September 28, 2012
Massachusetts

Neighbors sue Kingston ZBA, Mary O’Donnell in Land Court

By Kathryn Gallerani | Wicked Local Kingston | www.wickedlocal.com 28 September 2012

KINGSTON – Ten Raboth Road and Country Club Way residents are appealing to Land Court to cease operation of developer Mary O’Donnell’s three wind turbines and force a new site plan review process with fair notice to the public.

No lawsuit has been filed in connection with the wind turbine Independence owned by Kingston Wind Independence LLC and located on the town’s capped landfill.

In the complaint filed in Land Court Tuesday, neighbors are focusing on alleged flaws in the site plan review process and notice requirements in challenging the Zoning Board of Appeals’ ruling upholding the decision by Building Commissioner Paul Armstrong to deny a request for a cease and desist order for the wind turbines.

“By appealing the O’Donnell decision, we will get in front of a judge the main issues we think the court should take a look at,” attorney Christopher Senie, representing the 10 plaintiffs, said.

The lawsuit alleges that the original site plan review process was flawed, leading to the issuance of invalid building permits, that neighbors did not receive proper notice and that the permits are illegal because the turbines are larger than the size shown on the only plans on file with the town.

O’Donnell is also named as a defendant in the lawsuit. Wednesday evening she said she had not been served so could not respond to the allegations in the lawsuit. ZBA Chairman John Haas could not be reached for comment. Armstrong declined to comment. Town Planner Tom Bott declined to comment.

Senie said the outcome of the O’Donnell appeal could determine further action on behalf of the neighbors in regards to the Independence, but at this time the neighbors have decided against a second appeal for financial reasons. The plaintiffs had 20 days from Sept. 7 to appeal this ZBA decision.

The appeal is also based on the contention that the proper peer review process for the O’Donnell wind turbines was not followed. It took just 32 days from the filing of the site plan application to a vote of the Planning Board to approve site plan review.

It’s alleged that the public was not given fair notice to participate in discussion of the site plan before it was approved at one meeting June 28, 2010. The plaintiffs allege that O’Donnell failed to file a copy of the site plan application with the town clerk and that the lack of notice was one reason no one was at that meeting in opposition. The ZBA calls it “an administrative flaw.”

The lawsuit alleges that peer review was deferred until later and illegally delegated to the building inspector. The plaintiffs contend that a peer review would have taken noise levels into account.

“The plaintiffs have experienced the unique thumping sound pressures of the O’Donnell turbines at their homes,” Senie writes, explaining why the neighbors have cause to sue.

In the Sept. 7 decision, the ZBA questioned whether the petitioners have standing. The ZBA had also concluded that it was too late for the petitioners to file an enforcement request – with Senie arguing they have six years from the issuance of a building permit and Town Counsel Jay Talerman arguing that it was 30 days.