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Zoning Board of Adjustment Minutes 04/24/2012

April 24, 2012 Meeting
Appeal from an Administrative Decision – Case 2012-03ZBA –Public Meeting

Members & Staff Present:     
 Diane Chauncey (Staff)     Ron Haggett (Member)            John Kendall (Chair)                
Frank Scales (Member)       John Giffin (Member)            Doug Crafts (Member)
Shelley Nelkens (Alternate)         Ray Ledger wood (Alternate)      
Members & Staff Present:
Public Attendees:       Annie Law               Bob Cleland             Karen Weisswange
Al Weisswange           Sam Apkarian            John Robertson  Leigh Bosse     
Michael Pon                     Steve Ullman            Kathy Sullivan  Mary Allen
John Soininen                   Beth Merrill            Elsa Voelker            Bob Edwards             
Arthur Merrill

7:00PM Public Meeting:

Appeal from an Administrative Decision – Appeal to the ZBA for the March 8, 2012 signing of a contract between the Town of Antrim and Antrim Wind Energy, LLC. The Board will determine whether or not to hear Case #2012-03ZBA.

Chair Kendall opened the meeting at 7:01PM, introduced himself, the members and alternates. As there was a full board (five members), it was not necessary to appoint alternates. Chair Kendall explained the meeting procedure.

The following documents were read by the Secretary (available for viewing at Town Hall):
        Public Meeting Notice
        Summary of Appeal Issues
        Emails between Mr. Haggett and Town Counsel with questions and answer concerning the Appeal
        Letter from Town Counsel providing guidance to the ZBA

Chair Kendall opened the deliberative session which was to grant or deny the Appeal. He asked Board members and alternates to state their views of Case #2012-03ZBA.
Ms. Nelkens began by stating that she felt the Board of Selectmen (BOS) usurped and undermined the Master Plan by making an agreement outside the confines of the Master Plan. She stated that she felt that the BOS had acted inappropriately.

Mr. Giffin stated that he felt the BOS had set up guidelines within the contract. If the State Evaluation Committee (SEC) approved the Antrim Wind Energy, LLC (AWE) application, the Town of Antrim (TOA) will have had the contract in place and there would therefore be local control. If the SEC does not approve the contract, then the contract would be moot. The BOS did not give AWE carte blanche with their project.

Ms. Nelkens stated that some of the guidelines that the BOS set up did not match up with Master Plan and Antrim Zoning Ordinance.

Chair Kendall stated that he thought the issue was very confusing. He felt that the more he read, the more complex the issue became. He did feel that the contract had some guidelines which were better than none at all, but he was not sure of the ZBA’s role. He had read the Town Counsel letter, but he was not in agreement with its  legal position and  stated that possibly  the appeal should be granted so that the ZBA would have more time to make a decision; but, he also was not sure if the ZBA had the jurisdiction to “go down that road”.

Mr. Haggett referred to page 2 of Town Counsel’s letter and stated that [the contract in question’s decisions] are in the purview of the SEC. He said that the agreement between the TOA and AWE were a road map of requirements and regulations that may possibly be utilized by the SEC. He continued that the ZBA does not have the jurisdiction to review or oversee BOS contracts.

Chair Kendall said that if the appeal were to be granted the Public Hearing could determine whether or not the BOS made the correct decision and that the SEC will make their decision no matter what is going on in the TOA.

Ms. Nelkens stated that the Appeal concerned whether or not the BOS acted appropriately. She said that the BOS had overstepped their bounds and that the only people that they represented were themselves.

Chair Kendall said that he would like to believe that the BOS had acted in the best interest of the town.

Ms. Nelkens stated that the BOS had disregarded and circumvented the Master Plan. She continued that she felt that the contract was the opinion of the BOS, and not the majority of the town.

Mr. Crafts said that the SEC can do what they want to do and it will not matter if the appeal is granted or not.  He said that the wind farm issue has been an ongoing issue for years and that nothing new has come up. He stated that eventually some of the issues will probably be decided in the courts.

Ms. Nelkens reiterated that the Appeal is very specific and that the BOS has overstepped their bounds.

Mr. Haggett reiterated that the ZBA did not have the authority to make a decision concerning BOS contracts.

Ms. Nelkens stated that she believed that the ZBA did have the authority.

Chair Kendall stated that he wanted to believe that the BOS was correct and not in violation of the Zoning Ordinance. He said that although Town Counsel had stated that the ZBA has no authority, he was not so sure about it. He thought that if the Appeal was granted, a Public Hearing would give more time to hear arguments and attempt to understand if the contract was a breach of the ordinance and if the contract superseded the Zoning Ordinance. He said that it was a “tough” decision.
The deliberation continued.

Ms. Nelkens insisted that the ZBA did have authority to hear the Appeal, and that the contract should be put on hold and that Town Counsel was wrong, and possibly the SEC would be swayed if the Appeal was granted.

Chair Kendall stated that Ms. Nelkens had a valid point, that the BOS signed a contract with AWE and that decision did make a change to the Zoning Ordinance; a Public Hearing could, therefore, buy some time.

Mr. Giffin reiterated that the ZBA had no jurisdiction and read a section of Town counsel’s letter. He stated that the contract was meant to be a guide in the operating standards.

Mr. Hagget stated that the contract was strictly operating rules (not a land use agreement), that the agreement did not interfere with the Zoning Ordinance, that the issue is not a land use issue, and therefore, the ZBA has no jurisdiction in the matter.

The deliberation continued.

Chair Kendall stated that a fine line had been drawn and he continued to question  if the Zoning Ordinance had been rewritten when the BOS signed the contract.

Mr. Block had his hand raised to speak.

Chair Kendall stated that the meeting was not a Public Hearing, but that Mr. Block was the applicant and possibly he should be allowed to speak for five minutes.

Four of the Board members objected to opening the Public Meeting to the applicant.

Mr. Block was allowed to speak. He stated that the BOS does not have the power to sign a contract that changes the Zoning Ordinance and that the signing of the contract was an illegal activity. He continued that the BOS stated that the contract included guidelines for AWE, but Mr. Block said that the contract had been written by Eolian because it was identical to another Eolian contract (a contract written for the Town of Waldo, Maine which has a wind farm). He said that the Waldo contract was written long before Eolian (AWE) came to the Town of Antrim. He further stated that there was no clause within the contract that rendered it void, if the SEC denied the AWE application, the contract would continue to exist.

The Public Attendees began to make comments and members of the Board continued to express that the meeting should not become a Public Hearing. Chair Kendall asked Mr. Block to stop. Mr. Block objected and said that it had only been three minutes.

Deliberation ended.

Motion: Move to dismiss the Appeal of Blocks Et Al (Case #2012-03ZBA) on jurisdictional grounds. The Board does not have jurisdiction to hear the appeal.

Motion made by:   Mr. Haggett              Seconded by:  Mr. Scales

Roll Call Vote:

Yes – deny the appeal
No – grants the appeal

Denied - Appeal from an Administrative Decision – Appeal to the ZBA for the March 8, 2012 signing of a contract between the Town of Antrim and Antrim Wind Energy, LLC.

Business Meeting:       

  • Approve Minutes of April 3,  2012 – Mr. Haggett moved to accept the minutes as amended. Mr. Scales seconded. The minutes were unanimously approved.
  • SEC Site Tour – interested in attending – sign up for seat on rented vans? -FYI
At 8:10 PM, Mr. Haggett moved to adjourn. Mr. Kendall 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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