WAREHAM – The Beaufort Windpower plan to develop two 398-foot turbines to convert wind into electrical power was swept away with the Town Meeting vote to repeal the bylaw permitting wind energy facilities, according to an attorney representing the Zoning Board of Appeals.
Beaufort Windpower President Glen Berkowitz argued in Wednesday night’s ZBA meeting, though, the state Attorney General may still rule against the town vote, making his project viable.
Attorney Jon Witten, special counsel to the ZBA, said the developer could have protected his application, “gandfathering” it in, by filing one of three separate types of plans with the town clerk and planning board.
Since he apparently failed to do so, the development was not protected when Town Meeting voters repealed the permitting process, Witten said.
Berkowitz said state law required the Attorney General’s assent to make the repeal viable, and that the AG’s office had 90 days to provide the assent. He recommended continuing the public hearing and taking more testimony last night and moving onto the larger legal questions once a decision had been rendered.
Witten, however, said the Town Meeting vote became immediately binding. It will only lose standing if the Attorney General rules it to be improper.
“It’s possible that the Attorney General will disapprove it, but until it’s disapproved, it’s approved.”
Under questioning from ZBA Chairman Kenneth Ferreira, Berkowitz acknowledged that his firm had not filed the plans that would have protected the project with the town.
But, he added, the developers had been told by town officials “for seven weeks” that the plan would be grandfathered as it was, including “declarative statements of law made by town counsel (Richard Bowen)” during a Town Meeting session.
Bowen said at a subsequent Town Meeting he gave the opinion under the assumption the developer had made the proper filings.
“Frankly,” Witten said Wednesday night, “that’s irrelevant.
“It’s the applicant’s” responsibility to make the proper filings to protect a project, he said. “There’s no gray area.” He added, “I ask attorney Berkowitz not to play that card.”
The board voted to continue the hearing 120 days, a span that will include the 30 days the town has to file the bylaw change with the Attorney General and the 90 days that office has to make a ruling on it. Often, Witten said, the 90-day period elapses without comment from the AG, and there is no disruption in the bylaw’s effect.
Ferreira said postponing the hearing until Oct. 26 will make it clear whether the bylaw will stand.
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