FAIRHAVEN – A judge took arguments under advisement after listening to the attorney for wind turbine opponents Tuesday and it wasn’t clear if he would come back with a decision as early as today.
Attorney Ann DeNardis was seeking a temporary halt to construction of two 1.5 megawatt wind turbines on town land in Fairhaven. But even as the hearing took place, construction was beginning on the site.
Calling it an emergency motion because construction was starting, Ms. DeNardis questioned the legality of the project now that the lots approved by Town Meeting were changed.
Ms. DeNardis said the Town Meeting vote on May 15, 2007, allowed for the lease of Lots 8 and 8A, which selectmen have since changed to lots 9 and 8A. She said the result is a smaller space, and that the blades are now closer to the bike path. Ms. DeNardis said the zoning bylaw requires 10 acres for a wind turbine.
Ms. DeNardis cited e-mails
obtained under the Freedom of Information Act to show that even the developer questioned whether changing the lots would cause problems. She quoted from one she said was to the town’s executive secretary, Jeffrey W. Osuch, on May 25, 2010, in which the developer said, “One of the turbines appears to be on Lot 9…Can this cause us problems?”
Ms. DeNardis said developer Gordon Deane knew in September 2011 that the Board of Selectmen had “no authority to sign a lease for lot 9….They knew at the time that the town was exceeding their authority.”
When Superior Court Judge Thomas F. McGuire asked why the opponents didn’t bring their complaint to the Appeals Board, Ms. DeNardis said there wasn’t time. She said the opponents had no idea the project was proceeding until the area was cleared in mid-November.
The judge also asked if the opponents have any standing under the state law they were citing, which allows taxpayers to challenge a municipality’s expenditures. In response, Ms. DeNardis cited other cases involving citizens against municipalities in Massachusetts.
Judge McGuire said, “In this case, the town has already entered into the lease, so how does the statute apply?” And later he asked, “Why do 10 taxpayers have standing to challenge?”
Ms. DeNardis said, “Many others would like to be part of this hearing,” but the 10 involved in the lawsuit that was filed “are the closest in proximity.” She said the financial reasons for citing the statute apply because the town signed an agreement to buy electricity generated by the turbines.
Along with health risks from infrasound and the flicker effect, Ms. DeNardis said ice from the blades could be flung at residents using the bike trail. She said the children at Wood School “are at risk from harm from vibration” and that there have already been signs of lost property value. Ms. DeNardis told of two cases where owners had difficulty selling their houses or had to take substantially less than they were thought to be worth.
Judge McGuire said no documentation was provided on health or property values, but Ms. DeNardis said documents would be presented if they were allowed to move forward with a trial.
Town counsel Thomas Crotty and Fairhaven Wind LLC’s attorney Thaddeus Heuer didn’t speak as long as Ms. DeNardis. Fairhaven Wind LLC was added to the case at the town’s request last week.
Mr. Crotty said there is no evidence of harm to the abutters that can be claimed at this point, before the turbines are in operation. He said in other communities where wind turbines have been built the residents have not been been harmed by them.
Mr. Crotty said, “On the zoning issue, there is simply no standing,” because the opponents did not go before the Appeals Board. “If you don’t follow the zoning appeals process, you can’t come into Superior Court.”
Mr. Crotty said Fairhaven Town Meeting had “strong support” for the project in 2007 so there was no reason to go back to it, even when the lots were changed and the lease was extended to 30 years.
As for possible declines in property values, Mr. Crotty said, “It may be too bad but that happens in this world… That’s the way the world works.”
He also contested the health claims, saying many other turbines have been built “with no complaints.” He added, “We can go back and forth with experts. I don’t think that’s what this case is about.”
He added that the challenge in the motion filed in the court that day was based on the “legality of the lease … so it doesn’t matter how many experts they parade around.”
Mr. Heuer said the delay would cause them harm because of the state’s requirement that utilities buy back 2 percent of green energy. He said other communities are “basically in a queue” to make up that 2 percent, which is why developers are “trying to get their projects done.”
|Wind Watch relies entirely
on User Funding