Judge sends wind project back to Charlestown
Credit: By CHRIS KEEGAN / Sun Staff Writer | The Westerly Sun | www.thewesterlysun.com 24 August 2012 ~~
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CHARLESTOWN – A Superior Court judge has returned a proposed wind farm off Route 1 to the town’s Zoning Board for review, largely on technical grounds.
Associate Justice Judith C. Savage ruled last week that the Zoning Board must clarify its January 2011 decision that allowed Whalerock Renewable Energy LLC’s bid for a commercial wind farm to advance under an ordinance that was repealed last year. The board is expected to discuss the judge’s ruling at its Sept. 18 meeting.
Developer Larry LeBlanc and his son-in-law, Michael Carlino, proposed two 262-foot wind turbines on 81 acres north of Route 1, between Kings Factory Road and East Quail Run. Blades on the turbines would spin as high as 410 feet.
In 2010, Whalerock planned to enter into a partnership agreement with the previous Town Council that could have potentially given Charlestown between $24,000 and $33,000 in annual revenues, based on a 2-percent royalty on earnings from the 1.8-megawatt turbines.
The town’s first wind ordinance, enacted that year, allowed the council to serve as the sole permitting authority for the project, instead of the town’s Planning Commission and the Zoning Board.
A number of residents who live near the project site opposed the turbines and more than two-dozen filed a lawsuit against the town, charging that the wind ordinance was illegal and that the Town Council had usurped the authority of Charlestown’s land use boards.
Following the 2010 election, the newly elected Town Council enacted a moratorium, or temporary freeze, on new wind energy projects. Whalerock announced it would no longer pursue a partnership agreement with the town, and sought review of the project before the Planning Commission and the Zoning Board.
But former Building and Zoning Official John Matuza froze review of the project, following Interim Town Planner Jane Weidman’s ruling that the project application was incomplete. At the time, Weidman was filling in for Town Planner Ashley Hahn-Morris, who had certified the application as complete in September 2010, but was out on maternity leave.
The Zoning Board voted 4-1 to overturn Matuza’s decision in January 2011, and two lawsuits followed against the board – one filed by the Town Council, the other by the same group of residents who challenged the town’s wind ordinance. Both contended that the moratorium barred the town from reviewing Whalerock’s proposal.
In her 51-page ruling issued on Aug. 16, Savage said she was “appalled at the state of the record” in a case where the town essentially sued itself and defended itself against its own residents. She sent the case back to the Zoning Board so it can create a clearer record for the court to review.
The judge chastised the board over its record keeping, citing its failure to provide the court with an official transcript or recording from the January 2011 hearing. She called draft minutes from the meeting “woefully deficient” and found that the board failed to make findings of fact in its decision, a key requirement.
“Its decision, frankly, flagrantly disregards our Supreme Court’s clear mandate that zoning boards must make factual as opposed to ‘conclusions’ findings,” she wrote.
Savage also questioned the legitimacy of the Town Council’s appeal, which was approved by Councilors Thomas Gentz, Daniel Slattery and Lisa DiBello in February 2011; all three are seeking re-election.
“It is not clear to this court whether the town filed its appeal on behalf of the municipality itself, the Town Council, the Planning Commission, or some other municipal body,” she wrote. “… This court is not even sure that the appeal is proper.”
She also chastised residents and Whalerock for filing a “voluminous” amount of documents outside of the official record, creating a “procedural morass that has unnecessarily consumed precious judicial resources” – in other words, wasting the court’s time.
In addition to the two appeals, Savage ruled that the residents’ bid to strike down the 2010 wind ordinance was “moot,” because it was repealed last year. The town currently bars the construction and operation of commercial wind energy systems, but allows small-scale residential turbines.
Savage also declined to consider Whalerock’s cross-claim that sought a ruling on whether the Planning Commission is illegally constituted as an elected body. The Charlestown commission is the only elected planning board in the state.
Assistant Town Solicitor Robert Craven, who represents the Zoning Board, said the two rulings on Whalerock’s applications by two different planners – Hahn-Morris and Weidman – complicated the case. Craven said he has drafted a memo detailing how the board should proceed next month.
Whalerock attorney Nicholas Gorham called Savage’s ruling “a disappointment.”
“A case like this demonstrates why Rhode Island has earned the dubious distinction of being the 50th of 50 states in its business climate,” he said. “Mr. LeBlanc has been at this for more than two years. The amount of time that this case has consumed threatens the viability of the project.”
LeBlanc and Carlino are “deciding what their options are,” Gorham added.
“This project is good for Rhode Island, it’s good for Charlestown and we’re ready to proceed,” he said. “We’ve been ready to proceed for two years. Unfortunately, the whole thing got mired in politics.”
James Donnelly, attorney for the residents group, said it would continue to oppose the turbine project if LeBlanc pursues it.
“If he’s going to push it, then the ball is in his court and we’ll react to it,” Donnelly said.
Several residents who sued the town in the Whalerock case are currently seeking public office: Ronald Areglado is seeking election to the Town Council as a Charlestown Citizens Alliance-endorsed candidate, while Joseph Dolock is seeking election to the Planning Commission. JoAnn Stolle is currently serving as an alternate member of the Planning Commission, but is not seeking re-election.
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