Legal standing on Fairhaven wind complaint questioned 

FAIRHAVEN – Residents opposed to the town’s plan for two commercial wind turbines had their legal concerns heard in New Bedford Superior Court Tuesday, but it remains to be seen whether they will get the injunction they are seeking.

Judge Thomas F. McGuire took the matter under advisement after hearing attorneys representing plaintiffs, the town of Fairhaven and developers Fairhaven Wind LLC make their arguments.

Although he offered few comments during the process, McGuire frequently questioned attorneys on plaintiffs’ legal standing or right to challenge the project in court. That meant very little attention was placed on potential harm from turbines or whether the town took appropriate steps in pursuing the project, despite the complaint being based on these issues.

In her complaint, plaintiffs’ attorney Ann DeNardis challenged the town’s actions, presenting four arguments against them: They signed a lease for lot locations that are different from those approved by a 2007 Town Meeting vote; that one of two lots being built upon has less than the 10 acres required by zoning law; that the building permit was issued for the wrong lot, and that the lease was signed by selectmen before the board voted to approve it in open meeting.

Nevertheless, most of Tuesday’s legal arguments focused on standing.

DeNardis presented two arguments: One maintains that the project interferes with their rights as property owners and has a likely impact of harm; the other says 10 or more taxpayers can legally challenge a municipality’s expenditures or future expenditures under state statute.

But Town Counsel Thomas Crotty countered that plaintiffs are not following proper procedure with their complaint and have no standing under zoning issues until they first go before the town’s Zoning Board of Appeals.

“In the absence of following the appeals process, this court cannot act,” he told the judge.

Crotty also challenged standing under the 10 taxpayers’ statute, saying that plaintiffs’ arguments do not challenge the town’s power purchasing agreement, which is the only agreement under which the town is planning to spend money.

“They have to be challenging the commitment to spend money (in order to bring the complaint),” he explained after the hearing.

Both sides put forth a case of harm: plaintiffs from moving the project forward and the defense from peremptorily stopping it.

DeNardis noted Falmouth residents’ health and quality-of-life complaints about turbines there and said experts substantiating harm to plaintiffs’ health, safety and welfare would be presented once the complaint goes to trial.

But defendants called the argument about irreparable harm speculative.

“Maybe there’s harm; maybe there isn’t,” said Crotty.

On the town’s side, Crotty said Fairhaven could be harmed if the project does not move forward as planned because towns are vying to sell their renewable energy to utilities before the mandated 2 percent quota is reached.

“Once that 2 percent is met, utilities don’t have to deal with us,” he said.

As for appealing the matter to the zoning board, DeNardis questioned whether plaintiffs had a likelihood of success after being denied access to multiple boards in town, including selectmen. She asked the judge if these plaintiffs, most of whom are abutters or abutters to abutters to the project, don’t have standing, then who does?

“These people have a right to a hearing,” she said. “They have a right to have these issues addressed by the court.”