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Judge says Austin has standing to appeal Dennis turbine

ORLEANS DISTRICT COURT – Orleans District Court Judge Brian Merrick on Feb. 3 confirmed Rosemarie Austin’s right to appeal the Dennis Old King’s Highway Regional Historic District Committee’s decision to allow Aquacultural Research Corporation to build a 242-foot wind turbine on its property adjacent to Chapin Beach in Dennis.

Claiming that the turbine would obstruct her view and devalue her property, Austin’s appeal sent the case to the regional Old King’s Highway Commission, which overturned the local decision. ARC appealed to the court, maintaining that Austin’s home is three-quarters of a mile from the proposed turbine site, which distance disqualifies her as an abutter.

“In this case the allegedly aggrieved person [Austin] put forth a case sufficient to cause the Commission to reverse the decision of the Town Committee,” Merrick wrote. “Even if not ultimately successful in this case, Austin’s case is at least sufficient to defeat summary judgment.”

Because she is not an abutter, Merrick wrote in his ruling, “Austin must at the outset assert a plausible claim of a definite violation of a private right, a private property interest or a private legal interest” that the statute under which she “claims aggrievement intends to protect.”

Citing zoning decisions in Andover (2006) and Chatham (2011), Merrick said that “Where a zoning ordinance requires consideration of the visual impact on a neighborhood ‘in order for a plaintiff to establish standing based on the impairment of an interest protected by [the] zoning bylaw” the aggrieved party must show specific harm to his or her property and “a detrimental impact on the neighborhood’s visual character.”

Merrick ruled that on first examination, Austin’s facts appear to support her argument.

Austin submitted photographs to the court that she had altered to show the scale and appearance of the proposed turbine from her property. Merrick wrote in his decision that “for summary judgment purposes [these photographs] are taken to be true. Whether or not the statements in the affidavit can be impeached is a matter for trial.”

Merrick has set a pre-trial conference for 2 p.m. on Monday, Feb. 27. Before that date, ARC attorney John Kenney must contact OKH attorney Leslie-Ann Morse to discuss a settlement. Should the attorneys agree on a settlement, Kenney will bring the terms to ARC principals for a response.

Both attorneys must also submit to the court prior to the pre-trial conference an affidavit showing that they have provided their clients an estimate of costs of further litigation through trial. Kenney must also submit a pretrial memorandum to Morse summarizing ARC’s claim and defenses and listing witnesses and experts, established facts in the case and special damages, if any.