DENNIS – The fate of a 243-foot, 660kW wind turbine proposed for Aquacultural Research Corporation’s 39-acre property adjacent to Chapin Beach in Dennis lies in the hands of Judge Brian Merrick.
On Monday afternoon, Merrick said he would take under advisement arguments for and against the town of Yarmouth’s motion to intervene on behalf of Rosemarie Austin of Dennis, who opposes the turbine.
In September 2010 Austin, who considers herself a “visual abutter,” filed an appeal of the Dennis Old King’s Highway Historic District Committee’s Aug. 25 approval of the project, sending it to the Old King’s Highway Regional Commission for review. On a 3-1 vote, the commission overturned the Dennis decision on the grounds that the Dennis committee “exercised poor judgment.”
Owners Gail Hart, Richard Kraus and Susan Machie appealed that decision in an attempt to save their business, which pays an estimated $150,000 in annual energy bills. ARC is the sole supplier of shellfish seed for more than 60 Cape Cod and southeastern Massachusetts shellfish farms. Kraus said the turbine would produce enough electricity to replace 100 percent of the oil, electricity and propane that ARC currently consumes.
But Austin and others in Dennis and Yarmouth worry about the destruction of their view, the dangers to wildlife and negative effects on human health from noise and flicker. Austin maintains that ARC could survive on a smaller turbine and others ask why the company can’t construct a solar array to generate its energy. Tom Michelman of Boreal Renewable Energy of Littleton said a solar array large enough to power ARC’s operation would compromise the sensitive sand dunes on their property. Much of the company’s property is salt marsh and lagoons, and the building’s roofs would not support solar panels of sufficient magnitude.
In Orleans District Court Monday, Yarmouth attorney Bruce Gilmore argued that, as abutters, Yarmouth did not receive by mail notification of ARC’s application to the Dennis OKH Committee. “[State law] requires that abutters receive mail notification,” said Gilmore. He said the marshes and creeks that directly abut ARC’s property do not disqualify residents as abutters.
ARC attorney John Kenney said Yarmouth repeatedly chose not to participate in the case and that the town of Yarmouth “has never treated my client as an abutter” when making decisions.
Kenney quoted minutes from Yarmouth selectmen and Old King’s Highway Committee meetings that he said clearly establish Yarmouth’s knowledge of ARC’s application in Dennis.
“This does not constitute notice,” Merrick said.
Kenney argued that this constitutes “actual” notice. Kenney cited an appeals court case in which the judge ruled that giving notice by mail is not necessary if a party has actual notice and time to act.
Gilmore argued that since Merrick last year granted Dennis the right to intervene on behalf of ARC, Yarmouth should have the same right on behalf of Austin.
“This motion was not filed in a timely manner,” Kenney said. “If Yarmouth calls itself a visual abutter, how many more visual abutters will then come forward?”
Attorneys for both sides expect to receive Merrick’s decision on Yarmouth’s motion in a week or so. Morse speculated that Merrick wanted time to research his decision. “I think this is out of his area and he’s being careful,” she said.
The next hearing is scheduled for 2 p.m. on Monday, Jan. 30. At that time Merrick will consider whether Austin is “a person aggrieved” and had standing to appeal the Dennis commission’s decision and whether the OKH Commission substituted its own judgment for that of the local committee.
In the case of the first motion, should Merrick rule that Austin did not have standing to appeal the local decision, the case would be over, the Dennis OKH committee’s vote would stand and ARC would be issued a certificate of appropriateness.
If Merrick rules that Austin is, indeed, a person aggrieved, Merrick will then determine if the OKH Commission had a right to substitute its judgment for that of the local committee.
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