KINGSTON – The written decisions are in hand, and the countdown is on for a decision on whether to appeal a Zoning Board of Appeals ruling upholding the building commissioner’s denial of cease and desist orders for the Independence and O’Donnell wind turbines.
Attorney Christopher Senie, representing 15 families who filed the cease and desist requests, said his clients have received both decisions and are reviewing them in order to decide whether to appeal. He said he anticipates a decision at the beginning of next week.
Senie said he found no surprises in either decision as written and filed Sept. 7 with the town clerk’s office. The families have 20 days from the date the decision is filed with the town clerk to appeal in court.
The three contentions both appeals have in common are that the site plan application was not properly filed with the town clerk, that notice of the site plan proceedings was faulty and that site plan approval was sought and granted prior to the effective date of the Green Communities Wind Turbine Overlay District Bylaw.
The ZBA finds that the enforcement request filed by the petitioners was fatally late, that the petitioners lack standing to challenge any lack of filing with the town clerk, that the bylaw was effective and that no notice of the site plan approval application was required.
“While the late filing of the challenge to the site plan approval eliminates the need to consider the merits’ of the petitioners’ claims, the board finds that a failure to file the site plan approval application with the town clerk would be an administrative flaw from which no aggrievement could arise,” the decision states.
The decisions are nearly identical with some exceptions, like address and ownership reflecting the different projects. Additionally, the O’Donnell decision responds to a fourth contention that site plan approval contained inappropriate conditions relative to future peer review. The ZBA finds that the conditions of the site plan were proper.
The ZBA voted unanimously, 5-0, Aug. 1 to deny the request to overturn Building Commissioner Paul Armstrong’s ruling that the Planning Board’s site plan review approvals and the subsequent building permits are valid.
The Aug. 1 decision followed a back and forth exchange of legal arguments between Senie and Town Counsel Jay Talerman, who crafted the written decisions, about the timeliness of the residents’ appeal and notice requirements to the town clerk and the attorney general’s office.
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