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
In 2013 and 2014, the legislature amended the statute governing the Committee's review of site and facility applications.
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
Decisions by the subcommittee are reviewed in accordance with RSA chapter 541.
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."
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:
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 (Supp. 2017). This process is applicable to both the Committee and subcommittee members.
There is no ambiguity in RSA 162-H:4-a. The plain language simply requires that a subcommittee consist of seven members.
The petitioners do not challenge that a quorum existed, nor could they given that there were always five members of the subcommittee present.
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.
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
We construe the petitioners' argument regarding the
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
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 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
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.
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
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.
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.
LYNN, C.J., and HICKS, J., concurred.