2017-0313, Appeal of Mary Allen & a.

Antrim. We affirm. (Antrim W ind), to construct and operate nine wind turbines in the t own of Committee (C ommittee) authorizing the respondent, Antrim Wind Energy, LLC interested parties, appeal the decision of the New Hamp shire Site Evaluation HANTZ MARCONI, J. The petitioners, Mary Allen, Fred Ward, and other

Glahn orally), for the respondent, Antrim Wind Energy, LLC. Glahn, III, Barry Needleman, and Rebecca S. Walkley on the brief, and Mr. McLane Midd l eton, Professional Association, of Manchester (Wilbur A.

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

brief and orally), for petitioners Mary Allen & a. Donahue, Tucker, & Ciandella, PLLC, of Exeter (Eric A. Maher on the

(New Hampshire Site Evaluation Committee) APPEAL OF MARY ALLEN & a.

No. 2017 - 0313 Site Evaluati on Committee

http://www.courts.state.nh.us/supreme. release. The direct address of the court's home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by E - mail at the following address: reporter@courts.state.nh. us. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

application (Antrim II) with the C ommittee, seeking authorization to const ruct Subsequently, o n October p. 2 2, 2015, Antrim Wind filed a second

R., Site 301.14(a)(1) - (7). seven distinct categories of impact with regard to aesthetics, s ee N.H. Admin. Admin. R., Site 301.14(f)( p. 2 2) (b), (f)(3), and require the sub committe e to consider facility, see N.H. Admin. R., S ite 301.14(f)(2) (a), and for shadow flicker, see N.H. rules set substantive limits for operational noise emitted from a wind energy See generally N.H. Admin. R., Site 301.06 - 301.1 8. Among other changes, t he C ommittee proceeded to promulgate rules in accordance with the foregoing. ce rtificate of site and facility.” See Laws 2013, 134:2; Laws 2014, 217:16. The requirements of RSA 162 - H:16, IV [(2014)] ha ve been met by the applicant for a substantive rules including “specific criteria to be applied in determining if the (2014) (amended 2017). RSA 162 - H:10, VII required the Committee to adopt Committee’s review of site and facility applications. See RSA 162 - H:10, VII In 2013 and 2014, the legislature amended the statute governing the

subcommittee’s denial. hearing.” (Quotation and underline omitted.) Antrim Wind did not appeal the novo review as op posed to a full consideration of the issues presented at the materially change the original [a] pplication and would require extensive de finding that Antrim Wind was seeking to “introduce evidence which would with new documents and evidence. The subcommittee denied the motion, In response, Antrim Wind moved to reopen the record to pr esent a revised plan “insufficient to mitigate the visual effects” of the project on the regional setting. unreasonable way.” It further found that the proffered mitigation plan was setting and adversely impact [ed] the aesthetics of the region in an found that the Antrim I project was “simply out of scale in [the] context of its denied Antrim Wind’s application. In its April p. 2 2013 decision, t he subcommittee After holding adjudicative hearings, a subcommittee of the Committee

Antrim Wind and parties in opposition to the Antrim I application. activated lighting system. Competing p hoto simulations were prepared by dedicate 800 acres of land to conservation easements, and install a radar meteorological tower between turbine s three and four to obtain wind data, maintenance building. Antrim Wind further proposed to construct a surfaced roads, a joint electrical system, an interconnection substation, and a obstruction lights.” The project was also to consist o f four miles of new gravel 49 p. 2 2 feet. “Six of the turbines would be equipped with red flashing aviation Mountain in Antrim. The wind turbines were to have a height of approximately authorization to construct ten wind turbines along Tuttle Ridge and Willard application (Antrim I) with the Committee i n January 2012, seeking own, and operate a wind turbine project. Antrim Wind originally filed an limited liability company formed as a special purpose entity to develop, build, The record supports the following facts. Antrim Wind is a Delawa re p. 3 3

RSA 541:1 p. 3 3 (2014). The subcommittee’s findings of fact are presumed prima by a clear preponderance of the evidence, that it is unjust or unreasonable. aside the subcommittee’s order except for errors of law, unless we are satisfied, chapter 541. See RSA 162 - H:11 (2014). Under RSA 541:13, we will not set Decisions by the subcommittee are reviewed in accordan ce with RSA

aesthetics, public health, and safety. proposed in Antrim II will not have an unreasonable adverse impact on evidence in the record to support the subcommittee’s finding that the project 120 N.H. 187 (1980) (hereafter, the Fisher doctrine); and ( p. 3 3) there is insufficient as the subsequent application doctrine as set forth in Fisher v. City of Dover, Antrim Wind’s Antrim II application under the doctrine of res judicata as well subcommittee was unlawfully constituted; (2) the denial of Antrim I barred unreasonable, unlawful, and unjust for the following reasons: (1) the On appeal, t he petitioner s argue that the subcommittee’s decision was

motion s for rehearing, which t he subcommittee denied. This appeal followed. effect on the health, safety, or aesthetics of the region. The petitioner s filed the project as proposed in Antrim II would not have an unreasonable adverse “substantial chan ge” between the Antrim I and Antrim II application s and that subject to certain conditions. The subcommittee found that the re had been a three days of deliberations, it voted 5 - 1 to grant Antrim Wind’s application hearings over thirteen days between September and November 2016. After The subcommittee conducted two site visits and held adjudicative

public member (the alternate). member s subsequently resigned and the C ommittee appointed an alternate the public pursuant to RSA 162 - H:4 - a (Supp. 2 017). On e of the public subcommittee to preside over the application, two of whom were members of On October 20, 2015, the C ommittee appointed a seven - member

conformance with New Hampshire Administrative Rules, Site p. 3 301.08, .16, .18. assessment report, a sound level report, and a shadow flicker analysis, in and a shadow control protocol. Also new to the Antrim II application is a visual England Forestry Foundation, additional public benefits to the t own of Antrim, one hundred acres of conservation land, a grant of $100,000 to the New mitigation plan is similar to the plan in Antrim I, b ut provides an additional operations and maintenance building would also be constructed. The two spur roads. A joint collector system, interconnection substation, and meteorological tower between turbine two and three, a main access road, and turbines proposed in A ntrim I. Antrim Wind also proposed to construct a turbine is p. 4 446.2 feet, which is a downward departure from the ten 492 - feet foundation to blade - tip for eight of the turbines is 488.8 feet and the ninth the northeastern slope of Willard Mountain.” In this proposal, t he height from nine wind turbines along the “Tuttle Hill ridgeline spanning southwestward to 4

the Committee “shall appoint the alternate public me mber.” RSA 162 - H:3, X If a public member is not available for good reason, the chairperson of

purpose of conducting the s ubcommittee’s business. members of the subcommittee shall constitute a quorum for the among the state ag ency members of the committ ee. . . . Five remaining 5 or more members selected by the chairperson from The 2 public members shall serve on each subcommittee with the jurisdiction, a subcommittee shall have no fewer than 7 members. When considering the issuance of a certifi cate or a petition of

162 - H: p. 4 4 - a, II provides: decisions on applications, includi ng the issuance of certificates . . . .” RSA H:4 - a, I: “The chairperson may establish subcommittees to consider and make The subcommittee’s creation and com position is governed by RSA 162 -

subcommittee was nevertheless lawfully constituted. earliest possible time; however, we agree with Antrim Wind that the We assume, without deciding, that the petitioner s raised this issue at the have reviewed the record on her own and then participated in deliberations. known of the alternate’s absence until after deliberations because she could (200 p. 4 4) (quotation omitted). T he petitioner s argue that they could not have could have been corrected.” Fox v. Town of Greenland, 151 N.H. 600, 604 error they could have discovered or chose to ignore at the very moment when it governmental proceedings, but they are not entitled to take later advantage of “I nterested parties are entitled to object to any error they perceive in

of whom were public members. meritless because the subcommittee alway s consisted of seven members ― two waived. Antrim Wind further contends that the petitioner s’ argument is this issue unt il after the order was issued and, therefore, it should be deemed deliberative sessions.” Antrim Wind asserts that the petitioner s did not raise appointed “was not present for any hearing, including the adjudicative and adjudication because, following one public member’s resignation, the alternate subcommittee did not have two public members participate in all stages of the Antrim II application was invalid. Specifically, t he petitioner s argue that the not lawfully constituted and, thus, the subcommittee’s decision approving the We first address t he petitioner s’ argument that the subcommittee was

review the subcommittee’s rulings on issues of law de novo. See id. at 666. evidence in the record. See Appeal of Malo, 169 N.H. 661, 668 (2017). We but, rather, to determine whet her the findings are supported by competent determine whether we would have found differently or to reweigh the evidence, facie lawful and reasonable. Id. In reviewing those findings, our task is not to p. 5 5

encompass their res judicata claim; t hat is, that the Antrim II application did We construe the petitioners’ argument regarding the Fisher doctrine to

the subcommittee’s order is otherwise lawful and reasonable. Antrim Wind counters that Antrim II is materially different from Antrim I and thus, the subcommittee was pr ecluded from granting the Antrim II application. did not meaningfully resolve the fundamental issues identified in Antrim I and, the doctrine s of res judicata and Fisher. Specifically, they argue that Antrim II the Antrim II application because its decision in Antrim I was binding under Next, the petitioner s argue that the subcommittee should have denied

subcommittee. address the petitioner s ’ remaining arguments regarding the composition of the was properly constituted — always consist ing of seven members — we need not Kilton, 1 p. 5 56 N.H. 632, 645 (2007). Because we conclude that the subcommittee be addressed to the legislature, rather than to this court. See, e.g., Petition of members should be present for the entire adjudication, such argument s should To the extent that t he petitioner s assert policy reasons as to why p ublic

such balance is required of a quorum”). particular composition, but the statute governing the quorum does not, “no statute governing the board’s total membership has guidelines as to the Appeal of Keene State College Ed uc. As s ’n, 120 N.H. 32, 3 p. 5 5 (1980) (when quorum meet the same composition requirements as a subcommittee. See legislature did not see fit to include). There is also no requirement that the will not consider what the legislature might ha ve said or add language that the Petition of Malisos, 166 N.H. 726, 729 (2014) (when interpreting a statute we plain language of RSA 162 - H:4 - a, there is no requirement that she do so. See RSA 162 - H:4 - a, II. Though the alternate did not attend the hearings, given the given that there were always five members of the subcommittee present. See T he petitioner s do not challenge that a quorum existed, nor could they

proceedings. vacated he r position as a subcommittee member during the pendency of the any sort of leave — which the Committee does not recognize — or otherwise various stages of the proceedings, there is no evidence that the alternate took Notwithstanding the petitioners’ claim that the alternate did not participate in intent). Here, at all times, the subcommittee consisted of such. and unambiguous, we do not look beyond it for further indications of legislative of Newport, 1 p. 5 51 N.H. 508, 509 (2004) (when the language of a statute is plain requires that a subcommittee consist of seven members. See Franklin v. Town There is no ambiguity in RSA 162 - H:4 - a. The plain language simply

subcommittee members. See RSA 1 p. 6 62 - H:3, XI (Supp. 2017). (Supp. 2017). This process is applicable to both the C ommittee and 6

photo - simulation prepared by each expert” to find that the project would not reflects that the subcommittee deliberated and “individually analyzed every change between the visual impact in Antrim I and Antrim II. T he record According to the petitioner s, the photo simulations do not reveal a significant nevertheless do not meaningfully resolve the concerns raised by Antrim I. T he petitioner s argue that the foregoing changes in Antrim II

acres,” which is 100 more acres than that proposed in Antrim I. 10 percent” and the a dded mitigation measures “wou ld now conserve 908 total Wind points out, “t hese changes reduced the size of the [p] roject by more than decommissioning, and to preserve the entire ridgeline of the project. As Antrim and re - vegetate roads and cut/fill slopes and to break up the roads after of the substation and operation and maintenance building, commit to restore visual screen ing to reduce potential impacts associated with the construction $100,000 for offsite land conservation, include a landscaping plan to provide Antrim town officials regarding Gregg Lake Beach. It further propose d to pay remove turbine 10, lower turbine 9, and enter into a mitigation agreement with specifically addressed them in its visual assessment. Antrim Wind p ropose d to project. Acknowledging these issues in t he Antrim II application, Antrim Wind mitigation measures were insufficient to mitigate the visual effects of the Willard Pond and the dePierrefeu Wildlife sanctuary; and (3) the proposed project would have an unreasonable adverse effect on the viewshed from found that: (1) the turbines would appear out of scale and context; (2) the unreasonable adverse effect on the aesthetics of the region, the subcommittee Here, in determining that the Antrim I application would have an

ci tations omitted). CBDA Dev., LLC v. Town of Thornton, 1 p. 6 68 N.H. 715, 72 4 (2016) (quotation and

unless it is not supported by the evidence or is legally erroneous. and reasonable. We will uphold the [subcommittee’s] decision the [subcommittee’s] factual findings are deemed prima facie lawful be made, in the first instance, by the [subcommittee]. On appeal, circumstances exist is a question of fact. This determination must from its predecessor. The determination of whether changed subsequent application materially differs in nature and degree before a [subcommittee] bears the burden of demonstrating that a Applying the Fisher doctrine in this context, an applicant

extended to this case. and thus, we assume without deciding that Fisher ’s reasoning could be submitted to the S ite E valuation C ommittee, it is not contested by either party, yet to decide whether the Fisher doctrine applies to successive applications identified in Antrim I and, therefore, it is barred from review. Though we have not “meaningfully resolve” the fundamental issues that the subcommittee p. 7 7

presume that if [an agency] invites submission of a subsequent application Kearsarge Lighting Precinct, 159 N.H. 529, 536 (2009) (“[I] t is logical to application so modified is materially different. See Hill - Grant Living Trust v. concerns, however, merely acts as additional evidence that a subs equent Evidence of an invitation to submit a modified application to meet an agency’s reopen the record in Antrim I invited the filing of a modified application. finding, in its Antrim II decision, that its denial of Antrim Wind’s motion to In addition, the petitioner s contend that the subcommittee erred in

factors to the degree now delineated in the regulations. subcommittee considered or applied to the A ntrim I application each of the 301.14(a). However, the petitioner s have not demonstrate d that the Antrim I many of the factors now codified in New Hampshire Administrative Rules, Site petitioner s con tend that the subcommittee that denied Antrim I considered of substantive limitations on impacts to be met in any new application.” The altered the situation for [Antrim Wind] and provided ‘fixed targets’ in the form subcommittee found that “[t]he changes in the substantive administrative rules more detailed analysis by Antrim Wind’s witnesses. Specifically, t he Site 301.14(a)(1) - ( p. 7 7). The change in regulations also led to the submission of adverse effect on aest hetics in the Antrim II application. See N.H. Admin. R., subcommittee to consider when assessing whether there is an unreasonable T h e changes in the regulations provide d specific criteria for the

situation.” law between Antrim I and Antrim II are “material changes that alter the application. We disagree. As the subcommittee found, the differences in the and Antrim II applications does not materially change the subsequent The petitioner s also argue that the change in law between the Antrim I

sufficiently mitigate, minimize and avoid impacts of the [p]roject on aesthetics.” subcommittee to find that the “additional measures offered by [Antrim Wind] and reduced in size, it cannot be said that it was unreasonable for the adverse effect on aesthetics.” B ecause the Antrim II ap plication was modified elimination of two turbines “may substantially mitigate the unreasonable however, that a suggested reduction in the size of the project and the concerns in Antrim I.” The subcommittee stated, i n the Antrim I decision, [Antrim II] application meaningfully resolved the [subc ommittee’s] stated Antrim I but can now form the basis for the subcommittee’s finding that the mitigation measures would not be suitable to mitigate aesthetic effects in The petitioner s further contend that “[i]t defies reason that the se off - site

demonstrate d that the subcommittee’s finding is unreasonable. visual impact between Antrim I and Antrim II differs, they have not petitioners may di sagree with the subcommittee’s ultimate assessment that the have an unreasonable adverse impact on the scenic resources. Although the p. 8 8

LYNN, C. J., and HICKS, J., concurred.

we conclude that the petitioner s have failed to show reversible error. address remaining concerns and to ensure regulatory compliance. Accordingly, subcommittee also imposed certain mitigation measures and conditions to determ ined which expert s ― Antrim Wind ’s ― it found to be more credible. The subcommittee deliberated about each of these assessments and impacts and evidence to support all of the subcommittee’s factual findings. The measures. After review of the record, w e conclude that there is competent development, and the economic feasibility of implement ing various mitigation shadow flicker assessment, visual impact, impact on property values and challenge the subcommittee’s findings regarding the sound assessment, Antrim Wind’s ex perts and reports over their own. Specifically, the petitioners The petitioner s essentially contest the subcommittee’s decision to credit

Appeal of Malo, 169 N.H. at 66 p. 8 8. whether its findings are supported by competent evidence in the record. See expert over another, or to reweigh the evidence, but rather to determine decision, it is not our task to determine whether we would have credited one N.H. 66, 74 (2017) (quotation omitted). When reviewing the subcommittee’s an expert’s testimony, in whole or in part.” A ppeal of N.H. Elec. Coop., 170 faced with competing expert witness es, “a trier of fact is free to accept or reject determining whether to grant an application. See RSA 162 - H:16, IV. When project, and to mak e findings on various objectives before ultimately Committee to consider the “potential significant impacts and benefits” of a public health, and safety. The legislature has delegated broad authority to the subcommittee to make a number of its factual findings regarding aesthetics, Last ly, the petitioner s argue that the re was insufficient evidence for the

doctrine. concerns raised in Antrim I and, thus, Antrim II is not barred by the Fisher subcommittee to find that Antrim Wind ’s subsequent application resolved the application s, as discussed above, it was not un reasonable for the Fisher. In light of material changes between the Antrim I and Antrim II subcommittee to find that a subsequent application meets the re q uirements of application in Antrim I, because it is not requ ired in order for the need not decide whether the subcommittee invited the re - filing of an materially different from its predecessor, thus satisfying Fisher.”). Thus, we modified to meet i ts concerns, it would find an application so modified to be