NEW BEDFORD – A Bristol County Superior Court judge is giving the opposing sides in the Fairhaven wind turbines lawsuit a chance to submit additional arguments, ensuring the legal battle will remain alive for the time being.
In January, Judge Thomas F. McGuire Jr. threw out two of four counts in a lawsuit that Fairhaven residents filed to stop the town’s wind turbine project. The lawyer for one of the defendants, the developer Fairhaven Wind, argued in court Thursday against the remaining counts.
In trying to get the suit dismissed, Thaddeus Heuer, Fairhaven Wind’s attorney, said the plaintiffs did not have a right to sue under the principle that says the public can force officials to fulfill clear obligations.
The principle, known as mandamus, applies to situations where, for example, a town clerk refuses to issue a license even if the applicant meets the criteria, he said.
“Here we don’t have that situation,” said Heuer, who made the defendants’ case while the town’s lawyer, Thomas Crotty, sat next to him.
McGuire said in his January decision that plaintiffs did not explain how they would be harmed by wind turbines or what specific risks they face. To stop the project mid-stream, he said he must find both a likelihood of success in their motion and that they would be irreparably harmed by the turbines.
At the same time, McGuire said the claim that selectmen did not have the authority to lease lot 9 to Fairhaven Wind has merit. According to the complaint, Town Meeting gave selectmen authority to lease two lots at the Arsene Street site, neither of which were lot 9. The final lease with Fairhaven Wind includes lot 9.
During Thursday’s hearing, the residents’ lawyer, Ann M. Ponichtera DeNardis, defended her clients’ case and their right to bring the lawsuit. She said the lease had undergone dramatic changes, officials did not act transparently, and there is clear evidence of harm, including loss of property values.
“The complaint should be allowed to proceed,” she told the judge.
McGuire did not set another court date, but said lawyers for the two sides could submit more documents for him to consider.
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