KINGSTON – Town counsel says there would be no real chance of avoiding litigation if the Board of Health were to immediately issue an order shutting the Independence and O’Donnell wind turbines down without scientific evidence.
Despite heartfelt pleas from residents, Monday night the Board of Health took his advice for avoiding potential litigation, voting 4-1 against taking action against the owners of the Independence until a study by the Massachusetts Clean Energy Center has been completed.
After Monday night’s meeting, according to Town Planner Tom Bott, he contacted the Clean Energy Center asking that they have the scope of the study that will be conducted in the hands of the Board of Health for review at its next meeting Jan. 28.
“I’m hoping to have a draft scope to distribute to interested parties as soon as possible so there can be substantive discussion at the meeting of Jan. 28,” he said Wednesday.
Residents like Dan Alves, who say their lives have been harmed by operation of either the Independence, O’Donnell’s turbines, or both, are convinced that the Independence, the focus of the CEC study, will prove to be out of compliance with state regulations.
“We have no doubt whatsoever that it’s way out of compliance,” he said.
These residents argue that the board should have done the right thing regardless of a supposed lack of evidence and ordered an immediate shutdown of all four turbines. Town Counsel Jay Talerman advised that if the Board of Health were to lose a court challenge from the turbine owners at this stage, without the science, it could be harmful to the town’s case.
“I think you should have what you need to win,” he said.
Emotions ran high during and after the meeting as residents upset the turbines weren’t ordered to be shut down challenged board members to defend their decision. Assurances the town would take action if the science proves the Independence is out of compliance didn’t reassure Doreen Reilly.
“I feel like my town officials are working against me, “ the Leland Road resident said. “They are not working with me.”
Residents like Prospect Street resident Mark Wheeler describe a deep thumping and swishing of the turbines that can be heard from his and other nearby neighborhoods. He said the noise the turbines produce are hurting his family, and the board could do something about it.
He produced what he described as medical evidence of dizziness and nausea and other symptoms from the family doctor about how the noise has affected his wife, Agnieszka.
“Lord have mercy on the town of Kingston if these very real health effects have an impact on my unborn daughter, pregnant wife or 1-year-old baby,” he said. “Ask this question to yourself: What is the price of human life and health really worth?”
The owners of the Independence have committed to respond to a Board of Health request that they decide if they will offer to mitigate the disruption to the lives of residents harmed by its operation before the CEC study has been completed. Attorney Phil Brown said Kingston Wind Independence would respond within a week.
Brown said the legal standard for a nuisance has not been met, but that Kingston Wind Independence is willing to visit residents’ homes when the turbines are operating to check on the flicker and measure the sound.
“We’re willing to consider the evidence and then formulate appropriate responses,” he said.
Board of Health member Jack Breen made the motion to take no action as far as shutting down the turbines until there is evidence of breach of contract with the turbine owner or “objective information.” Board member Dan Sapir cast the lone vote.
The CEC study focuses on the Independence, not the O’Donnell turbines. Attorney Christopher Senie, who represents a group of residents challenging the process for approval of her turbines, has proposed Board of Health regulations on wind turbine noise.
The proposed regulations would both declare excessive noise and sound pressures a nuisance and require the “reduction, control and prevention of excessive sound pressures emitted by wind turbines. It establishes sound-level limits. The board could require testing. All data would have to be released to the public. The proposed regulation also establishes penalties for violations.
“If the Board of Health determines that a violation of this regulation is occurring or has occurred, it may issue a written notice of violation, and order the violator to cease and desist,” it states. “Each day the violation continues after service of such written notice of violation constitutes a separate violation for which additional notices of violation are not required.”
Senie is awaiting a Land Court ruling on a motion by O’Donnell’s attorney to dismiss his clients’ challenge to the Zoning Board of Appeals upholding the zoning enforcement officer’s decision to not issue a cease and desist order for her three turbines.
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