Wind farm appeal heard; High court hears Colebrook case 

HARTFORD – The state Supreme Court heard opposing arguments Friday on whether state regulators had authority to approve a commercial wind farm in Colebrook.

Some property owners in Colebrook and a nonprofit group called FairwindCT Inc. are challenging the Connecticut Siting Council’s decision to permit BNE Energy Inc. to erect power-generating windmills on two properties in the town.

In 2011, West Hartford-based BNE Energy received approvals to build six, 1.6-megawatt turbines in Colebrook – three on Flagg Hill Road and three on Rock Hall Road.

It was the first approval for a commercial wind farm in the state.

The Supreme Court is being asked to decide whether the Siting Council had authority to issue declaratory rulings approving the location of wind turbine projects under state laws in effect at that time.

The appeal also involves other questions of law, including whether the council denied the property owners and FairwindCT due process during its proceedings on BNE Energy’s petitions.

The property owners and FairwindCT lost a Superior Court appeal of the council’s approval in October 2012. They then moved to appeal that ruling to the Appellate Court, and the Supreme Court subsequently decided to take the case.

On appeal, the property owners and FairwindCT continue to argue that the council lacked authority under state law to act on BNE Energy’s petitions for declaratory rulings.

BNE Energy should not have been permitted to petition for a declaratory ruling because state law limited the procedure to power-generating facilities that use a combustible fuel or nuclear reaction, said Emily A. Gianquinto, the lead lawyer for the property owners and FairwindCT.

“Wind does not fit the definition,” she said.

The Supreme Court should reject that argument because state law recognizes wind is a renewable source for fueling power generation, Assistant Attorney General Clare Kindall told the justices.

How the BNE Energy project is defined was a critical question in Friday’s arguments also because the company could be subject to local zoning regulations if the wind farm is not considered a power-generating facility.

Kindall contended the council properly exercised the exclusive jurisdiction that the legislature granted it over wind power.

Gianquinto and Kindall also argued over whether the trial court properly upheld the council’s finding that the wind turbines satisfied state noise regulations.

Gianquinto said the council improperly measured noise levels at neighboring homes rather than at the property lines of the Flagg Hill Road and Rock Hall Road locations.

If measured at the property lines, she contended, the noise from the two sets of turbines exceed state regulations.

Kindall argued that noise was not properly an issue in the appeal because the council only had to address air and water quality standards for the purposes of considering BNE Energy’s petitions to site the turbines on the two Colebrook properties.

Gianquinito said the property owners and Fairwind are asking the Supreme Court to vacate the council’s approval of the BNE Energy petitions, or remand the case to the trial judge with instructions to sustain the original administrative appeal.

The legislature continues to work on developing regulations for wind farms. Its Regulation Review Committee has been unable to resolve an impasse that has held up adoption for two years.

When finalized, the regulations will not apply to the BNE Energy projects, Kindall said. The rules will cover projects proposed after their adoption.