January 18, 2013

Dennis turbine trial ends; Judge will deliberate

By Nicole Muller | GateHouse News Service | Jan 17, 2013 | www.wickedlocal.com

ORLEANS DISTRICT COURT – “I am the very definition of a person aggrieved.”

Rosemarie Austin, co-defendant in the Aquacultural Research Corporation vs. Old King’s Highway Regional Historic District Commission trial in Orleans District Court this week, repeated these words throughout her closing statement shortly before noon on Thursday, Jan. 17.

In 2010, Austin appealed the Dennis OKH Committee’s approval of the 242-foot, 600 kilowatt wind turbine that ARC proposes for its property off Chapin Beach Road in Dennis on the grounds that she is a visual abutter and the turbine would compromise her view and negatively impact her property value. After the regional OKH Commission overturned the local decision, ARC appealed the Commission’s right to do so and Austin’s right to appeal.

On the final day of testimony, Austin, who represented herself, called as witnesses Michael McCann, a real estate appraiser from Orland Park, Ill., and John Scott of Dennis, a real estate developer. McCann testified that property values are diminished after wind turbines are built in their vicinity. Judge Brian Merrick prohibited any testimony of value amount.

During ARC Attorney Edward A. Prisby’s cross examination, McCann said he was not licensed in Massachusetts and that the first time he had visited Austin’s property was on the previous night, Jan. 16. McCann’s report confirming Austin’s claim as “a party aggrieved” is dated Jan. 17, 2012. McCann said he based his report on photographs, Google Earth images and 4,000 hours of research.

Prisby noted that McCann’s research included wind farms in Mendota Hills, Ill., and Ontario, Canada, consisting of sixty-three 1.5 megawatt turbines and eighty-eight 1.5 megawatt turbines, respectively. “These are the studies and data you relied on to determine that one 600 kilowatt turbine would have a negative impact on Ms. Austin’s property?” Prisby asked. McCann said that they were included in his study, but that most of the properties he visited were impacted by just one turbine.

When Austin asked Scott what he thinks a turbine “would do to” her property value, Merrick sustained ARC Attorney Michael P. Sams’ objection, Scott was excused and Austin rested her case. Sams immediately requested that Merrick issue a directed verdict. “Ms. Austin has not proven her standing [to appeal the Dennis OKH decision],” Sams said. Merrick denied the motion, which, if approved, would have ended the trial in ARC’s favor.

OKH Attorney Leslie-Ann Morse asked Merrick to drive to Dennis and Yarmouth to view the sites in question. Initially, Merrick agreed and was prepared to adjourn court while he did so. But multiple parking complications at the various sites changed his mind, and summations continued.

Morse said the OKH Act “is all about what you see” and is there “to protect vistas,” noting that ARC is in the midst of “one of the most beautiful” historic vistas on Cape Cod. Morse said that ARC’s attorneys did not present evidence showing that Austin lacked standing to appeal or that the wind turbine is an appropriate structure within the OKH District.

Merrick noted that Morse had failed to consider the 1982 amendment to the OKH Act requiring commissioners to “consider the energy advantage of any proposed solar or wind device.” Morse said her argument “goes to all the disadvantages that come with that machine.”

Morse argued that denying the turbine project would not constitute a financial hardship for ARC. “They aren’t going out of business,” she said. “There are other solutions.”

Attoreny Michele Randazzo, representing the Town of Dennis, asked Merrick to annul the Commission’s decision and reinstate the local committee’s decision. “Ms. Austin lacks standing,” Randazzo said. “Preservation of private property values is not protected within the Act and any negative impact on Austin’s property value is speculative.” Randazzo said that for Austin to have standing to appeal, a legally defined right must have been violated, “something more substantial than a turbine off in the distance.”

Stressing that ARC lives on the same sand and conducts its work in the same waters as others did throughout Dennis history, Sams said that ARC’s hatchery and shellfishing business is consistent with its location since the 1600s when Chapin Beach was a popular site for beach whaling. Saltworks resembling shanty towns, he said, dotted the landscape, and hundreds of wooden windmills with moving blades powered them.

“The OKH Act does not freeze Cape Cod as it was in the past,” Sams said. He noted that Jerry Palano of the Massachusetts Department of Agricultural Resources testified at the Dennis OKH meeting that turbines “remove some level of environmental impact by producing clean energy.”

Reminding the court that ARC produces more than 75 percent of the shellfish seed on Cape Cod, Sams said that 57 farmers are on a waiting list for shellfish grants in Dennis and 603 Dennis residents hold shellfish licenses. “ARC is a critical piece of Dennis’ and Cape Cod’s shellfishing culture and economy,” he added.

Detailing the financial impact on ARC’s owners should they not be allowed to construct the 600 kilowatt turbine to offset energy costs and invest in their company’s infrastructure, Sams said, “It doesn’t matter how you feel about turbines. It matters that if the [Dennis] Committee had a rational basis for reaching its conclusion, then you have to rule for ARC and allow them to build the turbine.”

Court was adjourned, ending the trial. Merrick did not say when he will release his decision.

URL to article:  https://www.wind-watch.org/news/2013/01/18/dennis-turbine-trial-ends-judge-will-deliberate/