ANTRIM PLANNING BOARD MEETING MINUTES
July 17, 2012
Out of Schedule Meeting
Members & Staff Present:
Diane Chauncey (Secretary) David Dubois (Chair) Mike Genest (Ex-officio) Jesse Lazar (Vice-Chair) Steve MacDonald (Member) Martha Pinello (Member) Charles Levesque (Member) Janet McEwen (Alternate)
Sarah VanderWende (Member)
Public Attendees:
Ron Haggett Shelley Nelkens Ashley Saari Keene Sentinel
Gordon Webber Margie Warner Steve Ullman Marcia Ullman
Andrew Robblee
7:00PM Public Meeting:
To discuss the Site Evaluation Committee’s (SEC) request for legal briefs concerning their authority to subdivide land in the town of Antrim.
Meeting opened at 7:00pm.
Chair Dubois explained that the legal briefs that have been requested by the SEC to give guidance to the SEC to determine whether or not the SEC has legal authority to subdivide land in the Town of Antrim. He said that the applicant has asserted in their application that the SEC does have the authority and cited two statutes: RSA 162-H: 16 and RSA 676:18, (archived in Planning Board Meeting Minutes binder in Town Hall). The deadline for submittal of the briefs is July 24, 2012. Chair Dubois stated that waiting until the regularly scheduled meeting of July 19 would not give enough time for the brief to be written.
Chair Dubois opened the discussion to the Board members.
Mr. MacDonald asked if there has been any follow up information from the SEC concerning the content of the briefs.
Chair Dubois stated that the request for the briefs had been submitted after the last technical session. He said that at first, he had been unclear as to why the intervenors were being asked as the SEC should know their positions. He decided to write to Atty Iacopino for clarification. [The email thread – archived in Planning Board Meeting Minutes binder in Town Hall]
Chair Dubois read the first line of RSA 676:18 and then from RSA 162 H: 16, and asked the Board for discussion on how to interpret the role of the SEC.
Mr. Genest noted that the Chair did have the option to open the meeting to the Public.
Chair Dubois stated that the meeting would not be opened – at least until the Board members had an opportunity to express their opinions.
Ms. Nelkens asked if ZBA members could speak.
Chair Dubois said no.
Chair Dubois said that Atty Iacopino stated that the SEC has never actually exercised the power to subdivide land in a wind turbine project town.
Mr. Levesque stated that no applicant has asked the SEC to subdivide land I the municipality.
Vice-Chair Lazar stated that there is no statute granting the SEC authority and further stated that the issue is a conclusive question of siting.
Mr. MacDonald asked why the SEC does not ask their attorney for legal advice.
Vice-Chair Lazar stated that all the interveners had been given the opportunity to submit a brief.
Mr. MacDonald stated that most of the intervenors are not legal authorities.
Mr. Levesque explained that the SEC acts in the same manner as a court of law. He explained that the applicant would be the defendant and the interveners were the plaintiffs. The judge will make a decision on the information given by the two sides. Ultimately, he said that the SEC has the authority, but that the SEC decision could be challenged in court. He said that the procedure is the normal way in which the SEC operates. The SEC can use the information given to them by the interveners – or not take the information.
Ms. McEwen asked for a clarification- will the proposed site meet the subdivision regulations [Zoning Ordinance (ZO) and the Site Plan Review & Subdivision Regulations]
Chair Dubois stated that it will not qualify as currently submitted.
Ms. McEwen asked for a clarification of what the applicant was asking for.
Chair Dubois stated that the question of the moment concerns whether or not to commit to the legal brief.
Mr. Levesque stated that he felt that the Planning Board should “weigh in”.
Mr. Genest asked a hypothetical question – could the decision be appealed and would it go to Supreme Court.
Mr. Levesque stated that it was his understanding that could occur.
Mr. Genest stated that RSA 162: H could be interpreted multiple ways.
Vice-Chair Lazar stated that the SEC needed to hear from the Planning Board.
Mr. Genest said that there appeared to be gray areas.
Ms. Pinello stated that, in part, that is why the SEC has asked for opinions.
Mr. Genest asked: “What if the proposed AWE subdivision fit in the Antrim Zoning Ordinance - would this question still be asked?”
Mr. Levesque stated that it would not change his mind.
Chair Dubois added another aspect of the SEC request. As an example, he asked – what if an applicant submitted a proposal to the Town of Antrim (TOA), and there was something in the regulations that the applicant did not like – what if there was a State Agency through which there was a loop hole. The State Agency could grant the application and the Town of Antrim would have nothing to say, a precedent would be set. Other applicants could possibly find their way around the local land use regulations.
Vice-Chair Lazar stated that he was unclear that the SEC has the authority or the jurisdiction to create the subdivision in the TOA.
Mr. MacDonald asked – if the SEC were to decide on the subdivision and utilize the criteria of the Antrim ZO – what would be the harm.
Vice-Chair Lazar was concerned that the SEC would take the power [authority].
Mr. MacDonald repeated –what would be the harm?
Ms. Pinello said that she had struggled with the question that was before the Planning Board, and that she had attempted to sort out the differences. She said that a local board follows a process driven by state statue and that the Board had been given local authority for land use decisions [via the vote of the residents]. She stated that she had worked with numerous quasijudicial boards and that for the most part, the boards had been formed to expedite permitting or to settle disputes. Quasijudicial boards may have parallel systems without standards. She questioned what that said about the Planning Board and the Zoning Ordinance that had been in place since 1979.
Mr. MacDonald asked if she were saying that such boards had no standards.
Ms. Pinello stated that there would be no standards for an SEC subdivision. She said that the TOA is in this position because the other four NH communities involved in wind turbine projects did not have zoning ordinances and therefore did not have a process to weigh in. She stated that she felt that the power should not be removed from the local land use boards because the SEC had no process to “weigh in”, and that could tip the balance.
Ms. Pinello stated that she had also thought about the ZBA role in this process and that they did not have a role because they are not intervenors.
Ms. Pinello continued to discuss quausiducial boards without standards.
Mr. MacDonald said that he was not clear that they did not have power.
Mr. Genest stated that even if it was clear, she [Amy Ignatius] would still be asking for information because the information request was part of the process.
Ms., Pinello said the SEC has a right to listen to the arguments.
Chair Dubois stated that it was necessary to go through the process.
Mr. Genest concurred and asked if the subcommittee members had aligned themselves with any other intervenors.
Mr. Levesque stated that all information is publically available.
Ms. Vanderwende stated several points:
Land use is the purview of the Planning Board
The SEC has never taken on a subdivision project.
The SEC authority to subdivide in a municipality will set a precedent in NH – such a precedent would be dangerous as it would interfere and override the local land use
regulations.
The SEC should not have the authority
The local Planning Board was given the authority to oversee land use issues by both statute and by the voters of the town
It is vital for the Planning Board to submit a legal brief on the above points
Mr. Genest stated that RSA 162: H could be interpreted in different ways. He said that is clear from the present meeting that there are two points of view.
Chair Dubois asked that land use should be kept in context. The conclusiveness of reports such as air quality or water quality reports will be deferred to other State Agencies [such as DES for a water quality study].
Ms. Vanderwende asked if there was a clause that the SEC supersedes or overrules local land use boards. Other Board members stated that there was not a clause.
Chair Dubois said that an attorney would need to use case law in his/her arguments. Chair Dubois asked if the situation warranted the Planning Board to submit a brief which would defend the Antrim Zoning Ordinance (ZO) and Subdivision and Site Plan Review Regulations.
Mr. Levesque stated that he thought it should be done. The Planning Board had challenged the SEC last year by developing the Large Scale Wind Facility Ordinance and he continued that this brief would be an extension of that – at a higher level and it would reinforce why the Planning Board should weigh in.
Vice-Chair Lazar stated that the Planning Board has a position and that it should be made known to the SEC.
Mr. MacDonald asked if an attorney would need to write the brief.
Mr. Levesque stated that the brief needed to state the Planning Board position.
Mr. MacDonald asked if the Attorney would concur with the Planning Board.
Mr. Levesque stated that the attorney would write a brief that informs the SEC of the Planning Board’s position.
Vice-Chair Lazar stated that the Board could not write a legal brief.
Mr. Levesque stated that legal research would need to be done.
Chair Dubois read the last line of an email from Attorney Iacopino (Atty for the SEC): “I would suggest that you may wish to address these questions to your counsel as these are matters in which you are best to be represented by a lawyer.”
Chair Dubois continued that there would probably be so little case law that applies to this situation that all the briefs will be similar. The two statutes are the best that Antrim Wind Energy, LLC had to offer in their application.
Vice-Chair Lazar stated that he felt that the statutes clearly do not grant authority. The statutes presented failed to make a strong case.
Chair Dubois stated that it might be difficult to find anything else.
Ms. Pinello referred back to an earlier Mr. MacDonald statement concerning process. She said that she would like to hear each member’s “voice” concerning the brief.
Ms. VanderWende started by stating that she thought it would be important to weigh in to let the SEC know that the Planning Board is not willing to give up its voice.
Chair Dubois stated the Planning Board was granted intervenor status because the Planning Board has an interest in the project.
Mr. Genest asked if the lot [the potential lot in the proposed AWE project] were to conform to the Antrim Zoning Ordinance – would it make a difference to the Planning Board.
Mr. Levesque stated that the issue was not about that.
Mr. Genest asked if it was all about who had the power. And then asked, was the Board just looking for a commitment to send the brief, and then if the brief was ruled against, would the case be decided in Supreme Court later.
Chair Dubois stated that was not the question at this meeting. The question is – does the Planning Board support the submittal of a legal brief on the SEC’s authority to create a subdivided lot.
Mr. Genest said that he was concerned that if the brief was ruled against, it would continue in the courts.
Mr. Levesque stated that the Planning Board should have been the body to take on the project of AWE. The issue tonight continues to be part of the same discussion.
Ms. Vanderwende stated that a specific question is being asked and it is important to stand by what the Town of Antrim has already decided [the town voted regulations within the Antrim Zoning Ordinance and Subdivision & Site Plan Review Regulations]
Mr. Levesque asked if the Board were ready for a motion.
Mr. Genest stated that as a number of residents had attended the meeting, the Chair should open the meeting to the public.
Chair Dubois agreed, and opened the meeting.
Mr. Haggett [member of the ZBA but speaking as a private citizen] stated that the issue was not about a subdivision but rather about the connector to the substation for the project. The authority was taken from the Town of Antrim when the project became a 30MW project. The SEC should have the authority because without the substation, there would not be a project.
Mr. Levesque asked if there was some other part of RSA 162: H that Mr. Hagget was looking at.
Mr. Haggett repeated that he did not see the location of the substation as a subdivision but rather as a part of the proposed project. He stated that the SEC should be able to take the project to completion.
Chair Dubois stated that PSNH wanted to own the land on which the substation was to be constructed.
Mr. Haggett said that should be changed because the substation was just a transporter.
Chair Dubois said that the matter was out of the Planning Board’s control.
There was a short discussion concerning substandard lots, variances, conditional variances.
Ms. Nelkens thought that it was important that the Planning Board submit a brief to the SEC but she thought members of the Board should submit a statement that could be written simply and that a lawyer would not be necessary.
The majority of the Board did not agree with her.
Chair Dubois said that the SEC was not looking for opinions, they requested legal briefs.
Mr. MacDonald concurred with Chair Dubois by reading a portion of Atty Iacopino’s email describing a legal brief.
Chair Dubois did admit that at first, he had thought that the Board would be capable of writing their own brief but after conversing with other member of the Board, he reversed his opinion.
Chair Dubois asked the Boar d if they were ready for a motion.
Mr. Genest held the two statutes up in the air and stated that it is “all in how you hold the paper”. And he stated that the SEC has the power.
Chair Dubois stated that there were two questions before the Board: 1. should the Planning Board submit a legal brief; 2. which attorney should the Board hire.
Mr. Robblee asked if the cost of the brief would be worth it. He stated that the Board would be fighting for the right to create a lot.
Chair Dubois disagreed and said the Planning Board would be defending the Zoning Ordinance from the creation of a substandard lot.
Mr. Robblee asked if in the end it would be worth the attorney fee, and stated that this was not the first substation in Antrim.
Chair Dubois said “It is the precedent”.
Vice Chair Lazar said that it should be a conforming lot. He stated that it was unfortunate that the Planning Board had to bear the burden but that the issue would be important for the entire state.
Chair Dubois stated that if the Planning board were to stay silent, it could send the wrong message to the SEC.
Mr. Genest stated that the SEC does have the authority.
Chair Dubois stated that the SEC has asked for opinions and so the Board cannot be silent.
Mr. Robblee said that the Town of Antrim is the first with a Zoning Ordinance test case of determining how much power the SEC has. He continued that the Town of Antrim should not have to bear the cost – “now if the State would pay for the attorney fees…”
Chair Dubois stated that he, too, had expressed that opinion (concerning cost), but the Town will have to bear the cost.
Mr. Robblee said that he was not going to argue the merits of local zoning, but he repeated – is the cost going to be worth it and (as a taxpayer) did not feel that it should be on the Town of Antrim dime.
Vice-Chair Lazar said that it may not take more than one brief and who knew what would happen after that, and he added what if AWE were the only part to submit a brief.
Chair Dubois said that the issue was very unpredictable.
Mr. Genest stated that he was not speaking for the BOS but that once the case went to the SEC, the Town of Antrim gave up it is rights and that is what the SEC is for.
Chair Dubois said that at that time there was no talk of a subdivision.
Motion: Move that the Planning Board hire an attorney to develop a brief as requested by the SEC, relative to the subdivision issue, with the argument that the Antrim Planning Board has the sole authority over a subdivision in the Town of Antrim.
Motion made by: Mr. Levesque; seconded by, Vice Chair Lazar
Roll Call Vote: Ms. VanderWende, yes; Mr. Levesque, yes; Chair Dubois, yes; Vice-Chair Lazar, yes; Ms. Pinello, yes; Mr. MacDonald, no; Mr. Genest, no.
Motion passed 5 – 2.
Chair Dubois stated that the next issue was which attorney. His first thought had been Town Counsel, Bart Mayer.
Ms. Chauncey had previously asked about Atty Mayer and knew that he would be on vacation until September.
Motion: Move that the Planning Board give the authority to the Chair to acquire an attorney who is skilled in the development of writing legal briefs of this kind and to hire that attorney for an amount not to exceed $2000.
Motion made by: Mr. Levesque; seconded by Ms. Vanderwende
There was a short discussion concerning which attorney to hire.
Chair Dubois stated that the attorney should not be Town Counsel because of a statement that Atty Mayer had made in an email to the Town Administrator on 3/29/2011: and read from an email dated 3/29/2011 from Atty Mayer to Mr. Stearns (Town Administrator): “So, the selectmen should notify the committee that the selectmen will be speaking on behalf of the municipality and the planning board has no such authority, and may not be an intervenor.” Chair Dubois said that the Planning Board was able to acquire intervenor status and therefore the advice had not been good advice.
By voice vote, the motion passed, 5 – 2 with Mr. MacDonald and Mr. Genest dissenting.
Following the vote, Chair Dubois stated that he would notify the Board by email with information concerning the hired attorney.
Motion to adjourn at 9:10PM: Moved by Mr. MacDonald; seconded by Mr. Levesque. Unanimous to adjourn
Respectfully submitted, Diane Chauncey, Secretary for the Planning Board
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