October 28, 2006
Massachusetts
Massachusetts
NEW ASHFORD – The developers of a vacation resort on Brodie Mountain have filed suit against the developers of the proposed Berkshire Wind Project on the other side of the mountain in Hancock. The suit seeks that five of the 10 turbines in the project be moved further west away from their property line.
Silverleaf Resorts Inc., which plans to build the Snowy Owl Resort at the former Brodie Mountain Ski Area, has filed suit in U.S. District Court in Springfield, claiming the Berkshire Wind builders trespassed on their land when building an access road and that the finished project would reduce the resort’s value. This past week, Judge Michael A. Ponsor set a pretrial hearing date for March 16.
And while the judge denied Silverleaf’s request for a preliminary injunction halting work at the site, Berkshire Wind’s attorney, Michael D. Vhay, said it will likely force work to pause.
“Until it gets resolved, it will be hard to get the financing we need to complete the project,” he said.
The Sept. 8 complaint claims contractors trespassed on Silverleaf property and cleared trees. Despite this, the resort’s suit said Silverleaf is not seeking to block the project entirely. Berkshire Wind claims that the reduced wind away from the ridgeline would “render the project infeasible.”
In court documents, Silverleaf claims “during the widening and improvement of the road, Berkshire Wind Power, its agents or contractors crossed over the property line and cleared Silverleaf’s property.” It says that “at the point of the greatest amount of clearing, Berkshire Wind Power trespassed 130 (feet) onto Silverleaf’s property.”
Silverleaf’s filing noted that Berkshire Wind “has admitted that its contractor cut down trees and cleared a portion of Silverleaf’s property.”
In its request for a preliminary injunction against continued work on the five disputed turbines, filed Oct. 11, Silverleaf claimed the wind project is at odds with their resort project.
“Silverleaf’s purchase of the property was based on its pristine rural landscape, views and serenity,” the company contended in its request.
In response, Berkshire Wind claims its plans were no secret. “Silverleaf knew, or should have known, of the project before it bought its property,” the company wrote. “DisGen’s development activities made the project well-known in New Ashford as early as 1998.”
Silverleaf also said that the turbines “will loom over Silverleaf’s property” and present an “aesthetic nuisance” both visually and in terms of the noise it would create.
“The impact will be particularly profound given the unspoiled, rural and scenic nature of the area,” the memorandum reads.
Berkshire Wind denies the charges, and presented photographic studies suggesting only two of the turbines would be partially visible from the proposed resort. They also claim “Silverleaf presents no evidence concerning the impact of the project’s sound on the … proposed condominium development.”
Berkshire Wind also says the suit has impacted the project, in which it has already invested $2.25 million. “Berkshire recently tried to sell the project for a price that would have yielded Berkshire a profit of $1 million,” it wrote. “Berkshire lost that sale, in part, because of Silverleaf’s lawsuit. The project nevertheless has other potential buyers, and Berkshire believes that the project could recover at least $3.25 million if it were allowed to proceed to construction by the spring of 2007.”
The Berkshire Wind project is being developed by Distributed Generation Systems Inc., also known as DisGen, of Lakewood, Colo., and has been in the works since 1998. It would create 338-foot high wind turbines that would generate about 15 megawatts of electricity. Construction on the project began in May, and five of the foundations have been started.
Silverleaf Resorts is based in Dallas, and also owns the Oak N’ Spruce Resort in Lee. It purchased about 500 acres of the former Brodie Ski Area in New Ashford in July 2004 for $2.6 million, with a plan to build 332 high-end condominiums and timeshares. They plan to invest about $40 million in the project.
The access road to the project runs from Lanesborough to the Hancock property, which is being leased from Meredith Cochrane and Andre Rambaud.
By Christopher Marcisz, Berkshire Eagle Staff
URL to article: https://www.wind-watch.org/news/2006/10/28/turbine-tiff-is-brewing-lawsuit-filed-over-project/