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OKH to appeal Dennis turbine ruling

DENNIS – During an executive session on Tuesday, March 5, the Old King’s Highway Historic District Commission voted unanimously to appeal Judge Brian Merrick’s Feb. 25 ruling in the Aquacultural Research Corporation vs. OKH case. Merrick annulled the Commission’s 2010 decision that overturned the Dennis OKH Committee’s approval of a 242-foot wind turbine on ARC’s property off Chapin Beach Road in Dennis.

In his ruling, Merrick states, “[T]he court finds and rules that the Town Committee’s decision was not unreasonable or otherwise in violation of the standard in the Act. The Regional Commission therefore exceeded its authority by annulling that decision.”

Peter Lomenzo, chairman of both the Dennis OKH Committee and the Commission, said Tuesday afternoon, “We are appealing because the judge ignored certain parts of the Act. The main thing to us is the regional nature of this issue. The commissioners believe that they had a responsibility with what they consider an appealable decision and that they executed that responsibility.”

Stressing that the issue of place and setting will always be a challenge for officials elected in the OKH District’s six member towns, Lomenzo said that the Commission’s main concern is “the regional nature of this issue,” and that continuing debate “is healthy.”

Merrick ruled that the Commission has the power to annul a local decision “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 concluded that while the proposed turbine “is certainly incongruous” within the proposed area, a 1982 amendment to the OKH Act requires that the committee “shall consider the energy advantage of any proposed solar or wind device.”

Attorney Leslie-Ann Morse of Yarmouth, who represents the Commission in the court case, said the process will begin with post-trial motions that immediately stay Merrick’s decision.

“There is a series of points and interpretations of law that we take issue with,” said Jim Wilson, advising attorney for the Commission. “The interpretations of law would be reviewed upon appeal.” With Merrick on vacation until April 1, those motions will not be heard for at least another month.

“Once Judge Merrick rules on my motions, if he rules unfavorably, then we file the appeal with the Appellate Division of the District Court,” Morse said. Both Morse and Wilson said that Appellate Court judges are restricted to rulings of law. Merrick’s findings of fact in the case are not subject to appeal. Wilson said that Merrick’s rulings on the post-trial motions could influence the appeal.

“We are also filing a motion for a new trial.” Wilson said. “In the process of analyzing this decision, we have found points that we take issue with. We will file for clarification, amendments and further findings until we have exhausted our local options. If commissioners are not satisfied, then we go up on appeal. These motions are a preliminary step to give the judge another shot at it. Litigation like this, with a number of contested issues, takes time.”

Michael Sams, attorney for ARC, said Wednesday morning that he is not surprised by the Commission’s vote to appeal. “We are confident in our position in regard to the motions and the appeal,” he said. “I think the law is on our side. We’ll pursue this and look for a positive resolution.”