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Court won’t stop wind project but says lease may be invalid

NEW BEDFORD – A Superior Court judge has denied a Windwise request to stop wind turbine construction in Fairhaven, saying plaintiffs did not prove they would suffer irreparable harm.

In his decision, Judge Thomas F. McGuire Jr. said plaintiffs did not explain how they would be harmed by wind turbines or what specific risks they face. In order to stop the project mid-stream, he said he must find both a likelihood of success in their motion and that they would be irreparably harmed by the turbines.

“If the plaintiffs do suffer harm caused by the wind turbines, the court can remedy that harm following a trial,” McGuire wrote.

Basically, the judge is “saying he’s not going to stop the project but he’s also not going to make the case go away,” explained Town Counsel Thomas Crotty.

In response, Windwise attorney Ann DeNardis said she believes there has been sufficient evidence presented for a preliminary injunction and that she intends to appeal. According to DeNardis, evidence was presented both in terms of irreparable harm and with regard to specific zoning violations that the court said must go before the town’s zoning board.

“We do believe the court is entitled to review the zoning violations and entitled to issue a preliminary injunction on that basis, as well, so we intend to appeal,” said DeNardis.

Despite denying the injunction, McGuire didn’t toss the entire complaint out. While he found three of four counts would not have a likelihood of success, including two counts he dismissed outright, McGuire said the claim that selectmen did not have the authority to lease lot 9 to Fairhaven Wind LLC has merit.

The two dismissed counts were zoning-related complaints. In the third count, which argued that selectmen’s signature on a lease-related document is invalid because they had not voted to sign the document, the judge ruled plaintiffs did not prove a likelihood of success.

The final count relates to the property lease. According to the complaint, Town Meeting gave selectmen authority to lease two lots at the Arsene Street site, neither of which were lot 9. But the final lease with Fairhaven Wind includes lot 9.

“The voters did not give that approval and the lease of Lot 9 is therefore likely invalid,” wrote McGuire.

DeNardis said that statement should concern the developer.

“Certainly with the judge’s decision that the lease appears to be invalid, the developer would be proceeding at Fairhaven Wind LLC’s peril,” she said.

The judge’s decision means the Windwise complaint will move forward in Superior Court with the next hearing put on the regular court schedule, according to Crotty, who indicated it could be several months before a date is set. The timing of the appeal is uncertain.