Appeal of Mary Allen & a. ( 2018 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Site Evaluation Committee
No. 2017-0313
APPEAL OF MARY ALLEN & a.
(New Hampshire Site Evaluation Committee)
Argued: January 25, 2018
Opinion Issued: May 11, 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
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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 prima
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facie 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 competent
evidence in the record. See Appeal of Malo, 169 N.H. 661, 668 (2017). We
review the subcommittee’s rulings on issues of law de novo. See id. at 666.
We first address the petitioners’ argument that the subcommittee was
not lawfully constituted and, thus, the subcommittee’s decision approving the
Antrim II application was invalid. Specifically, the petitioners argue that the
subcommittee did not have two public members participate in all stages of the
adjudication because, following one public member’s resignation, the alternate
appointed “was not present for any hearing, including the adjudicative and
deliberative sessions.” Antrim Wind asserts that the petitioners did not raise
this issue until after the order was issued and, therefore, it should be deemed
waived. Antrim Wind further contends that the petitioners’ argument is
meritless because the subcommittee always consisted of seven members ― two
of whom were public members.
“Interested parties are entitled to object to any error they perceive in
governmental proceedings, but they are not entitled to take later advantage of
error they could have discovered or chose to ignore at the very moment when it
could have been corrected.” Fox v. Town of Greenland, 151 N.H. 600, 604
(2004) (quotation omitted). The petitioners argue that they could not have
known of the alternate’s absence until after deliberations because she could
have reviewed the record on her own and then participated in deliberations.
We assume, without deciding, that the petitioners raised this issue at the
earliest possible time; however, we agree with Antrim Wind that the
subcommittee was nevertheless lawfully constituted.
The subcommittee’s creation and composition is governed by RSA 162-
H:4-a, I: “The chairperson may establish subcommittees to consider and make
decisions on applications, including the issuance of certificates . . . .” RSA
162-H:4-a, II provides:
When considering the issuance of a certificate or a petition of
jurisdiction, a subcommittee shall have no fewer than 7 members.
The 2 public members shall serve on each subcommittee with the
remaining 5 or more members selected by the chairperson from
among the state agency members of the committee. . . . Five
members of the subcommittee shall constitute a quorum for the
purpose of conducting the subcommittee’s business.
If a public member is not available for good reason, the chairperson of
the Committee “shall appoint the alternate public member.” RSA 162-H:3, X
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(Supp. 2017). This process is applicable to both the Committee and
subcommittee members. See RSA 162-H:3, XI (Supp. 2017).
There is no ambiguity in RSA 162-H:4-a. The plain language simply
requires that a subcommittee consist of seven members. See Franklin v. Town
of Newport, 151 N.H. 508, 509 (2004) (when the language of a statute is plain
and unambiguous, we do not look beyond it for further indications of legislative
intent). Here, at all times, the subcommittee consisted of such.
Notwithstanding the petitioners’ claim that the alternate did not participate in
various stages of the proceedings, there is no evidence that the alternate took
any sort of leave — which the Committee does not recognize — or otherwise
vacated her position as a subcommittee member during the pendency of the
proceedings.
The petitioners do not challenge that a quorum existed, nor could they
given that there were always five members of the subcommittee present. See
RSA 162-H:4-a, II. Though the alternate did not attend the hearings, given the
plain language of RSA 162-H:4-a, there is no requirement that she do so. See
Petition of Malisos, 166 N.H. 726, 729 (2014) (when interpreting a statute we
will not consider what the legislature might have said or add language that the
legislature did not see fit to include). There is also no requirement that the
quorum meet the same composition requirements as a subcommittee. See
Appeal of Keene State College Educ. Ass’n, 120 N.H. 32, 35 (1980) (when
statute governing the board’s total membership has guidelines as to the
particular composition, but the statute governing the quorum does not, “no
such balance is required of a quorum”).
To the extent that the petitioners assert policy reasons as to why public
members should be present for the entire adjudication, such arguments should
be addressed to the legislature, rather than to this court. See, e.g., Petition of
Kilton, 156 N.H. 632, 645 (2007). Because we conclude that the subcommittee
was properly constituted — always consisting of seven members — we need not
address the petitioners’ remaining arguments regarding the composition of the
subcommittee.
Next, the petitioners argue that the subcommittee should have denied
the Antrim II application because its decision in Antrim I was binding under
the doctrines of res judicata and Fisher. Specifically, they argue that Antrim II
did not meaningfully resolve the fundamental issues identified in Antrim I and,
thus, the subcommittee was precluded from granting the Antrim II application.
Antrim Wind counters that Antrim II is materially different from Antrim I and
the subcommittee’s order is otherwise lawful and reasonable.
We construe the petitioners’ argument regarding the Fisher doctrine to
encompass their res judicata claim; that is, that the Antrim II application did
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not “meaningfully resolve” the fundamental issues that the subcommittee
identified in Antrim I and, therefore, it is barred from review. Though we have
yet to decide whether the Fisher doctrine applies to successive applications
submitted to the Site Evaluation Committee, it is not contested by either party,
and thus, we assume without deciding that Fisher’s reasoning could be
extended to this case.
Applying the Fisher doctrine in this context, an applicant
before a [subcommittee] bears the burden of demonstrating that a
subsequent application materially differs in nature and degree
from its predecessor. The determination of whether changed
circumstances exist is a question of fact. This determination must
be made, in the first instance, by the [subcommittee]. On appeal,
the [subcommittee’s] factual findings are deemed prima facie lawful
and reasonable. We will uphold the [subcommittee’s] decision
unless it is not supported by the evidence or is legally erroneous.
CBDA Dev., LLC v. Town of Thornton, 168 N.H. 715, 724 (2016) (quotation and
citations omitted).
Here, in determining that the Antrim I application would have an
unreasonable adverse effect on the aesthetics of the region, the subcommittee
found that: (1) the turbines would appear out of scale and context; (2) the
project would have an unreasonable adverse effect on the viewshed from
Willard Pond and the dePierrefeu Wildlife sanctuary; and (3) the proposed
mitigation measures were insufficient to mitigate the visual effects of the
project. Acknowledging these issues in the Antrim II application, Antrim Wind
specifically addressed them in its visual assessment. Antrim Wind proposed to
remove turbine 10, lower turbine 9, and enter into a mitigation agreement with
Antrim town officials regarding Gregg Lake Beach. It further proposed to pay
$100,000 for offsite land conservation, include a landscaping plan to provide
visual screening to reduce potential impacts associated with the construction
of the substation and operation and maintenance building, commit to restore
and re-vegetate roads and cut/fill slopes and to break up the roads after
decommissioning, and to preserve the entire ridgeline of the project. As Antrim
Wind points out, “these changes reduced the size of the [p]roject by more than
10 percent” and the added mitigation measures “would now conserve 908 total
acres,” which is 100 more acres than that proposed in Antrim I.
The petitioners argue that the foregoing changes in Antrim II
nevertheless do not meaningfully resolve the concerns raised by Antrim I.
According to the petitioners, the photo simulations do not reveal a significant
change between the visual impact in Antrim I and Antrim II. The record
reflects that the subcommittee deliberated and “individually analyzed every
photo-simulation prepared by each expert” to find that the project would not
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have an unreasonable adverse impact on the scenic resources. Although the
petitioners may disagree with the subcommittee’s ultimate assessment that the
visual impact between Antrim I and Antrim II differs, they have not
demonstrated that the subcommittee’s finding is unreasonable.
The petitioners further contend that “[i]t defies reason that these off-site
mitigation measures would not be suitable to mitigate aesthetic effects in
Antrim I but can now form the basis for the subcommittee’s finding that the
[Antrim II] application meaningfully resolved the [subcommittee’s] stated
concerns in Antrim I.” The subcommittee stated, in the Antrim I decision,
however, that a suggested reduction in the size of the project and the
elimination of two turbines “may substantially mitigate the unreasonable
adverse effect on aesthetics.” Because the Antrim II application was modified
and reduced in size, it cannot be said that it was unreasonable for the
subcommittee to find that the “additional measures offered by [Antrim Wind]
sufficiently mitigate, minimize and avoid impacts of the [p]roject on aesthetics.”
The petitioners also argue that the change in law between the Antrim I
and Antrim II applications does not materially change the subsequent
application. We disagree. As the subcommittee found, the differences in the
law between Antrim I and Antrim II are “material changes that alter the
situation.”
The changes in the regulations provided specific criteria for the
subcommittee to consider when assessing whether there is an unreasonable
adverse effect on aesthetics in the Antrim II application. See N.H. Admin. R.,
Site 301.14(a)(1)-(7). The change in regulations also led to the submission of
more detailed analysis by Antrim Wind’s witnesses. Specifically, the
subcommittee found that “[t]he changes in the substantive administrative rules
altered the situation for [Antrim Wind] and provided ‘fixed targets’ in the form
of substantive limitations on impacts to be met in any new application.” The
petitioners contend that the subcommittee that denied Antrim I considered
many of the factors now codified in New Hampshire Administrative Rules, Site
301.14(a). However, the petitioners have not demonstrated that the Antrim I
subcommittee considered or applied to the Antrim I application each of the
factors to the degree now delineated in the regulations.
In addition, the petitioners contend that the subcommittee erred in
finding, in its Antrim II decision, that its denial of Antrim Wind’s motion to
reopen the record in Antrim I invited the filing of a modified application.
Evidence of an invitation to submit a modified application to meet an agency’s
concerns, however, merely acts as additional evidence that a subsequent
application so modified is materially different. See Hill-Grant Living Trust v.
Kearsarge Lighting Precinct, 159 N.H. 529, 536 (2009) (“[I]t is logical to
presume that if [an agency] invites submission of a subsequent application
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modified to meet its concerns, it would find an application so modified to be
materially different from its predecessor, thus satisfying Fisher.”). Thus, we
need not decide whether the subcommittee invited the re-filing of an
application in Antrim I, because it is not required in order for the
subcommittee to find that a subsequent application meets the requirements of
Fisher. In light of material changes between the Antrim I and Antrim II
applications, as discussed above, it was not unreasonable for the
subcommittee to find that Antrim Wind’s subsequent application resolved the
concerns raised in Antrim I and, thus, Antrim II is not barred by the Fisher
doctrine.
Lastly, the petitioners argue that there was insufficient evidence for the
subcommittee to make a number of its factual findings regarding aesthetics,
public health, and safety. The legislature has delegated broad authority to the
Committee to consider the “potential significant impacts and benefits” of a
project, and to make findings on various objectives before ultimately
determining whether to grant an application. See RSA 162-H:16, IV. When
faced with competing expert witnesses, “a trier of fact is free to accept or reject
an expert’s testimony, in whole or in part.” Appeal of N.H. Elec. Coop., 170
N.H. 66, 74 (2017) (quotation omitted). When reviewing the subcommittee’s
decision, it is not our task to determine whether we would have credited one
expert over another, or to reweigh the evidence, but rather to determine
whether its findings are supported by competent evidence in the record. See
Appeal of Malo, 169 N.H. at 668.
The petitioners essentially contest the subcommittee’s decision to credit
Antrim Wind’s experts and reports over their own. Specifically, the petitioners
challenge the subcommittee’s findings regarding the sound assessment,
shadow flicker assessment, visual impact, impact on property values and
development, and the economic feasibility of implementing various mitigation
measures. After review of the record, we conclude that there is competent
evidence to support all of the subcommittee’s factual findings. The
subcommittee deliberated about each of these assessments and impacts and
determined which experts ― Antrim Wind’s ― it found to be more credible. The
subcommittee also imposed certain mitigation measures and conditions to
address remaining concerns and to ensure regulatory compliance. Accordingly,
we conclude that the petitioners have failed to show reversible error.
Affirmed.
LYNN, C.J., and HICKS, J., concurred.
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