May 9, 2013
Massachusetts

OKH appeal continues: Dennis turbine ruling

By Nicole Muller | THE REGISTER | Posted May 08, 2013 | www.wickedlocal.com

ORLEANS DISTRICT COURT – The Old King’s Highway Historic District Commission has filed an appeal of Orleans District Court Judge Brian Merrick’s decision in the Aquacultural Research Corporation turbine case with the Appellate Division of the Massachusetts District Court.

The OKH Commission seeks to reverse Merrick’s ruling that the Commission exceeded its authority in overturning the Dennis OKH Committee’s decision to allow the turbine on ARC’s property off Chapin Beach Road in Dennis.

On April 22 Merrick denied motions filed by the OKH Commission’s lawyer Leslie-Ann Morse seeking a new trial and issued a written decision rejecting most of her 22 motions to alter or amend his findings in the case.

“The court will formally take judicial notice that the Regulations of [the Commission] include certain ‘Guidelines,” Merrick wrote. Included in these guidelines, Merrick continued, is the statement that “applicants may consider” alternative energy resources, including wind generators, in their proposals, and that such requests “may be approved,” providing that they “function in a practical manner” and comply with certain stipulations, including “minimum visual impact on the surrounding neighborhood” and “ extensive use of vegetation and landscaping so as to minimize the visual impact.”

Merrick also noted the Guidelines’ requirement that “devices should be designed and constructed in such manner as to blend with existing features in the immediate area” and be “located as far as possible from the street line.” He then allowed that the proposed turbine “does not strictly follow” the guidelines.

“If it is [the Commission’s] position that the ‘Guidelines’ are in fact binding regulations, such regulations would be illegal,” Merrick wrote, adding that the Commission’s “authority to establish rules and regulations for administration of the regional district does not include authority to preempt the substantive discretion of the town committees in performing their function.”

The appeal to the Appellate Division will be heard in the Southern District, in which Merrick is among the five justices. Three judges hear each case, Morse said, and Merrick will not be among them.

If the Appellate Division denies her appeal, Morse said, she will take the case to the Massachusetts Supreme Judicial Court. She said if it goes that far, the process “will take significant time.”