May 8, 2012

Kingston’s blades won’t stop; Cease and desist declined

By Kathryn Gallerani, Wicked Local Kingston, 8 May 2012

KINGSTON – Building Commmissioner Paul Armstrong has concluded that the Planning Board’s site plan approvals and subsequent building permits for the wind turbine Independence and three wind turbines on business owner Mary O’Donnell’s Marion Drive property are valid, despite claims to the contrary.

With Armstrong’s decision, attorney Christopher Senie, who represents 11 Kingston families hoping to prevent operation of the Independence and stop operation of O’Donnell’s turbines, said his clients are deciding whether they will appeal Armstrong’s decision to the Zoning Board of Appeals.

On behalf of the Country Club Way, Leland Road and Copper Beach Drive families, Senie requested that Armstrong issue cease and desist orders for both projects based on premature site plan review application and approval, failure to file with the town clerk, improper timing of a peer review and inadequate review of the potential negative impact of the turbines.

Senie claims the Planning Board jumped the gun on site plan approval before the attorney general’s office had completed its review of the bylaw adopted at Town Meeting that created the Green Communities Wind Turbine Overlay District.

Senie said he disagrees with Armstrong finding no fault with either the timing of the site plan approval or the timing of the submission of the required documents to the town clerk’s office based on the argument that it’s an administrative function.

“I think they’re missing the point that they’re supposed to wait until those things are done,” he said.

With respect to the allegations of inadequate peer review of the O’Donnell turbines, in terms of the timing of that peer review, Armstrong concludes that it was proper the Planning Board not require peer review until the equipment was selected. Senie said he doesn’t know if that peer review was ever done.

On the claim of inadequate review, Armstrong concludes that the Planning Board’s review was within the parameters set forth in the Wind Overlay District Bylaw.

“The board’s decision to approve a project under the bylaw is discretionary and deferential and accordingly as building commissioner I decline to undertake any action that would reverse their decision on the merits of the projects,” he wrote in his decision.

Senie said if his clients decide to appeal, then he anticipates the ZBA would schedule a public hearing on the appeal in June. He said he expects they will make their decision in the next two weeks. They have 30 days to file an appeal.

While Senie expected Armstrong to decline to take enforcement action, Armstrong said he expects the neighbors will appeal his decision. He stands by his decision.

“I think we followed due process,” he said.

He said that process includes an initial review by the town’s Green Energy Committee and subsequent approval at Town Meeting.

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