March 14, 2012

Judge says Fairhaven turbine lawsuit can move forward

By BETH PERDUE, 14 March 2012

NEW BEDFORD – A Bristol County Superior Court judge has denied a request by the town of Fairhaven and the developers of two wind turbines to dismiss a lawsuit seeking to halt construction of the turbines.

The decision allows the complaint to move forward, giving new hope to turbine opponents.

In his Monday decision, Judge Thomas F. McGuire Jr. reaffirmed earlier support for plaintiffs’ challenge to the lease for one of two lots that the turbines are being built on. In their complaint, plaintiffs claim the lease is not valid because it includes lot 9, a piece of property that was not specifically included in Town Meeting’s approval.

McGuire’s ruling also expressed support for the plaintiffs’ argument challenging selectmen’s authority to execute lease documents, saying it “plausibly suggests” a valid claim. And, while he called an open meeting law complaint “less clear,” he said the court would defer ruling on it until further along in the legal process.

The decision, the first to favor the wind opponents’ 2011 lawsuit, has raised hope among plaintiffs.

“We’re very energized, all of us, because we feel like this gives us an opportunity to give our concerns in court,” said Ken Pottel, one of 22 plaintiffs who oppose the turbine project.

Monday’s decision comes after a March 8 attempt by the developer (Fairhaven Wind) and town attorneys, to have two remaining lawsuit counts dismissed. Two earlier counts had been thrown out by McGuire in January.

McGuire “decided there was enough question as to the validity of the standing issue that he wasn’t going to dismiss the case,” said Town Counsel Thomas Crotty, about the judge’s most recent ruling.

Although the decision allows the case to proceed, Crotty pointed out that McGuire also notes the existence of conflicting case law on the plaintiffs’ arguments, specifically with regard to the principle, known as mandamus, that says the public can force officials to fulfill clear obligations.

In his decision, McGuire says the court “is bound to follow” existing cases that have not been overruled.

“The appeals court has gone both ways on the issue of mandamus with regard to lease and land and for that reason (the judge) is going with the last appeals court decision,” explained Crotty, about the language.

A call to plaintiffs’ attorney Ann Ponichtera DeNardis was not immediately returned.

Two 1.5-megawatt wind turbines are being constructed near the town’s wastewater treatment plant and are expected to generate 7,227,000 kilowatt hours of energy per year. Parts for the turbines began arriving in mid-February and construction is expected to wrap up before the end of April.

The lawsuit has a long journey ahead, according to Crotty, who said that assuming it makes its way to trial, it won’t likely be heard before 2014.

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