SHELBURNE – The Zoning Board of Appeals voted 4-1 Thursday night to accept the withdrawal of a special permit application for a windfarm “without prejudice,” in hopes of “ending this round of hearings,” and saving both residents and town boards time in hearings and costs for legal fees.
But the decision did not sit well with the roughly 25 residents who came for a special permit hearing, and wanted the board to discuss “the merits” of the Mount Massaemet wind turbine application.
Many hoped that if the project were rejected by the ZBA on the basis of merit, a revision of the turbine plan could not be filed for at least two years. Although the town approved a commercial wind ban, opponents fear the project would still be viable if the state Attorney General doesn’t ratify the town meeting vote within the next few months.
ZBA Chairman Joseph Palmeri said the board has been receiving emails asking the board to accept developer Frederick D. Field’s withdrawal “with prejudice,” but the town’s lawyer, Donna MacNicol, found no precedent nor legal statute that would allow the board to accept the withdrawal with this added penalty, said Palmeri.
“We can either vote to accept withdrawal without prejudice, or we can continue with the hearing process,” which Palmeri said could be long and drawn out.
“If it goes away now, without prejudice,” it cannot return as a commercial wind farm, as long as the new law (banning commercial wind turbines) stands, as of our recent vote,” said Palmeri.
“It would stop the division in the community now,” he continued. “I think the townspeople have spoken pretty loud and clear about this whole thing.”
ZBA member Lowell LaPorte, the dissenting voter, said he thought it would be worthwhile to hold the public hearing, possibly rejecting the proposal. “If we have to open this hearing so we won’t have to see this (proposal) again, I think that’s what we have to do,” he said.
Adam J. Costa, a Concord-based lawyer for residents opposed to the wind turbine project, said his clients wanted the board to consider the merits of the application.
“Your statement was: ‘This round will be over.’ My clients’ question is: ‘When will the next round start?’” He said there are cases dealing with repetitive applications and of the “inherent unfairness requiring residents to come again and again to make their statements.”
“This is a second similar application,” said Costa, referring to the first, eight-turbine proposal that Field withdrew during the opening session of the Nov. 17 public hearing. By letting Field withdraw “with prejudice,” he said, if a third proposal comes from Field, the ZBA can make a determination if that proposal is “substantially different” from the others before letting him go through another special permit application before the appropriate waiting period.
After the board accepted the withdrawal, it formally opened and immediately closed the posted public hearing. Then board members allowed residents to speak, as part of the continuing ZBA meeting.
Resident David Engel said he was deeply disappointed with the board’s decision. “You should have voted to have the public hearing,” he said. “Stop letting these developers kick you around and waste everybody’s time with these applications that are frivolous. What you’ve done is deny the people the right to speak to the issue.” “I don’t think beating it around for another night, or another five nights is worth it,” said Palmeri. “How long do we want to go on and divide this community over this issue?”
Palmeri said the chances of the Attorney General overturning the town meeting vote banning commercial wind turbines is very remote, according to the town’s lawyer. Also, he said, if the courts were to overturn the Planning Board’s recent rejection of a subdivision plan for the turbines, the matter could easily be in court for two years. ZBA member John Taylor said opening the public hearing could “keep the door open” for the wind turbine proposal through multiple continuedhearing sessions and more testimony.
“Now this door is closed,” said Taylor. “Maybe next year, he’ll come back (with another application), but this application is done.”
Field, who owns land in Shelburne but lives in Brimfield, was present for the meeting but did not speak during it.
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