Judge limits turbine 

Milton’s wind turbine plans hit a major snag this past week when Judge Gordon Doerfer officially ordered that the proposed turbine be shut down during golfing hours for the seven and a half months from April 1 through Nov. 15.

Judge Doerfer referred to the town’s legal obligations to its lease-holder, Quarry Hills Associates, and the operation of Granite Links Golf Course, a “professional golf course,” throughout his 27-page binding arbitration decision issued Jan. 31.

“I am satisfied by a fair preponderance of the evidence that the operation of the wind turbine would present a significant distraction to the play of golf on the holes most proximate to it, namely 4, 5, 6 and 7,” declared Judge Doerfer in his decision.

As a result, Judge Doerfer ordered a specific schedule protecting golf-play hours and limiting turbine operation to hours of darkness from April 1 through Nov. 15. His order allows turbine operation 24-hours a day from Nov. 16 through March 31. Neither Selectmen Chairman Thomas Hurley nor Town Counsel John Flynn issued a statement on the judge’s decision by the Times deadline this week.

However, when the judge’s draft decision was first issued in October, Hurley said that town officials would review the decision and assess the financial impact of limited operation.

Flynn represented the town in the arbitration procedure; Jeffrey Tocchio of Hingham’s Drohan Tocchio & Morgan, PC, represented QHA.

In an emailed statement, Tocchio said, “The arbitration process was very positive and professional, and we are pleased that both positions were fully presented and considered by the arbitrator.”

Town officials originally planned the construction of a wind turbine on town land at the former landfill near the border of the Quarry Hills Golf Course and in 2010 authorized a $6 million borrowing for the project.

However, QHA challenged that plan in Norfolk Superior Court, charging the turbine would violate terms of their 50-year lease with Milton for the adjacent property, which now sports eight holes of the 27-hole golf course.

Since the dispute involved terms of the lease, the court ordered the case be decided by binding arbitration. Both sides agreed to the choice of Judge Doerfer who determined that QHA had no claim regarding aesthetics, but the noise of the turbine was an impediment to a “professional golf course.”

“That’s going to make it economically tough to operate,” said Shaun Pandit when asked to comment on the decision. Pandit is a member of the town’s Wind Energy Committee and a consultant in green energy. His firm, Early Bird Power, recently negotiated a major solar energy project for Cape Cod Hospital.

Pandit described the decision as unfortunate and said the committee has not met since word of the judge’s draft decision was publicized in November. The committee’s chairman Richard Kleiman resigned in October for personal reasons.

Daryl Warner, Matthew Cammack, and Kevin Chase also serve on the committee, which worked on the project for more than four years.

The arbitration process involved seven days of testimony by 15 witnesses and a review of 70 exhibits.

“Here the threat posed from the noise and motion of the turbine is a threat to the character or value of the leased premises,” concluded Judge Doerfer.

In his decision, Judge Doerfer also described several unusual steps by which the town approved the turbine project. He cited the town’s creation of a wind turbine overlay district.

Judge Doerfer noted that the creation of the overlay district eliminated the requirement for a review process and prevented abutters from voicing objections.

In September, 2010, Town Meeting approved the proposed “Industrial Turbine on Town-owned land ‘as of right,’” noted Judge Doerfer who added, “This circumvented all of the controls that a developer normally has to fulfill.”

The judge also addressed the eminent domain landtaking for an access road that was authorized last year by Town Meeting vote. He stated, “It is clear that no taking is authorized or created under terms of the Lease.”

However, Judge Doerfer declined to rule on the land-taking issue, stating the question was not a part of the claims before him. Neither party was awarded damages, costs or attorney fees.

Judge Doerfer discounted the town’s contention that the turbine noise would be no more of a distraction than the airplane noise currently coursing over the golf course and wrote the following: “I am satisfied from the testimony that the distraction presented by such aircraft is not comparable to the distraction that would be presented by the sound and motion of the wind turbine blades when in operation at the location above.”

Judge Doerfer described the proposed wind turbine as 410 feet tall with blades that, at the tip, would travel at up to 100 mph.

Milton’s not alone in hitting detours on wind turbine projects. As the Boston Globe’s Emily Rooney recently reported, five of the 16 communities in Eastern Massachusetts with working turbines have “residents that say the turbines near their homes have caused health problems.”