FAIRHAVEN – More than 160 residents have signed a petition protesting the legality of the town’s building permit for two wind turbines as part of growing opposition to the project.
A signed petition was mailed to Fairhaven building commissioner Wayne Fostin on Friday, identifying eight apparent inaccuracies and zoning violations in the application process and asking Fostin to declare the permit null and void.
The step is the latest in a series of moves by opponents to halt the town’s plan to build two 397-foot wind turbines off Arsene Street after an attempt to revive a 2008 lawsuit failed. The letter protests a building permit that was issued to wind developers on July 21, citing the lack of a signature from the building commissioner, among other complaints.
In response, Fostin said he did, in fact, sign the permit but that the copy petitioners included with their statement is actually the application, which does not require his signature. Although he had not had time to review the document in detail and therefore could not respond to all eight complaints, Fostin said he will respond to petitioners within the 14 days allotted him.
An appeal to the building commissioner is the first legal step in fighting a building permit, said Town Counsel Thomas Crotty, who had not yet seen the petition. Once Fostin responds, petitioners can make an appeal to the zoning board if they are still unhappy, he said.
Crotty noted, however, that there is a 30-day deadline for appealing a permit. While the courts have interpreted it as 30 days from when petitioners learn about the permit, he said the date when people should have known is also a determining factor.
“If the project is ongoing or potentially ongoing but they didn’t bother to keep track of it, the court may say you should have known,” Crotty said.
According to Windwise, the number of Fairhaven residents concerned about the wind turbines is growing. Little Bay resident Grant Menard, a Windwise member, said he is receiving daily email requests for information through the windwise.org website.
“Every five or 10 minutes I get somebody new that emails me,” Menard said. “People are just looking for information at this point and are looking to fight it. What I explain to them is there’s nothing to fight. It’s a done deal.”
Despite his statement, Menard, who moved to Weeden Road seven years ago, is contesting the building permit. He is angry about the lack of notice and said there are many residents, like himself, who are new to town and had no idea the project was pending.
“Even though the town is allowed to do it, is it the right thing?” Menard questioned. “Don’t they have due diligence as elected officials to just let us know?”
In their opposition, Menard and others are particularly concerned about potential health effects from low-level noise and shadow flicker from the turbines. They plan to present their concerns to the Board of Health on Dec. 19 and have submitted research documents about turbine noise to the board in advance of the meeting.
Fueling concerns are reports from the town of Falmouth of health complaints that eventually led to the temporary shutdown of one wind turbine.
Albert Jones is one of the new residents who has contacted Menard to protest the project’s lack of transparency.
“I’m concerned about the noise, and evidently there is quite a lot of flicker effect,” said Jones, a Little Bay resident who summers on West Island. “I think they’re real concerns and I would like to have it explained to me by the town fathers. I think it’s an item that should have a lot more transparency and a lot more explanation on both sides to understand are these real problems or are these imaginary?”
Although the project continues to move forward, Crotty said opponents have two options: Appeal the building permit or try to get Town Meeting to breach the contract. The latter decision puts the town at risk of a lawsuit, he said.
While Fairhaven has a power-purchasing agreement with developers for the energy produced by the turbines, the town is not contributing to the cost of the turbines themselves. The financial burden for the approximately $9 million project is being borne by developers Fairhaven Wind LLC.
Another potential avenue for legal action is through the Board of Health, according to Crotty, who said the board could determine the turbines are a public nuisance.
But that too opens up the threat of legal action.
“The Board of Health has the authority to make you stop doing something if they determine it is a public nuisance, but you have the right to sue them if they’re wrong,” Crotty said.
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