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Zoning Board of Adjustment Minutes 05/03/2011

May 3, 2011 Meeting
Variance #2011-04ZBA Antrim Wind Energy LLC

Members & Staff Present:     
 Diane Chauncey (Staff)     Doug Crafts (Member)                Ron Haggett (Member)             John Kendall (Chair)               Ray Ledgerwood (Alternate)       Shelly Nelkens (Alternate)                   Frank Scales (Member)                                                                                                                  
Members & Staff Absent:         
John Giffin (Member)            
Public Attendees:
Richard Uchida          Joshua Pantesco Jack Kenworthy  John Soinien
James Hankard           Mary Allen              Stuart Gross            Rick Wood
Gordon Webber           Clark Craig             Keith Klinger           Gordon’s neighbor
Dave Duffy                      Bob Cleland             Annie Law               Ben Pratt
Brian Beihl                     Janis Longgood  Richard Block           Bob Bernstein
Peter Beblowski         Martha Pinello          Dave Duffy              Loranne Block
Rob Michaelson          Mark Schaefer           Margie Warner   Elsa Voelker
Barbara Gard                    Sam Apkarian            

7:00 PM –Review Session:

  • Review Minutes of April 5, 2011
  • Review Public Hearing materials
  • Appoint alternates to sit for absent members -

7:15 Public Meeting:

Case # 2011 -04ZBA concerning a request by Antrim Wind Energy, LLC for a variance pursuant to Article IX B. (Use) and Article IX C. 8 (Height) of the Town of Antrim Zoning Ordinance, to construct and operate a temporary meteorological tower at 354 Keene Road, Antrim, NH (Map212, Lot 030) in the Rural Conservation District.

Chair Kendall opened the meeting (upstairs Town Hall) at 7:22pm, introduced himself, the Board. He explained the meeting procedure:
  • The applicant presents the variance request.
  • The ZBA members ask questions
  • The Public Hearing would be open. The Chair asked for respect from all speakers – that all would
receive the length of time needed for their comments.
  • He asked for no redundancy and to be fair.
  • The meeting would close at 9:30.
  • If the Public Hearing was closed in a timely way, Deliberation would occur.
Chair Kendall appointed Mr. Ledgerwood to sit for the absent Mr. Giffin.

Mr. Webber stated that Ms. Nelkens had been prohibited from sitting on the Meteorological case because she had publicly stated her position on Met Towers and Wind Towers. He said that if an alternate is not seated, he/she should not be allowed to sit at the table.

A lengthy discussion ensued.

Legislatively, the law referring to alternates had changed in July 2010. The Antrim ZBA by-laws had not been changed to reflect the new law.

Chair Kendall said that Ms. Nelkens would not be able to ask questions.

Ms. Nelkens said that the last time around, the way in which the Met tower variance was sought was inappropriate. Now that the variance was being sought after under the appropriate ordinance, she stated that the case was different and that she should be allowed.

Ms. Pinello said that she might be able to help with the legislative ruling of July 2010 – she read from that.

Chair Kendall said that Ms. Nelkens could sit, but she could offer no questions or comments.

Ms. Nelkens said that many have expressed their opinion and that possibly everyone would have to recuse themselves.

The discussion continued with numerous public attendees offering their comments.

Finally, Chair Kendall stated that Ms. Nelkens could remain at the table and ask no questions or sit in the audience – where she could ask questions. She chose to remain at the table.

The Public Notice was read by the Secretary. The notice had been properly posted. There had been no comments by letter, telephone, or at the counter.

Chair Kendall asked the applicant (Antrim Wind Energy LLC [AWE]) to present their variance request.

Attorney Uchida began by introducing those present who represented AWE. He then gave a summary of the history of the Met Tower to date.
  • The application was for a temporary Met tower only
  • AWE applied for a variance request under the Small Wind Energy System Ordinance – it was granted – reheard – and is presently in court
  • AWE switched courses and applied to the Planning Board for a Site Plan Review. The Planning Board approved the request.
  • The height of the Met tower was challenged.
  • Two Court cases were consolidated to the same hearing date
  • Now – a third avenue – the present request for a variance from Article IX (Rural Conservation District [RCD]) for height and use
  • The variance request, if approved, would save the Town of Antrim time and money
  • The consideration of the Met Tower’ s use – should be just that – the Met tower and not “opening the door for anything else”
  • The ZBA application had not been updated to reflect the legislative change in variance requests (Use and Area – not a separate test) and so  - AWE added an addendum to the application to list the variance criteria
  • The critical difference in the new criteria  - “hardship” (#5 of the criteria)
  • Farrar vs. the City of Keene was used as an example
  • Uniqueness of the Met tower site was emphasized
  • Documents from past hearings to be entered into current case as part of the record
  • Public utility – not a consideration – just the height
Mr. Kenworthy (AWE) presented the variance request with a history of the proposal and then gave a Power Point presentation. (The application and the Power Point are available via email with a request to the ZBA Clerk –

The variance request purpose would be for use and height of a temporary Met tower to measure wind to evaluate the potential for a wind farm. He repeated the background of the Met Tower. He stated that the Planning Board Site Plan approval had not been appealed – still a valid plan – the use was allowed – it was no longer appealable.

        Mr. Kenworthy continued with a Power Point presentation. The following lists some highlights of the presentation:

  • The physical site on the NE peak of Tuttle Hill – map and location
  • Project elements and existing access to site
  • Map of Route 9 and access – topographical
  • Met tower overview – specifications of structure and temporary nature
  • Access and removal  - no new roads – 4wd accessibility
  • Sensors measure wind velocity, barometric pressure, relative humidity, emails information twice a day
  • Images of actual Met tower
  • Permit requirements – no hazards, no lighting, no waste, no public safety hazards
Mr. Kenworthy listed the criteria and the reasons that AWE had satisfied each of the criteria. (The application attachment which states the AWE reasons for granting relief is available at the Town Hall or by requesting the application via email – send email to

The following are some of the reasons explained by Mr. Kenworthy:

Criteria #1 –The variance will not be contrary to the public interest

  • Need for a stable, secure, reliable source of energy is fundamental to the stability of our economy.
  • Antrim was  a NH Climate Change Resolution town
  • Antrim Master Plan states that the Zoning Ordinance should not unreasonably limit the installation of renewable energy systems.
  • NH State law states that facilitating renewable energy development is in the best interest of the public.
  • Straw polls in Antrim have overwhelmingly favored the development of wind energy.
  • A Met tower must be established to record wind data
Criteria #2 The variance is consistent with the spirit of the ordinance because:

  • The purpose o the Antrim Zoning Ordinance [ZO] (Article I, Section B) states that the regulations of the ZO are made in accordance with the Town’s Master Plan and designed to secure safety from fire, panic and other dangers, to promote health and general welfare, to provide adequate lighting and air, to prevent the overcrowding of land, to avoid undue congestion of the population, and to facilitate provision of transportation, water, sewerage, schools, parks and other public requirements. The Master Plan’s 15-page section “Encourage Renewable Energy Resources” is included as an attachment to this application.
  • The ordinance allows for the temporary erection of Met towers. “We therefore submit that nothing about the proposed use is inconsistent with the spirit of the ordinance”.
Criteria #3 – Granting the variance would do substantial justice because:

  • The property in question is an exceptionally unique property given the combination of its elevation, proximity to electrical transmission lines and access to major state highways.
  • Granting the use and height variances would also do substantial justice because it would follow the documented wishes of the vast majority of Antrim residents who would like to see a wind facility built in town – which facility cannot be built without adequate meteorological measurements.
  • The Supreme Court’s opinion in Robert Farrar v. City of Keene illustrates that when the Met tower is dismantled, there is no loss to the individual in granting the variances requested and that the gain by the general public is great, therefore substantial justice is done.
Criteria #4 – The value of surrounding properties will not be diminished because:
  • There is no substantiated evidence that a temporary Met tower would reduce local property values.
  • Property values in Antrim, in NE, and across America are currently being impacted by a multitude of very complicated dynamics. The claim by some Antrim residents that the mere potential for wind development in NH has or will decrease property values can not be substantiated.
  • Allegations related to property value diminishing in Maine near wind farms are not put in the context of the overall real estate market, which clearly shows that as a result of forces completely independent from wind energy development, property values have declined sharply in the past three years.
  • Neither wind farms, nor the announcement of wind farms (which a met tower is being construed as) have had negative impacts on local property values.
Criteria #5 Literal enforcement of the ordinance results in unnecessary hardship:

  • Unique conditions of property for a commercial wind facility: wind speeds in excess of 7mph, suitable nearby access to highways, suitable nearby access to transmission resources, absence of critical threatened or endangered species or habitats, absence of conservation restrictions, sufficient distances from nearby residences.
  • Property in question shares very unique conditions that set it apart from other properties in the region

In summary, Mr. Kenworthy stated that AWE was applying for a use and height variance to allow for a Met tower. He expressed that there were landowner rights. He said that the Met tower would not set a precedent. The land on which the Met tower would be sited was not Conservation land. There would be no measurable impact on property values. He concluded that AWE’s request for relief in the form of a Use and Height Variance has met all conditions required in the Statute and that a timely  decision from the ZBA was requested.
A public attendee did not understand the application. Chair Kendall attempted to explain that the ZBA would make a decision on the height and use of the Met tower and that the ZBA would review the five criteria in order to make that decision. The outcome of that decision would concern the Met Tower, not the Wind Farm facility. Chair Kendall said that he did not wish to restrict the public from commenting on “wind”, but that the comments should address the Met Tower and not a future wind farm.

Ms. Allen wondered if the ZBA was “jumping ahead”. She stated that she had spent 12 years as a ZBA member. She had read the testimony and “why at this point” was the application presented. She said that the information presented needed to be new and different. She was concerned about the court cases and she addressed whether or not the case should be accepted.

Attorney Uchida stated that the application was not a rehearing, but rather a brand new application. Although the Met tower was the same tower, the application for variance request had been applied for under a different zoning ordinance – the Rural Conservation District (RCD).

Mr. Haggett concurred with Attorney Uchida and that it was worthwhile to submit the request for relief
for height and use under the appropriate ordinance.

Attorney Uchida said that current AWE variance request, if granted by the ZBA would eliminate the court cases.

Mr. Haggett said that an appeal could occur.

Attorney Uchida and Town Counsel have an order to hold the trial in abeyance.

Mr. Block asked if the application had already been accepted.

Mr. Haggett explained that the application requesting relief from the Zoning Ordinance was accepted by the Planning Department, not the Zoning Board of Adjustment.

Mr. Block read a letter stating why he thought the application should not be accepted. He said that the law is clear and that an applicant can not keep coming back and applying. He felt that it was the same case and should not be reopened.

Attorney Uchida referred to Fisher v. Town of Dover.

Mr. Haggett explained that the ZBA’s role is to review applications that seek relief from the Zoning Ordinance. The Planning Board looks at Site Plan and Subdivision applications – the Planning Board determines if the application is complete and acceptable – then continues to a Public Hearing . If an application to the ZBA is properly prepared, has all the necessary elements, the Planning Department accepts it.

The discussion continued to explain to the Public Attendees how the ZBA operates.

Attorney Uchida requested that documents that had been presented to the ZBA become part of the current application. He listed them and gave the information to the Secretay.

There were questions from the audience concerning the Public Hearing (for the next meeting).

Chair Kendall said that he would like participants to “stay on target”. If a reference were to be made to the wind farm, it needed to be in correlation to wind energy. He said that he had made errors in the past and does not want to repeat that, but that comments should concern the Met tower.

Mr. Kenworthy said that the comments should concern wind energy as it relates to the Met tower and references to the variance criteria – not about a future request.

At 9:38pm, Mr. Haggett moved to continue the meeting to May 10, 2011. Mr. Scales seconded, and all approved.

At 9:41pm, Mr. Haggett moved to adjourn. Mr. Scales seconded. All approved. The meeting was adjourned.

Respectfully submitted,
Diane Chauncey, 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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