ARC wins Dennis turbine battle; Judge finds regional Old King’s Highway commission exceeded authority
DENNIS – In a 26-page ruling released Feb. 25, Orleans District Court Judge Brian Merrick finds in favor of Aquacultural Research Corporation in its fight to build a 242-foot wind turbine off Chapin Beach Road in Dennis.
Merrick states the Dennis Old King’s Highway Regional Historic District Committee’s decision to grant the turbine project a certificate of appropriateness “was not unreasonable or otherwise in violation of the standard in the [OKH] Act. The Regional [OKH] Commission therefore exceeded its authority by annulling that decision.”
In his Order for Judgment, Merrick revokes and reverses the Commission’s decision and affirms the Dennis committee’s approval of the project.
On Sept. 28, 2010, the Commission overturned the Dennis committee’s vote approving the turbine application. 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 his finding of fact, Merrick acknowledges the critical role ARC plays in the Cape’s economy. “ARC is essential to sustaining the annual supply of shellfish seed throughout the coastal waters of Massachusetts,” he wrote. “The majority of shellfish farmers in Massachusetts rely on ARC as their source for shellfish seed. At least 75 percent of the shellfish seed grown on the Cape comes from ARC. The shellfish industry is fundamental to the maintenance of Cape Cod as a ‘contemporary landmark compatible with the historic, cultural, literary and aesthetic tradition of Barnstable County, as it existed in the early days of Cape Cod, and…the promotion of its heritage.”
Merrick concludes that while the proposed turbine “is certainly incongruous” within the proposed area, an amendment made in 1982 to the OKH Act requires that the committee “shall consider the energy advantage of any proposed solar or wind device.”
Merrick recognizes that construction of the turbine would allow ARC to operate entirely on wind energy, saving approximately $100,000 a year in energy costs. The savings would allow ARC to borrow the $1 million needed to upgrade its failing buildings and seawall.
“Every single wind turbine project advances the cause of minimizing climate change and the resulting impacts,” Merrick states. “The wind turbine would provide an energy advantage in terms of both decreasing ARC’s costs, increasing the availability of clean energy to the grid and decreasing the use of fossil fuels and the resulting negative global climate change they cause.”
Merrick confirms Austin’s right to appeal and the Commission’s power to annul a local decision, but “only if the local committee exceeded its authority or exercised poor judgment, was arbitrary, capricious or erroneous in its action.” It is not the Commission’s responsibility to “circumvent the Town Committee’s obligation to consider the energy advantage of a proposed wind device by adopting regulations which, if adhered to as urged by the Commission, would affectively bar any modern wind turbine which could not be concealed behind a building or sand dune,” Merrick states.
Merrick found as fact nearly all of the documentation and testimony submitted at trial to be undisputed and concluded that the decision of the town committee “was not unreasonable.”
“We were thrilled for the clients and gratified by the decision,” said Michael Sams, the attorney who represented ARC at trial. “These are genuine, good, hard-working people. All they want is to continue their life’s work. It was hard for them to pursue this matter in court because of the time and cost involved. In the end, they decided that if they ever had to shut down the business, they would go down swinging.”
Sams said that the Commission, Austin or both could appeal Merrick’s decision. “Unless there’s an appeal, this piece is done,” Sams said, adding that appeals to the Supreme Judicial Court “usually favor the party that won the court case.”
Peter Lomenzo, chairman of both the Dennis OKH Committee and the regional Commission, voted against the turbine. While aware of Merrick’s decision, Lomenzo said Tuesday afternoon that he had not yet read the document and would not comment until after the full Commission meets “in a couple of weeks.”
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