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Attempt to stop Fairhaven wind project denied

FAIRHAVEN – Work to build two 80-meter wind turbines off Arsene Street is still under way, despite a legal challenge to construction.

About 10 Fairhaven residents tried to halt construction this week while they pursued legal avenues against the project. But on Friday, the group learned it had been denied both a temporary restraining order and a request to revive a 2008 lawsuit against the project.

Despite the denial, Fairhaven resident and Windwise member Ken Pottel said opposition will continue.

“We are in this, if we have to, for the long haul,” he said. “Even if it takes a couple of years and they have to come down after they put them up and spend millions like they did in Falmouth. If that’s what it takes, that’s what it takes.” According to a court notice, Judge Renee Dupuis determined plaintiffs did not have the right to revisit their 2008 lawsuit because of differences in the two cases. “The wind facility to be constructed is a municipal wind facility, which does not require a special permit, the parties are different and, as indicated above, the applicable laws, ordinances and bylaws are also different,” Dupuis stated in her decision.

The judge’s decision is based on a narrow legal issue, according to Town Counsel Thomas P. Crotty. Crotty said regulatory changes at the state level, specifically the enactment of the Green Communities Act in 2008, allowed Fairhaven to move ahead in installing turbines as a municipal project, requiring only a building permit. Prior to the GCA, the town was pursuing, and eventually received, a special permit from the Planning Board to begin construction.

Because of that change, the 2008 lawsuit, which named the Planning Board as defendant, would be the wrong case today, Crotty said, adding that building permits are typically challenged by appeals to the zoning board.

“(Plaintiffs) can come back in and open the case, but the case is the wrong case,” he said.

Attorney for plaintiffs Ann DeNardis acknowledged the Planning Board would not have been the correct defendant but said the lawsuit could have been updated. “I would have had to amend the complaint and add additional facts from 2008 to the present,” she said. But DeNardis also said the legal battle is far from over. Although she did not want to comment on future legal strategy, DeNardis said opponents plan to attend a Board of Health meeting Monday despite being removed from the board’s agenda.

“We were originally scheduled to be on the agenda and we intend to be there,” she said, adding that the health board is an important one because of its charge to protect health in Fairhaven.

Pottel and other opponents have expressed concerns about health impacts from turbines, citing reports of complaints about turbine noise issues and flickering effects in communities like Falmouth.

On Nov. 8, the town of Falmouth decided to shut down one of its turbines for six months because of health complaints including migraines and vertigo. The deal was made just hours before a Town Meeting vote was to be taken on an article to shut down the turbine and delay a second turbine.

Board Chairman Peter DeTerra said that legally the Board of Health will not be able to hear the group if they attend Monday. “I can’t hear them because they are off the agenda because of the lawsuit,” DeTerra said, referencing open meeting law. However, he said, if they make another request, they will be added to a future board agenda.

In the meantime, construction at the turbine site continues, according to executive secretary Jeffrey Osuch.

“Right now, what’s happening at the site is all the stumps and rocks are being hauled away,” he said. “Rocks are being placed around the perimeter and an access road that the crane will follow is being constructed.”