December 8, 2012
Rhode Island

Whalerock developers sue over permitting

December 7, 2012 | By DAVID PEPIN / Sun Staff Writer | The Westerly Sun | www.thewesterlysun.com

CHARLESTOWN – The developers of the proposed Whalerock wind turbine project are suing the town and its elected Planning Commission over permitting at the 81-acre site and the legality of the commission’s decision-making powers.

In a lawsuit filed in Washington County Superior Court on Nov. 26, Whalerock Renewable Energy, LLC is seeking a judge’s order to void a section of the town’s zoning ordinances that allows the Planning Commission to approve or reject special use permit applications for large wind energy systems.

Whalerock contends the commission, which is the only elected municipal planning board in the state, is illegally constituted under a state law enacted in 1972 and amended in the early 1990s.

Nicholas Gorham, lawyer for Charlestown developer Larry LeBlanc and his son-in-law, Michael Carlino, is seeking to have the Zoning Board hear their request for a special use permit to build two turbines on property along Route 1, between King’s Factory Road and East Quail Run.

LeBlanc and Carlino would need a conditional approval from the Planning Commission in order for the Zoning Board to hear their special use permit request; if approved, the project would go back to the Planning Commission for final review.

Gorham is arguing that planning boards, under state law, can only act as advisory bodies. The lawsuit is believed to be the first of its kind to question the commission’s status as an elected body.

“I’ve talked to some lawyers in municipal cases, and they’ve told me this lawsuit is the first of its kind. No one’s actually done it, but no one really understood why,” Gorham said.

Planning Commission Chairman Ruth Platner said the town’s arguments would be similar to those it made in Whalerock’s 2010 suit against the town. At the time, then-Building and Zoning Official John Matuza froze the developer’s turbine application after Interim Town Planner Jane Weidman, who was filling in while Town Planner Ashley Hahn-Morris was on maternity leave, determined the project application was incomplete.

The Zoning Board voted in January 2011 to overturn Matuza’s finding, and reaffirmed that ruling last month when Judge Judith Savage, responding to lawsuits from the town and a group of residents opposing the project, remanded the decision back to the board, citing a need for clarification.

The Whalerock property has been the subject of contention since LeBlanc purchased it in 2003. In the past, he has proposed it for affordable housing and single-family homes.

“Larry has tried in every possible way to work with the town, and has been stymied at every possible effort,” Gorham said.

Gorham also suggested that the Planning Commission is acting in the role of both judge and prosecutor, violating due process.

“All planning commissions can recommend to a town council what portions of [an] ordinance can be eliminated. What is not in their purview is whether something passes or doesn’t pass. They’re advisory-only for good reason,” he said.