ANTRIM – A judge has ruled selectmen violated the state’s Right-to-Know law in privately meeting with a wind farm developer to negotiate a payment agreement, voiding that contract.
Hillsborough County Superior Court North judge David A. Garfunkel ruled in favor of five residents who said meetings between the town and representatives of Antrim Wind Energy LCC to negotiate a payment in lieu of taxes (PILOT) agreement were illegal.
The residents – Gordon Allen, Mary E. Allen, Charles A. Levesque, Janice D. Longgood and Martha Pinello – had argued that the meetings were not properly posted for the public, and no minutes were prepared or available to the public.
At the time of the meetings, Antrim Wind Energy’s proposal to build a 10-turbine wind energy facility on Tuttle Hill was under the review of the N.H. Site Evaluation Committee. The committee has the final word on large alternative energy projects, and had been reviewing the Antrim proposal since 2011.
The committee has since rejected that wind farm proposal.
But the town of Antrim filed paperwork last week asking the committee for a rehearing. Antrim Wind Energy, a subsidiary of Portsmouth-based Eolian Renewable Energy, also is expected to appeal the decision.
Selectmen had six unnoticed, nonpublic meetings in 2011 and 2012 where the PILOT agreement was discussed, according to the judge’s ruling.
Town Administrator Galen A. Stearns and former Selectman Eric F. Tenney testified at the April 10 court hearing in Manchester that those meetings took place, but that town officials thought they were allowed. Based on the advice of the town’s lawyer, Stearns and the selectmen thought meetings to negotiate PILOT agreements were exempt from the Right-to-Know law requirements.
But Garfunkel wrote in his ruling that there is no exemption in either the law regarding PILOT agreements or the Right-to-Know law that would allow for nonpublic meetings like those the town held.
The court granted the residents’ request to void the agreement, which would have required Antrim Wind Energy to pay the town $8.6 million over 20 years after the wind facility was built.
Yet the judge denied the residents’ requests that they be reimbursed for legal fees and that the judge order the selectmen to abide by the Right-to-Know law. Selectmen did not knowingly ignore the law, but rather acted on the advice of their legal counsel, according to the ruling.
Levesque said the residents’ lawyer warned them from the beginning that it’s rare for the judge to reimburse legal fees, and the ruling shows the judge agreed that selectmen violated the law on numerous occasions.
“It’s unfortunate and sad that we had to go to these lengths to get them to stop breaking the law, because we told them they were many times,” Levesque said.
Selectmen Chairman Gordon R. Webber said via email that while the town disagrees with the decision, selectmen will not appeal it. He said town officials will likely meet next week to decide how to move forward.
The judge’s ruling is another setback in what’s been a bumpy road for the town of Antrim and the wind developer to get the 30-megawatt facility approved.
In February, the N.H. Site Evaluation Committee denied Antrim Wind Energy’s application, citing an “unreasonable adverse visual effect” on the Willard Pond area.
Since then, the wind developer has offered the town a one-time $40,000 payment, should the facility be built, that could serve as compensation for any perceived damages to the scenery created by the wind project.
After two contentious public hearings, Antrim officials decided to accept the gift, upsetting some town residents.
Some residents were put off again when they discovered that the town’s motion last week to appeal the Site Evaluation Committee’s decision to deny the project was drafted by Antrim Wind Energy’s lawyers.
But Webber, the selectmen chairman, said he publicly announced that the legal papers were paid for and written by Antrim Wind Energy’s lawyers.
No matter which law office crafted the paperwork, filed on May 15, the town planned to file for an appeal, Webber said.
One of residents’ complaints is the amount of legal fees the town has incurred each time it files paperwork in the wind farm case, so this was an opportunity not to spend more town money, he said.
“We can either pay or they can pay; I assume we’re going to get the same document either way,” he said.
Webber said nobody would be surprised if Antrim Wind Energy chose to appeal the committee’s decision, but selectmen are hoping the town’s appeal will carry more weight.
Selectmen appealed the decision because they don’t believe the committee’s reasoning for denying the application is consistent with other wind farm projects the committee already approved, he said.
Wind turbines from the Lempster facility are visible in Pillsbury State Park, and turbines from the Groton Wind project are visible from Loon Lake, according to the town’s motion. The Antrim project will not be visible from about 95 percent of the locations in a 10-mile radius of each turbine, the motion states.
Eolian CEO Jack Kenworthy said previously that Antrim Wind Energy anticipated asking for a rehearing, but he could not be reached for comment on when the company expects to file its motion. The company has until the first week of June.
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