January 20, 2012

Judge denies request for temporary halt to wind turbines

By Peggy Aulisio, Editor, www.southcoasttoday.com 19 January 2012

FAIRHAVEN – A judge has denied a request for a temporary halt to the construction of two wind turbines on town land off Arsene Street. The town is leasing the land to Fairhaven Wind LLC and will be getting energy credits to offset the cost of electricity.

In the one claim where the judge agreed that the selectmen may have erred, in changing the lots, Judge Thomas McGuire said, “No doubt the public has an interest in seeing that proper procedures are followed in leasing the land. However, the difference between what the voters authorized and what the selectmen actually did is relatively minor.”

The temporary injunction was sought by about 10 residents who have filed a lawsuit. Their attorney, Ann DeNardis, said they will appeal.

“We disagree with his decision and his analysis of the law,” she said.

Judge McGuire said the complaint about the change in lots should have been brought before the Appeals Board before coming to the court. He further went on to say, however, that towns have a right to lease their buildings or land as long as they receive Town Meeting approval.

In this case, the judge said, the selectmen have not received Town Meeting approval to lease Lot 9, thus the lease is “likely invalid.” But, as he did in court, he said the plaintiffs should raise that issue before the zoning board.

As for a violation of the zoning bylaw saying wind turbines must be constructed on lots of at least 10 acres, the judge said the plaintiffs did not ask the building commissioner, Wayne Fostin, to enforce this bylaw, thus, “The plaintiffs have no standing to raise this claim under the Zoning Act.” He said the plaintiffs did not provide the court with a copy of the bylaw.

Ms. DeNardis also made other arguments at the Bristol County Superior Court hearing on Jan. 3.

But as for using the Ten Taxpayers’ Act, the judge questioned that reliance during the court hearing He said the act involves taxpayers’ right to sue over the expenditure of money.

“The plaintiffs’ complaint contains no allegation that the town is about to raise money,” he said.

As he did during the court hearing, he also said the plaintiffs did not provide any evidence to back their claims about negative health effects of wind turbines. He said the only threat to the plaintiffs’ safety that was mentioned in the plaintiffs’ motions was from ice flings, but he said no evidence was provided to back that claim.

At the hearing, Ms. DeNardis said they would provide information on the health risks as the lawsuit proceeds.

The judge also denied a claim that the turbines will destroy the character of the land. He said aesthetic changes “do not cause irreparable harm.”

URL to article:  https://www.wind-watch.org/news/2012/01/20/judge-denies-request-for-temporary-halt-to-wind-turbines/