2018-0468, Appeal of Northern Pass Transmission, LLC & a.

Woods u m, of Manchester (C. Christine Fillmore on the joint brief), for Towns of Deerfield, Littleton, New Hampton, and Pembroke; and Drummond Group, P.A., of Laconia (Steven M. Whitley on the joint brief), for i ntervenors on the joint brief and orally), for intervenor City of Concord; Mitchell Municipal City Solicitor’s Office, of Concord (Danielle L. Pacik, deputy city solicitor,

interest. assistant attorney general, on the brie f and orally), representing the public Gordo n J. MacD onald, atto r ney general (Christopher G. Aslin, senior

Service Company of New Hampshire d/b/a Eversource Energy. orally), for the petitioner s, Northern Pass Transmission, LLC, and P ublic Glahn, III, Barry Needleman, and Jeremy T. Walker on the brief, and Mr. Glahn McLane Middleton, Professional Association, of Manchester (Wilbur A.

(New Hampshire Site Evaluation Committee) APPEA L OF NORTHERN PASS T RANSMISSION, LLC & a.

No. 2018 - 0468 Site Evaluation Committee

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

for the Protection of New Hampshire Forests. Dalton Whitefield Bethlehem Abutters joined in the brief for the Society

New Hampshire Forests. F. Maureen Quinn joined in the brief for the Society for the Protection of

the Protection of New Hampshire Forests. Philip Bilodeau and Joan Bilodeau joined in the brief for the Society for

Pittsburg, Clarksville, and Stewartstown. Stephen J. Ellis on the joint memorandum of law, for intervenors Towns of Richard J. Sams on, Coos County Commissioner, District Three, and

law), for intervenors Bradley and Daryl Thompson and Jeanne Menard. Bernstein Shur, of Manchester (Andru Volinsky on the memorandum of

brief, for intervenor Conservation Law Foundation. Appalachian Mountain Club, and Melissa E. Birchard, of Concord, on the joint the joint brief), for intervenors Ammonoosuc Conservation Tru st and Foley & Lardner LLP, of Boston, Massachusetts (Courtney Worcester on

Unit Owners Association. Karlin, and Stephen Zaharias on the brief), for intervenor McKenna’s Purchase Wadleigh, Starr & Peters, PLLC, of Manchester (Stephen J. Judge, Jeffrey

Forests. brief and orally), for intervenor Society for the Protection of New Hampshire BCM Environmental & Land Law, PLLC, of Concord (Amy Manzelli on the

Plymouth, Sugar Hill, and W hitefield. intervenors Towns of Bethlehem, Bristol, Easton, Franconia, Northumberland, p. 3 3

brief or a memorandum of law in the appellate proceedings. Although the case docket identifies more than 100 intervenors, we list only those who filed a 1

the Canadian border to a converter terminal in Franklin; a converter terminal project include: a high - voltage direct current transmission line running from ac res for the underground transmission corridor. The major components of the PSNH and used for the overhead transmission corridor, and approximately 176 transmission corridor, 2,520 acres of existing right s - of - way to be leased from approximately 465 acres of new right s - of - way to be used for the overhead The project’s transmission corridor would encompa ss p. 3 3,161 acres, including HVTL t o carry 1,090 megawatts of electricity from Canada into New England. appellate record. The petitioners’ application proposes to install a 192 - mile or are drawn from the contents of documents submitted as part of the The following facts either were found by the Site Evaluation Committee

I. The Project

affirm. (HVTL) and assoc iated facilities from Pittsburg to Deerfield (the project). We the siting, construction, and operation of a high voltage tran smission line denying their application for a “Certificate of Site and Facil ity” (certificate) for (PSNH), appeal the decision of the New Hampshire Site E valuation Committee and Public Service Company of New Hampshire d/b/a Eversource Energy HANTZ MARCONI, J. The petitioners, Northern Pass Transmission, LLC

for the Protection of New Hampshire Forests. 1 Bethlehem to Plymouth Non - Abutters joined in the brief for the Society

of the City of Concord and multiple towns. Non - Abutt er Property Owners Stark to Bethlehem joined in the joint brief

the Society for the Protection of New Hampshire Forests. Abutting Pro perty Owners, Bethlehem to Plymouth joined in the brief for

Society for the Protection of New Hampshire Forests. Dummer, Stark and Northumberland Abutters joined in the brief for the

Society for the Protection of New Hampshire Forests. Pemigewa sset River Local Advisory Committee joined in the brief for the p. 4 4

subco mmittee “to consider and make decisions on applications, including the issuance of Pursuant to RSA 162 - H: p. 4 4 - a, I, the chairperson of the Site Evaluation Committee may establish a 2

2016). The Subco mmittee sent notice to the municipali ties a ffected by the 2 Evaluation Committee appointed a S ubcommittee. See RSA 162 - H: p. 4 4 - a (Supp. appointed a Counsel for the Public (CFP). In November, t he chair of the Site in October 2015. Pursuant to RSA 162 - H:9 (2014), the attorney general The petitioners filed their application with the Site Evaluation Committee

I I. Procedural Background

with structures greater in height than currently existing structures. number of structures as sociated with these existing lines would be replaced would remain within the boundaries of the existing right - of - way. A large the alternating current portion of the line, would be relocated. These lines hig h - voltage direct current portion of the line, and 21 miles of existing lines for requiring the clearing of eight acres. Sixty - three miles of existing lines for the Deerfield substation would be modified to include additional construction of buildings oc cupying approximately 10 acres, enclosed with fencing. The enclosed with fencing. The Franklin converter terminal woul d include a variety segment of the line and occupy an area ap proximately 75 feet by 130 feet, transmission stations would be installed at each end of each underground Hampton, Frankli n, Concord, and Deerfield. Overhead/underground Northumberland, Whitefield, North Woodstock, Campton, Ashland, New The transmission line would cross existing substations in

the height of the structures would range from p. 4 48 to 160 feet. For the alternating current overhead transmission line portion of the project, of the project, the height of the structures would range from 60 to 135 feet. five feet in diameter. For the high - voltage direct current transmission portion to four co ncrete foundations at the corners of the base approximately three to and taper to a six foot by five foot column half way up the structure, anchored configuration would have an approximate base dimension of 30 feet by 30 feet lattice structures, with some tubular steel monopole structures. The lattice HVTL using overhead transmission, t he petitioners propose to use primarily transmission corridor would be located underground. For that portion of the According to the petitioners’ application, approximately 60.5 miles of the

p. 5 50 acres, located off the right - of - way along the length of the project. 20 laydown areas would consist of open space areas ranging in size from five to laydown areas, staging areas and marshaling yards.” The approximately 10 - to - Stewartstown, Bethlehem, and Bridgewater; and “various access roads, underground transition stations to be located in Pittsfield, Clarksville, an existing substation in Deerfield; six high - voltage direct current overhead to overhead transmission line running from the converter terminal in Franklin to to be constructed at Sou th Main Street in Franklin; an alternating current 5

Londonderry, and Concord. Franklin, Northfield, Canterbury, Pembroke, Alle nstown, Deerfield, Chester, Raymond, Woodstock, Thornton, Campton, Plymouth, Ashland, Bridgewater, New Hampton, Bristol, Hill, Stark, Northumberland, Lancaster, Whitefield, Dalton, Bethlehem, Sugar Hill, Franconia, Easton, The affected municipalities are Pittsburg, Clarksville, Stewartstown, Dixville, Millsfield, Dummer, 3 charge given it by the chairperson.” RSA 162 - H:4 - a, I. be considered the committee, with all of its associated powers and duties in order to execute the the regulatory functions of [RSA chapter 162 - H], the subcommittee shall a ssume the role of and certificates.” The statute provides that “[f]or purposes of statutory interpretation and executing

not unduly interfere with the orderly development of the region with due T he Subc ommittee next deliberated on whether the “site and facility will

on surrounding communities.” manage the planning and construction of this Project given its size and effects determining whether [the petitioners have] sufficient managerial capabilities to compliance with the Certificate,” it did not “come to a clear consensus in that [they have] technical capacity to construct and operate the Project in projects.” W hile the Subc ommittee found that the petitioners “demonstrated required for construction of aboveground and underground transmission “contractors and subcontractors have sufficient experience and resources Subcommittee also agreed that the petitioners demonstrated that their capability to ensure construction and operation of the Project.” The forma l vote, it “informally agreed” that the petitioners have “sufficient financial 162 - H:16, IV(a) (Supp. 2016). Although the Subc ommittee did not take a continuing compliance with the terms and conditions of the certificate.” RSA managerial capability to assure construction and operation of the facility in addressing whether the petitioners had “adequate fin ancial, technical, and Subc ommittee commenced its deliberations on January 30, 2018, first 2,176 exhibits. The evidentiary record closed on December 22, 2017. The and December 2017. It received testimony from 1 p. 5 54 witnesses and received T he Subc ommittee held 70 days of adjudicative hearings between April

2016 and October 2017, the Subc ommittee conducted seven days of site visits. intervenors into groups by geography and areas of interest. Between March motions to intervene and, in May 2016, the Subc ommittee combined the I - c (Supp. 2016) (amended 2017, 2018). The Subc ommittee received 160 Concord, Holderness, Deerfield, Whitefield, and Plymouth. See RSA 162 - H:10, public hearings between March and June of 2016 in Meredith, Colebrook, I - a (Supp. 2016) (amended 2017). In addition, the Subc ommittee held seven Franklin, Londonderry, Laconia, Whitefield, and Lincoln. See RSA 162 - H:10, In January 2016, the Subc ommittee held public information sessions in

1 p. 6 62 - H. “contained sufficient information to carry out the purposes of” RSA chapter a public hearing, the Subc ommittee accepted the application, finding that it project and included procedures for intervening in the proceedings. Following 3 6

Id.

integrated fashion. environmental, economic, and technical issues are resolved in an treated as a significant aspect of land - use planning in which a ll ensure that the construction and operation of energy facilities is complete disclosure to the public of such plans; and that the state to construc t facilities in the state be required to provide full and environmental consequences be provided; that all entities planning facilities be avoided; that full and timely consideration of Hampshire; that undue delay in the construction of new en ergy siting, c onstruction, and operation of energy facilities in New potential significant impacts and benefits in decisions about the it is in the public interest to maintain a balance among those

2018). Accordingly, the legislature stated that natural resources”; and (7) “public health and safety.” RSA 1 p. 6 62 - H:1 (Supp. the state, historic sites, aesthetics, air and water quality”; (6) “the use of industry”; (4) “the overall economic growth of the state”; (5) “the environment of welfare of the population”; (2) “private property”; (3) “the location and growth of energy facilities may have significant impacts on and benefits to”: (1) “the declaration of purpose, the legislature “recognizes that the selection of sites for application for a certificate is governed by RSA chapter 162 - H. In the statute’s The siting of energy facilities and the Subc ommittee’s review of an

A. Purpose

II I. Statutory Framework

motion in a 72 - page written order, and this appeal followed. motion for rehearing. Following deliberations, the Subc ommittee denied the denying the application on March 30, 2018. The petitioners then filed a second written decision. The Subc ommittee issued a 287 - page written decision during deliberations, and to deny the application pending the issuance of a Following a hearing, the Sub c ommittee voted to suspend its oral decision made Subcommittee vacate its February 1 decision and resume deliberations. The petitioners filed a motion for rehearing and a request that the

application on February 1, 2018. unduly interfere with the orderly development of the region” and denied the “failed to demonstrate by a preponderance of evidence that the P roj ect will not (Supp. 2018). T he S ubc ommittee voted unanimously that the petitioners planning commissions and municipal governing bodies.” RSA 1 p. 6 62 - H:16, IV(b) consideration having been given to the views of municipal and regional p. 7 7

burden of proving the proposition by a preponderance of the evidence”). 202.19(a) (requiring that “[t] he party asserting a proposition shall b ear the the findings required by RSA 162 - H:16”); see also N.H. Admin. R., Site shall bear the burden of proving facts sufficient for the committee. . . to make R., Site 202.19(b) (stating that “[a] n applicant for a certificate of site and facility the necessary showings by a preponderance of the evidence. See N.H. Admin. For a certificate to issue, t he burden of proof i s on the applicant to make

C. Burden of Proof

relevant information. RSA 16 2 - H:16, IV (Supp. 2018). the “objectives” of RSA chapter 162 - H after giving “due consideration” to all deny a certificate if it determines that the issuance of a certificate will not serve discretion in ma king a determination whether to issue a certificate and it may 541 - A:35.” N.H. Admin. R., Site 202.28. The Subc ommittee has broad H:16, IV, and Site 301.13 through 301.1 p. 7 7, and issue an order pursuant to RSA Subc ommittee “shall make a finding regarding the criteria stated in RSA 162 - N.H. Admin. R., Site 100 et seq. In issuing or denying a certificate, the administrative rules adopted pu rsuant to RSA 162 - H:10, VI (Supp. 2018). See statutory requirements, the Subc ommittee ’s review is governed by RSA 162 - H:16, IV (a) - (b), (c) (Supp. 2018), (e) (Supp. 2018). In addition to the

(4) That issuance of a certificate will serve the public interest.

natural environment, and public health and safety. effect on aesthetics, historic sites, air and water quality, the (3) That the site and facility will not have an unreasonable adverse

commissions and municipal governing bodies. been given to the views of municipal and regional planning orderly development of the region with due consideration having (2) That the site and facility will not unduly interfere with the

the certificate. facility in continuing compliance with the terms and conditions of managerial capability to assure construction and operation of the (1) That the applicant ha s adequate financial, technical, and

to issue a certifica te, the Subc ommittee is required to find: planning, siting, construction, and operation of energy facilities.” Id. In order “for the review, approval, monitoring, and enforcement of compliance in the In furtherance of these objectives, the legislature established a procedure

B. Required Findings p. 8 8

The Subcommittee determined that the project as proposed satisfied this criteria. 4

and evidence demonstrated that construction of the Project would have an The Subc ommittee concluded, among other things, that the “testimony

A. Construction Impacts

and state - wide plans. governing bodies on the effect of the project on implementing local, regional of the views of municipal and regional planning commissions and munic ipal rivers, wetlands and wildlife habitat. The order also summarized the evidence recreation, and conservation, and historical and natural features such as residential, commercial/industrial, transpor tation, institutional/government, and (6) effect on current local land uses including forestry, agriculture, economic development; (4) effect on real estate values; (5) effect on tourism; support co mmunity betterment, clean energy innovation, tourism, and Hampshire Fund — to be funded with $10 million annually for 20 years to effects on local real estate taxes, and establishment of the Forward New including wholesale electricity market savings, impacts on small business es, development and job creation in the region; (3) effects on the economy Country Jobs Creation Fund — a $7.5 million fund to be spent on economic (2) impact on employment in the region including establishment of the North of private property owners, and access to priva te property during construction; vegetation along the right - of - way, road surfaces, construction noise, the ri ghts effects on land use during constructi on such as impacts on traffic, utilities, deli berations on impacts of the project on orderly development including: (1) detail ed the parties’ positions and the evidence submitted and set forth its orderly development of the region.” In its written order, t he Subc ommittee preponderance of evidence that the Project will not unduly interfere with the economy of the region,” the petitioners had “failed to demonstrate by a and operation of the Project would affect land use, employment, and the concluding that after considering “the extent to which the siting, construction, The Subc ommittee voted unanimously to deny the app lication,

IV. The Subc ommittee’s Decision

regarding the proposed facility.” N.H. Admin. R., Site 301.15. municipal and regional planning commissions and municipal governing bodies decom missioning plan for the proposed facility”; and (c) “[t] he views of 4 region”; (b) “[t] he provisions of, and financial assurances for, the proposed proposed facility will affect land use, employment, and the economy of the consider: (a) “[t] he extent to which the siting, construction, and operation of the interfere with the orderly development of the region, the Subc ommittee must In determining whether a proposed energy facility will not unduly

D. Orderly Development of the Region p. 9 9

although “most of these jobs would be temporary in nature, they would have a of the Project would generate a significant number of new jobs” and that The Subc ommittee acknowledged that it is “undisputed that construction

B. Employment Impacts

cause d by the project to locally - maintained roads. limit petitioners proposed would be sufficient t o correct “surface distortions” In addition, the Subc ommittee stated that it was unclear whether the two - year

northern portion of the S tate. to the impact of the Project on local roads, especia lly in the failure to provide serious consideration and planning with respect and local roads. This oversight is consistent with the Applicant’s instead provided a list which did not differentiate between State clearly identified crossings over locally - maintained roads a nd to cross. The Applicant failed to provide documentation that needs to understand which roads and where the Applicant intends

maintained roads.” T he Subc ommittee explained that it concerns about usurping the authority of municipalities over locally in clude a traffic management plan, and that DOT had “raised significant maintained ro ads, the petitioners’ evidence with respect to such roads did not found that the petitioners did not cle arly identify crossings over locally under and over locally - maintained roads present [ed] a greater problem.” It The Subc ommittee found that the “impacts associated with construction

development.” Subcommittee “from ascertaining the construction impacts on orderly information was “problematic,” it did not necessarily preclude the DOT. The Subc ommittee concluded, however, that while not having this the project, or determine the number and nature of exceptions to be filed with of - way or the precise location of each component of th e underground section of the Subc ommittee nor the petitioners could know the boundaries of the right - New Hampshire Department of Transportation (DOT) and, therefore, neither provide a final survey o f the right - of - way that was deemed acceptable by the In particular, the Subc ommittee found that the petitioners did not

would not unduly interfere with orderly development of the region.” proof on “whether the degree of traffic interference caused by construction business access,” and found that the petitioners did not me et their burden of strategies, combined with a lack of communication and consideration of about construction impacts, such as “inadequate traffic management orderly deve lopment of Plymouth.” The Subc ommittee expressed concerns would vary,” noting an “area of particular concern is the impact of the traffic on impact on traffic in affected communities and that the degree of the impact p. 10 10

to this particular attribute compared to al l the other considerations that go into generally perceived to be a negative attribute of a property, the weight attached Chalmers testified that “even though the presence of a HVTL corridor is there are effects, t he effects are small and decrease rapidly with distance.” HVTL [s] result in consistent measurable effects on property values, and, where Hampshire - specifi c studies support his opinion that “there is no evidence that valuation in New Hampshire, he testified that the general literature and New that he is not an expert o n the New Hampshire real estate market or property times in local and regional real estate markets.” Although he acknowledged the “possible effects” of the project “on both property values and marketing The petitioners’ expert, James Chalmers, Ph.D., testified with respect to

D. Property Value Impacts

level of compensation or mitigation would be appropriate.” impacts, the Subc ommittee found “it is impossible for anyone to know what negative impacts of the Project” with respect to construction - period business b ecause the petitioners had not provided “an adequate assessment of the petitioners proposed to implement a “business loss compensation program,” businesses that could be caused by construction of the Project.” Although the accountable”; and the petitioners “failed to account for negative impact on associated with any economic or government entity that would be the Job Creation Fund had a transparent structure of governance and were not the impact on local businesses, “neither the Forward New Hampshire Fund nor substantial real estate taxes it would pay to the affected communities”; as to region”; the project “would likely have a positive effect because of the unclear as to whether the hydropower is new or will be diverted from another realized if no new source of hydropower is introduced” and the “record is the Capacity Market”; “no actual greenhouse gas emission reductions would be determinations, including that: it “cannot conclude there will be savings from petitioners. In reaching this finding the Subc ommittee made several on the economy would be “much less significant” than predicted by the impact on the econom y.” However, the Subc ommittee found that that impact would generate energy savings,” found tha t it would “have a small, but, positive The Subc ommittee, noting that there is “no disagreement that the P roject

C. Economic Impacts

from the retail electricity market.” after construction is completed depends primarily on th e amount of savings for employees working for Northern Pass” and that “[t]he remainder of jobs explained that “[a]fter construction direct jobs are estimated to be 2 per year, the actual number of jo bs that would be created.” The Subc ommittee jobs estimated by the petitioners’ experts “is overinflated and does not reflect However, the Subc ommittee f ound that after construction the number of new positive effect on employment in the region during the construction period.” p. 11 11

with towers and the scope of t he project, exists here today, . . . no evidence “[n]o comparable can be found in this marketplace [given that] no such line, to that p roposed by [the petitioners] exists here.” Powell testified that b ecause impossible to perform such a study here because to date, no HVTL comparable used to fully explain or predict what may happen here” and that “[i]t is the project, noting that “[n]o study performed in any other location . . . can be values of view, location and the natural resources” that would be impacted by project in Dalton, Whitefield, and Bethlehem. Powell emphasized “th e core testimony on behalf of a group of intervenors who own property abutting the o f real estate sales and service” in northern New Hampshire, provided expert Peter W. Powell, a realtor with over 40 years of experience “in all aspects

$202,671 for 2015.” turn, KRA determined is the “equivalent annual loss in imputed rent income of $ p. 11 11,628,154 in lost wealth by af fected residential property owners.” That, in in assessed property value potentially within the viewshed represents of that property into a flow of income,” and determined that “[e]very 1% decline KRA t hen “transformed the value of a one - percent change in the assessed value existing literature that were most relevant to the affected New Hampshire area.” estimated the loss or gain in the value of that property using values from may have a view of the transmission line and its structures and then. . . KRA utilized “viewshed data. . . to estimate how much re sidential property

resorts, campgrounds, restaurants, etc. that rely on tourists. Senior Living facility in Deerfield, or the impact on hotels, motels, Concord, commercial properties such as the Sherburne Woods structures, such as the 148 townhouses in McKenna’s Purcha se in Chalmers’ analysis did not consider the impact on multi - family and scenic amenity values – visual property degradation. And the valuation diminution in New Hampshire’s area of high recreational examine the most important conduit for potential proper ty [p] erhaps most importantly the Chalmers’ analysis failed to

and unreliable.” KRA opined that incomplete” and his review of the local market and case studies w as “flawed According to KRA, C halmers ’ review of existing literature was “selective and effects on the market value of residential real estate was not credible. determined that his conclusion that the project will result in no measurable K avet, Rockler & Associates, LLC (K RA), reviewed Chalmers’ analysis and The CFP’s expert s, Thomas E. Kavet and Nicolas D. Rockler, Ph.D., of

property values or marketing times in local or regional real estate markets.” initiatives . . . to expect that the Project would have a discernible effect on in the published literature or in the New Hampshire - specifi c research effect on the market value of real estate.” He concluded that “there is no basis market decisions is apparently too small to have any consistent measurable p. 12 12

right - of - way would experience a change in view if the project were constructed. was a lack of e vidence of how many properties outside of 100 feet from the “reasonably supports that conclusion.” The Subc ommittee noted that there “[n]either the research supplied by” the petitioners, nor Chalmers’ testimony, property beyond 100 feet from the right - of - way would be impacted, finding that route.” In addition, t he Subc ommittee rejected Chalmers’ opinion that no vacant land, second homes or to property along the underground portio n of the consideration to commercial property, condominiums, multi - family housing, research Chalmers performed, including that he “gave littl e, if any, Third, the Subc ommittee identified several “significant gaps” in the

similar data related problems” as did the case studies. also found that the subdivision study undertaken by Chalmers “suffered from of the conclusions reached by Chalmers to be unreliable. The Subc ommittee nature of the surrounding region.” In addition, the Subc ommittee found many . . . especially with respect to the size of the proposed structures and the similar to properties along the Project route” and had “s ubstantial differences appraisals of properties in proximity to other existing HVTLs” that “were not Chalmers were not persuasive because they “were based on retrospective Second, the Subc ommittee found that the case studies performed by

negative impact on real estate values. literature review. . . supports the intuitive position” that HVTL s have a times on the market.” Thus, the Subc ommittee found that, “[i]n fact, the subdivisions near HVT L s, and that “affected properties also suffered extended as 20 percent to 25 percent on residential properties in rural residential in sale price attributable to HVTL s, a negative price effect that could be as high residential property values ranging from a one percent to six percen t reduction values, were contradicted by his own studies that demonstrated an impact on indicating that HVTL s have little discernible impact on residential property Subc ommittee found that the literatur e review s relied upon by Chalmers, finding, the Subc ommittee made several determinations. First, the adverse impact on real estate values throughout the region.” In reaching this in sufficient to demonstrate that the Project will not have an unreasonably The Subc ommittee found Chalmers’ “report and testimony to be

range primarily for raw land.” project] can range from 35 or 40 percent to as high as 75 percent, the higher tainted by [the project] is able to be sold at all, the loss in value due to [the region. In addition, Powell stated that, in his experience, “if indeed a property the project already has negatively impact ed the value of real estate in the experience on the ground here.” Those examples supported his conclusion that Committee by [the petitioners’ expert] to be mislead ing and contrary to dynamics of North Country real estate sales make the findings presented to the impact.” Powell provided five specific examples to demonstrate “why the exists to support a decisi on that the presence of [the project] would have no p. 13 13

testimony from the CFP’s expert that Nichols did not study impacts on and tourism destinations in the North Country.” The Subc ommittee noted Nichols “did not exhibit familiarity with the New Hampshire tourism industry Nichols to be credible fo r several reasons. The Subc ommittee found that The Subc ommittee did not find the report and testi mony submitted by

described a high voltage transmission line. question that mentioned, provided a visual simulation, or a web - based survey of paid respondents that failed to ask a single of flawed methodology that renders the analysis meaningless, and attempt to examine two “similar” transmission projects by the use some of whose views were unreported and largely ignored, an tourism data, four listening sessions with limited participants based on faulty logic, methodological errors in the analysis of

potential impact on tourism.” According to KRA, the assessment was concluded that it was not “a reasonable or credible assessment of the Project’s The CFP’s expert, KRA, reviewed Nichols’ tou r ism impact analysis and

closures and delays or on tourism in general. not study or analyze the impacts of construction of the project on traffic any negative effect on the tourism industry.” Nichols acknowledged that he did indication that the construction and operation of new transmission lines had industry from existing large electrical transmission lines,” and found “no there is evidenc e of actual business expansion or contraction in the tourism support for the concern.” Nichols reviewed l abor statistics “to gauge whether impacts of Northern Pass, no one provided any specific foundation or empirical while some of the participants “expressed concern about future potential before the Subc ommittee. Regarding the listening sessions, Nichols no ted that Nichols submitted pre - filed testimony and a report, and testified for two days at labor s tatistics, and conducted an el ectronic prospective visitor survey. “listening sessions” with New Hampshire tourism i ndustry participants, looked literature, examined data provided by Plymouth State University, conducted conclusion about the effects of the project on tourism, he reviewed relevant research on the im pacts of power lines on tourism. Thus, to formulate a Hampshire’s tourism industry.” Nichols noted that there is no quantitative affect regional travel demand and it will not have a measurable effect on New The petitioners ’ expert, Mitch Nichols, opined that the project “w ill not

E. Tourism Im pacts

interfere with the orderly development of the region.” demonstrating that the Project’s impact on property values will not unduly values will reach,” and that the petitioners did not meet their burden “in analyses are insufficient” for it “to determ ine how far the impacts on property Accordingly, the Subc ommittee concluded that the petitioners ’ “data and p. 14 14

could have on tourism.” and analyze the impact that construction work over an extended period of time omitted.) In addition, the Subc ommittee found that Nichols “failed to address destination attribute a ffecting tourist visitation to New Hampshire.” (Quotation evidence that scenic beauty and a pristine wilder ness experience is a primary T he Subcommittee noted that the CFP’s experts opined that “there is ample . . . located in areas that are substantially different from the Project’s location.” the region.” In addition, the Su bcommittee observed that those projects “are Project are considerably taller and will be seen above the tree canopy in most of canopy and were not plainly visible,” whereas “[t]he structures designed for this within existing corridors, and the new structures remained below the tree different from” this project, “most notably because they were constructed fully existing HVTL projects fla wed because those projects “are substantially The Subcommittee found Nichols’ comparison of the project to other

Hampshire is “illogical and does not readily follow from t he question asked.” powerlines, therefore, have no impact on a tourist decision to visit New (Emphasis added.) The Subc ommittee found that Nichols’ conclusion that

impact o n a tourist decision to visit New Hampshire. . . . these answers, Mr. Nichols concluded that powerlines have no destination because the destination had visible power lines. From participants indicated that they made their decision to visit a destinatio n has visible power lines in certain areas.” No survey following factors?” One available answer to the question was “the decision to visit the destination based primarily on each of the [A] survey question asked “[h]ow often have you made your

worded nature of the survey: Subc ommittee described “but one” example of the misleading and poorly substantial number of varied stakeholders.” By way of illustration, the intercept surveys,” and “[f]ailed to obtain and address the views of a relied upon were “poorly worded,” “misleading,” failed to include “visitor In addition, the Subc ommittee found that the electronic surveys Nichols

public interest in the Project.” inspections along the proposed route demonstrated that there was a lot of exp erience in conducting information sessions, public hearings and site concerns about the project’s impact. The Subc ommittee noted that its “own people, and did not provide a variety of information and views on tourism and upon by Nichols were poorly designed, attended by only a limited number of Subc ommittee also found that the listening sessions conducted by and relied without any reference to the specific characteristics of the project. The project would pass, but instead addressed generally New Hampshire tourism individual touris m destinations or any specific region through which the p. 15 15

orderly development of the region.” “that the Project, as planned and presented, would unduly interfere with the commissions and municipal governing bodies of the affected municipalities ac count for the almost uniform view” of municipal and regional planning in the northern part of the State”; and (3) failed to “adequately anticipate and appropriately considered the Project’s effects on municipal roads and business values” and failing “to provide a plan for construction of the Project that “credible evidence regarding the negative impacts on touris m and real estate “the effect the Project would have on the economy,” including failing to provide on surrounding properties and land use”; (2) did not sufficiently demonstrate right - of - way and would not substantially change the impact of the right - of - way Project would not overburden existing land uses within and surrounding the Subcommittee found that the petitioners: (1) failed to demonstrate “that the After considering the evidence and the parties’ positions, the

Project proposed to be constructed underneath municipal roadways.” regulate the construction, maintenance and operation of the parts of the in these area s” and have “not provided a satisfactory means and method to Project would be consistent with residential, agricultural, and commercial uses found that the petitioners “did not provide any testimony indicating that the In addition, with respect to the northernmost communities, the Subc ommittee effect, but the record contains little to assist us in making that determin ation.” on the surrounding land uses. It is possible that there would be no negative attention to the effects that the underground portion of the Project may have land uses. The Subc ommittee stated that t he petitioners “directed little, if any, the impact that the underground portions of the project would have on existing The Subc ommittee found that the petitioners did not sufficiently address

lines and certainly n o existing corridor for transmission lines.” underground installation in roads where there are no pre - existing transmission “the Project includes 32 miles of new aboveground right - of - way and 60 miles of p rinciple to be applied in every case.” Further, the Subc ommittee noted that “fails to note that it is not the only principle of sound planning nor is it a sound planning principle. The Subc ommittee stated, however, that the expert the region and that construction of transmission lines in existing corridors is a right - of - way corridor, there would be no impact on the or derl y development of the majority of the project would be constructed in an existing transmission Subc ommittee acknowledged the petitioners’ expert ’s test i mony that because would not interfere with th e orderly development of the region.” The preponderance of evidence that proposed expansion of the right - of - way use The Subc ommittee found that the petitioners “failed to demonstrate by a

F. Land Use Impacts and Municipal Views p. 16 16

Subc ommittee’s order “is clearly unreasonable or unlawful.” R SA 541: 1 3. On appeal, the burden is on the petitioners to show that the

(quotation omitted). is free to accept or reject an expert’s testimony, in whole or in part.” Id. 170 N.H. at 762. When faced with competing expert witnesses, “a trier of fact findings are supported by competent evidence in the record.” Appeal of Allen, reweigh the evidence, but rather to determine w hether the [Subc ommittee’s] determine whether we would have credited one expert over another, or to presented as [it] found proper.” Id. (quotation omitted). “It is not our task to in the evidence” and could “accept or reject such portions of the evidence (quotation omitted). As the trier of fact, the Subcommittee “resolve[s] conflicts even uncontroverted evidence.” DeLucca v. DeLucca, 152 N.H. 100, 102 (2005) the p ersuasiveness and credibility of evidence and is not compelled to believe 158 N.H. 459, 465 (2009). The “trier of fact is in the best position to measure determining the weight to be given evidence.” In the Matter of Aube & Aube, conflicts in the testimony, measuring the credibility of witnesses, and We defer to the Subcommittee’s “judgment on such issues as resolving

the Subc ommittee’s rulings on issues of law de novo. See id. evidence in the record. Appeal of Allen, 170 N.H. 754, 758 (2018). We review but, rat her, to determine whether the findings are supported by com petent 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 RSA 541:13 (20 07). The Subc ommittee’s findings of fact are presumed prima clear preponderance of the evidence, that the order is unjust or unr easonable. Subc ommittee’s order except for error s of law, unless we are persuaded, by a chapter 541. See RSA p. 16 162 - H:11 (2014). We will not set aside the Decisions by the Subc ommittee are reviewed in accordance with RSA

V I. Standard of Review

development of the region is arbitrary and unsupported. Subc ommittee ’ s finding that the project would unduly interfere with the orderly constituted imp roper ad hoc decision making. Third, they assert that the petitioners argue that the Subc ommittee’s application of the burden of proof market benefits or weigh the impacts and benefits of the project. Second, the could have reduced or eliminated project impacts; and (3) resolve the capacity relevant information; (2) consider mitigating measures and conditions that that the Subc ommittee violated RSA chapter p. 16 162 - H by failing to: (1) consider all The petitioners raise three main arguments on appeal. First, they assert

V. Issues on Appeal p. 17 17

164 N.H. 365, 370 (2012). Accordingly, we need not address it. See Sheehan v. N.H. Dep’t of Resources & Economic Dev., or Rules require consideration of all the RSA 162 - H:16, IV criteria as a matter of law.” 2018). However, the petitioners concede that they have waived the issue “of whether the Statute its decis ion without deliberating on each of the four criteria set forth in RSA 162 - H:16, IV (Supp. In their notice of appeal, the petitioners argued that it was error for the Subc ommittee to reach 5 communities — a consideration the Subcommittee must address in o f the affected municipalities on the impact of the project on land uses in their Subcommittee discussed aesthetics as part of its consideration of the positions Subc ommittee’s discussions of “aesthetics.” Rather, in context, the The petitioners’ argument, however, misconstrues the context of the

on scenic resources). findings of unreasonable adverse effects on aesthetics, including visual impact the proposed energy facility), Site 301.14 (setting forth the criteria relative to 301.05 (requiring that each application include a visual impact assessment o f the natural environment, and public health and s afety”); N.H. Admin. R., Site unreasonable adverse effect on aesthetics, historic sites, air and water quality, (requiring the Subc ommittee to find that the site and facility “will not have an into orderly development, “it w ould have said so.” See RSA 162 - H:16, IV(c) development, and, if the legislature had intended aesthetics to be incorporated ‘unreasonable adverse effect’ section of RSA 162 - H:16, IV(c), not under” orderly They assert that the legislature “placed the consideration of aesthetics in the consideration of aesthetics relative to” the orderly development of the region. have deliberated on aesthetics, and thus provided a framework for its separate statutory fac tor to the [orderly development] determination, it should Subc ommittee “was going to improperly apply the aesthetic consideratio ns of a required by RSA 162 - H:16, IV(c).” T he petitioners contend that if the on or decided aesthetic effects, or whether they were ‘unreasonably adverse,’ as the Subc ommittee focused on “a esthetics,” des pite it never having “deliberated exemplified by the fact that, in considering the project’s impact on land use, issues [be] resolved in an integrated fashion.” They argue that this failure is 5 mandate in RSA 162 - H:1 that “all environmental, economic, and technical relevant info rmation” on orderly development, thereby ignoring the legislature’s T he petitioners assert that the Subc ommittee failed “to consider highly

1. Consideration of all Relevant Information

and capitalization omitte d.) conditions and by failing to weigh potential impacts and benefits.” (Bolding failing to consider all relevant information, including mitigating measures and The petitioners first argue that the Subc ommittee “violated RSA 162 - H by

A. Violations of RSA C hapter 162 - H

VI I. Analysis p. 18 18

testifie d that the project would violate sections of the town’s Site Plan Review character through “protection of the town’s aesthetic values.” In addition, he the goal in the town’s Master Plan to preserv e the existing rural and small town the Town of New Hampton testified that the project would be inconsistent with businesses that depend on tourism.” The witness for the Planning B oard for affect ing the town’s “rural character and attractiveness, tourism, and by affecting the views from Mountain View Grand Resort,” and by adversely town’s Master Plan, including the proj ect’s “negative effect on special land uses Planning Board testified about inconsistencies between the project and the character and tourism.” The witness for the Whitefield Board of Selectmen and landscape,” and “would affect the wetlands, natural environment, its rural with the goal set forth in the town’s Master Plan t o “maintain the rural explained that the construction and operation of the project is inconsistent For example, the witness fo r the Bethlehem Board of Selectmen

arguments” that the Subc ommittee found to be “generally persuasive.” communities “intervened in the process and presented evidence and cogent the project would influence land uses in its vicinity. Twenty - two of those development of the region” and part of that concern was how the aest hetics of “expressed an opinion that the Project will interfere with the orderly “is quite clear” in that 30 of the 32 municipalities along the project’s route have Subc ommittee noted that the predominant posi tion of local governing agencies governing bodies.” RSA 162 - H:16, IV(b). In doing so in this case, the “views of municipal and regional planning commissions and municipal interfere with the orderly development of the region, is required to consider the The Subc ommittee, i n determining whether the project will not unduly

N.H. Admin. R., Site 301.09(a).

inconsistent with such land uses. such land uses and identification of how the proposed facility is and (2) description of how the proposed facility is consistent with description of the prevailing land uses in the affected communities; of the facility on . . . [l]and use in the region, including . . . (1) applicant’s estimate of the effects of the construction and operation facility host municipalities and unincorpora ted places, and the affected communities and zoning ordinances of the proposed views have been expressed in writing, and master plans of the municipal governing bodies regarding the proposed facility, if such views of municipal and regional pl anning commissions and facility on the orderly development of the region including the include information regarding the effects of the proposed energy

require that each application for a certificate development of the region. See N.H. Admin. R., Site 301.15(a). The regulations determining whether the project will not unduly interfere with the orderly p. 19 19

values in order to make the ultimate findi ng on” orderly development of the so, “it could have estimated the Project’s impacts on tourism and property testimony of the CFP’s expert on tourism and property values, and, had it done The petitioner s also contend that the Subc ommittee failed to consider the

in to its consideration of orde rly development of the region. erroneously imported the aesthetic considerations from RSA 162 - H:16, IV(c) Thus, we disagree with the petitioners’ assertion that the Subc ommittee uses in many communities that make up the r egion affected by the Project.” Project’s route, the Project would have a large and negative impact on land that “[g]iven the nature of the master plans and local ordinances along the purposes.” B ased upon the evidence before it, t he Subc ommittee concluded relates to the ability of the parties to continue to use the land for its current aesthetics, agricultural uses, and the natural environment of the land directly and ordinances was required.” As the Subc ommittee noted, “T he impact on magnitude of this Project, more consideration of the provisions of maste r plans importance,” and it agreed with the municipalities in this case that, “given the views of the communities and should not be disregarded or minimized in T he Subc ommittee reason ed that “master plans represent the considered

aesthetics and efforts to preserve the rural landscape.” because they contain ‘broad’ visions and goals with respect to community plans and zoning ordi n ances and “diminished the importance of master plans “did little in the way of applying the details of the Project” to rele vant master affect land uses in the region.” The Subc ommittee determined that the expert zoning ordinances, supports a conclusion that the Project will not adversely research, “consisting of a review of local la nd uses, master plans and some Subc ommittee disagreed with the petitioners’ contention that their expert’s regional planning commissions and municipal governing bodies, the Taking into consideration the views of these and other municipal and

and enhancing “the overall appearance and aesthetics of the community.” Master Plan, including minimizing “undesirable impacts to adjacent land uses” the project woul d be inconsistent with several l and us e sections of the c ity’s The witness for the City of Concord testified that construction and operation of viewsheds and rural nature of the Town.” (Quotation and brackets omitted.) corridor/powerline clearc ut, and would have a negative impact on the because it would “result in the widening of the current utility beauty,” and that the project would violate the town’s Zoning Ordinance “the rural quality of the T own, [and] building to create enduring value and inconsistent with provisions in the town’s Master Plan, incl uding safeguar ding would unduly interfere with development of the region because it would be infrastructure.” The witness for the Town of Bristol testified that the project and expanding the scope and size of currently existing transmission way would cause expansion of use by reducing screening from residential areas Regulations because “[c]onstruction of the towers with in an existing right - of - p. 20 20

if a determination cannot be made that the Project will not unduly unambiguously requires the [Subc ommittee] to deny an application development of the region. The statute specifically and finding that the Project will not unduly interfere with the orderly [S ubc ommittee] must make to issue a certificate and includes a H:16, IV clearly and unambiguously states the finding s the carry its burden of proof would lead to an absurd result. RSA 162 offered by the Applicant in order to cure the Applicant’s failure to R eading the rule to require [it] to consider conditions not

to carry its burden of proof.” The Subc ommittee reasoned that: Subc ommittee “to draft. . . conditions that could cure the [petitioners’] failure and it rejected the petitioners’ interpretation that the regulation requires the does not require [it] to consider conditions of a Certifica te that is never issued,” N.H. Admin. R., Site 301.17(i). The Subc ommittee stated that “Site 301.17(i)

162 - H or to support findings made pursuant to RSA 162 - H:16. (i) Any other conditions necessary to serve the objectives of RSA

. . ..

objectives of RSA 162 - H: conditions should be included in the certificate in order to meet the energy facility, the committee shall consider whether the following [i]n determining whether a certificate shall be issued for a proposed

The regulations provide that

when a certificate is denied. Subc ommittee’s determination that it was not required to consider conditions project impacts. In doing so, the petitioners take issue with the mitigating measures and conditions that could have reduced or eliminated The petitioners next argue that the Subc ommittee failed to consider

2. Mitigation and Conditions

(quotation omitted)). fact is free to accept or reject an expert’s testimony, in whole or in part” other witness. See Appeal of Allen, 170 N.H. at 762 (explaining that “a trier of testimony any more than it was obligated to rely upon the testimony of any written order. The Subc ommittee, however, was not obligated to rely upon that that the Subc ommittee di d consider the expert’s testimony as is reflected in its orderly development. C ontrary to the petitioners’ position, t he record show s impacts that would have been useful in assessing undue interference” with CFP’s expert testimony “that offered an estimate of property value and tourism region. They assert that t he Subc ommittee was “obligated to consider” the p. 21 21

along the 192 mile route” would be affected by the project, concluding that the the expert’s assessment that only six or nine properties “of the thousands impact of the Project on property values.” However, the Subc ommittee rejected The Subc ommittee stated that it “appreciat[ed] the attempt to mitigate the the property within 5 years after commencement of construction of the Project.” of such properties “are not subject to an economic loss in the event of a sale of the petitioners offered a “Gu arantee Program” designed to ensure that owners route might experience a drop in value as a result of the project. As mitigation, values determined that appro ximately six or nine properties along the project’s measures off ered by them. For example, the petitioners’ expert on property support the petitioners’ argument that the Subc ommittee ignored mitigation ultimate burden” on the orderly development finding. The record does not as part of their burden of persuasion to estimate the Project’s effects, or their was free to ignore measures the [petitioners] offered to reduce imp acts, either Subc ommittee, they contend that “that does not mean that the [Subc ommittee] to impose specific mitigating measures as conditions rests with” the Although the petitioners con cede that “the ultimate decision of whether

which conditions would address such interference.” Project’s interference with orderly development of the region, it could not decide “without having information demonstrating the extent and nature of the conditions that might lessen those impacts. As the Subc ommittee stated, orderly development, it was not possible for the Subc ommittee to impose sufficient information f or it to determine the extent of the project’s impact on B ecause the Subc ommittee found that the petitioners did not provide

requiring mitigation could be built — and every project requires mitigation.” mitigation.” According to the petitioners, “[i]f this were true, no energy project unduly interfere with [orderly development of the region], independent of considered only after an applicant first demonstrates that a project would not that the Subc ommittee “posits a counter - intuitive paradigm where mitigation is an integral part of the burden of proof, and cannot be divorced from it,” and permitting proceedings (like this one), mitigating measures and conditions are The petitioners assert that this reasoning is flawed because “in

(Citation omitted.)

satisfied. requirement to deny an application if such criteria are not the statute would render meaningless the criteria and th e render a project certifiable under RSA 162 - H:16. Such a reading of and, instead, should proceed to considering conditions that would applicant did not satisfy the requirements of RSA 162 - H:16, IV [Subc ommittee] cannot deny a certificate after it finds that an rule and statute as proposed by the Applicant would mean that the interfere with the orderly development of the region. To read the p. 22 22

be. While benefits to the economy and employment would be that they will be as large as the Applicant’s expert said they would savings from the Capacity Market will occur; or if they do occur, electricity market. The Applicant has not demonstrated that the Project is largely dependent on savings from the wholesale [t]he impact on the economy and employment during operations of

somewhat positive effect” on the economy. H owever, it explained that benefits. The Subc ommittee acknowledged that the project “would have a to weigh the evidence and make a determination on the capacity market We disagree with the petitioners’ assertion that the Subc ommittee failed

wi th” orderly development of the region. impacts, it could have readily found the Project would not unduly interfere undisputed Project benefits against potential property value and tourism jobs.” According to the petitioners, “[h]ad the [Subc ommittee] weighed the [Gross State Product], from those and other e xpenditures and construction expenditures on taxes and the [Forward New Hampshire Fund], as well as regardless of any capacity market savings — because “[t]hey include direct $1.5 billion in benefits” — ben efits that the petitioners contend will accrue wrong.” The petitioners argue that “the record demonstrated approximately make a decision on this issue,” and that its failure to do so is “inexplicable and economy,” that the Subc ommittee’s “job was to weigh the expert evidence and extent of capacity market benefits and how they would affect the region’s Next, t he petitioners assert that the Subc ommittee “failed to decide the

3. Weighing the Benefits and Impacts of the Project

of the plain language of the regulations. criteria would shift the burden of proof to the Subc ommittee, in contravention to make up for an applicant’s failure to satisfy the statutory and regulatory IV. To require the Subc ommittee to craft its own mitigating measures in order Subc ommittee to make the required statu tory findings under RSA 162 - H:16, order to satisfy its burden of proof are part of the “facts sufficient” for the Admin. R., Site 202.19(a). Mitigation measures proposed by an applicant in findings required by RSA 162 - H:16.” N.H. Admin. R., Site 202.19(b); see N.H. “bear the burden of proving facts sufficient for the [Subc ommittee] to make the required to craft mitigation measures, we reject this position. The petitioners To the extent the petitioners imply that the Subc ommittee itself is

compensation plan might r equire.” [the Subc ommittee] to even begin to consider what an appropriate [of the project on property values] was . . . inadequate, it was impossible for Subc ommittee determined that because the petitioners’ “analysis of the effects determine how far the impacts on property values will reach.” Thu s, the petitioners’ “data and analyses are insufficient for the [Subc ommittee] to p. 23 23

board “unreasonably relied upon personal feelings and ad hoc decision - making”). of Dartmouth Coll. v. Town of Hanover, 171 N.H. 497, 512 - 13 (2018) (deciding th at administrative this implication. In this case, the record facts support the Subcommittee’s decision. Cf. Trustees personal feelings of th e individual members rather than objective and discernible facts, we reject To the extent that the petitioners imply that the Subcommittee’s decision was based upon 6

municipal governing bodies. and resolve the views of municipal and regional planning commissions and erroneously imposed a new “affirmative burden” on the petitioners to address of - way is cons istent with existing land uses; and (3) the Subc ommittee Subc ommittee ignored its own precedent that construction in an existing right whether the petitioners’ bur den of proof has been satisfied; (2) the guidance” as to the information that will be considered when determining terms undefined and the regulations on orderly development provide “no under RSA 541:6, and unconstitutional” because: (1) the Sub c ommittee left key of the orderly development standard was “both unlawful and unreasonable predict or meet.” In support, they assert that the Subc ommittee’s application burden of proof “by wholly arbitra ry standards that the [petitioners] could not capitalization omitted.) They contend that the Subc ommittee measured the 6 of the burden of proof was improper ad hoc decision making.” (Bolding and Next, the petitioners argue that the Subc ommittee’s “flawed application

B. Improper Ad Hoc Decision Making

that there would be no discernible effect on property value.” values, the Subc ommittee “did not find credible the Applicant’s expert’s opinion conditions that migh t mitigate those effects.” Similarly, regarding property no way to evaluate the Project’s tourism effects and no way to fashion credible and that “[h]is report and testimony provided [the Subc ommittee] with find the petitioners’ expert regarding the effects of the project on tourism to be savings from the capacity market. The Subc ommittee reiterated that it did n ot economic analysis had “more profound problems” than uncertainty regarding tourism impacts. The Subcommittee explained that these parts of the was unable to weigh th ose purported benefits against pro perty value and benefits was “undisputed,” t he record demonstrates that the Subc ommittee Moreover, even assuming, without deciding, that the $1.5 billion in

(Emphase s added.)

elsewhere in the State and the rest of New England. other economic activity along the route of the Proje ct and are the basis for the Applicant’s projections about employment and affects other parts of the economic analysis, because those savings predicts. The uncertainty regarding Market Capacity savings positive, we cannot find they would be as large as the Ap plicant p. 24 24

recreation; and (5) The effect of the proposed facility on tourism and

the affected communities; (4) The effect of the proposed facility on real estate values in

and the tax revenues of the host and regional communities; (3) The effect of the proposed facility on State tax revenues

economic activity during construction and operation periods; (2) The economic effect of the proposed facility on in - state

communities; (1) The economic effect of the facility on the affected

(b) The economy of the region, including an assessment of:

facility is inconsistent with such land uses; with such land uses and identification of how the proposed (2) A description of how the proposed facility is consistent

communities; and (1) A description of the prevailing land uses in the affected

(a) Land use in the region, including the following:

development of the region: required to provide in order to address the effect of the project on the orderly The regulations identify the documents and information an applicant is

this argument. regulations lack guidance and were, therefore, applied arbitrarily, we address 494, 499 (1988). To the extent that they are asserting that the statute and insufficiently developed for appellate review. See Keenan v. Fearon, 130 N.H. that the statute and regulations are unconstitutionally vague, this ar gument is (Quotation and brackets omitted.) To the extent the petitioners are arguing when determining whether the [petitioners] satisfied their burden of proof.” regulations “provide no guidance as to the infor mation that will be considered the Subcommittee lef t “key terms” such as “region” undefined, and that the New Hampshire Constitution Part 1, Articles 12 and 15.” They contend that such an arbitrary ma nner as to violate [their] right to due process under the The petitioners assert that the “vague Statute and Rules were applied in

1. Statutory Terms and Regulatory Standards p. 25 25

. . . notice as to what will be considered by the Subc ommitt ee; and (ii) such a ‘undu e,’ ‘interference,’ and ‘region ’” because “(i) the statutory scheme provides As t he Subc ommittee reasoned, it was “not necessary to specifically define

by the [p etitioners] pursuant to Site 301.09(b). impact on the economy, taxes, property values, and tourism filed Subcommittee would consider the reports addressing the Project’s determining the Projec t’s impact on the economy, the that t he [petitioners] filed pursuant to Site 301.09(c); and (v) when employment, the Subc ommittee would consider the assessment to Site 301.09(a); (iv) when determining the Project’s impact on would consider the assessment that the [petitioners] filed pursuant deter mining the Pro ject’s impact on land use, the Subcommittee use, employment, and the economy of the region; (iii) when Subcommittee would consider the effects of the Project on land interfere with the orderly development of the region, the region; (ii) when determining whether the Project would unduly would not unduly interfere with the orderly development of the the Certificate only if the [petitioners] established that the Project reasonable party) on notice that: (i) the Subcommittee could issue T he statute and the rules put the [petitioners] (like any other

Subc ommittee explained: when deciding whether the [petitioners] satisfied [their] burden of proof.” The standard to be considered, but also the information that would be considered provided the [petitioners] with a reasonable opportunity to know not only the We agree with t he Subc ommittee that “[t]he statute and the rules

N.H. Admin. R., Site 301.09.

induced by facility - related wages and expenditures. employment b y the applicant and indirect employment the operation of the proposed facility, including direct expected to be created, preserved, or otherwise affected by (2) The number and types of full - time equivalent jobs

by facility - related wages and expenditures; and construction employment and indi rect employment induced the construction of the proposed facility, including direct expected to be created, preserved, or otherwise affected by (1) The number and types of full - time equivalent local jobs

(c) Employment in the region, including an assessment of:

and infrastructure; (6) The effect of the proposed facility on community services p. 26 26

presented. See Appeal of Allen, 170 N.H. at 762. Accordingly, we reject the Subc ommittee’s findings could reasonably be made based on the evidence 102 (quotation omitted). We have reviewed the record and determine that the not compelled to believe even uncontroverted evidence.” DeLucca, 152 N.H. at position to measure the persuasiveness and credibility of evidence and [was] ascertain the extent of t he impacts.” The Subc ommittee was “in the best impacts of the P roject, the Subc ommittee determined that it could not truly and that “[w] ithout having the information about the extent of the negative failed to account for the negative impacts on local business and employment” economy and employment, and found that the petitioners’ “assessment. .. pursuant to Site 301.09(b) and (c), ad dressing the impact s of the p roject on the Subc ommittee reviewed the reports and testimony submitted by the petitioners ascertain the impact of the Project on real estate values and tourism.” The found they “were not credible” and, therefore, it “could not rely on them to 301.09(b) regarding the effects of the project on the economy of the region and reviewed the reports and testimony provided by the petitioners pursuant to Site upon in ascertaining the impact of the Project on land use.” The Subc ommittee the report and the expert’s testimony “were not credible and could not be relied effects of the pro ject on land use in the region. The Subc ommittee found that 301.09(a) and considered the petitioners’ expert’s testimony concerning the Subc ommittee reviewed the report filed by the petitioners pursuant to Site The record supports this characterization as it shows that t he

“on an ad hoc basis based on some vague, un articulated concerns.” record,” and rejected the petitioners’ characterization that it denied the project The Subcommittee based its denial of the petitioners’ application “on the

specifically stated why they could not be relied upon. testimony and reports were inadequate and not credible, and inaccuracies in the reports, identified the reasons why the reports filed by the [petitioners’] experts, identified gaps and Subc ommittee members specifically addressed the testimony and interfere with the orderly development of the region. Th e the Subcommittee to find that the Project would not unduly [their] burden of proof and failed to demons trate facts sufficient for relied on when determining that the [petitioners] failed to carry record and the Decision clearly identify the facts the Subcommitt ee unduly interfere with the orderly development of the region. The would be considered while deciding whether the Project would [pe titioners] with. . . reasonable notice of the information that RSA 162 - H:16, IV, Site 301.09, and Site 301.15, provided the

Subc ommittee that statute are all understood to have a common meaning.” We agree with the decision is based on the facts supported by the record. The words in the p. 27 27

with the orderly development of the region, if any.” and, consequently could not determine the extent of the Project’s interference Subc ommittee “could not ascertain the effect of the Project on the econom y effect or the absence of effect” and that “[w]ithout this information,” the petitioners “failed to provide credible information that would demonstrate the the impact of the project on the economy, the Subc ommittee found that the an inadequate basis upon which to form an opinion.” Likewise, i n considering Subc ommittee found that the petitioners’ expert’s “work in this area provided Similarly, i n considering the impact of the project on tourism, the

for the Subc ommittee to analyze the impact of the project on land use. determined that the petitioners “failed to provide sufficient credible evidence” so long as it is located within the existing right - of - way,” the Subc ommittee had proceeded “on the sole premise that the Project would not impa ct land use would overburden the use of the right - of - way. Rather, because the petitioners find t hat the project would have a negative impact on land use because it with the existing land uses in the region.” T he Subc ommittee, however, did not overburden the right - of - way to the extent that it would render it inconsistent indicating that, “due to its size and scope,” the project would “intensify and use, the Subc ommittee received “substantial testimony and evidence” For example, in considering the impact of the project on existing land

property values, tourism, local economy, and employment.” Project on the components of the orderly development of the region – land use, Subcommittee to determine the impact and the ext ent of the impact of the “failed to provide sufficient credible evidence that would allow the demonstrated no impact or did not demonstrate a benefit — but because they petitioners f ailed to carry their burden of proof — not because the evidence Rather, the Subc ommittee “specifically and clearly concluded” that the impact on land use, the economy, employment, tourism, and property values.” require the petitioners “to prove that there would be no impact or a positive The Subc ommittee rejected this argument, stating t hat it “did not”

nature of such interference’ for each one of those subsections.” required a showing of the ‘type and extent of impacts’ and the ‘extent and “had to me et a burden of proof on each subsection of Site 301.09, and then Subc ommittee’s order “mistakenly hinged on [its] finding” that the petitioners with” orderly development of the region. Accordingly, t he y contend that the deciding whether those effects, taken together, amounted to undue interference provide ‘estimates’ of the effects in each area for the [Subcommittee] to use in T he petitioners also argue that the regulations only require them “to

or were applied in an arbitrary manner. petitioners’ assertion that the statute and regulations lack sufficient guidance p. 28 28

project in this case: The Subc ommittee explained why the princ iple did not apply to the

impact of each project on land uses meaningless.” with the prevailing land uses would render the requirement to assess the without analyzing the characteristics of the Project and its actual consistency use solely because it would be cons truct ed within the existing right - of - way that requiring it to find that the project “would be consistent with prevailing mostly within the existing right - of - way. The Subc ommittee reasoned, however, would be consistent with prevailing land uses because it would be constructed characterization of the record. The petitioners’ expert testified that th e project manner that would justify jettisoning precedent.” We disagree with this of fact or explain why “this” HVTL “actually impacts prevailing land uses in a The petitioners also argue that the Subcomm ittee failed to make findings

subject matters, but shall not be bound thereby.” RSA 162 - H:10, III. appropriate, prior committee findings and rulings on the same or similar statute expressly provides that the Subc ommittee “shall consider, as determine, therefore, that the doctrine is not applicable. Furthermore, the the effect of the proj ect on land use in the region are ambiguous and we the petitioners do not argue that either the statute or the regulations regarding precludes application of the administrative gloss doctrin e.” Id. at 322. H ere, and quotation omitted). “Lack of ambiguity in a statute . . . , however, legislative interference.” Petition of Kalar, 162 N.H. 314, 321 (2011) (citation and apply it to similarly situated applicants over a period of years without responsible for its implementation interpret the clause in a consistent manner Administrative gloss is placed upon an ambiguous clause when those “The doctrine of administrative gloss is a rule of statutory construction.

is “not. .. to be applied in every case.” We disagree. Subc ommittee acted arbitrarily in this case by det ermining that that principle on the Subc ommittee’s land use rule. Thus, the petitioners assert that the occupied utility corridor,” its prior decisions “provide an administrative gloss” development was “that t he proposed line is constructed in an existing, previously found that the “single most important fact bearing on” orderly T he petitioners argue that because the Site Evaluation Committee has

2. Right - of - Way

the criteria the petitioners had notice they were required to meet. credibility of the witnesses and the sufficiency of the evidence, consistent with record s how s that the Subc ommittee made detailed findings regarding the and did not explain “what it required to meet that burden,” our review of the burden of proof “using criteria that appear nowhere in the Statute or Rules,” Although the petitioners assert that the Subc ommittee applied the p. 29 29

governing bodies. The record does not support this contention. concerns of municipa l and regional planning commissions and municipal “imposed an affirmative burden” on them to “address and resolve” the views or The petitioners next contend that, “for the first time,” the Subc ommittee

3. Views of Municipalities

issue of impact on orderly development. determined that there was insufficient credible evidence before it to resolve th e could never be an adverse effect on local land use, the Subc ommittee existing corridor. Rather, given the petitioners’ steadfast position that there not determine that construction in the right - of - way would overburden the unduly interfere with orderly development of the region, the Subc ommittee did explaining why, in this case, construction in an existing right - of - way would petitioner s’ assertion that the Subc ommittee “made no findings of fact” the [petitioners] had actually addressed the impacts.” Contrary to the project was or was not consistent with existing land uses at these locations, if there could be significant impact. The Subcommittee might find that the site visits, [it] determined that there are various places al ong the route where the existing corridor.” As the Subc ommittee stated, “with the benefit of seven instead relying solely upon the rationale that the project “would be built within be determined because the petitioners failed to “actually address the impacts,” concluded that the project’s consistency with land uses in the region could not consistency or inconsistency with land uses in the region.” The Subc ommittee characteristics and nature of the land uses, and failed to analyze the actual way it will be consistent with prevailing land uses, regardless of its premise that as long as the Project is constructed within an existing right - of the petitioners “failed to consider the land use impact, relied on a mistaken “created a new, vague standard,” reiterating that, to the contrary, it found that The Subc ommittee rejected the petitioners’ characterization that it had

recreational purposes. discourage use of the corridor and surro unding lands for agricultural purposes at risk. A highly developed corridor may machinery and trucks placing the continued use of lands for repair and emergency operations require the use of heavy development in the surroun ding area. Increased maintenance, corridors or infrastructure within corridors can impact real estate maintained roads and thoroughfares. Unsightly transmission transmission corridors is ultimately obtained from publicly readiness of emergency response personnel. Access to requirements, increased access requirements, and increased transmission corridor require increased maintenance orderly development of the region. Increases in the use of a land uses in the area of the corridor and unduly interfere with the Over - development of an existing transmission corridor can impa ct p. 30 30

findings are supported by competent evidence in the record and are not Our review is limited to determining whether the Subcommittee’s

days of adjudicative hearings. the parties, including 160 intervenors, conducted seven site visits, and held 70 including testimony from 154 witnesses and over 2,000 exhibits presented by IV). In this case, the Subc ommittee considered and weighed extensive evidence grant an application.” Appeal of Allen, 170 N.H. at 762 (quoting RSA 162 - H:16, make findings on various objectives before ultimately determining whether to consider the ‘potential significant impacts and benefits of a project,’ and to “The legislature has delegated broad authority to the Committee to

VIII. Conclusion

r egion. reach a determination on the project’s impact on the orderly development of the the quality of the petitioners’ evidence was insufficient for the Subc ommittee to competing evidence on each of the orderly development criteria and found that evident short - term impact. Rather, t he Subc ommittee considered the with the orderly development of the region based in whole or in part on one certificate because it found that the proposed project would unduly interfere however, the Subc ommittee did not deny the petitioners’ application for a wholly arbitrary nature” of the Subc ommittee’s order. As set forth above, approximately four miles of roads” and that finding “alone demonstrates the undue interference” involved the short - term effects of “construction under the petitioners, the “sole instance” where the Subc ommittee “actually found arbitrary and unsupported.” (Bolding and capitalization omitted.) According to the project would unduly interfere with [orderly development of the region] is Finally, the petitioners assert that the Subc ommittee’s “sole finding that

C. Finding on Orderly Development

unduly interfere with the orderly development of the region.” demonstrate by a preponderance of the evidence that the Project would not incorrect, the Subc ommittee aptly found that the petitioners “failed to from the petitioners that the concerns raised by the municipalities were impacts of the project on them to be persuasive and, in the absence of evidence Subc ommittee found the testimony provided by the municipalities on the Project.” Taking into consideration all the relevant information, t he take time to meet with local planning agencies and not solicit their views of the Subcommittee expressed “concern” that the petitioners’ representatives “would the provisions of master pl ans and ordinances was required.” The municipalities that “given the magnitude of the Project, more consideration of contradicted by the testimony of municipal officials” and it agreed with the is consistent with local, regional, and statewide long - range plans “i s directly The Subcommittee found that the petitioners’ assertion that the project p. 31 31

LYNN, C.J.