ANTRIM ZONING BOARD OF ADJUSTMENT
April 20, 2010 Meeting
Members & Staff Present: Diane Chauncey (Staff) Doug Crafts (Member)
John Giffin (Member) Ron Haggett (Member) John Kendall (Chair)
Peter Moore (Planner) Frank Scales (Member) Don Winchester (Alternate)
Members & Staff Absent: None
Annie Law (Appellant)
Gordon Webber (Selectman) Jack Kenworthy (Eolian)
Ben Pratt (Resident) John Soininen (Eolian)
Jesse Lazar (PB & Resident) Richard Block (Appellant)
Brenda Schaefer (Abutter) Mark Schaefer (Appellant)
Robert Cleland (Appellant) Rachel Goldwasser (Atty – Eolian)
Shelly Nelkens (Resident) Richard Uchida (Atty – Eolian)
Michael Donovan (Atty) Tim Anson (Student – Franklin Pierce)
Marshall Gale (Appellant) Shelly Nelkens (Resident)
David Dubois (PB & Resident) Loranne Block (Appellant)
Josh Bond (Ledger/Transcript) Travis Bullard (Eolian)
Richard Block (Appellant) Drew Kenworthy (Eolian)
Scott Burnside (PB & Resident) Janis Longgood (Appellant)
Elsa Volker (Resident)
Brenda Schaefer (Appellant)
Steve Schacht (PB and Resident)
7:00 Review Session:
Review Minutes of March 30, 2010
Review materials for meeting
7:15 Public Meeting:
Chair Kendall opened the meeting at 7:16pm. He introduced the Board members - five members were present, Mr. Winchester would sit with the Board and deliberate, but not vote.
Chair Kendall stated that both the Planning Board and the Zoning Board of Adjustment have been though many meetings concerning the Met Tower and that there has been much information as well as emotional testimony. Chair Kendall stated that he felt there were two important points: the importance of the development of renewable energy and the rural conservation district.
Chair Kendall stated that it was very important for the Board, the Appellants, the Applicants and the attendees to stay focused on the hearing of the Appeal. Chair Kendall then read the procedure that Mr. Moore (Town Planner) had written out for him.
If the Appeal is denied, the use (the Met Tower) is permitted.
If the Appeal is granted, the use (the Met Tower) is not permitted.
Chair Kendall stated that it was a very important decision of all involved and that he will allow as much time as needed for the deliberation.
Ms. Chauncey read the Public Notice as it had been publicized in the Villager on April 9, 2010. Ms. Chauncey also stated that all certified mail receipts had been returned except that of Mr. Ott’s.
Chair Kendall explained the procedure – the Blocks would present their Appeal, and after their presentation, the Public Hearing would be opened. Chair Kendall said that if at 9:00 pm, if the Blocks’ presentation had not culminated, he would stop them and the Public Hearing would occur.
Attorney Donovan presented the Appeal for the Appellants.
Attorney Donovan thanked the ZBA, said that he would not be speaking until 9:00 pm(a little laughter and relief) and thanked the Board for his “reserved” seating – he had never had his seat saved at a Board meeting. (Mr. Moore had set out front row ‘reserved’ seating for the lawyers and their clients).
Attorney Donovan stated that the Appellants were appealing on two errors of the Planning Board decision of March 18, 2010. He referred to his letter (April 13, 2010 letter titled "Administrative Appeal of Richard and Loranne Block, et al".). The Blocks and others have appealed two PB administrative interpretations of the zoning ordinance relative to the subject met tower:
1. That it a permitted use or accessory to a permitted use.
2. That a height variance is not required.
1. Use Issue
He said that the minutes of March 18, 2010 are not clear. He said that a Public Utility is not allowed in the Rural Conservation district, and that the Met Tower cannot be an accessory to a non–permitted use. He felt that the best definition of a Public Utility is stated in RSA 362:4-c, and said that RSA 363:4-c expressly exempts energy facilities such as wind farms from the definition of "public utility". He stated preemption and that the definition clearly states that exemption. The wind turbines of Lempster are not regulated by the Public Utilities Commission (PUC). He said that there is no evidence that Eolian had tried to achieve that status. He referred to an article in the Ledger/Transcript (written by Josh Bond) in which Mr. Jack Kenworthy claimed that they (Eolian) had never said that they were a Public
Utility. Attorney Donovan stated that the Planning Board is wrong – Eolian is not a Public Utility, and therefore the Met Tower can not be allowed in the Rural Conservation District.
Attorney Donovan stated the definitions from page two of his April 13, 2010 letter. He said that the proposed Met Tower is not permitted by the Small Wind Energy Systems Ordinance, as stated in the Antrim Zoning Ordinance (Article XIV-D):
Meteorological tower (Met Tower)……For the purpose of this ordinance, met tower 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.
Small wind energy system A wind energy system consisting of a wind generator, a tower, and associated control or conversion electronics, which has a rated capacity of 100 kilowatts or less and will be used primarily for onsite consumption.
Attorney Donovan passed out a handout with the list of permitted uses. He said that in the definition for a Met Tower, the definition is for a Small Wind Energy System (SWES). The constructed Met Tower is not for a SWES. A Met Tower is not on the list of permitted uses. He stated that it is a fundamental doctrine of Zoning Ordinance law – if a use is not on the list, it can not be permitted. He continued that the accessory list is a “no brainer”. After reading the definition of accessory use, he said that it can not be construed in any other way. He gave an example of getting a parking lot permit if a building permit has not been applied for; one does not apply for a medical incinerator if a hospital is not there.
Attorney Donovan said that the problem is the accessory use. On going back through the history of the Met Tower, it should be realized that the Met Tower and the Wind Farm will never be there at the same time, therefore it is not an accessory. Even if the Wind Farm is allowed, the Met Tower will not be there.
2. Height Issue
Attorney Donovan continued by saying that the Planning Board erred by determining that a height variance is not required because the proposed met tower is a "special industrial structure". A Variance was necessary for height. The ZBA had spent a lot of time listening, and then the Planning Board said it was a special industrial structure. Attorney Donovan said that “industries” are not an allowed use in the Rural Conservation District and "Antrim Wind Energy, LLC may not have it both ways. Either the use is a "public utility", which must abide by the height restrictions of the zoning ordinance or it is an "industry". Since industrial uses are not permitted uses in the RC District, the exemption for special industrial structures does not apply".
Attorney Donovan said that for all of the reasons expressed, the ZBA should reverse the decisions of the Planning Board.
Mr. Haggett asked Attorney Donovan what his feeling was on the Met Tower as an antenna.
Attorney Donovan said that an antenna does not gather information and has special regulations. He reinforced that the Met Tower is not a height special structure.
Chair Kendall asked how the state classified the Lempster Wind Farm.
Mr. Block said that he had a long talk with Meredith Hatfield. He also referred to RSA 83: f and RSA 362:c. He said that there is a difference between a Public Utility property and a property that generates power.
Attorney Donovan referred to Mr. Kenworthy's argument.
Chair Kendall said that he was trying to clarify ‘what is a Public Utility?’ If Lempster’s Wind Farm is a commercial supplier, he could not come up with an exact difference.
Mr. Block said that a commercial supplier is a wholesaler to the grid. A Public Utility is generally used a corporate entity for use within the state.
Attorney Donovan said that the ZBA needed to think about the common meaning of a public utility.
Chair Kendall said that he has struggled with the definition.
Attorney Donovan said that the definition should be thought of as what the average person who voted for the Zoning Ordinance thought of as the common meaning of a Public Utility.
Chair Kendall asked if the appellants had any further information to give the attendees.
PUBLIC HEARING – 7:50pm
Chair Kendall said that Eolian would be given an opportunity to speak.
In favor of the appeal
Ms. Volcker said that she would like to see the Met Tower come down. She had been one of the people who was instrumental in the zoning of the Rural Conservation (RC) District. She said that it would be a travesty to have the Town Beach dominated by a wind farm. Two tons of cement would not be her idea of a conservation district. The RC District is a corridor for wildlife and the wind farm would not be a good use.
Ms. Block said that the rural conservation district has the largest contiguous unfragmented area outside of the White Mountain. Although the area could be developed by homes, the houses would not dominate the skyline as the wind turbines would. The Rural Conservation District contains Gregg Lake and Willard Pond which is dominated by Tuttle Hill. She wanted to reemphasize that the appellants would not get a “second shot” – once the request is submitted to the state. The proposal needs to be dealt with now.
Ms. Longgood wanted to go on record as opposed and that the application does not fit the spirit of the ordinance.
Mr. Schaefer said that it means further lawsuits for the town – and the law is black and white.
Ms. Law agreed with the appeal for the Rural Conservation District. It should be maintained.
Mr. Block commented on the Planning Board Survey (in the lobby of the Town Hall Town Election Day, March 9, 2010). He said that Mr. Kenworthy had included the result of the survey in his letter of April 13, 2010 and that he felt that the survey questions were ambiguous and unclear. The results were a “far cry” from the 80% of Antrim residents stated in the Kenworthy letter. He reiterated that the wind farm should not be placed in the shadow of Tuttle Hill.
Ms. Volker said that she never saw the survey.
Mrs. Schaefer said that she is in favor of the appeal.
Mr. Cleland said the he is in favor of the appeal.
Mr. Burnside is not in favor of the appeal and said that the wind farm is not part of the discussion.
Opposition to the appeal
Mr. Webber said that he is in opposition to the appeal. He referred to the definition of Pubic Utility and said that the definition was a gray area and that the ZBA should decide.
Chair Kendall said that the main object of the ZBA was to come to an agreement.
Mr. Pratt read from a letter which stated that he was troubled by a property owner not being able to explore the possibilities of using his land. Limiting this utilization of exploring the possibilities would be unreasonable. He felt that the issue should be kept in proper perspective – the temporary structure would not cause any significant difficulty. In both the ZBA and the Planning Board, Eolian has prevailed. If the ruling is against the applicant, it will go to Court. Given the facts and arguments presented, Eolian would prevail. The Town of Antrim would incur significant legal expense, the outcome would be unchanged, and this should not be forced on the Antrim taxpayer.
Attorney Donovan said that the Met Tower was not allowed by the SWES, but when the ZBA heard the case, limitations were set. It was his intent that towers do not escape height regulations.
Mr. Schacht said that does not answer the antenna question.
Chair Kendall said that he would make sure that there is a chance for rebuttal.
Mr. Burnside said that the Zoning Ordinance had been written in 1989. At that time, the PUC definition was not out there. He saw the use as an allowed use. The ZBA should follow the Zoning Ordinance of 1989.
Chair Kendall said that part of the hurtle was the Zoning Ordinance dating back 20 years. He would keep Mr. Burnside’s comment in mind.
Ms. Nelkens said that the Met Tower is not a Public Utility. The discussion is just about the Met Tower.
Chair Kendall said that the attendees should try to keep the emotions out.
Mr. Schacht said that he was opposed to the appeal.
Mr. Burnside said that another way to look at the Rural Conservation District is the applicant proposes energy that is renewable and green – there fore it does fit into the RC District.
Attorney Uchida introduced Ms. Goldwasser as an expert attorney of energy law – he said that she knew the statutes of Land Use, as well as Public Utility Commission. He also introduced the members of the Eolian team, who he represented. He stated that the appeal should be confined to the Planning Board decision, and that the appeal did not have anything to do with the Small Wind Energy System. He said that the ZBA had an important role as a judicial board, and that their job was to interpret terms within the Zoning Ordinance that may not be defined as well as should be. He felt that Eolian had tried to present the case according to the Zoning Ordinance. He said that the ZBA had different tools to work with: for definitions - refer to the Zoning Ordinance or common definition; legislative history - what was the implied meaning.
He said that would be presenting the case with what the Zoning Ordinance said.
He continued. The Met Tower was collecting data, wind speed, temperature, etc., and needed to be at the 60-meter height. The Met Tower is an accessory and antecedent to a public utility use and it is accessory to an essential service use, both of which are permitted uses in the Antrim Zoning Ordinance in the Rural Conservation District. He said that Met Towers may remain up and continue to collect data after the wind farm has been constructed.
Mr. Soininen said that the Met Tower is critical to the use, and it must precede the Public Utility. He used the example of a fence going up before a house.
Mr. Kenworthy said that the Zoning Ordinance was not clear and does not define a "Public Utility". The definition and statutes must come from the State. Other definitions that have been used are unreasonable - there is a need for renewable energy. He read from RSA 674:17 which encourages the use of renewable energy.
Attorney Uchida continued the discussion of definitions by referring to various RSAs which include a definition for Public Utility (RSA 83F, 672, 674, etc.). He said that there is no doubt that the Antrim Wind Energy LLC project would be treated like other public utilities in the state. Eolian is a Public Utility. It would not be the kind of Public Utility that is regulated like PSNH - the "little guy" exemption was built in when the entire system was restructured (monopolies and how the consumer can be charged). Attorney Uchida urged the ZBA to closely look at the interpretation of the Zoning Ordinance and the State Policy.
Attorney Uchida presented the third "tool" for the ZBA - legislative history. The Antrim Zoning Ordinance did not make changes to its ordinance in 1998 (change in definition of Public Utility) and in 2007 (when the Town voted to go on record as supporting effective actions to address the issue of climate change).
Attorney Uchida then addressed the arguments made during Attorney Donovan's presentation.
Small Wind Energy Ordinance - not an issue
RSA 362:4.c. - ?
Met Tower, not a permitted use - but neither are transformers, utility poles, cables, etc.
Attorney Uchida Summary:
- Zoning Ordinance does not say that only PSNH can generate power.
- Public Utilities generate power. An accessory use can precede a principal use.
- Mr. Ott is retaining open space.
- Public Utilities are companies that generate power
- An accessory use can precede a principal
- The Met Tower is a special industrial structure that needs 60-meter height
- Public Utilities are allowed in the Rural Conservation District
- Not true that this is the one last shot in a discussion of a Wind Farm
- Meredith Hatfield is a PUC consumer advocate and will answer in PUC terms - the ZBA should be looking at land use terms
- Finally - look closely at the materials provided and let the Planning Board's decision prevail
Questions asked by Board members and answered by Eolian Attorneys
In 1989 would Eolian have been regulated as a Public Utility?
Yes they would have been regulated as a PU.
Would Lempster have been classified as a Public Utility?
Yes they would have. In 1989, the PUC needed to regulate certain entities. PSNH could charge whatever they wanted. The point is more the use of the land and not how the PUC would regulate.
Would the Wind Farm be like a franchise?
Power generated by the wind turbines may stay in NH but may go elsewhere - the grid in NE is very complicated.
Mr. Soininen added that today PSNH could develop a wind farm on that same property. The entity (Eolian) should not be discriminated against.
Mr. Kenworthy stated that the newspaper article in which he said Eolian was not a Public Utility was taken out of context.
Mr .Giffin asked Attorney Uchida a question concerning a portion of RSA 676:5, 3.
Chair Kendall questioned the interpretation of the Zoning Ordinance.
Attorney Uchida said that can bring in new info – under 1st agenda item – interpretation of PB
Mr. Haggett – statement of original intent – ZO of 1989 – height exemption – what limits can theZBA exercise – mechanism for height exemption
Attorney Uchida said that the Antrim Zoning Ordinance should be seen as written and gave examples of permitted uses. listen to tape
Ms. Block said that twenty-one years when the Rural Conservation District was adopted, the intent was to preserve that area of Antrim, and that would include not to allow a Public Utility.
Attorney Donovan said that the applicant gets to rebut.
There were some questions as to who gets to go last. The applicant felt he should go last.
Attorney Uchida stated - that as a matter of procedure appellant goes last – but if new information or misstatement occurs, he would like to be able to speak in rebuttal.
Attorney Donovan – correction – the chair will summarize and then if there is a rebuttal it could go on forever. The Appellants should be entitled to go last.
Chair Kendall said that he was not in favor of closing the public hearing - motion for continuance – and to possibly allow rebuttal at that point. He needed a chance to talk to Town Counsel.
Mr. Giffin questioned the awkwardness of that procedure.
Chair Kendall said that he was not closing the Public Hearing.
Attorney Donovan said that the rebuttal would take less time than the preceding discussion had taken, and asked if Attorney Uchida agreed.
Attorney Uchida agreed that Attorney should give his rebuttal.
Attorney Donovan – some of his arguments:
- stuck with words in the Antrim ZO, as it is written today and must be read as a whole
- As Attorney Uchida said it is not the words that you wish for but what is in the ZO – the ZBA must go back and sort that out
- The tax statute has a better way to define “Public Utility” – taxes deal with valuation and property value – a special formula
- Utilities are assessed differently ; in RSA 83: f - the word public is not in there and utility is a broader term
- Although it has been argued that the ZBA should look back to 1989 statute – The Public Utility definition then – Lempster is not a Public Utility as that type of project did not exist
- The ordinance should be seen as what it means today
- Policy argument – irrelevant – A commercial wind farm will not be subject to Antrim’s Zoning Ordinance - it will be governed by the State Site Plan Review Committee
- Antennas – not an antenna
- Concept of antecedent use – antecedent use never comes into play – an accessory use to a Public Utility when the commercial wind far is not approved by anybody – not like putting up a fence – no approval
Mr. Haggett asked if the state would come in and pre-empt the Antrim Zoning Ordinance?
Attorney Uchida said that the state could come and do that for certain large projects. The policy argument is attractive but not relevant – not limiting.
Mr. Moore said that the proposed wind farm is less wattage and so the Town of Antrim could oversee the Site Plan Review but the Town could petition the state to review the project. Cited RSA 162-H.
Mr. Crafts asked if PSNH could develop such a project.
Attorney Goldwasser said the PSNH could acquire permission but it would not supersede the Antrim ZO. PSNH could come in and build a wind farm on Tuttle Hill. The legislature would like to see renewable projects. If PSNH could build, why not Eolian?
Mr. Soininen points out that it is land use – should not be that one entity can and one entity cannot.
Mr. Kenworthy said PSNH is a Public Utility. Public Utilities are allowed – but not by Eolian – that is an argument in itself.
Attorney Donovan said it is not as simple as Eolian makes it out to be.
Attorney Uchida said that the argument has been made that there were no wind farms in 1989 but that is not true. He pointed out that in the early 80’s, Crotched Mountain had a number of wind turbines.
Interpretation of SWES – should read RSA 672. Finally the tax statute (RSA 83F) contains a section on how utilities are valued.
Attorney Donovan – “public” is not in the statue.
Chair Kendall said that in deliberation , the ZBA members will attempt to resolve the classification of Eolian as a utility, whether or not the Met Tower is a special industrial structure, an accessory use, and whether or not there should be height limitations. The “spirit of the ordinance” from 1989 to the present and how it pertains to 2010 will be part of the deliberation.
Attorney Donovan – declare as a public utility is the accessory use allowable?
Mr. Kenworthy said there should be no restriction of height – Eolian has done what is necessary according to the site plan review.
Chair Kendall asked for a motion to close the Public Hearing. Mr. Haggett moved to close the Public Hearing, and Mr. Giffin seconded. All approved. The continuance will be May 18, 2010. (There was some difficulty finding an agreeable date)
Attorney Donovan asked if would be just deliberation?
Chair Kendall said that it would be just deliberation and the attorneys did not need to attend. There would be no new information (no emails, letters, etc.).
- Approve Meeting Minutes of March 30, 2010 Mr. Haggett moved to accept the minutes as written. Mr. Scales seconded. All voted in favor.
Workshops and Trainings: 17th Annual Spring Planning & Zoning Conference - May 8, 2010 - Saturday - Nashua Radisson sign up tonight if planning to attend
At 9:50 pm, Mr. Crafts moved to adjourn the meeting. Mr. Haggett seconded it, and the meeting was adjourned.
Planning Assistant, On Behalf of the Antrim Zoning Board of Adjustment