Planning & Zoning Board Notices & Minutes

Jan 27, 2020

Approved Zoning Board Minutes - January 14, 2020

6:00 PM


Present:  Chair Jessica Daine, Vice Chair Jerry LeSage, Ralph Hodgman, David Rochefort, Jim McMahon, and Joanna Ray (recording secretary)

Others present per the sign in sheet and comments: Schuyler Sweet, Debbie Cobb, George Morgan, Debbie A. Stone, Brooks Bartlett, Bud Foster, Judy Foster, Joy Moore, David Merrill, Ed Parker, Janet Parker, Susan Pilotte, James D. Vear, Brad Maynes, Louise Maynes, Tom Alt, Linda MacIver, Stephen MacIver, John Goodrich, Jeanette, Fournier, Lori Wescott, Sherman Brown, Frank Concemi, Richard Rodier, PB Chair Tony J. Ilacqua, Zoning & Health Officer Milton Bratz, Mary Menzies

At 6:00 PM, Chair Daine called the meeting to order. A full Board was present.

Littleton Regional Healthcare, Owner / Ryan St. Cyr, Agent – ZBA20-01 – Request for a Special Exception relating to Article VI, Section 6.01 of the Littleton Zoning Ordinance to allow a retaining wall over 6’ high at 600 St. Johnsbury Road, tax map 55-4, in the Mixed Use zone.

Chair Daine reviewed the case file. The hearing was properly noticed, abutters were notified and the hearing fees were paid. The application was accepted as complete. The criteria questions from the application were read into the record. The specific site is an appropriate location because the area will have full access from their main parking lot. The new retaining wall will be installed to allow them to transition from the main parking lot without any grade difference. The retaining wall will extend 3’ above the paved section to match what is currently installed. The height on the highest point will be about 14’. The applicant did not see any reason why the property values in the district would be reduced or that any unreasonable hazards would result from the parking expansion. Littleton Hospital will maintain this parking lot in the same manner of its other parking lots.

Chair Daine stated that three Board members visited the site on January 7, 2020 and that the site visit was properly noticed. Abutter Sierra Landry asked about the swampy area. Ryan St. Cyr replied that this area by the helipad will match the current drainage. It will be adding 67 parking spaces. Ralph asked if the retaining wall would be similar to the one on the other side of the hospital. Ryan replied that it would be identical. Jim noted the site plan shows a drain under the access road. Ryan replied that the pipe is well below the footing of the wall and would not be disturbed.

David Merrill asked if the hospital owns both sides of St. Johnsbury Road and if the lots were considered contiguous. He was not notified as an abutter.  Chair Daine replied that the lots on the other side of the road, owned by the hospital, are considered separate lots with different tax map numbers. David also asked about lighting. Ryan replied that there will be four more to match the current lighting.  They will have LED heads with downlighting.

There were no other questions. Chair Daine closed the public input.

Vice Chair LeSage made a motion to approve the request based on the key findings of the facts as discussed with the condition that the applicant comply with all Federal, State, and Local regulations. The motion was seconded by Ralph. The motion passed by all.

CONTINUATION OF:  Aaron Scott DeAngelis, Owner / LITUS Energy Storage LLC, Agent with Attorney Earl Duval – ZBA19-12 – Request for a Variance related to Article IV, Section 4.02.04 of the Littleton Zoning Ordinance to allow a Battery Energy Storage System at 370 Foster Hill Road, tax map 41-6, in the Rural zone.

Chair Daine opened the continuation. The last meeting ended after Fire Chief Mercieri’s presentation. The public input is still open. Chair Daine stated this continuation will start with people that have not spoken yet and then the applicant will be able to respond.

Schuyler Sweet, 1012 Foster Hill Road, spoke as a resident and a former member of the Zoning Board. The Board is tasked with five questions. Schuyler stated his opinion about not granting the variance, the Board will be creating an unnecessary hardship. He does not feel they do. This is not like other variances that restrict what you cannot do for the enjoyment of your property. Property values are a judgement call. Battery storage does not benefit the residents of Littleton or New Hampshire. He does not see how this is beneficial. Schuyler heard that this might create property tax value and he does not feel the Board can consider this. For justice to be done there needs to be an injustice and he does not see that. The spirt of the ordinance is for rural zone and the benefits of a rural zone. The proposed use is industrial. Littleton has an Industrial Park. Because of that, he does not see an unnecessary hardship. Due to these facts, Schuyler stated he does not feel the projects meets the five required criteria. The spirit of the ordinance talks about not disorderly, not unsightly, not offensive, or detrimental to the public or the abutters. Schuyler feels it is many of those things or will be. Also heard statements about how this will adversely affect the stream to Reynolds pond. Streams do not go uphill. He hates to see a decision made based on statements that are not true and give them more ammunition for an appeal. Another thing he heard was about the dirt road being around the corner.  That is a no where near the site. We do not know much about this type of facility. Schuyler was on the ZBA 20 years ago and back then there wasn’t much knowledge about cell towers. Legislation was created to deal with them. The ZBA can ask the Selectboard to ask the Planning Board to look into it along with solar and wind.

Debbie Cobb, 871 Foster Hill Road. How many battery storage units do they already have in the United States? And what size are they? James George states ENEL has international battery storage in the US. There is probably 18-20 in the ISO cube. The industry is in the infancy state. Also doing battery and solar projects. Debbie asked how many this company has for these batteries. James replied the number is zero in North America. Debbie asked why they wanted to put in something that has not been done by this company and in a rural area. James responded that the Eversource station next door makes the property attractive. Debbie added that lives are in danger for those beyond this property on a dead end road and that they cannot guarantee there will never be a problem. This should not be considered.

Bud Foster thinks this is in the wrong area and asked why not the industrial park. James replied that the process will take 4-5 years and there is a lot of technical data on why this transfer station was chosen. Experts will be able to explain the reason in more detail. Fire and safety codes and monitoring will also come from the safety experts that need to be retained. James added that they will be working with the NH Fire Marshal’s Office and an emergency response plan will be developed. Bud replied that this company needs a plan and there isn’t one for the public to look at. It should have been done before bringing the application to the public.

Chair Daine stated that there wasn’t anything new coming in and moved on to address a letter submitted by Fire Chief Joe Mercieri and Health Officer Milton Bratz. The letter requests the Board to retain a consultant that will be paid for by the applicant. The applicant has requested the same thing. The Board should discuss this option.

Atty. Duval informed the Board that they would like to discuss the history and how they got here, address some of the comments from the last meeting, and lastly address three of the photos that were in the Caledonian Record and Union Leader. Duval noted that the first meeting was an overview presentation of the proposed installation. His anticipated a consultant will be chosen to work with ENEL to understand the concerns from the public and the Board. There is mountains of paperwork that has not yet been presented. The discussion has jumped to catastrophic examples. Duval stated he appreciates and understands those concerns. This is proposed to be safe and monitored. When ENEL first spoke with the Fire Chief and Zoning Officer, ENEL was told to apply for a Special Exception.

At this point, a woman from the audience started shouting. Chair Daine explained that there is a process that allows the applicant the opportunity to explain their project. The public is also allowed the opportunity to voice their concerns. Daine asked for new information. The owner of the property was identified. Ralph added that there is a process to be followed. People will get the chance to talk.

Atty. Duval added that the consultant chosen by the Board will be paid for by ENEL. Duval submitted a letter he received from Zoning Officer Bratz regarding his decision that the proposed use fell under the heading of Storage of Volatile Fuels and would require a Special Exception. Duval stated his client did not see the use under that classification. This new technology is already throughout the world and moving rapidly.  Duval also submitted a letter from Chief Mercieri that listed conditions of the applicant. Many safety reviews were requested. Duval’s client was agreeable to all of the conditions. Duval stated they went to the first meeting thinking he was to be met with those conditions, but that did not happen. A letter was sent to the ZBA from Duval asking for the photos that the Chief presented and to ask the Board to retain an expert. An expert will help to make sense of all the information and help the Board make an informed decision.

Atty. Duval discussed Chief Mercieri’s presentation from the last meeting. He stated it was a thoughtful presentation and contained three photos, later to be shown in the newspaper, from an APS installation in Arizona. Those photos were not from the fire discussed in the presentation.  Duval explained that his client is getting calls from all over the country asking questions about the presentation. The first photo is of two firefighters wearing proximity suits. This is a stock photo from a 2013 fire in Sweden. A news outlet said it was from Arizona. The second photo, held by Captain Miller, was not at the location discussed. The last photo, with the smoke, was a wildfire that dates back years. It was not from the Arizona incident. The APS website has updates to the incident and the actual photos of the container that exploded. A woman in the crowd asked if APS had a fire. Duval replied that he is not disputing that APS had a fire, but the photos presented were not from that APS fire. Duval added that the fire at the Burlington Airport was due to the charging of an experimental plane and nothing to do with his client’s proposal. It was not a specialized container with a suppression system. It is not comparable. Vice Chair LeSage asked the Board who they are supposed to believe.

Mary Edick called a point of order. She stated that the applicant had a nice presentation but it does not answer the questions being asked. From what she has heard, she suggests they come back with their experts to address the questions.  Atty. Duval replied that he is fully prepared to have 5 or more meetings. He added that the original presentation had information on values.

Atty. Duval referenced an email, dated October 2, 2019, that he sent to Planning and Zoning Administrator Joanna Ray. The email indicated how thorough the process would be. The process included filing a building permit application to determine the zoning classification, variance application, Planning Board review if applicable, State approvals, and then the final building permit application. Atty. Duval noted that since Littleton does not require a site plan review, the presentation to the Planning Board would be a commercial review. He also stated that his client is not trying to rush through the process. He is prepared to do the work and pay for experts.  

Lori Wescott, 971 Foster Hill Rd, called her homeowners insurance to find out if there will be an increase if this project comes in. There is a potential loss of house and family members. The liability would be put on the landowner and LITUS’s insurance. Lori asked if they were prepared for lawsuits. Atty. Duval replied that his client can provide insurance information.  Lori stated that some people might not want to live there if this project comes in. Are they willing to purchase those properties? Lori suggested moving employees to the site for monitoring.  Phil Brophy, ENEL Head of Security Services, replied with a description of the type of monitoring system that would be in place and that a camera is part of the system. It will be available to the Police and Fire Departments to monitor at their leisure. Everyone will know what the situation is before responding. There are different sensors depending on the type of alarm that will allow the appropriate response. Phil stated that safety is paramount. The systems can be shut down if there is an issue. A badge outside of the gate will allow the responders access. The Fire Department will have a lock box to get the badge allowing them access. There is a gradual buildup of notifications to know identify the issues.

Linda Massimilla asked who would clean up the site if they went bankrupt. Atty. Duval did not have that answer but suggestion a bond be part of the application. A bond would make sure the jurisdiction would not be responsible.

John Goodrich, 1000 Foster Hill Rd, thanked the Board for going through this process. His house is the newest on the road. This area is a rural nature and he likes it that way. His concern is whether or not the rural nature will be continued. Read the zoning laws and noted the 5 points that Schuyler Sweet previously mentioned. John read his summary. Our zoning laws do not adequately address these facilities, public safety is not assured, this is a monumental project, there is a potential fire and environmental risk needs to be addressed better, and the rural nature could be affected greatly.  LITUS needs to demonstrate that the property values will not be negatively affected.  John added that he appreciates the intent of this hearing.

Richard Rodier, 186 West Elm St, stated his concern for safety. There is a lot that cannot be explained.  He heard that these batteries need to burn out without the water being put on them and asked for clarification of that statement. Since a key is available, will the Fire Department be the agent on the ground to address any fires? Richard also stated that he heard we already have requirements in place for certain types of uses such as those in the Industrial area. The proposed use should go there where there is ample water. Richard suggested the Board stay focused on the 5 questions that need to be answered.

Phil Brophy stated that fire service experts need to work with the Board to accurately answer the questions. The monitors are 136 miles away. The key would allow the responding Fire Departments, which will be trained and equipped, to respond in minutes without LITUS onsite. The question of how a fire will be put out needs to be answered by an expert.

Planning Board Chair Tony Ilacqua noted that there are a lot of concerns, questions and fears. He recommended that the ZBA hire a consultant. Nothing will be resolved tonight.

Bill Clewes spoke about this 60 years’ experience as an electrical engineer and knowledge about batteries. Once a cell has shorted, you cannot simply shut off the battery. Lithium Ion technology is here and we need to know how to deal with it. He did not have a position for or against the project, but wants more information. Bill added that he is concerned with the local Fire Department showing up with no onsite people. Having someone onsite with knowledge is an advantage to the owner and those living out there.

Brooks Bartlett, 446 Foster Hill Rd, please stick to the 5 questions. A project this size, they came unprepared and that looks deceptive.

Dave Gonyer, 427 Foster Hill Rd, asked if the applicant knew their project was across the road from a fault line. He asked if they want to live near one. Dave added that Mr. DeAngelis needs to prove hardship.

John Hayden, Cyr Road resident, spoke about how Bethlehem is still battling with Casella. It is a large company in a small town. A company this large is asking to build a large BESS in Littleton. Technology comes with are pros and cons. The people here are not the experts to answer the questions. The Board is not being given the answers from experts. There are questions about possible explosions and toxins that would affect people. Littleton is not capable to fight this project just like Bethlehem fighting Casella. John does not want the Board to be misinformed.

Chair Daine went back to the request for experts. The Board needs to hire a consultant that will have knowledge in all the fields mentioned. The applicant will pay for an expert that the Board chooses. Hiring a consultant will be respectful to the residents and the applicant.  Vice Chair LeSage stated that it is obvious people in the room do not favor this proposal. He likes the idea of hiring a consultant but he does not think it will change the resident’s minds. Chair Daine said the Board is tasked with the responsibility of being a non-bias Board. They need to give the residents the opportunity to show their concerns and allow the applicant to present their case. This is the process.

Jim Daly, Littleton resident, asked what it will look like on a peaceful sunny day. Chair Daine replied that buffering was offered. Buffering has also been done with other cases. Chair Daine added that property values and safety concerns are also issues.

Ralph Hodgman added that he wants to hear what every resident has to say.

Atty. Duval stated he is fully prepared for the Board to hire an expert.  Came prepared to correct the record and discuss an expert so that people will have their questions answered. Chair Daine stated that they had their own experts but we need our own.  Atty. Duval need to ask the Town’s experts the questions.

David Rochefort stated everyone needs to realize the applicant came here with an application to consider and we do not have the data to do that yet. The Board has received conflicting data regarding safety. David feels the Board owes the applicant and the public the opportunity to get more information.  He recommends keeping the public input open and bring in a consultant that will answer a developed list of questions. Chair Daine agreed. The public should direct questions to the Board.

David Merrill, previous ZBA member, understands the criteria that the Board must consider. He encourages the Board to hire a consultant. David added that if any of those questions receives a no, then there is no sense of continuing this.

Danielle Shaw, 140 Saranac St, could there be a deadline on a consultant? Chair Daine it could be 30 days and should have a timeframe. Already have a proposal. Danielle would like it to be in a timely fashion.

Frank Consemi, Foster Hill Rd, feels it is a good idea for a consultant but strongly feels this is not the right location for this project.

Lauren Rodier, 186 West Elm, is concerned about the Board making sure they hire a consultant that can address all of the areas discussed such as health, environment, and impact to land post-hazard. This is new technology, what will need to be asked?  

Henry Wante, Orchard Hill Rd, how long will this process take? Will this current Board still be here when a decision is made? This process should have a time factor. Chair Daine, the Board members have terms. The project could take years, but not the application process. Chair Daine discussed the appeal process. She does not think it will take 6-7 months for the Board to make a decision. Appeals could take longer.

Bill Wilkins, 218 Foster Hill Rd, stated this is about 2000 yards behind the transfer station. Bill asked why this transfer station was chosen. It is not the only one in the country. Atty. Duval responded that Petr answered that question at the last meeting. There is a science behind choosing which transfer station to connect to.  Ralph Hodgman added it was because of Eversource. Eversource supported Northern Pass and was beat by the citizens.

Mary Edick stated that education is vital. She is hearing that the Board is being convinced to get an expert. The Board members are intelligent enough to answer the 5 questions. The applicant needs to give the information to convince the Board that their project, under the 5 questions, gets answers. She agreed that more information is needed to know if their experts are correct or not. Mary added the applicant does not need to convince the crowd it is a good project. They cannot say no to it because it is in their back yard. Experts need to do the work.

Brad Maynes, 480 Foster Hill Rd, stated there are other transfer stations in the State of NH and asked the applicant if the other stations had been checked. Is this the only location that appeals to you? How many are in MA? James George replied that he would have to get back to him.

Mike Dickerman stated that the biggest thing is that this is zoned rural. He does not want a BESS, Dollar Store, or a gas station. Rural space is rural.

Jim Vear stated that the Fire Chief is the man watching out for our safety. He has been discredited and should be able to respond. He has earned it. Jim stated that when the applicant looked at this property, they did not know it was a dead end road. Also, there is no municipal water to fight a fire. Jim asked if the residents would be given another means of egress. The people living beyond the BESS have no means of escape. Jim discussed a scenario of a school, with an active shooter potential, only having one way out. He then asked Atty. Duval if he would let his child into that school. Atty. Duval replied that the question was not fair and that of course he would not. He then added that this is the initial part of the process. Chair Daine told Atty. Duval he did not need to answer that question.

Bill Clewes asked if this location was selected because of the access. James George replied that was an accurate statement. Bill added that the Eversource transmission is not that great.

Atty. Duval stated that he came to the meeting to talk about the Chief’s photos and to get an expert. The group with him today are not the ones to answer these questions. He suggested a month continuation so the Board can retain an expert and then he can show up with his own. Duval stated he is trying to afford the Town with the opportunity to have someone on their side. Experts are needed for the Board to get to the criteria.

Adam Rich, 77 Wagon Wheel Rd, voiced concerns about wildlife. They will be impacted. Experts should be considered. The Board should look at other places that have shot this idea down.

Mike Ducette, Manns Hill Rd, stated that experts will help with the answers.

John Hayden, Cyr Rd, asked about the procedure of the meeting. Chair Daine stated the Board could go several ways. They could vote as it stands or hire an expert and then render a decision. John noted that people do not want this project. The Board could vote on a consultant and discuss the results at the next meeting. John asked if all 5 criteria are met, can they do this. Chair Daine said yes and there can be conditions. The appeal period then starts.

Atty. Duval submitted a letter dated December 23, 2019. The letter requested the Board to retain an expert at their expense.

Janet Parker, 1190 Foster Hill Rd, stated that Chief Joe Mercieri is an expert with a lot of experience. She added that he might not be an expert on Lithium Ion batteries, but he is looking out for the Town. Janet thanked the Chief for his work and told the applicant he should not have discredited him. The dead end road was mentioned again. Janet stated that the Fire Department does not have the manpower, resources, or equipment to address the potential hazard. She also stated that she spoke with her home insurance company and was told that her rate would go up if this project came in. Janet voiced concern about potential harm to the dam that is less than a mile down the road. She asked if the long term consequences have been considered. Since code 855 has not yet been adopted by the State, no State agency is prepared to take on this type of facility. How will the Town benefit from this? Janet ended by stating the applicant is bullying their way in here and she respectfully asked the Board to vote no.

George Morgan, 650 Foster Hill Rd, stated he has a background in the utility business and has been involved in looking into failures. Their equipment is going to be the best money can buy, but anything can fail. There is no guarantee that a catastrophic event will not occur. He has seen it happen. George added that the challenge is to plan for that event. He noted that the Chief said we cannot deal with it. If we can’t, then the project should not go forward. Life and property is the upmost concern.

Chair Daine noted the last paragraph in the January 14, 2020 letter submitted by Chief Mercieri and Health Officer Bratz. The paragraph requests the Board hire a consultant.

Linda Warden, Slate Ledge Rd, stated that if they will be leasing the property, their liability is different. They can pack up and run.

Chair Daine asked the other Board members about a consultant. Ralph stated this is a small Town with a Zoning Ordinance and 5 criteria to look at. Bringing in experts will not help with the 5 criteria. They are based on the ordinance. He added that he has enough information to vote tonight. He feels there is no need for a consultant and the Board can vote tonight.

David stated that he wanted to highlight that it was recommended by the Fire Chief to hire a consultant. It might not change someone’s opinion, but he is supportive of recommendations. Ralph replied that the experts would have to address the 5 criteria only. Chair Daine added that public safety falls under that.

Ralph shared an article he found on the internet that asks communities if they are ready. Step one is readiness for response and step two is plan for first responders. Make sure your emergency response is ready.

Jim stated that if an expert is hired, they would need to have a specialist for many parts. There will need to be ongoing conversation between the specialist and the Board. A scope should be developed. Chair Daine stated she spoke with the Town Manager and found a proposal that would hire subs to cover other areas. Jim replied that the Board needs to be specific on what we want the specialist to do.

Vice Chair LeSage stated he agreed with Ralph and suggested a vote tonight. He added that the Board might not agree with a consultant. He has listened to the audience and there is nobody in favor of it. LeSage added the he does not think the Fire Department can handle this. Ralph suggested closing the public input and postponing the deliberations until February 11, 2020. This will allow time to come up with reasons on the criteria.

Chair Daine made a motion to hire a consultant to address the specific issues regarding the 5 criteria. Vice Chair LeSage offered an amendment that after listening to the consultant, the Board make a decision at the next meeting. Ralph asked how an expert is going to help with the hardship question. David seconded the motion. The motion failed 3-2.

Bill Wilkins told the Board that the Foster Hill people have voiced their opinions. Tax dollars will be more than what the Town will get out of these people.

Lauren Rodier told the Board that a vote tonight without an expert will result in an appeal from a big company.

Atty. Duval stated he understood the Board can decide about an expert. The applicant can be heard and their experts have not been heard. Duval added that this group has made their decision before presenting. Ralph called Duval out of order and told him to sit down.

David Merrill asked if the applicant has presented a complete application. Atty. Duval replied no.  Ralph replied that the application is complete. David stated that the application was considered complete and that allows the Board to make a decision at this time.

Chair Daine stated the applicant did not bring their experts because they thought the Board was going to decide on getting their own expert at this meeting.

Mary Edick called point of order. She stated the Board cannot discuss this out of public input. She feels the public has a right to comment on the Board’s discussion.

Various continuation dates were discussed. Joanna Ray took a few minutes to contact Sue Pilotte, Opera House Manager, to discuss what dates were available for the Board to use the same space. Some potential dates were not available because of Board member schedules and other conflicting meetings or voting days.

James Vear stated he went to the Town Office to ask that the Town Manager and Legal Counsel attend this meeting. Chair Daine replied that the lawyer is not usually present at this stage of a hearing and informed Jim that the Town Manager was sitting in the back of the room.

Vice Chair LeSage made a motion to continue the public hearing to March 24, 2020 at the Littleton Opera House. Ralph seconded the motion. The motion passed by all.

The Board members discussed future zoning ordinance amendments to address new uses that are not addressed in the ordinance. Jim added that there is new technology.

At 8:55, David made a motion to adjourn. Vice Chair LeSage seconded the motion. The motion passed by all.

Submitted by,

Joanna Ray