FAIRHAVEN – The on-again, off-again plan to build two wind turbines in Fairhaven may be off again, pending the ruling of a Superior Court judge.
About 10 Fairhaven residents took their cause to court this week, seeking to revive a 2008 lawsuit and stop ongoing construction at the planned Arsene Street site.
Plaintiffs’ attorney Ann DeNardis said a motion to vacate a judgment of dismissal of a 2008 lawsuit and a request for a temporary restraining order was heard Wednesday in Taunton Superior Court. Judge Renee Dupuis took the matter under advisement.
DeNardis said the 2008 lawsuit had been dismissed after CCI Energy, the company behind the project, relinquished its special permit for the turbines. At the time, the judge offered plaintiffs a chance to renew the lawsuit, she said.
“Judge (Robert) Cosgrove provided an opportunity for plaintiffs to file a motion to vacate the dismissal should CCI Energy LLC seek to build wind turbines in the same location,” DeNardis said.
Local opposition to the project was rekindled in early November after the town began construction preparation, including clearing trees at the Arsene Street site. The move angered some residents who believed the project had been abandoned and complained the town should have provided notice of its actions.
But Fairhaven officials said they took all necessary legal steps, including obtaining the required building permit and Conservation Commission approval.
What concerns plaintiffs most about the turbines are potential health effects due to low-level noise issues and flickering effects, according to Ken Pottel, a plaintiff and member of opposition group Windwise.
Pottel pointed to a situation in Falmouth where one wind turbine was shut down after residents made numerous health complaints.
“Last weekend, we had two of our members go down to Falmouth,” Pottel said. “These people really suffered. One person, 3,000 feet away, was living in the basement because the sound was so bad.”
Pottel also believes it won’t just be nearby residents who will be affected, but that the structures, at nearly 400 feet high, will also have an impact on seniors visiting the Route 6 Council on Aging building and children attending nearby Wood School.
The height of the turbines has not changed from the initial project, according to town officials, who say the towers will be 80 meters (or 260 feet) high. However, the entire turbine with the blade in a vertical position would be approximately 390 feet high, according to a 2005 Massachusetts Technology Collaborative feasibility study for the project.
Like other members of Windwise, Pottel is also angry that their concerns are not being listened to by town officials. Windwise approached the Board of Health to discuss health issues related to turbines and was put on the agenda for Monday night, he said. But they were later denied access because of the potential lawsuit.
“I don’t know if it’s legal or not; it seems wrong anyway. People, citizens, should have the right to speak,” he said.
Calls to the Board of Health were not immediately returned.
Although “credible” health concerns should be heard, Selectman Brian Bowcock said, “Some of the issues that (opponents) raise can’t be substantiated.”
“When you make health claims, you need to be able to scientifically back them up,” he said. “There’s a wealth of information that demonstrates that wind turbines are safe and are not an impact on the health of people.”
Bowcock said residents’ legal actions are not unexpected but he believes the town will prevail.
Town officials carefully reviewed the legality of their actions before entering power purchasing agreements, especially because the project was being moved forward based on changing regulations, including net metering revisions and the creation of the Green Communities Act.
“Net metering came into effect with a new law and new rules and regulations. Nobody was really sure, including the commonwealth, what the net metering laws were, so we were very careful,” Bowcock said. “We’ve been diligent and I think we will prevail and the project will move forward.”
In 2008 after relinquishing its special permit, developer Jim Sweeney told The Standard-Times that CCI Energy planned to restructure the project using the Green Communities Act. “This way we think we can move forward quicker and provide some benefits to the town,” he said in December 2008.
Despite the potential lawsuit, Bowcock believes Fairhaven residents continue to support the wind project.
“I believe that the sentiment of the town is that these wind turbines should have been put up years ago and that it’s a shame that a small group of people are able to prevent that,” he said.
But Pottel says more people are supporting Windwise’s efforts now than in 2008. “I think people have gotten more educated about the (health) issues and now they’re aware this is going to affect me,” he said. There is “a larger group of people writing editorials and working with us.”