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Judge denies Yarmouth intervention in ARC case

ORLEANS DISTRICT COURT – Yarmouth may not intervene in the case of Aquaculture Research Corporation v. Old King’s Highway Regional Historic District Commission and Rosemarie Austin of Dennis.

Orleans District Court Judge Brian Merrick ruled on Jan. 9 that he would take under advisement Yarmouth’s argument that as an abutter to the proposed 243-foot wind turbine on ARC’s property adjacent to Chapin Beach in Dennis, it has a right to intervene on behalf of Rosemarie Austin of Dennis. Austin considers herself to be a “visual abutter” to ARC’s property and challenged the Dennis OKH’s 2010 decision to allow the project.

When the regional OKH commission overturned the local decision, ARC appealed. Merrick later allowed the town of Dennis to intervene on behalf of ARC. Dennis selectmen took issue with an outside board overturning an elected, local board’s decision to allow the turbine.

Earlier this month, Yarmouth’s attorney Bruce Gilmore argued that, as an abutter, Yarmouth did not receive by mail notification of ARC’s application to the Dennis OKH Committee. Speaking on behalf of ARC, attorney John Kenney said that Yarmouth repeatedly chose not to participate in the case. Kenney quoted minutes from Yarmouth selectmen and OKH meetings that he maintained clearly established Yarmouth’s knowledge of ARC’s application in Dennis.

In his written statement issued Jan. 12, Merrick gave Yarmouth leave to file a brief as a “friend of the court.” This ruling allows Yarmouth to provide information it considers relevant to the matter that has not been submitted by either party in the controversy and that the court may consider as being of “considerable help.”

In his response, Merrick denied Yarmouth’s claims that as an abutter, it was not provided written notice of ARC’s intention. “It does not appear that the low water mark of any property of the town of Yarmouth actually abuts the low water mark of the property of ARC involved here,” Merrrick wrote in his decision. While a statement to Yarmouth selectmen in the public comment portion of their meetings would not constitute notice, the minutes of one meeting show a selectman stating that the board had decided not to take a position on the issue.”

Yarmouth’s interest in the matter is “adequately represented” by the OKH Commission, Merrick wrote in his ruling. “The town of Yarmouth has no right to intervene in this appeal … nor am I inclined to add additional and unnecessary parties to this action.”

Merrick claimed jurisdiction over the case while it is pending at Orleans District Court “given the complexity of the case at this point.”

The next hearing is scheduled for 2 p.m. Monday, Jan. 30. At that time, Merrick will consider whether Austin is “a person aggrieved” and had standing to appeal the Dennis committee’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 closed, 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.