June 20, 2018

At-a-Glance Contributor

Laura D. Devine
Civil Litigation Attorney
Boyle Shaughnessy Law, Manchester, NH

 

May 2018

Administrative Law

Appeal from the Site Evaluation Committee

Appeal of Mary Allen & a., No. 2017-0313 May 11, 2018

Affirmed.

  • Whether the New Hampshire Site Evaluation Committee findings relating to the Antrim II project were supported by competent evidence before the subcommittee; void of errors of law; and not unreason-able or unjust.

The petitioners appealed a decision from the New Hampshire Site Evaluation Committee (“Committee”) which granted an application filed by Antrim Wind Energy, LLC (“Antrim Wind”) to develop, build, own, and operate a wind project along Tuttle Ridge and Willard Mountain in Antrim.

Antrim Wind submitted an application and a subcommittee of Committee denied the application after adjudicative hearings in April 2013. The subcommittee found in its decision on the first application, (“Antrim I”), that the project was “simply out of scale in [the] context of its setting and adversely impact[ed] the aesthetics of the region in an unreasonable way.” Further, it found that the proposed mitigation plan was “insufficient to mitigate the visual effects” of the project. Antrim Wind moved to re-open the record to present a revised plan and the subcommittee denied this motion. No appeal was filed.

In 2013 and 2014, the legislature amended the statute governing the Committee’s re-view of the site and facility applications in RSA 162-H:10, VII and required the Committee to adopt substantive rules including specific criteria to be applied in determining whether the requirements of RSA 162-H:16-IV have been met by an applicate for a certificate of site and facility. The Committee then promulgated rules which included substantive specification technical limits and required the subcommittee to consider seven distinct categories of impact with regard to aesthetics.

On October 2, 2015, Antrim Wind filed a second application, (“Antrim II”) with the Committee to construct nine wind turbines in the same location. The proposal indicated the height of the turbines, a meteorological tower between two turbines, a main access road, and two spur roads. A joint collector system, interconnection substation, and operations and maintenance building would also be constructed. The mitigation plan, while similar to Antrim I, added an additional one hundred acres of conservation land, a grant of $100,000 to the New England Forestry Foundation, public benefits to the Town of Antrim, and a shadow protocol. The Antrim II application also included substantive analysis of the technical limits. On October 20, 2015 a subcommittee was appointed by the Committee to preside over the application. The subcommittee held adjudicative hearings over thirteen days and after three days of deliberation voted 5-1 to grant the application. Specifically, it found there had been substantial change between the Antrim I and Antrim II applications and that, as proposed, the Antrim II application would not have an unreasonable adverse effect on the health, safety, or aesthetics of the region. The petitioners filed motions for re-hearing, which were denied, and then filed this appeal.

On appeal, the court would not set aside the findings of the subcommittee except for errors of law or by a clear preponderance of the evidence, that it is unjust or unreasonable. The court was limited to determining whether the subcommittee’s findings relating to the Antrim II project were supported by competent evidence before the subcommittee.

After review, the court determined that the findings of the subcommittee were sup-ported by competent evidence before the sub-committee and affirmed the subcommittees decision granting the application because (1) the subcommittee was lawfully constituted; (2) the denial of Antrim I did not bar Antrim II’s application because the Antrim II application is “materially different;” than Antrim I and (3) there was sufficient evidence in the record to support the subcommittee’s finding that the project proposed in Antrim II will not have an unreasonable adverse impact on aesthetics, public health, and safety, and the subcommittee found Antrim Wind’s experts to be more credible.

Eric A. Maher, Donahue, Tucker, & Ciandella PLLC, Exeter, for the petitioners Mary Allen & a, Kelly E. Dowd, the Law Offices of Kelly E. Dowd, PLLC, Keane, for petitioner Frederick Ward. Wilbur Glahn, III, Barry Needleman, and Rebecca S. Walker (Mr. Glahn orally), McLane Middleton Professional Association, Manchester, for the respondent Atrium Wind Energy, LLC.