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Turbine dispute hinges on legal standing  

Credit:  By Cynthia Mccormick, www.capecodonline.com 31 January 2012 ~~

ORLEANS – Orleans District Court Judge Brian Merrick heard arguments Monday about whether a woman who opposes a wind turbine at a Dennis shellfish hatchery has legal standing in the case.

Aquaculture Research Corp., wants to install a 242-foot wind turbine on its 39 acres of beachfront property near Chapin Memorial Beach. The Dennis Old King’s Highway Historic District Commission approved, issuing a certificate of appropriateness for the project in August 2010.

But the regional board of the multitown historic district killed the project after hearing an appeal from Dennis resident Rosemarie Austin a month later.

Now the aquaculture company is suing Austin and the Old King’s Highway Regional Historic District Commission.

Centerville attorney John Kenney, who represents the company, asked the judge Monday to issue a summary judgment declaring Austin without legal standing in the case, which would mean the original Dennis committee’s approval of the wind turbine would stand without ARC having to go to trial.

He argued that Austin doesn’t have grounds to appeal the decision of the local historic district committee because she lives three-quarters of a mile away from the site and is not a direct abutter.

“This is a broad view. The wind turbine can be seen two and a half miles away in Barnstable,” Kenney said.

But Austin, who represented herself, said she speaks for 92 residents of Dennis and Yarmouth who signed a petition opposing the turbine, including a woman who lives only 1,600 feet away in Yarmouthport.

Austin said the Dennis historical committee told her only one person could file an appeal to its decision, so she filed it in her own name. It wouldn’t be fair to throw out the regional commission’s decision based on her lone appeal, Austin said.

“We’re fighting to keep this as a neighborhood and not an industrial zone,” she said.

Yarmouth Town Attorney Bruce Gilmore called Austin a “visual abutter” and asked that the case be decided at trial and not dismissed in a summary judgment.

Merrick allowed Gilmore to file a brief, although the judge already has turned down a request for Yarmouth to be granted intervenor status in the case.

Yarmouth officials have not taken an official stand on the turbine but want to make sure residents of the town have a voice in the matter.

The town of Dennis was successful in its petition to acquire intervenor status on behalf of ARC, which town officials consider vital to the economic interests of the community.

Attorney Michele Randazzo, representing Dennis, said Austin hasn’t proved she has enough of a legal stake in the case.

The fact that Austin would be able to see the wind turbine “from some distance” opens the appeals process to a much broader class of people than was ever intended, she said.

But Old King’s Highway Regional Historic District Commission attorney Leslie-Ann Morse challenged this idea.

“View is everything the historic district is about,” she said.

The regional board is made up of representatives from each of the member towns: Sandwich, Barnstable, Yarmouth, Dennis, Brewster and Orleans.

Merrick took the case under advisement.

He scheduled a pretrial hearing for 2 p.m., Feb. 27 in case the parties need to schedule a trial date, however.

Source:  By Cynthia Mccormick, www.capecodonline.com 31 January 2012

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

The copyright of this article resides with the author or publisher indicated. As part of its noncommercial effort to present the environmental, social, scientific, and economic issues of large-scale wind power development to a global audience seeking such information, National Wind Watch endeavors to observe “fair use” as provided for in section 107 of U.S. Copyright Law and similar “fair dealing” provisions of the copyright laws of other nations. Send requests to excerpt, general inquiries, and comments via e-mail.

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