ANTRIM PLANNING BOARD MEETING MINUTES
November 15, 2012
Antrim Wind Energy Modification to Minor Site Plan Review
Members & Staff Present: Diane Chauncey (Secretary) David Dubois (Chair)
Mike Genest (Ex-officio) Jesse Lazar (Vice-Chair) Steve MacDonald (Member) Charles Levesque (Member) Janet McEwen (Alternate) Martha Pinello (Member)
Sarah VanderWende (Member)
Public Attendees:
Atty Rachel Goldwasser Richard Block Annie Law Bob Clement
Shelly Nelkens Jack Kenworthy
7:00PM Public Hearing
AWE Modification to an approved Minor Site Plan Review (Case #2010-03PB)
Chair Dubois opened the meeting at 7:13PM. The Board Members and Staff introduced themselves.
Ms. VanderWende stated that she had comments for the Board. She read from a prepared 1-page statement (attached). The essence of the statement: she agreed that she should recuse but also the ex-officio, Mr. Genest, should also disqualify himself because of “overt prejudice”.
After her statement, she asked for an advisory vote.
Chair Dubois asked Mr. Genest if he wished to recuse himself.
Mr. Genest said, “No, I do not.”
An advisory vote (non-binding) was requested. The vote: should Mr. Genest recuse himself.
All but Mr. MacDonald voted that Mr. Genest recuse himself. (Roll Call Vote: Ms. VanderWende, yes; Mr. Lazar, yes; Chair Dubois, yes; Mr. Levesque, yes; Ms. Pinello, yes; Mr. MacDonald, yes;
Chair Dubois asked Mr. Genest if he would reconsider.
Mr. Genest stated, “Not at this time.”
Chair Dubois asked that the minutes show that Mr. Genest, against the advice of the Board chose to remain on the Board.
Ms. VanderWende recused herself and left the Board’s table to sit as a Public Attendee.
The meeting continued.
Ms. Chauncey read the Public Notice that had been in The Villager on November 2, 2012. All abutters had been notified by certified mail and all had return receipts except Mr. Ott’s.
Ms. Ogilvie had reviewed the application and stated that it was sufficiently complete.
Chair Dubois stated that there was no need to go through the checklist, as the checklist had been reviewed and approved on March 4, 2010. The current application was for a modification for an extension of time for the Met Tower’s current siting. Chair Dubois did ask the Board to review the following exhibits:
A. Request for Modification of Planning Board approval
B. Renewed Affidavit of Landowner
C. Abutter list as of October 17, 2012
D. Notice of Decision in PB File # 2010-03PB
E. Application of Antrim AWE for Minor Site Plan approval (2/2010)
Chair Dubois asked the Board if there were any other questions.
Motion:
Mr. Levesque moved to accept the application. Mr. MacDonald seconded.
Roll Call Vote: Mr. Lazar, yes; Chair Dubois, yes; Mr. Levesque, yes; Ms. Pinello, yes; Mr. MacDonald, yes; Mr. Genest, abstain.
The application was accepted.
Chair Dubois opened the Public Hearing.
Public Hearing:
Mr. Kenworthy stated that he and Atty Goldwasser represented AWE. He gave a historical overview of the last 3 years of the Met Tower on Tuttle Hill. He stated that the “3-year” time frame had come out of the Small Wind Energy System ordinance. He stated that the AWE project is under the jurisdiction of the Site Evaluation Committee (SEC) and that it had been assumed that the project would have a decision by this time, but due to delays in the SEC process, there was no decision and AWE was requesting an extended allowance of time for the Met Tower to remain in place.
Atty Goldwasser stated that the “3-year” time frame for the Met Tower was on page 14 of the current application (“The tower is a temporary structure, which will occupy the site for a period not to exceed three years.”) She described the construction of the tower, how it is only accessible by an ATV vehicle, and that AWE was trying to avoid taking the structure down and then putting it back up.
Mr. Levesque asked the status of the building permit.
Ms. Goldwasser explained the Town of Antrim building permit process. She said that the Building Permit had been pulled in November 2009, but AWE needed to apply to the Planning Board for a Minor Site Plan Review, which AWE had done.
Chair Dubois asked if it the Building Permit had been withdrawn.
Both Ms. Goldwasser and Mr. Kenworthy stated that it had not been withdrawn.
Chair Dubois said that the Building Permit was not reissued. He said that the Building Inspector had changed his way of thinking concerning the Met Tower. He considered it a piece of machinery and did not need a permit.
Atty Goldwasser said that AWE did not want to leave a gray area open – the reason the application was before the Planning Board.
Chair Dubois questioned the appeal process at the SEC.
Chair Dubois asked if it would be safe to say that the absolute final unappealable period would be a year.
Atty Goldwasser said that the appeal process was thirty days to file and that it would then be placed on the Supreme Court docket. She said that it would most likely be several months.
Chair Dubois asked the purpose of the Met Tower.
Mr. Kenworthy listed the original uses of a Met Tower:
Informs expected long term energy yields
Data – “can never have enough data”
With the SEC certificate approval, the project would need another Met Tower
The longer on site, the greater certainty of the collected data
Chair Dubois asked if the Met Tower was still being used for all that information.
Atty Goldwasser (read from the application) the original purpose of the Met Tower:
“The proposed project involves the installation of a meteorological tower (met tower) for the exclusive purpose of collecting scientific data on the natural wind patterns at the site. “
Chair Dubois asked if there was a parallel application to the SEC.
Mr. Kenworthy said that the current tower was a part of the application that the SEC was reviewing. The SEC would be looking at all components of the project.
Chair Dubois asked if there would be a time between when the current tower would have to come down and when the SEC made their decision; and was that the reason that AWE was asking for the extension of time.
Mr. Kenworthy stated that AWE was looking to cover the gap.
Chair Dubois asked if there were any abutters in support of the application who would like to speak. There were none. He asked if there were any abutters in opposition of the application who would like to speak. There were none.
Chair Dubois asked if anyone else for or against would like to speak.
Ms. Nelkens stated that the Met Tower was not to be up more than 3 years, and she wanted to know what had changed. She wanted to know if there had been an agreement, why would AWE ask for an extension now. She said that one should stick to their promises and agreements.
Mr. Cleland concurred with Ms. Nelkens. He had attended all the meetings and it had been stated that the tower would be down in 3 years.
Ms. Law stated that the Met Tower should come down.
Mr. Block stated that the meeting [tonight’s] was a procedural dilemma and quagmire because there seemed to be a question of whether the extension should be granted by the Planning Board or the Zoning Board of Adjustment (ZBA). He asked if the Planning Board should extend a ZBA variance; or possibly there should be a combination Planning Board, ZBA meeting. He stated that it was “fuzzy” and should be addressed and explored.
Chair Dubois stated that the ZBA had used the standards of the Small Wind Energy System which had referred to the 3-year period and that was the standard that was used by AWE. He read from condition#1 of the 2010 approval and stated that the Planning Board also gave a 3 year time period, since that is what had been applied for in the letter of explanation as part of the application.
Ms. VanderWende stated that there should be a deadline for the Met Tower to be de-constructed – not to leave it indefinite. She said that she was not sure that AWE needed more data. She said that the tower did not belong in the Rural Conservation District and asked, “Why did they need a second tower?”
Mr. Block asked if the extension was granted, would the variance extension follow. He felt that both needed to be addressed.
Chair Dubois said that the Court decision took care of that.
Mr. Block insisted that the court case did not deal with the variance.
Mr. Lazar referred to the definition of a public utility in the court case.
Mr. Block asked if there was an appeal procedure.
Atty Goldwasser stated that the Planning Board approved the Met Tower and the ZBA was not a part of the process. She said that the Superior Court decision was a part of the record.
Mr. Kenworthy said that if the extension was not granted, the tower would be lowered and then re-erected and that there would not be a gain for anyone. The broader issue of the wind towers will go the way it goes.
Chair Dubois stated that the Public Hearing was closed.
Deliberation:
Mr. Levesque stated that the modification request should not be here [being heard by the Antrim Planning Board but rather before the SEC]. He stated that the Town Counsel email regarding the AWE application to the Planning Board was vague. He stated that Atty Iacopino (counsel for the SEC) had stated that the application should be before the SEC.
Mr. MacDonald asked Mr. Levesque for a clarification.
Mr. Levesque stated that as soon as the SEC took jurisdiction, the application should have been submitted to them.
Mr. MacDonald said that while the SEC process continues, the existence of the Met Tower is just marking time?
Mr. Levesque stated that the current process is unprecedented, but that when the SEC took jurisdiction, requests such as the current application should have been submitted to them. He stated that he was saying it primarily to get it into the records.
Mr. Lazar stated his concern – the use could be grandfathered and the court case could be decided on the basis of public utility.
Chair Dubois stated that the SEC does have jurisdiction of the AWE wind facility application but the Town of Antrim has the jurisdiction of the Met Tower.
Mr. Levesque said the Antrim Board would not.
Chair Dubois said that the SEC will not have the authority until the decision was made.
Mr. Levesque stated that the SEC has jurisdiction now.
The discussion continued. The question of who has jurisdiction, what would happen if the Tower remains in place, was the request tied to the SEC process, etc.
Mr. Mac Donald said “if the SEC denies the wind facility application, the Tower must come down – so what is the risk?”
Mr. Levesque stated that it is an untested case.
Chair Dubois asked if the Board were to deny the request, would the SEC have the authority to say that the Tower could remain.
Ms. Pinello said that AWE had advocated for SEC jurisdiction. The application is in the process of being reviewed and there may have been unintended consequences. She said that she did not think that the Board had jurisdiction and that AWE is asking for dual jurisdiction.
Chair Dubois stated that there is a gap in the process.
The discussion continued.
Ms. Ogilvie was asked for her thoughts
Ms. Ogilvie admitted that she had not been as involved in the process [as involved as the Board]. She said that questions such as “was the Met Tower part of a new facility or for the existing facility – it was an area for interpretation.
Atty Goldwasser stated that the jurisdiction was under the Antrim Planning Board, not under the SEC. She said that the AWE application for the 30MW wind facility was before the SEC and that the SEC does not authorize Met Towers.
Mr. Kenworthy stated that the Met Tower was part of the original application and that the Planning Board would be enforcing a matter that had already been granted
Ms. Ogilvie stated that the issue was unusual and unprecedented and when the original decision was granted – who knew what would occur. She said that it was not unusual for an application to be back asking for an extension,
The Board discussed conditions that may be necessary.
Both Vice-Chair Lazar and Chair Dubois felt that the structure should be inspected by a qualified person. Mr. Genest stated that a time frame should be included.
Motion: Move to approve (disapprove) the application of Antrim Wind Energy, LLC (AWE) for a Modification to the Minor Site Plan Approval of March 18, 2010 for the Meteorological Tower to remain in place until the NH Site Evaluation Committee (SEC) completes its review of the AWE project and the SEC decision is final and uanappealable. The tower property is located at 354 Keene Street, Antrim, NH 03440 Tax Map 212, Lot 30 in the Rural Conservation District.
Motion made by: Mr. Mac Donald; seconded by Mr. Genest
The following conditions apply to this approval:
Planning Board requirements, commitments and agreements made by the applicant and/or his agent as recorded in the meeting minutes dated November 15, 2012 and subsequent meetings as they pertain to this application are a conditional part of this approval.
The applicant is to obtain and submit to the Planning Board, a certified structural report based on an inspection of the Met Tower and its supporting structure at the applicant’s expense by a qualified person by January 1, 2013; the report must determine the structural integrity of the Met Tower.
Should the tower inspection fail or is not submitted to the Board by January 1, 2013, the Met Tower must be taken down immediately
ROLL CALL VOTE:
Name |
Approve |
Disapprove |
DUBOIS |
x |
|
GENEST |
ABSTAIN |
|
LAZAR |
X |
|
LEVESQUE |
ABSTAIN |
|
MACDONALD |
X |
|
PINELLO |
ABSTAIN |
|
VANDERWENDE |
RECUSED |
|
MCEWEN (IF APPOINTED) |
|
|
The application was approved with conditions. The Notice of Decision will be completed within five business days.
7:00PM Public Meeting
Review of Gap Mt. Development property – Map 245 Lot 17
Mr. Belletete will attend the December 6 meeting.
SEC Update
Ms. Pinello explained:
- The hearings are only part way through applicant’s witnesses.
- Thirty more hours are projected.
- The applicant had agreed to the extension.
- Briefs may be filed by intervenors and the applicant after the current transcript is completed.
- The Antrim Planning Board has a complex role – subdivision matter and its impact
- No other planning agency (regional planning boards or Office of Energy and Planning)
has weighed in on the matter
- On November 27, the hearings will begin again.
Ms. Pinello requested that the Board members read the transcripts and review and understand RSA 162:H.
Mr. Levesque said that the Board needs to have a statement written and reviewed by the Board.
Knapton Circle/Glover Update – Project Review – Underwood Engineers FYI
The Board had received and read the project review letter from Mr. Pitsas stating that the road has numerous issues that need to be addressed.
Review and edit current Subdivision & Site Plan Review Regulations
The Board discussed some of the changes that had been made and the best way to present the revised Subdivision and Site Plan Review Regulations at a Public Hearing. There were questions concerning the new regulations and how the old version should be archived.
Ms. Ogilvie stated the old version with all the changes for reference should be archived and available for historical purposes.
Approve Minutes:
October 18 - Vice chair Lazar moved to accept the minutes; seconded by Ms. Vanderwende.
November 1 – Ms. VanderWende moved to accept the minutes; seconded by Vice Chair Lazar. All were in favor to approve the minutes as amended.
Correspondence:
- Southwest Regional Planning Commission Newsletter - FYI
At 9:40PM, Mr. Lazar moved to adjourn; Mr. Levesque seconded. All approved.
Respectfully submitted, Diane Chauncey, Secretary of the Planning Board
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