Lyman’s Zoning Board of Adjustment has accepted the motion of UPC Windpartners to withdraw its application for a height variance by a 4-1 vote.

In the process, the board may have avoided entangling the town in a complex legal debate. The variance would have allowed the company to erect a wind-measuring tower on Gardner Mountain. This marked the second time UPC Windpartners, a subsidiary of UPC Wind Management, an energy company based in Newton, Mass., had chosen to withdraw an application rather than face a potential denial from the board. UPC originally applied for a height variance to erect a 150-foot anemometer, or wind-measuring tower, on Gardner Mountain. The variance was required because Lyman zoning specifies no structure may be taller than 35 feet. The Lyman ZBA denied UPC’s initial variance request in a preliminary vote of 4-1 in July. UPC then withdrew its application, only to re-apply for a variance in September. Board members briefly debated whether or not accept UPC’s second withdrawal at their meeting on Jan. 13. “I want them to get a message on how we voted… I want to give them (UPC) an answer,” said board member Jim Trudell, who advocated to deny the withdrawal and then deny the variance itself. Lyman Town Counsel Laura Spector, of the Mitchell and Bates law firm of Laconia, noted the board could face legal difficulties if it denied the withdrawal. “There is no case law on whether a ZBA may refuse a request to withdraw,” said Spector. She said if the board were to refuse the withdrawal, the matter could find its way to the state court system. “[Going to court] seems like a waste of time and money,” said board member Terry Simpson. “We were elected to do something about this,” said Trudell. “Where do you draw the line?” Trudell noted UPC could return with another variance request and continue to play “cat and mouse” games with the town unless a clear message was sent. “Is it going to be worth the money to set a precedent?” asked Chairman Steve Moscicki. “If we have to do it (debate UPC variances) 10 times, that’s our job.” According to estimates given by the board, the town of Lyman has spent thousands of dollars in legal fees related to the case, exceeding the line item for legal fees in the town budget. Money for further legal fees would have to be withdrawn from the town’s capital reserve fund. “There’s a good chance we’re saving the town money,” said board member Linda Stephens. Simpson said she thought it was unlikely UPC would return with another variance request. If UPC does reapply for a variance, it may be in a substantially different zoning climate in Lyman. Resident Brian Santy has submitted three special warrant articles by petition. The articles are designed to clarify Lyman’s zoning ordinances with respect to wind power, and would make it all but impossible for wind towers to be erected in Lyman. Town opposition to the location of wind power infrastructure has been strong since UPC made its initial request for a variance. A petition against the location of anemometers in Lyman was circulated in the town, and at the time of the December ZBA meeting, it had roughly 190 signatures, or about two-thirds of the town’s registered voters. State and town zoning law forbid an individual or firm from re-applying for a variance after it has been denied, unless the new application is deemed “substantially different.” If UPC’s variance itself had been denied, it would have likely meant the end of any wind tower proposals in Lyman. A zoning variance is required when a proposed property use or structure is not permitted by town zoning ordinance or is rejected by the town planning board. The owner of the property in question then has the option of appearing before the ZBA to obtain a variance that would allow the proposed use or structure. The ZBA must follow specific rules in granting a variance, according to New Hampshire state law. It must determine whether the application for a variance meets five conditions: that surrounding property values would not decrease; granting the variance would benefit the public interest; denial of the variance would result in unnecessary hardship to the property owner; granting the variance would create substantial justice; and the variance would not be contrary to the spirit of the ordinance. As of press time, Timothy Caffyn, UPC Wind Management’s development manager, had not returned calls seeking comment. Caffyn has said in the past that UPC would not seek to erect anemometers or other equipment in the face of continued opposition.