that it was a permitted use.

Mr. Scales said the height was the issue.

Mr. Haggett said that hardship needed to be established - was it the property or the use?

Mr. Giffin said that the property is unique because it has the highest peak on the ridge. He said that the wind above the ridge should be considered a resource (like water, minerals, timber, etc.), and that the wind resource of the proposed site made the property unique.

Mr. Moore clarified that there are three properties that include the Tuttle Hill ridge. Hardship cannot apply to an area of town.

Mr. Giffin said that the parcel had the highest peak by four feet and that creates the uniqueness of the property.

Mr. Crafts said that it is unique for a wind turbine but that is not the request, and he did not see it as unique.

Mr. Giffin stated that the wind graph has shown that the peak had the highest wind value and repeated that the wind is a resource

Chair Kendall struggled and said that he tended to side with both. He said that the parcel was unique for what Antrim Wind Energy, LLC was trying to achieve; but he struggled with the Small Wind Energy Ordinance application, although it was the closest fit in the Zoning Ordinance, both Town Counsel and the Local Government Center had advised the choice. He questioned if the height variance was permittable, but did agree with the hardship aspect and that it fit the 'spirit of the ordinance'.

Mr. Haggett said a met tower precedes a wind farm. The met tower is a stand-alone application. The tower is as benign as it can get. There is no noise, no foundation, etc., but it does require a certain height. If the wind farm should occur, it would be a major endeavor. If the data does not prove that there is enough wind, then it would never happen. If it does prove enough wind, there would be a major site plan review.

Chair Kendall stated that it was possibly crossing the line for what the ordinance had intended.

Chair Kendall repeated that the Town Counsel and the Local Government Center had advised that the use was allowable.

Mr. Giffin said that maybe two variances had been needed.

Chair Kendall said he had no conflict approving the height except that the application was preempting what should have been a use variance.

Mr. Haggett read from Article XIV-D.  "C.1. Building Permit: Small wind energy systems and met towers are an accessory use permitted in all zoning districts where structures of any sort are allowed."

He repeats that the application is for a permitted use for a specific height. How could the Board deny if based on the ordinance.

Mr. Giffin asked Chair Kendall if he could deny it?

Chair Kendall said he could not deny the height variance. He agreed that the property is unique, but he still struggled with the possibility that the variance should have been a use variance. There is a possibility that the Board should discuss the matter with Town Counsel.

Mr. Giffin felt that the Boards’ “hands were tied”.

Chair Kendall agreed that Eolian (Antrim Wind Energy, LLC) had presented their case under the direction of the Town (Town Counsel, Staff, and ZBA). He felt it was very difficult to determine what to do and difficult to make a decision.

Mr. Haggett said that even if the Board were to start all over again, they would still be left with the same thing.

Mr. Crafts felt that no minds would be altered.

At this point in the deliberation, the Board decided to consider each of the five criteria. Following the bolded, underlined criteria are some of the ZBA’s points concerning the requested area variance for a meteorological tower.

1.The value of the surrounding property will not be diminished.
·       Temporary use – no impact
·       No lasting effect
·       Public’s opinion can not be justified
·       Appraisers looking at both sides – opposing opinions
·       Difficult to determine the effect on real estate transactions
·       Relatively unpopulated area of town
·       Least concern is diminished value
·       Only evidence – letters from realtors that state either side
·       Much of the evidence was about a wind turbine not a met tower
·       Not as unsightly as power lines

2. The variance will not be contrary to the public interest
·       Opposing petitions (for and against) had been presented
·       Body of information regarding renewable energy sources and the collection of information presented had promoted an advantage to public interest and that a temporary structure collecting data was for the good of the public.
·       There was a need to look at the whole town not just a portion of the town
·       Public appears to be split – one portion – growth in energy sources for the future; but, keep NH scenic and as original as can be
·       Not easy to call it black and white
·       There is the climate change debate, as well as coal is bad, and acid rain is not good.

Mr. Moore intercedes that the zoning ordinance should be examined. He said that the Board should look at the definition of Rural Conservation and its purpose. He then read the definition: "The Rural Conservation District is intended to protect, conserve and preserve the remote mountainous portions of Antrim from excessive development pressures and/or activities that would be detrimental characteristics and qualities of this district and detract from the peaceful enjoyment and tranquility that this district affords local residents". And questioned, “Is this for the public interest?”

This evoked a discussion of whether or not it should be a height variance, Mr. Ott subdividing his property into multiple lots, that the met tower is a permitted use in all districts.

The Board continued with discussion of the criteria:
3.Special conditions exist such that the literal enforcement of the ordinance results in unnecessary hardship as follows:

        a. An area variance is needed to enable the applicant’s proposed use of the property given      the special conditions of the property.
·       Location – highest point on the Tuttle Ridge
·       Computer modes showed a positive wind data
·       Necessity of having this use on this property for the data makes it unique
        b. The benefit sought by the applicant cannot be achieved by some other method  reasonably feasible for the applicant to pursue
·       Height of the tower is a  necessity (60 meters – 197’ 8.25”)

Mr. Moore questioned the uniqueness of this particular property and read from information that Eolian had submitted – implying that there are two other properties within the Tuttle Hill that share the same high ridge. At that point, Chair Kendall said that he feels there is a fine line of allowable use and uniqueness – like splitting hairs. Mr. Moore continued quoting from Eolian’s submission, and then hesitated, and said that he was possibly confusing the Board.

4. Substantial justice would be done
·       Looking at the met tower only - 196 feet is necessary to collect data
·       Reasonable use and does not change character of neighborhood
·       Property rights of Michael Ott
·       Public interest 
·       Reasonable use of land
·       If a met tower is an allowable use – jk reads from variance lgc book - ask john(peter does not know what john was saying.)
·       A fair and reasonable use of the property
·       "substantial justice is the act of weighing the good of the public vs the rights of the property owner".
5. The variance is consistent with the spirit of the ordinance.
·       Mr. Ott has property rights

There was a short discussion of how the application could have been done another way and should there be Conditions of Approval. It was determined that the application and its configuration could not change. The Board concluded that the vote should occur, and all agreed.

Mr. Crafts made a motion to take a vote.

Chair Kendall said that he was still conflicted.

Mr. Crafts said that is why there are five members on the Board.

A motion is on the floor, but, Mr. Moore inserts, that maybe the application should be nullified and more advice is sought from Town Counsel.

Mr. Crafts said a decision should be made.

Mr. Haggett said that there is an appeals process, the rehearing. No more delaying.

Mr. Haggett moved to approve the application of Antrim Wind Energy, LLC for an Area Variance from Article XIV-D, Section D.1.b. to permit the construction of a meteorological tower on property located at 354 Keene Road (Tax Map 212, Lot 30) in Antrim, NH 03440, located in the Rural Conservation District.

The following conditions apply to this approval:
All representations made during the course of the Zoning Board of Adjustment hearings (as well as representations, agreements, etc. made during the planning process) are binding as conditions of the approval.
The applicant shall obtain a building permit for any construction or alteration and adhere to all building, health and fire codes.
The applicant shall obtain any necessary state and/or federal permits required for this proposal.

Mr. Giffin seconded the motion and all were in favor of accepting the motion as read, with the three standard conditions and one additional condition that all guy wires from ground level to a minimum of eight feet vertical from the ground (8’) should be housed by a plastic sleeve for visibility and safety purposes (which will be #4 on the Notice of Decision).

Roll Call Vote:
Mr. Crafts              yes             

Mr. Giffin                  yes

Chair Kendall             no

Mr. Haggett                yes

Mr. Scales              yes

Chair Kendall said that the motion is GRANTED. The Chair will sign the Notice of Decision that needs to be completed in five business days (October 20, 2009), and noted that any person affected directly by the decision has the right to appeal within 30 days. (November 12, 2009 – last day to appeal)

Business Meeting:       

Approve October 6, 2009 minutes  Mr. Haggett moved to approve the minutes as amended. Mr. Crafts seconded the motion and the Board approved the minutes.
Reminder - OEP Annual Fall Planning & Zoning Conference - October 17, 2009 -6:00 AM – Satruday Town Hall
Any other business: None

At 9:00 pm, Mr. Giffin moved to adjourn the Public Meeting. Mr. Crafts seconded it, and the Board voted to adjourn.

Respectfully submitted,
Diane M. Chauncey
Planning Assistant, On Behalf of the Antrim Zoning Board of Adjustment

Town of Antrim, NH P.O. Box 517, 66 Main Street Antrim, NH 03440
Phone: (603) 588-6785    Fax: (603) 588-2969    Monday - Thursday 8:00am - 4:00pm
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