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Appeal of Allen & A.

Supreme Court of New Hampshire

May 11, 2018

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 & a.

          The Law Offices of Kelly E. Dowd, PLLC, of Keene (Kelly E. Dowd on the brief and orally), for petitioner Frederick Ward.

          McLane 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 Energy, LLC.

          HANTZ MARCONI, J.

         The 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.

         The 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.

         After 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.

         In 2013 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 301.14(a)(1)-(7).

         Subsequently, 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.

         On 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 alternate).

         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.

         On 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.

         Decisions 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 ...

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