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WAKEFIELD – There’s no decision yet on the fate of the proposed Whalerock wind turbine plant in Charlestown after a complicated hearing on a trio of legal proceedings involving the project Monday morning in Washington County Superior Court.
Associate Justice Kristin Rodgers, after a 2½-hour hearing, said she would issue a written decision after receiving additional documents on the project.
The project is stalled over the question of the Planning Commission’s role in the process.
Larry LeBlanc, local developer and owner of Whalerock Renewable Energy LLC, is seeking a special use permit that would allow him to build two 262-foot-high wind turbines on an 81-acre site north of Route 1 between King’s Factory Road and East Quail Run.
Rodgers asked lawyers in the case for transcripts of the Nov. 13, 2012, Zoning Board of Review hearing in which the board voted to affirm that Whalerock’s application to the town for the special use permit was complete. That vote was taken after Associate Justice Judith Savage remanded the case back to the zoning board, in response to lawsuits from the Town Council and a group of 30 abutters opposed to the project following its 2011 vote to affirm the application’s status. The November vote was delayed one month after the abutters argued to the zoning board that they were not officially notified of the October meeting.
In Whalerock v. Charlestown Planning Commission, LeBlanc is seeking a judgment that would allow him to proceed directly to a zoning board hearing on the special use permit without having to first go before the Planning Commission, which is allowed under town ordinance to give an advisory opinion on the case. Nicholas Gorham, Whalerock lawyer, claimed Monday that a memo issued by Town Planner Ashley Hahn at an October 2010 hearing on the application represents the planning panel’s advisory opinion.
The hearing also encompassed two other suits, by the council and the neighbors, challenging the zoning board’s November decision.
While agreeing that the Planning Commission can act only in an advisory capacity, Town Solicitor Peter Ruggiero challenged the zoning board’s decision, which he said was based not on any board discussion, but on a three-page finding of facts distributed in October by Robert Craven, the zoning board’s lawyer.
Municipal boards must not only vote, but discuss and provide a rationale for their decision, Ruggiero said.
“I think it’s inferred in the statute they must articulate their reasons. It allows the public to understand, whether they agree with it or not, that it was a deliberative process. [The zoning board] just said, ‘Thank you, Mr. Craven,’” Ruggiero said.
Craven said his document was the product of his board’s request that he draft a decision based on facts, and that it was distributed to all parties well before the board voted on it.
“I said, ‘If you have any problems, communicate with me,’ and I’d be open-minded to revising this,” he said.
“Craven circulated in advance, as a courtesy, a copy of what he thought was an appropriate decision,” Gorham said.
James Donnelly, the lawyer representing the abutters, called Craven’s document a “canned decision” in joining Ruggiero’s argument in opposition.
“You can’t even tell what the vote was, that’s why I’m appealing the decision,” Donnelly said.
According to the minutes of the Nov. 13 meeting, when zoning board Chairman Michael Rzewuski asked members for comment, the only response came from William Meyer, who asked if he correctly understood the vote to mean it would be an affirmation of its original determination that the application was complete. The board took two votes: 4-1 (with Rzewuski dissenting) to affirm the completed application, then 5-0 to accept Craven’s document as the basis for its decision.
Another issue Rodgers may address in her written decision will be if the town ordinance in effect in 2010 governs the case.
Gorham, disputing the fairness of the current Planning Commission in its advisory role, argued that the ordinance prior to the November 2010 election, when wind turbines were allowed under ordinance and the council was acting as a partner in the project, should govern the case.
The Planning Commission has never formally voted to issue an advisory, as a board, on the case. It held a hearing on Whalerock on Sept. 22, 2010, continued on Oct. 7, but did not make a decision, although Hahn followed up with her memo at the second meeting. Her administrative advisory was approved, with several conditions added by board members during discussion, and sent to the council. The council then held a hearing in October, which stretched over two nights, but continued it without a finding. After a new council was elected that November, with a majority opposed to the project, it voted to freeze the proposal, then impose a moratorium on development of wind turbine plants until a new ordinance could be drafted.
“We were in a crucible in politics. The (council) hearing went completely haywire, and it decided, incorrectly, to wait until after the election,” Gorham said.
Ruggiero argued that Whalerock’s case is based upon an ordinance that no longer exists, and that even under the old one, the Planning Commission had an advisory role because it read, “The council may solicit opinion from other legal bodies.”
“It’s a distinction without a difference,” Gorham replied. “We had two hearings in front of the (commission). We gave it a fair try. We got a written decision from one of them.”
“That’s like saying, ‘Here’s the rules. The first one had no rules,’ “Donnelly said after the hearing. “(Hahn) said (the application) was complete….complete with a lot of caveats.”
Rodgers must also determine whether the abutters have standing in the case.
Gorham argued that the abutters’ appeal, dated Dec. 13, fell outside the 20-day appeal period. Donnelly said the October and November 2012 transcripts, and other documents to be submitted, should convince Rodgers his appeal had legal standing.
Ronald Areglado, lead plaintiff in the abutters’ suit, said the decision would likely come down to which ordinance Rodgers decides applies in this case.
“The bottom line is, is (Whalerock’s application) in substantial compliance under which order?” said Areglado, adding that the appeal was filed legally.
If Rodgers decides in Whalerock’s favor, the zoning board would hear the case as soon as possible, likely in April, Craven said.
Gorham said he does not legally need to go back to the Planning Commission, but would go if Rodgers made it a condition of approving his request for an expedited zoning hearing.
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