NEW ASHFORD – The $25 million Berkshire Wind power construction project under way at Brodie Mountain is close to overcoming a lawsuit and may soon be under new ownership.
The lawsuit’s plaintiff, Silverleaf Resorts, which plans a 332-unit, $42 million condominium project at the former Brodie ski area site off Route 7, has entered a motion to dismiss the legal proceedings in federal court.
Meanwhile, the Massachusetts Municipal Wholesale Electric Co. is negotiating with Berkshire Wind’s owner, Distributed Generation Systems Inc., or DisGen, to buy the project and take over the construction effort.
With the resolution of both issues, said DisGen President Dale Osborn, the project would be on track to complete construction and begin generating power in 2008.
The Berkshire Wind project includes ten 340-foot tall, 1.5-megawatt GE wind turbines. The wind farm is designed to generate enough power for 5,000 households.
Planned since 1998, the project broke ground in 2006. An access road and several wind turbine foundations were nearly complete when Silverleaf’s lawsuit brought work to a halt.
In its lawsuit, Silverleaf claimed that the wind project trespassed on the resort company’s land and that the wind turbines would detract from the view at the condominium project under development at the base of Brodie Mountain.
DisGen settled the trespassing issue this summer for $10,000. As for the nuisance claim, DisGen contends that Silverleaf already knew of the project, under way since 1998, and its potential effect on its plans before the company bought the land.
Silverleaf purchased the 500-acre Brodie Mountain ski area in 2004 for $2.6 million from the owners of Jiminy Peak.
On Sept. 6, Silverleaf bought 580 acres of adjacent property from J.W. Kelly Enterprises, the original owner of the Brodie Mountain ski area, for $2.6 million.
Sources on both sides of the lawsuit say Silverleaf intends to move its condominium development to the newly purchased property, where the wind turbines would be out of sight.
If Massachusetts Municipal Wholesale Electric Co., or MMWEC, buys the project, it has the ability as a public corporation and political subdivision of the state to use eminent domain to take property for projects that benefit the “common good” of the community. Lawsuits against MMWEC based on property rights and line-of-sight obstruction would be less likely to prevail, according to Glenn Steiger, the company’s general manager.
MMWEC is owned by its members – 25 Massachusetts municipal utilities including Holyoke and Westfield. The municipal conglomerate fills its power needs through a bidding process among wholesale energy brokers.
The company also owns pieces of several other power generation facilities, including nuclear plants in Seabrook, N.H., and Waterford, Conn., and the Stony Brook power plant in Ludlow, and an oil-fired plant in Yarmouth, Maine.
“We own roughly 800 megawatts of power generation,” Steiger said. “And (the Berkshire Wind project) gives us a very important renewable project, which is very advantageous, particularly as we move forward. We’ve done a significant amount of analysis, and we think it’s a good project.”
MMWEC is ready to get moving on completing negotiations, then completing construction, he added.
“The sooner, the better,” Steiger said. “We’re trying to wrap this up as expeditiously as possible.”
Meanwhile, at the U.S. District Court in Springfield, after more than year of legal maneuvering, Silverleaf asked the court to dismiss its lawsuit, while leaving intact the company’s right to sue again on the same grounds.
According to pleadings on file at the federal court, Berkshire Wind responded by requesting that the judge dismiss the lawsuit and bar the plaintiff’s right to sue again. The motion filed by Berkshire Wind claims financial hardships and delays to the Berkshire Wind work resulting from the first lawsuit, which never went to trial. The motion also contends that without the provision, the plaintiff could continue to harry the project with another attempted lawsuit or injection to force another work stoppage.
Leaving Silverleaf the right to do the same thing again, Berkshire Wind contends in its filing, “allows Silverleaf to continue to cast a cloud over Berkshire’s proposed 10-turbine ‘wind farm’ on Brodie Mountain through the ongoing threat of an injunction. … It is one thing for Berkshire or a prospective buyer of the project to assume the post-construction risk of a lawsuit for damages; it is quite another to assume the risk of not being able to build the project at all.”
Representatives of Silverleaf declined to comment on the lawsuit. Asked why they bought more property at the Brodie site, senior director of planning and development Michael J. Brown said, “We think land in the Berkshires is a good investment. That’s why we purchased that property.”
Osborn, the DisGen president, confirmed that both parties “are trying to get this lawsuit dismissed.”
He also said DisGen is in discussions with possible buyers, although he declined to divulge their identity.
MMWEC is referred to in the court pleadings.
By Scott Stafford
9 November 2007
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