APPEAL OF MARY ALLEN & a. (New Hampshire Site Evaluation Committee)
Argued: January 25, 2018
Donahue, Tucker, & Ciandella, PLLC, of Exeter (Eric A.
Maher on the brief and orally), for petitioners Mary Allen
Law Offices of Kelly E. Dowd, PLLC, of Keene (Kelly E. Dowd
on the brief and orally), for petitioner Frederick Ward.
Middleton, Professional Association, of Manchester (Wilbur A.
Glahn, III, Barry Needleman, and Rebecca S. Walkley on the
brief, and Mr. Glahn orally), for the respondent, Antrim Wind
petitioners, Mary Allen, Fred Ward, and other interested
parties, appeal the decision of the New Hampshire Site
Evaluation Committee (Committee) authorizing the respondent,
Antrim Wind Energy, LLC (Antrim Wind), to construct and
operate nine wind turbines in the town of Antrim. We affirm.
record supports the following facts. Antrim Wind is a
Delaware limited liability company formed as a special
purpose entity to develop, build, own, and operate a wind
turbine project. Antrim Wind originally filed an application
(Antrim I) with the Committee in January 2012, seeking
authorization to construct ten wind turbines along Tuttle
Ridge and Willard Mountain in Antrim. The wind turbines were
to have a height of approximately 492 feet. "Six of the
turbines would be equipped with red flashing aviation
obstruction lights." The project was also to consist of
four miles of new gravel surfaced roads, a joint electrical
system, an interconnection substation, and a maintenance
building. Antrim Wind further proposed to construct a
meteorological tower between turbines three and four to
obtain wind data, dedicate 800 acres of land to conservation
easements, and install a radar activated lighting system.
Competing photo simulations were prepared by Antrim Wind and
parties in opposition to the Antrim I application.
holding adjudicative hearings, a subcommittee of the
Committee denied Antrim Wind's application. In its April
2013 decision, the subcommittee found that the Antrim I
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." It further found that the
proffered mitigation plan was "insufficient to mitigate
the visual effects" of the project on the regional
setting. In response, Antrim Wind moved to reopen the record
to present a revised plan with new documents and evidence.
The subcommittee denied the motion, finding that Antrim Wind
was seeking to "introduce evidence which would
materially change the original [a]pplication and would
require extensive de novo review as opposed to a
full consideration of the issues presented at the
hearing." (Quotation and underline omitted.) Antrim Wind
did not appeal the subcommittee's denial.
and 2014, the legislature amended the statute governing the
Committee's review of site and facility applications.
See RSA 162-H:10, VII (2014) (amended 2017). RSA
162-H:10, VII required the Committee to adopt substantive
rules including "specific criteria to be applied in
determining if the requirements of RSA 162-H:16, IV [(2014)]
have been met by the applicant for a certificate of site and
facility." See Laws 2013, 134:2; Laws 2014,
217:16. The Committee proceeded to promulgate rules in
accordance with the foregoing. See generally N.H. Admin.
R., Site 301.06-301.18. Among other changes, the rules
set substantive limits for operational noise emitted from a
wind energy facility, see N.H. Admin. R., Site
301.14(f)(2)(a), and for shadow flicker, see N.H. Admin.
R., Site 301.14(f)(2)(b), (f)(3), and require the
subcommittee to consider seven distinct categories of impact
with regard to aesthetics, see N.H. Admin. R., Site
on October 2, 2015, Antrim Wind filed a second application
(Antrim II) with the Committee, seeking authorization to
construct nine wind turbines along the "Tuttle Hill
ridgeline spanning southwestward to the northeastern slope of
Willard Mountain." In this proposal, the height from
foundation to blade-tip for eight of the turbines is 488.8
feet and the ninth turbine is 446.2 feet, which is a downward
departure from the ten 492-feet turbines proposed in Antrim
I. Antrim Wind also proposed to construct a meteorological
tower between turbine two and three, 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 is similar to the
plan in Antrim I, but provides an additional one hundred
acres of conservation land, a grant of $100, 000 to the New
England Forestry Foundation, additional public benefits to
the town of Antrim, and a shadow control protocol. Also new
to the Antrim II application is a visual assessment report, a
sound level report, and a shadow flicker analysis, in
conformance with New Hampshire Administrative Rules, Site
301.08, .16, .18.
October 20, 2015, the Committee appointed a seven-member
subcommittee to preside over the application, two of whom
were members of the public pursuant to RSA 162-H:4-a (Supp.
2017). One of the public members subsequently resigned and
the Committee appointed an alternate public member (the
subcommittee conducted two site visits and held adjudicative
hearings over thirteen days between September and November
2016. After three days of deliberations, it voted 5-1 to
grant Antrim Wind's application subject to certain
conditions. The subcommittee found that there had been a
"substantial change" between the Antrim I and
Antrim II applications and that the project as proposed in
Antrim II would not have an unreasonable adverse effect on
the health, safety, or aesthetics of the region. The
petitioners filed motions for rehearing, which the
subcommittee denied. This appeal followed.
appeal, the petitioners argue that the subcommittee's
decision was unreasonable, unlawful, and unjust for the
following reasons: (1) the subcommittee was unlawfully
constituted; (2) the denial of Antrim I barred Antrim
Wind's Antrim II application under the doctrine of res
judicata as well as the subsequent application doctrine as
set forth in Fisher v. City of Dover, 120 N.H. 187
(1980) (hereafter, the Fisher doctrine); and (3)
there is insufficient 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.
by the subcommittee are reviewed in accordance with RSA
chapter 541. See RSA 162-H:11 (2014). Under RSA
541:13, we will not set aside the subcommittee's order
except for errors of law, unless we are satisfied, by a clear
preponderance of the evidence, that it is unjust or
unreasonable. RSA 541:13 (2014). The subcommittee's
findings of fact are presumed primafacie
lawful and reasonable. Id. In reviewing those
findings, our task is not to determine whether we would have
found differently or to reweigh the evidence, but, rather, to
determine whether the findings are supported by ...