The sun spilled through the trees on a hilly piece of Jane FitzGerald’s 200-plus acre wood last Friday. Jane’s son, Dan; his wife, Tina; and their son, Cody, effortlessly trekked up the path strewn with mossy grass, broken branches and rocks. All this looked natural in the woods, but the FitzGeralds think some of it doesn’t belong.
“Even though it’s little like that,” Dan FitzGerald said, pointing to a silver-dollar-sized rock, “the thing is, if anybody was up here, a piece of rock that size is like a bullet.”
The dusty, gray rock was one of many pieces the FitzGeralds say was blasted onto their property by the Georgia Mountain Community Wind project’s construction.
Representatives from the Department of Public Service, who recently surveyed the site, noted rock 300 feet beyond the property line that was “large enough to possibly cause severe injury.”
Just hours after the Milton Independent visited the mountain on Friday, Aug. 23, the Public Service Board, which regulates utilities, issued an order against GMCW to stop blasting in light of the FitzGerald’s concerns.
The board set a September 5 status conference to discuss the flyrock issue and GMCW’s violation of its certificate of public good for blasting on August 16, Bennington Battle Day, a state holiday.
This is just one chapter in the quickly evolving legal strife on the mountain. GMCW began construction at the end of May on its four, 2.5-megawatt wind turbines, which span a ridge in Milton and Georgia. Blasting began shortly after. Since then, the company has called Milton police twice on Dan FitzGerald, alleging he was interfering with blasting.
On August 16, Bennington Battle Day, he succeeded. Dan’s 83-year-old mother, Jane, owns abutting land to the project. His family erected tents a few hundred feet from the property line, within the 1,000-foot blasting zone.
According to the police report from that day, FitzGerald told police he would not move from his own property because he opposed the project. It says FitzGerald told police there would be more protesters.
But the explosives were already charged, and GMCW missed its 5 p.m. blasting deadline. So a blaster spent the night on the mountain.
“We had to make sure this didn’t continue,” Project Representative Martha Staskus said.
The next day, GMCW filed suit and a temporary restraining order against the FitzGeralds. The latter prevented them from standing 1,000 feet within the FitzGerald/GMCW property line – essentially allowing law enforcement to arrest the family on their own land.
Last Thursday, the FitzGeralds filed back, asking GMCW to drop both actions and to pay their legal fees. The same day, GMCW dropped the suit, saying “primary blasting” was complete and apologized for blasting on a state holiday as is prohibited in their CPG.
And then came the PSB’s stop-blasting order just hours after Superior Court Judge Geoffrey Crawford signed orders vacating the TRO and lawsuit.
Staskus had little to say about the flyrock on the FitzGeralds’ property, as neither she nor GMCW can go onto the family’s land. In response to initial complaints, the PSB required GMCW to file an affidavit explaining how rocks ended up on the FitzGeralds’ land.
Chris Davidson, an employee of J.A. McDonald earthmovers, stated that while crews tried their best to ensure no flyrock migrated to the FitzGeralds’ land, it’s possible some did, though he thinks the majority rolled over during road construction, not from blasting.
The FitzGeralds aren’t satisfied. They think the PSB’s actions are too little, too late: They submitted photos of the flyrock on July 3, nine weeks ago, and question why the PSB is just acting now, when blasting is mostly complete.
“It’s not as harsh as what it looks,” Dan FitzGerald said of the order.
The FitzGeralds will still seek legal fees: “We wouldn’t have had to do any of this if they hadn’t taken that step of filing,” Dan FitzGerald said.
Staskus denied GMCW dropped the suit after learning it violated its CPG by blasting on a state holiday. The interaction with Dan FitzGerald that day was the basis of GMCW’s lawsuit and TRO.
Instead, Staskus said GMCW’s main concern was safety. She regrets the company had to file suit and said GMCW never intended to sue for damages, even though the suit sought unspecified “compensatory damages.”
Asked if the TRO and lawsuit were just scare tactics, Staskus paused and then said, “It was to get them out of the safety zone. That was the purpose.”
Staskus said the August 16 incident sealed the decision to ask for the TRO. Even though the crews were a week ahead of schedule – and they called in extra workers to expedite the blasting – they still thought any more protests would jeopardize their meeting a December 31 deadline to have the project operational: GMCW will get $8 million in federal subsidies to help pay the $28 million project cost.
Dan FitzGerald said the police mischaracterized him in their report. He said he was not protesting and denied saying he was trying to stop the project to the three officers who responded that day, one of whom carried an assault rifle.
Asked why he set up the tents, FitzGerald said his sons use the land for hunting and were prepping tree stands and game cameras for the season.
FitzGerald also questioned how quickly GMCW was able to get their lawsuit signed. He said the system is corrupt and lamented that wind turbine projects are only possible with taxpayer-funded federal subsidies.
Georgia Mountain resident Melodie McLane, who was present when Dan FitzGerald was served with court papers and whose husband is Jane FitzGerald’s nephew, said the whole ordeal is a violation of the FitzGerald’s property rights.
Noting the TRO, McLane said she is worried for the slippery slope of Vermont courts coming down on landowners.
“If this is going to be allowed, then that’s scary,” she said. “It’s like a totalitarian regime.”
Staskus reiterated she’s unhappy with how things have played out.
“That’s not the way we would have liked to have gone, but again, I can’t say this enough: We were concerned about the safety of people in the area, and we’re concerned about staying on schedule,” Staskus said.
Whether the PSB-imposed halt will affect GMCW’s December 31 deadline remains to be seen. The board will also discuss “possible sanctions” related to the CPG violation at the hearing, which GMCW has asked to be rescheduled since its legal counsel will be out of town on September 5.
“We’re waiting to hear when the status conference will be held, and we’ll respond to the board as we’re directed,” Staskus said.
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