January 16, 2013
Massachusetts

Judge will render new ruling in Dennis turbine case

By Nicole Muller | GateHouse News Service | January 15, 2013 | www.wickedlocal.com

ORLEANS DISTRICT COURT – The trial of Aquacultural Research Corporation vs. Old King’s Highway Regional Historic District Commission has taken a new turn. Orleans District Court Judge Brian Merrick said on Tuesday that he will not decide if the Commission exceeded its authority in overturning the Dennis OKH decision. Instead, Merrick will render a new decision on ARC’s wind turbine application.

On Sept. 28, 2010, the Commission overturned the Dennis OKH Committee’s vote approving a 600 kilowatt wind turbine on ARC’s property off Chapin Beach Road in Dennis. Rosemarie Austin of Dennis appealed the local decision, sending the application to the Commission, whose ruling ARC appealed. When no agreement could be reached after two years of discussion and court hearings, the case went to trial on Jan. 14.

In the second day of testimony, ARC Attorney Michael P. Sams called as witnesses Dennis Selectman Wayne Bergeron and Dennis OKH Committee member Joshua Crowell, both of whom live in the OKH district. Each answered questions regarding their reasons for supporting the turbine project on ARC’s property. Crowell also explained the lengthy review process that his committee went through before reaching a 3-2 vote and issuing a certificate of appropriateness for the project.

When OKH Attorney Leslie-Ann Morse attempted to cross examine Crowell regarding the language of the OKH Act, Merrick said that he will make a new decision, so all legal arguments were to be made with him at the end of the trial, not with a witness.

ARC Attroney Michael P. Sams then called Richard Geggenwarth, who as Chairman of the Yarmouth OKH Committee is also a member of the Commission. Geggenwarth confirmed that during deposition he admitted to substituting his own judgment for the Dennis Committee’s when he voted at the Commission’s hearing on the case and saying, “We all did.”

Sams established that at the time that Gegenwarth learned of ARC’s turbine proposal, his then-fiancee lived a mile from ARC’s property. “She saw the photo on the circular that [ARC] sent out and said it wasn’t appropriate to that location,” Gegenwarth said. Gegenwarth also said that he objected to the turbine’s installation because it has moving parts, making it more noticeable. He confirmed his belief that turbines provide a distraction to drivers and admitted that he had not visited the ARC site until after the Commission rendered its decision.

After Sams established that historically, the ARC property and surrounding area from Sesuit Harbor to Bass Hole/Gray’s Beach was “a beehive of activity,” with shipyards, saltworks and gristmills across the landscape, Gegenwarth agreed but noted that those businesses disappeared a century ago.

Following OKH Attorney Leslie-Ann Morse’s brief cross-examination of Gegenwarth, Sams rested ARC’s case. Morse then called James Wilson of Centerville, administrative counsel for the Commission, who identified all the public lands in Dennis and Yarmouth Port from which the proposed turbine would be seen. During cross examination, Sams asked Wilson, a former land-court title examiner, if the Commission’s decision to overrule the Dennis OKH decision was an exercise of land-use regulation, to which he had responded affirmatively during deposition. Wilson said that he had agreed to that statement during deposition because he was not permitted to qualify his response.

Finally, Rosemarie Austintook the witness stand to explain her reasons for appealing the Dennis decision. Austin cited a loss in property value because the 242-foot turbine would compromise the view from her home to Cape Cod Bay.

Uncertainty as to the availability of defense witnesses on Wednesday resulted in agreement to a conference call between both attorneys and Merrick on Wednesday morning and a tentative 11:30 a.m. continuation of the trial. Should witnesses not be available, the trial will resume at 9 a.m. on Thursday, Jan. 17.