FAIRHAVEN – A judge ruled last week in favor of the town in a lawsuit brought by residents opposed to the wind turbines. The lawsuit challenged decisions made by the Board of Appeals and the building commissioner involving the lots, setbacks and noise levels.
Superior Court Judge Angel Kelley Brown said even though Building Commissioner Wayne Fostin may have made procedural errors, the permits he issued were valid under zoning bylaws.
The lawsuit revolved around a change in the lots where the turbines were built. The judge said, “The Court finds no legal injury, because the plans are in compliance with the zoning bylaw. The Court finds Fostin did not act in bad faith.”
The residents who brought the case said the turbines were built on lots that fell short of the 10-acre minimum required under a town bylaw.
The judge said, however, that the town had the right to merge lots to meet the 10-acre minimum requirement.
Town Counsel Thomas Crotty said the town owns more than 40 acres in this area and that it is allowable to combine lots when they are contiguous.
He said the plaintiffs “tried to argue that one lot was less than 10 acres and therefore it wasn’t legal, but the law doesn’t work that way.”
Mr. Crotty said the plaintiffs also said the zoning bylaw requires a 100-foot setback from adjacent property, but he said in this case, the town owns the adjacent property.
Another issue was the 60 decibel noise limit under state law. The turbines are not allowed to exceed 60 decibels as measured from the nearest property line. The standard may be met through a 600-foot setback from the nearest property.
The judge said while the north turbine is less than 600 feet from a cemetery, the turbines meet the noise standard because they do not exceed 60 dBA. She said the zoning board can accept the scientific evidence supplied by the developer if it wants to.
In this case, the judge said the expert used by the developer, Peter Guldberg, is highly qualified as an acoustical scientist. She said the expert used by the plaintiffs, Stephen Ambrose, has a civil engineering degree, but “has never conducted a predictive sound study for wind turbines.” The judge said he seems to hold strong biases against wind turbines.
“The court does not credit his testimony for a variety of reasons,” she said. “It is clear that Mr. Ambrose was retained for the sole purpose of criticizing the sound study.”
The neighbors who sued live on streets where complaints have stemmed about the wind turbines. They include Teal Circle, Little Bay Road, Shawmut Street and Peirce’s Point.
These are also the areas where testing by the Department of Environmental Protection found exceedances of the 10 decibel limit for adding to background noise.
There was no response to e-mails last week seeking comments from three residents who are active in Windwise, including one involved in the lawsuit.
The lawsuit alone has resulted in legal bills of about $21,000, Mr. Crotty said. “This is the last of the pending litigation involving the turbines,” he said of challenges to permitting and Town Meeting votes.
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