February 2, 2012
Massachusetts

Dennis’ ARC turbine decision delayed; Judge takes the case under advisement

By Nicole Muller, THE REGISTER, www.wickedlocal.com 31 January 2012

Dennis – Orleans District Court Judge Brian Merrick does not rule in haste.

With no precedent in the Old King’s Highway Regional Historic District Commission overturning a local OKH committee’s ruling, Merrick is faced with two decisions: whether Rosemarie Austin of Dennis had standing to appeal the local board’s approval of Acquacultural Research Corporation’s 242-foot wind turbine, sending the case to the regional commission, which overturned the ruling; and whether the commission substituted its judgment for that of the Dennis committee.

After hearing arguments from both sides Monday afternoon, Merrick said he would take the matter under advisement. Calling the case “an emotionally fraught issue,” Merrick said, “I truly have not decided, but it’s possible that I will deny the motion.” He then set a Feb. 27 pretrial conference to avoid delay if he denies the motion.

During the hearing, ARC attorney John Kenney argued that Austin, who lives three-quarters of a mile from ARC’s property adjacent to Chapin Beach, had no standing to claim that the turbine impacted her view. “Will everyone within 2 1/2 miles now come forward with the same argument?” Kenney asked. “If built, you’ll be able to see that turbine while standing on a dune at Sandy Neck [in Barnstable], 2 1/2 miles away.” Kenney added that “the diminution of an individual’s view is not protected by the [OKH] Act.”

But Austin said that 92 people signed her petition challenging the local committee’s decision to issue a certificate of appropriateness to ARC. “The Act says that one person aggrieved may file an appeal,” she said, adding that she filed on behalf of “herself and her neighbors in Dennis and Yarmouth.”

Representing the OKH Commission, attorney Leslie Ann Morse read from the Act: “The purpose of this Act is to protect the people living in the historic district,” she quoted. “Just like the Preamble to the Constitution,” Merrick shot back. Morse was unfazed. “View is everything,” she said. “The historic district is about what you see and the OKH Commission has jurisdiction over everything you see there.”

Morse argued that the Act protects people’s views from “incongruent, incompatible and inappropriate structures. This is an industrial use in a residential area,” she said. “It’s incongruent and way out of scale, and it impacts [Austin’s] property value.”

Kenney said the town committee’s ruling should prevail. “There was nothing presented at the commission hearing that supports the local decision as being arbitrary, capricious or showing poor judgment,” he said. “The commission cannot simply substitute its judgment for the town committee’s with no evidence of poor judgment before them.”

URL to article:  https://www.wind-watch.org/news/2012/02/02/dennis-arc-turbine-decision-delayedjudge-takes-the-case-under-advisement/