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Dennis wind turbine project wins appeal

DENNIS – An appellate court decision issued late last week clears the way for construction of a 242-foot wind turbine on Chapin Memorial Beach – unless another appeal is filed before the end of this month.

The battle over the turbine began in 2010, when the Dennis Old King’s Highway Historic District Committee issued a certificate of appropriateness for Aquacultural Research Corp.’s proposed wind machine on its beachfront property.

ARC representatives said the turbine would generate 600 kilowatts of power and help defray the business’s rising energy costs. The company provides clam and oyster seeds to shellfish farms across the Cape and Southeastern Massachusetts.

Opponents, who formed a group called Save Our Beaches, complained the turbine would produce noise and shadow flicker from spinning blades and pose a risk to seabirds.

The project has been the subject of three appeals so far and could be taken to a fourth.

Meanwhile, ARC principals Richard Kraus and Gail Hart have waited four years to build the turbine.

“It’s been difficult for them, but they respect the legal process,” company attorney Michael Sams said.

The initial appeal of the local approval was submitted to the Old King’s Highway Regional Historic District Commission by Dennis resident Rosemarie Austin.

The regional agency concluded the Dennis committee “had shown poor judgment” in issuing a certificate of appropriateness. The agency annulled the Dennis committee decision and denied ARC’s request for project approval.

ARC sued Austin and the regional commission over the denial in Orleans District Court.

The trial, which took place in 2012, resulted in another turnaround.

Judge Brian Merrick ruled the regional commission had exceeded its authority, and he reinstated the original approval for the turbine given by the Dennis committee.

But before the shovel hit the dirt on construction, Austin and the regional commission appealed Merrick’s ruling.

Last week, the Appellate Division of the Massachusetts District Court ruled that Austin, who had claimed standing in her appeals as a “visual abutter,” had no status under the law to file the appeal.

That interpretation ended consideration of all appeals that followed the Dennis committee’s original approval back in 2010.

“We’re gratified by the result,” Sams said. “We thought the court clerk did an exhaustive review, and we believe they reached the correct result.”

Sams said the other side has until the end of June to try to overturn this latest ruling in Massachusetts Appeals Court.

James Wilson, administrative counsel for the Old King’s Highway Regional Historic District Commission, said the panel “just got the decision and is in the process of reviewing options.”

“This decision has a very significant precedent,” Wilson said. “It could limit the ability to appeal and get court review.”