ANTRIM ZONING BOARD OF ADJUSTMENT
May 18, 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)
Members & Staff Absent: Don Winchester (Alternate)
Ben Pratt (Resident) John Soininen (Eolian)
Jesse Lazar (PB & Resident) Janis Longgood (Appellant)
Rachel Goldwasser (Atty – Eolian) Molly Moore (Resident)
Richard Uchida (Atty – Eolian) Spencer Garrett (Abutter)
Michael Donovan (Atty) Jack Kenworthy (Eolian)
Shelly Nelkens (Resident) Michael Pon (The Villager)
Loranne Block (Appellant) Richard Block (Appellant)
Joe Koziell (PB & Resident) Margaret Warner (Resident)
7:00 Review Session
- Review Minutes of April 20, 2010
7:15 Public Meeting:
File # 2010-02ZBA – Appeal from an Administrative Decision of the Planning Board
File # 2010-02PB – Minor Site Plan Review for a Met Tower on Map 212 Lot 30.
Chair Kendall opened the meeting, introduced the Board, and read the portion of the Public Notice that referred to the Appeal:
Notice is hereby given that a public hearing will be held at 7:00P.M., Tuesday, April 20, 2010 at the Town Hall concerning a request by Richard Block, et al. to an Appeal from an Administrative Decision of the Antrim Planning Board made on March 18, 2010 approving the application of Antrim Wind Energy, LLC for a Minor Site Plan Review for a Meteorological Tower on property owned by Michael Ott located at 354 Keene Road (Map 212 Lot 30) in Antrim, NH 03440 in the Rural Conservation District.
Mr. Moore said that no new information had been submitted (by agreement of all parties).
Chair Kendall said that the Appeal from and Administrative Decision of the Planning board meant:
Deny the appeal: Allow the Planning Board decision to stand
Grant the appeal: The Planning Board Decision does not stand
Chair Kendall asked that the Board members begin the Deliberation.
Mr. Haggett said that the ZBA's role in the administrative appeal will be to examine the proposed use of the property and whether that use is or is not allowed under the Town Zoning Ordinance.
Chair Kendall read the definition of the Rural Conservation District from the Antrim Zoning Ordinance (ZO). He then said that the decision would be based on whether or not it is an allowed use in the District. Moreover, if it is a permitted use, is a height variance necessary? The ZO was adopted by the Antrim voters in 1989. Chair Kendall felt that he must consider the spirit of the ordinance in 1989 – and how it pertains to the residents of Antrim today. He then read all the permitted uses in the Rural Conservation District. He felt that the uses are of general description. The definitions in the ZO are limited without much detail. He questioned the Board – how did they perceive “public utility”?
Chair Kendall found it difficult to believe that a coal, hydro, or wind energy plant could come into the RCD, but a Bed & Breakfast would need a Special Exception. The definition of “public utility” was a very broad range. He said that possibly there should have been a variance for a special business.
Mr. Giffin said that the definition of “public utility” in 1989 may not be the same as the present definition. The definition in RSA 362:4.c. does not include a power generating plant. He felt that the public utility described in the ZO meant power lines, transmitting lines. A wind turbine is a power generating plant and when it is looked at in that way, a public utility is not a power generating plant and therefore it is not a permitted use.
Chair Kendall asked if the commercial use was a permitted use, and even if it was, is the accessory structure allowed at this time. He stated that the principal use had to be in place in order for the accessory to be an accessory.
Mr. Giffin agreed with Chair Kendall.
Chair Kendall said that even if it were determined to be an antenna, it would still need a height variance.
Mr. Giffin asked the question – is an accessory use allowed if the principle use is not allowed?
Mr. Haggett agreed with Mr. Giffin – is this a permitted use? He read a “dictionary” definition of a public utility. He said that when the ZO was written, the Public Utility Commission (PUC) had not been established. Mr. Haggett summarized the past year for Eolian. They had come before the Town of Antrim as an applicant for a met tower. They were given advice – which they followed. They had been told which ordinance to use - Small Wind Energy Ordinance – for a variance of height. Mr. Haggett felt that they should have applied for a variance for use. He went on to say that it should never have happened in the manner that had occurred. And now the board must decide if it is a permitted use – and it looks like it is not.
Chair Kendall concurred that the applicant should have applied for a variance for use and for height. The Small Wind Energy Ordinance was completely off-base.
Mr. Giffin added to what Mr. Haggett had said. The Town of Antrim had guided Eolian in the wrong direction. If they had originally come in for a height and use variance for a met tower – there may not have been problem. The Planning Board decision had added the “public utility” aspect to the package – and with it the entire package of what to do in the future. The Small Wind Energy Ordinance should not have been used. The variance should have been for use and height.
Mr. Haggett repeated that the application should have been for use for the met tower, but now the met tower can not be dealt with alone - making it very complicated.
Mr. Crafts said that the ZBA had tried to separate the two. He said that the variance for height had been granted.
Mr. Haggett said the question is – is this a permitted use – yes or no?
Mr. Crafts said it is a utility.
Mr. Haggett said that there are opposing views of the definition of a “public utility”.
Mr. Crafts said that he could not say what the intention was in 1989.
Mr. Haggett said that utilities are energy sellers to the general public.
There was a moment of silence.
Mr. Scales said that the crux of the matter was – it is a public utility or not. The Planning Board (in the decision that it made) thought that it was a public utility.
Chair Kendall said that even if the public utility status was decided, would the accessory structure have been allowed.
Mr. Haggett said that it stopped and started with a permitted use.
Chair Kendall read the accessory use definition from the ZO:
ACCESSORY USE: A use on the same lot with, and of a nature customarily incidental and subordinate to the principal use.
and then said – at this point there is nothing there.
Mr. Giffin read the definition of accessory structure:
ACCESSORY BUILDING or STRUCTURE: A subordinate building or a portion of the main building on a lot, the use of which is customarily incidental to that of the main or principal building.
- he then said it all became irrelevant, and does not see that the accessory use can proceed.
Mr. Haggett said that in the original concept, there was a physical component to a permitted use. But there can not be an accessory use if there is never to be a principle use. An accessory use is a moot point.
Chair Kendall said that there no definition to public utility. He repeated his Bed & Breakfast theory.
Mr. Crafts said that a lot of uses are allowed, but were power generating plants something that residents wanted there?
Chair Kendall said that he thought the list was too generalized and that a coal burning plant could just move in.
Mr. Haggett said that it never got to that point. The original application for a met tower on Tuttle Hill and the SWES ordinance tried to avoid the issue.
Chair Kendall said that there had been a lot of time and expense for all involved.
Mr. Crafts agreed with Mr. Haggett. He wished he knew what the voters were thinking in 1989. Did allowing a public utility as a permitted use mean that the residents would have allowed a coal burning plant.
Mr. Giffin said that he and others can all be for renewable energy, but there is no law for that use.
Mr. Scales said that what was written in 1989 meant telephone lines, electrical lines, sewer pipes, etc, and that it appeared that the ordinance did not intend to have public utility as power generators.
Mr. Haggett said that public utilities were under the control of the PUC – not local control, and now with deregulation, the definition has changed. The original application had nothing to do with public utilities; the tower was a means to collect data.
Chair Kendall compared the meetings to those of the Personal Wireless Service Facility (Cell Tower)
Mr. Haggett said what was needed was someone at the legislative level to handle this situation because renewable energy is necessary and the application should never have been done in the manner in which it had occurred.("It should never have been done this way.")
Chair Kendall read from RSA 672:1, III.d., and the definition of the Rural Conservation District.
Mr. Haggett repeated that Eolian had been told how to apply for their application and had been told the incorrect information. The Met Tower was put up to collect data.
Chair Kendall said that if there were a yes vote for the appeal what would happen?
Mr. Haggett said that the ZBA should not be dealing with a decision that never should have happened. The ZBA should be dealing with the Rehearing of the Height Variance.
Mr. Giffin said that if the appeal were to be granted, then the ZBA would deal with the Height Variance
Mr. Haggett said - I don't know how you "square that circle" - it is unfortunate but there you are.
Mr. Moore said that if the Appeal were to be granted, the use is not allowed; and then to continue with the Rehearing to finish that chapter as well.
Mr. Haggett - "easily said, don't know how that is done".
Mr. Moore said that both attorneys had said that the Rehearing should not be on the same night a s the Appeal.
Chair Kendall asked if the Board were ready for a vote.
Mr. Haggett moved to vote on the Appeal. Mr. Giffin seconded, and all agreed to vote
Mr. Haggett moved to GRANT (Yes)/
DENY (No) the Appeal by Richard Block, ET AL from the Administrative Decision of the Planning Board made on March 18, 2010 approving the application of Antrim Wind Energy, LLC for a Minor Site Plan Review for a Meteorological Tower on property owned by Michael Ott located at 354 Keene Road (Map 212 Lot 30) in Antrim, NH 03440 in the Rural Conservation District.
Mr. Scales seconded the motion.
Roll Call Vote:
Unanimous vote 5 -0. The Appeal was granted.
Attorney Donovan said that he believed that it is not a permitted use; and therefore, the Height Variance Rehearing should not happen. He thought the next hearing date should be kicked out thirty days to see what Eolian would do. And then everything should be scheduled for one evening.
Mr. Haggett wanted to know if the whole process was to start all over again. Could Eolian put in a new application for a use variance and also a height variance.
Chair Kendall said that if the case ends up in court, there should be closure. He agreed with Attorney Donovan on the date and would be willing to set the date out thirty days.
Attorney Donovan said that the Board could discuss it with Town Counsel, but he felt that the Height Variance was "dead in the water". But whatever occurs, the meetings should be consolidated.
Chair Kendall felt that the Rehearing should be continued.
Attorney Donovan said that he did not understand the rational and was not sure it was correct.
Chair Kendall said that he wanted to accommodate everyone and to assure that the process had been done correctly.
Attorney Uchida said that he agreed with the thirty days to determine what Eolian should do. He felt that the Height Variance was not a "dead" issue.
Chair Kendall said that Eolian would have thirty days to appeal the ZBA decision. He said that the Board would need time to read any new information and would not want the meeting immediately after the possible appeal date. He said that he was open to discussion on the possible date.
There was a discussion among the participants concerning vacations, other scheduling restraints, need to re-notice, the granting or denying of a rehearing of the appeal of the decision of the appeal
It was determined that the Height Variance Rehearing would be continued to July 20, 2010 at 7:15pm in the Little Town Hall.
REHEARING of File #2009-02ZBA – Variance from Article XIV-D, Section D.1.b. for Met Tower on Map 212 Lot 30. continued to July 20, 2010.
- Approve Meeting Minutes of April 20, 2010 Mr. Scales moved to approve the minutes as amended. Mr. Haggett seconded the motion. All approved the minutes.
At 8:30 pm, Mr. Haggett moved to adjourn the meeting. Mr. Scales seconded it, and the meeting was adjourned.
Respectfully submitted, Diane Chauncey , On Behalf of the Antrim Zoning Board of Adjustment