August 13, 2013
New Hampshire

Wind farm approvals remanded back to zoning board

Written by Barbara Tetreault | The Berlin Daily Sun | August 12, 2013 | www.berlindailysun.com

Earlier this year, Bouthillier appealed the planning board’s approval of an amended site plan approval for the project to the zoning board. He also appealed the zoning board’s decision to approve an amendment of the height variance as well as the zoning board’s denial of his request for a rehearing.

In a decision released earlier this month, Bornstein remanded the matter back to the zoning board to determine whether the amended site plan approved by the planning board violates the spirit and intent of the zoning ordinance. The judge did grant the city’s request to dismiss two of the arguments made by Bouthillier – that the amended site plan violates site plan regulations and the applicant was allowed to deviate from prior representations at earlier meetings. But Bornstein denied the city’s request to dismiss Bouthillier’s arguments that the amended site plan violates the purpose and intent of setback requirements and violates performance standards under the zoning ordinance. Instead the court remanded those issues back to the zoning board as well.

Jericho Power, a subsidiary of Palmer Management Corporation of Cohasset, Mass., filed an amended site plan with the planning board in January for three wind turbines at a height of 500 feet. Bouthillier, who owns 850 acres abutting the 135-acre site, has argued the height of the turbines and their wingspan will adversely affect his ability to develop a wind farm on his property.

The proposed wind farm has a long and complicated history. In 2006, Christian Loranger installed three small wind turbines on the site. Two of the turbines were vandalized and eventually all three were removed. David Brooks of Jericho Mountain Wind purchased the property and received site plan approval in 2009 to site four wind turbines on the property at a height not to exceed 400 feet. The zoning board approved a variance for height allowing four turbines at 400 feet and a fifth at 500 feet. The wind farm was never built.

Last November, Jericho Power entered into an agreement with Jericho Mountain Wind Company to take over the project. In January, the planning board approved amending the site plan to install three 500-foot high turbines. The zoning board also approved amending its variance to allow the three turbines at 500 feet.

Bouthillier asked the zoning board to reverse the planning board decision as well as reconsider its own decision. The zoning board did modify the setback from 100 to 200 feet but otherwise upheld the two decisions.

Bouthillier filed a motion requesting the zoning board rehear its decision but that was denied on May 22. He then appealed to Superior Court.

The case was heard in Superior Court on July 3. Chris Boldt represented the city while Attorney Sandra Cabrera and Jonathan Frizzell of Waystack and Frizzell represented Bouthillier.

An attorney representing Jericho Power told Bornstein the appeal was simply an attempt by Bouthillier to kill the project. He said to qualify for a federal Production Tax Credit, construction must get underway this year. He said his client has attempted to cooperate with Bouthillier.