The Scituate wind turbine will not be shut down.
After listening to presentations from attorneys on both sides of a lawsuit filed against the Scituate Board of Health by Scituate residents Mark and Lauren McKeever during the hearing at the Brockton Superior Court on Jan. 14, Judge Charles J. Hely released his decision Tuesday (Jan. 15) afternoon.
The McKeevers, who live 640 feet from the base of the wind turbine, have taken legal action against Russell Clark, Francis Lynch, and Michael Vazza as members of the Scituate Board of Health for not shutting down the wind turbine despite complaints they have made about the negative health impact their family has suffered since the wind turbine went online in March of 2012.
At the hearing Monday, counsel for the McKeevers, Tanya Trevisan, with the Law Offices of Gerard F. Doherty in Boston, spoke of the negative health impact the McKeever family, which includes two young children, has been experiencing.
“The operation of the wind turbine is not only a nuisance to the McKeever family, but is a threat to their health and welfare and has directly interfered with their constitutional right to the use and enjoyment of their property,” she said.
Upon Hely’s decision, Trevisan released the following statement: “Obviously the family is disappointed as they were hoping to get some relief from the daily disruptions that this wind turbine causes and the problems it brings with it. For the sake of their children, the McKeevers are staying positive and will work diligently, as any parent would, to ensure the Board of Health proceedings move forward in the manner anticipated by the court.”
In his decision, Hely acknowledged the ongoing process overseen by the board of health to commission a professional study on the noise generated by the turbine. A steering committee made up of residents, town officials and a representative of Scituate Wind, LLC, the manager of the turbine, has been meeting since December to draft parameters for the acoustical study.
“The court is not in a position to determine how often serious shadow effects occur at the plaintiffs’ residence. The course is unable at present to determine the extent of the noise problem,” Hely wrote in his decision. “At this stage of the case, the plaintiffs have not shown a substantial likelihood of success on the merits of their claim that the wind turbine is a public health nuisance that must be shut down. That issue is an open issue now pending before the board of health.”
During the hearing Trevisan said the board of health was aware of the health concerns relating to wind turbines prior to the construction of the wind turbine in Scituate. Trevisan said the family has had to leave the house for hours in order to escape the shadow flicker, which she referred to as noise pollution.
“The board of health has been indifferent to the pleas of the McKeevers,” Trevisan said.
However, John Davis, who is representing the Scituate Board of Health, said the McKeevers were aware the turbine was going to be constructed when they built their home.
According to Davis, the McKeevers signed a release with Scituate Wind where they agreed not to contest the permit allowing for the wind turbine or speak out against the wind turbine.
He said the McKeevers were paid $20,000 and Scituate Wind agreed to put up six evergreen trees as a sound and sight buffer.
“Where is the irreparable harm,” Davis asked during the hearing. “Irreparable harm can’t be bought. The fact is they cut a deal.”
Davis, of the Boston firm Pierce, Davis & Perritano, LLP, was retained by the insurer for the Town of Scituate pursuant, he said, to the terms and provisions of the town’s insurance contract.
Davis only recently came on to the Scituate case, but he is no stranger to turbine issues. He said he and his firm are currently defending the Town of Falmouth in a wind turbine case brought against the town that alleges, among other things, that the town’s operation of a wind turbine located at the Falmouth wastewater treatment plant constitutes a private nuisance.
At the Jan. 14 hearing Davis said in reviewing the documents of the McKeeever suit he became “suspicious” when he noticed that Scituate Wind was not named as a party to the case.
Through a subpoena served to Gordon Deane, president of Palmer Capital Corporation, the manager of Scituate Wind, LLC, Davis obtained a copy of the agreement with the McKeevers.
He said the McKeevers could be experiencing seller’s remorse for only getting $20,000 and six trees.
“If that agreement didn’t apply, then why isn’t Scituate Wind here,” he said, referencing the complaint filed by the McKeever’s counsel.
“It seems unseemly that they should sign that document and sit on it for three years,” Davis said of the McKeevers.
When asked on Tuesday (Jan. 15) about Davis’ claim of the McKeevers making a deal with Scituate Wind, Melissa Brennan, an attorney/media spokesman for the Law Offices of Gerard F. Doherty, said the firm could not comment.
The McKeevers’ attorney, Trevisan alleged at the hearing that Scituate Wind never obtained necessary permissions for the project from the board of health.
“Legally, they are operating in violation of the special permit and in violation of the law,” Brennan said. “This case is about the board of health doing its job.”
Davis stated otherwise.
“Scituate Wind has not violated any conditions in their permit,” he said, adding that the town tried to place the wind turbine in a location that would cause as little trouble as possible to the least amount of people.
Davis defended the actions of the board of health in forming the steering committee and said the McKeevers had not provided any studies to the negative effects of the wind turbine.
“The board of health is trying to identify what studies should be done,” he said, of the steering committee.
Davis said the town is getting “extraordinary” benefits from the wind turbine.
He said that over the course of 15 years, the town would be saving $4.5 million in electricity.
“Wind power is here,” he said.
And while he has not calculated the figures yet, shutting down the wind turbine would mean a “substantial loss to the Town of Scituate.”
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