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Appeals board to seek legal advice on turbine complaint

FAIRHAVEN – The Zoning Board of Appeals has continued an administrative appeal hearing on the town’s wind turbine project, with members saying they want to seek legal counsel on the matter.

At Wednesday night’s meeting, attorney Ann DeNardis brought nine zoning and building code issues before the board as part of a legal challenge to the validity of the wind turbine permit.

Issues include a building permit application that was signed by Fairhaven Wind developer Gordon Deane months before he became part of the lease for the land; a project that, as submitted in October 2010, was a commercial wind project, not a municipal one, and therefore required a special permit; and a turbine lot that is only 7 acres in size when zoning bylaws require 10-acre parcels for turbines.

Although the board sought and received legal advice from Town Counsel Thomas Crotty during the hearing, members voted in favor of continuing the hearing to get their own legal counsel. With a motion already made to vote on the appeal, board member Frances Cox put forth a second motion, saying “I think this board needs to get to a level of comfort (on this).”

Based on the vote, the hearing will be rescheduled to April 3, but board members expressed some concern that they might not be ready for that date, since they will need to first seek selectmen’s approval to hire legal counsel.

During discussion, Crotty told the board that building code issues are not within the jurisdiction of the appeals board to act on, thus suggesting they limit discussion to four of nine complaints. “Five are building code issues with no zoning issues related to them as presented tonight, so you can vote to take no action on them,” he told the board.

Building code complaints included missing and improper signatures on the building permit and the need for an independent structural engineer’s report on the project.

Regarding the zoning requirement for a 10-acre turbine site, board members suggested the land parcel, at about 27 acres in total, is large enough to meet zoning requirements. Crotty supported that statement because, he said, the lots are contiguous and have the same owner.

And, while Crotty agreed with DeNardis that the wind project was a commercial project at the time of the application, he said the law supports considering it as being in compliance, because the project meets regulations now.

“If it’s in compliance now, then it’s in compliance retroactively,” he said. “So I’d suggest that’s the way you should vote on it.”

Although Crotty had initially suggested the appeal might not have been made within a required 30-day filing deadline, he nevertheless advised the board to hear the matter and make a determination both on its timeliness and merits. Otherwise, he said, members risk it being sent back to them by the courts multiple times.

“So my suggestion would be, at least in terms of efficiency, to make a decision on it if it’s filed late but also to address the merits,” he said.

In her presentation, DeNardis also questioned the validity of an amended building permit dated four months after the original permit, which she said appeared in the project file only after she filed a lawsuit. Dated Nov. 4, 2011, the amended permit corrects a mistake on the identified project lots and names a new contractor.

But, according to DeNardis, several wind opponents who requested the project building permit from Building Commissioner Wayne Fostin after Nov. 4 were told only about the original July 21 permit.

“It is our position that this permit is a fabricated document,” she said.

DeNardis also suggested that Crotty’s role in offering advice to both the building commissioner, whose actions were being contested, and the Appeals Board, constituted a conflict of interest.

Speaking after the board’s decision, DeNardis was cautiously optimistic. “I think that the board listened to us and I’m encouraged by that,” she said.