Lawsuit puts turbine plan in jeopardy 

Harwich – An abutter’s lawsuit has derailed a local businessman’s plan to construct a 123-foot-high, commercial wind turbine on his Depot Road property. It is the first industrial turbine development to be approved in Harwich.

Davenport Realty Trust filed suit in Barnstable County Superior Court seeking to annul the June 12 decision by the Harwich Planning Board, which granted a special permit to Gerald Bojanowski, a business owner and general contractor. The turbine is intended to supply energy to his public storage/locker company, Depot Storage, and to other businesses in the same building at 500 Depot St. in North Harwich.

Davenport owns adjacent property, at 297 Great Western Road, South Dennis, where it operates All Cape Self Storage and has one residential unit.

Harwich town planner Sue Leven declined to comment on the merits of the lawsuit, but said the action effectively “stops the clock” on Bojanowski’s plans. He had intended to begin construction in early September. Leven said the suit was filed within the required 20-day appeal period. It names the planning board members and Bojanowski as defendants.

According to the lawsuit, Davenport claims that the planning board, as the special permit-granting authority, exceeded its authority in approving the project and failed to meet several conditions required under town bylaws. Among conditions that must be met, it said, are determining that the use will not adversely affect the neighborhood, and that the site is an appropriate location for a wind turbine. It also requires, the suit stated, a determination that there will be no nuisance or serious hazard to vehicles or pedestrians.

Davenport’s attorney, E. James Veara of the Dennis law firm Zisson and Veara, said it does not appear that the planning board met the conditions.

“There are FAA (Federal Aviation Administration) requirements and other things. There are concerns about planes, noise, ice coming off the blades,” said Veara, adding, “Nothing’s been done to safeguard properties. It calls into question the validity of the decision.”

Bojanowski, who now is in the process of retaining a lawyer, said, “I’m surprised and I don’t understand. All of the issues were addressed at the planning board [public hearing], and [Davenport] didn’t attend that meeting.”

Bojanowski filed his application to build the turbine after a zoning bylaw that allows wind energy systems to be developed on commercial and industrial sites was approved by Harwich annual town meeting in May. His proposed 20-kilowatt energy system meets the town’s standards as written in the bylaw, which sets a 25-kilowatt limit, and a maximum height of 150 feet. The bylaw must still be approved by the state attorney general, which also is noted in the Davenport lawsuit. However, Leven said approval was expected within a month.

Bojanowski is prohibited from moving forward with the development while the lawsuit is under way. Veara said the court had not yet assigned a tracking order for the case.

Leven said it would likely take several months for the suit to move forward. She added that when an appeal is filed against a favorable decision by the planning board, it is the applicant’s responsibility to defend it – not the town’s.

David Brooke contributed to this report.

By Donna Tunney

The Cape Codder

19 July 2007