KINGSTON – A Land Court judge has dismissed the case filed by a group of 10 residents against wind turbine developer Mary O’Donnell and the town for the issuance of building permits for her three wind turbines.
The 30 days in which time the plaintiffs had the right to appeal this decision has expired. There is no appeal.
Land Court Judge Robert Foster concluded that the plaintiffs were too late in filing an appeal of the building permits issued Dec. 16, 2011, and that their appeal cannot be allowed to go forward. The neighbors had argued they had six years to appeal. The defendants argued they had 30 days.
“This question turns on whether the plaintiffs had adequate constructive notice of the building permits’ issuance in time to challenge the building permits within the 30-day period,” Foster wrote in his March 10 decision.
Foster concluded that the plaintiffs knew the wind turbines were under construction and should have made an effort to investigate if they had concerns. He said they would have learned the building permits had been filed and that they had the right to appeal.
He allowed O’Donnell’s request that the complaint be dismissed based on the expiration of the building permit appeal deadline. The last day they could have appealed the filing of the building permits was Jan. 15, 2012.
“Because the plaintiffs failed to appeal the building permits within the 30-day period as required, the court lacks subject matter jurisdiction over this action,” he said.
While the judge’s ruling was based on lack of jurisdiction in the matter, O’Donnell said she’s sure she would have prevailed even if all arguments had been presented. She said she went through all the proper channels and the plaintiffs were well aware of her turbine plans. She said the judge says so in his ruling.
“I’m not the least bit surprised, because we did everything properly,” she said.
The last time the plaintiffs and defendants testified in this case was about a year ago. O’Donnell said her attorney believes the judge was awaiting the outcome of another case pending in another county.
The plaintiffs filed their complaint in Land Court Sept. 25, 2012. They had challenged an April 2012 Zoning Board of Appeals decision upholding a previous decision by Zoning Enforcement Officer Paul Armstrong. The neighbors challenged site plan approval for the turbines.
Country Club Way resident Tim Dwyer, one of the plaintiffs, said the judge’s decision was obviously disappointing. Unfortunately, he said, they were not able to present their arguments relative to the merits of their actual claim, with the court ruling they did not file their objection in time.
“Our contention all along was that the site plan approval process was in violation of the town’s bylaw,” he said. “For example, were the turbines sited in such a way to minimize flicker? (No) Was there a sound study performed on the turbines Mary actually built? (No) Are her turbines therefore likely to be in compliance with the DEP Noise Regulation? (Without such a study, the town would have no idea).”
Dwyer said the court ruled only that the plaintiffs did not have standing. He said the dismissal of the complaint does not mean that their grievance is without merit.
“While I’m confident we would have prevailed if given an opportunity to shed light on the process, that door is closed,” he said.
He said the nature of the ruling was the reason they decided against appealing.
“Since the likelihood of prevailing on appeal of this narrow issue was outweighed by the cost of such an action, we elected not to pursue it,” he said. “Given the continued distress of the neighbors related to both noise and flicker, we will reassess the options available to us in order to mitigate the blatant nuisance.”
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