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Massachusetts Attorney General’s office approves Bourne’s revised turbine bylaw

The Massachusetts Attorney General’s Office has approved the Bourne turbine bylaw amended by May 9 Special Town Meeting voters after the session suffered an electrical blackout. The new wind-energy conversion systems bylaw takes effect when a constable officially posts it around town this week.

The revised bylaw authorizes a special permit by the Bourne Planning Board, but it also imposes development requirements on turbine and wind-farm proposals, including height restrictions, setback requirements and detailed noise requirements.

The ruling, delivered to Bourne Town Hall Tuesday afternoon, is seen as a victory for Citizens for Responsible Energy and a setback for New Generation Wind, which plans a four-turbine wind farm off Route 25 and Scenic Highway.

The New Generation proposal remains in review this week at the Cape Cod Commission, and New Generation could challenge the AG’s decision at Barnstable Superior Court.

Kelli E. Gunagan, assistant attorney general and bylaw coordinator for the AG’s Municipal Law Unit in Springfield, noted that her office has limited power to disapprove such bylaw revisions and the presumption must be made “in favor of the validity of municipal bylaws.”

Gunagan, however, acknowledged her office received letters urging disapproval of the amendments. Communications were received from Buzzards Bay attorney Lee Berger, who said many townspeople left the blacked out auditorium at Bourne High School before a secret ballot vote was conducted, and from Boston attorney Diane Tillotson, representing New Generation.

“From the opposition letters we’ve received, we are aware of the concern the proposed bylaw, specifically the noise and shadow/flicker requirements, could limit or prohibit the placement of a wind energy conversion system in town,” Gunagan noted. “Based on our standard of review, we cannot conclude the proposed bylaw was inconsistent with state law.

“However, the attorney general’s review of the proposed amendment does not – and cannot – include the kind of factual inquiry a court might make if presented with a challenge that the bylaw effectively prohibits the siting of a (turbine) system in the town,” she said. “Therefore we express no view on how a court might resolve such a challenge based on a full factual record.

The controversial turbine bylaw was first drafted three years ago without fanfare and was redrafted. It was ultimately rewritten to separate commercial and residential turbine proposals and was overwhelmingly adopted by voters at Town Meeting without debate.

Then New Generation submitted its wind-farm proposal, prompting abutting homeowners to form a citizen group that fought the plan at every turn and successfully went to town meeting to review the governing bylaw. Selectmen, led by board member Jamie Sloniecki, led the charge to oppose New Generation plans even before the board’s energy advisory committee could review the project.

Gunagan in her ruling advises the town it may want to consider a bylaw amendment that would incorporate reasonable turbine setbacks from utility infrastructure, such as high tension lines. She also advises the town that it should examine “surety” aspects of requiring a turbine developer to post a bond to cover review by the town. She says the discussion should involve town counsel to make sure the amendment is applied in a manner consistent with state law.

New Generation’s plan has been reduced from seven turbines to four and is the first land-based wind farm proposed in Massachusetts. Opponents of the revised bylaw say it is now so restrictive that industrial grade turbines can be situated nowhere in town and that lesser structures will be equally impossible to propose in Bourne.

The issue of New Generation plans being reviewed by the old bylaw or the revised law remains a matter of legal conjecture.