A decision by the Zoning Board of Adjustment to deny an appeal for a permit to erect three wind turbine generators at 22 Hickory Drive has landed the board in court.
Norm Hebert of HJC Realty Trust, sometimes referred to as NHDC Realty Trust, and his attorney, Silas Little of Peterborough, recently filed a lawsuit against the town in Hillsborough County Superior Court.
Hebert and Little contend the town’s zoning ordinances make no specific provisions for, nor do they even mention, windmills. They contend that the closest the ordinances come are farm silos and ham radio towers.
Zoning ordinance at issue
At issue is whether the town’s zoning ordinances prohibit the windmills.
Hebert submitted an application last October, requesting a permit to install three trillium wind turbines on 110-foot towers, according to the court records.
Charles Tiedemann, the town’s planning director, denied the permit on the grounds that windmills exceeded the permitted height in a rural residential district.
In Tiedemann’s interpretation, the windmills exceed the 22-foot height limit for “accessory buildings” and 35-foot height limits for “principal structures,” according to court papers.
The town’s zoning rules and regulations define “Structure” as “Anything constructed or assembled. The term structure shall not include radio towers or antennae, which are for the exclusive use of amateur radio service and they shall be limited to a total height of 150 feet.”
First filed appeal
Hebert filed an administrative appeal in February, and it was denied by the ZBA. He filed for a rehearing in March and the case was reheard on June 19, according to court papers.
During that meeting, which also included members of the Planning Board, Little said he thought “the first decision was mistaken” and felt confident that the “Superior Court would agree with him,” according to the meeting minutes.
“The Amherst Zoning Ordinance does not control wind powered devices. The ordinance does not allow them at all, therefore the board has no control to approve or disapprove them. Since the ordinance does not specifically address wind turbines, the ordinance cannot apply because there are no criteria established. The decision of the board is flawed and Mr. Hebert should have the ability to erect wind turbines for his own energy consumption,” said the attorney, according to the minutes.
Zoning Board of Adjustment member Dan Weldon was the first to respond saying, “the board has to protect the health, safety and welfare of the residents of Amherst and just because something is not addressed in the ordinance does not mean it must be allowed,” as stated in the minutes.
The minutes said that Planning Board member Brad Galinson, also a selectman, “believes the ordinance indirectly addresses it; it does not give the residents the authority to do whatever they want; if that were the case everybody would be able to do anything,” according to the minutes.
Several abutters to Hebert’s property were in attendance to oppose the windmills, citing impacts on aesthetics, noise and property values.
It is Hebert’s intent to return any extra power generated by the turbines back into the grid for nothing monetary, in exchange for credit towards his own usage, according to the minutes.
Little also contends in the court documents that the Amherst zoning ordinance fails to comply with state laws concerning planning and zoning for municipalities.
RSA 672, Section 1-IIIa states that local zoning and planning ordinances should not unreasonably limit the installation of renewable energy sources like solar and wind power.
Hebert was said to have photo documentation of several examples of structures that exceed height limits without permits.
Little says in the court documents that Amherst inconsistently enforces height restrictions and “has by administrative gloss” ignored the height limitation with other structures in town.
In March the town voted 1,444 to 1,152 to adopt a Climate Change Resolution (by petition), which, in part, involves the pursuit and investment in renewable energy sources.
Court documents show that a Hillsborough County Deputy Sheriff served Planning Board Chairman Bruce Bowler with a notice of the litigation, in September. The town must file a plea by Nov. 1, according court documents.
Tiedemann referred all questions about the case to Town Administrator Gary MacGuire, who declined comment.
Little did not return phone calls from The Cabinet.
By John Donati
6 October 2007
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