Bourne selectmen on Dec. 1 approved a health board request to huddle with Bourne Town Counsel Robert Troy on the matter of ConEdison windfarm construction on the Mann cranberry tract at Head of the Bay across the South Plymouth boundary.
That approval affords action to include Troy seeking a Superior Court civil injunction against Future Generation Wind turbine construction long underway and now visible from atop the Bourne Bridge as well as across both Little and Buttermilk bays.
Troy, meanwhile, has advised selectmen it is “unlikely” he would prevail in a court request lodged against turbine construction. Turbine operations and their impacts on abutters could be another matter, Troy noted.
Residents from Morning Mist Lane in Buzzards Bay, Bournedale, and Cedarville flooded into the Bourne Town Hall hearing room that night to plead with selectmen about authorizing the use of Troy’s services against the industrial-height turbines that are rapidly becoming their neighbors.
The discussion lasted nearly 90 minutes and emotions were held mostly in check as Selectmen Chairmen Steve Mealy asked residents to be brief in their remarks and respectful.
There was sentiment about turbine noise, aesthetics, flicker, shutter, and impacts yet to be perceived. The crowning argument, however, was declining residential property values. That point resonated with selectmen.
Health Board Chairman Kathy Peterson insisted legal action against turbine construction was prudent. “This is four industrial turbines,” she said. “This is not just a turbine put up to allow (Mass Maritime) cadets to learn how to work on them. This project will attract other projects to Bourne’s borders.
“I think the law is pretty clear,” Peterson said. “You can’t just go into a site and create problems for your neighbors. They need to be protected. This is a multi-faceted issue.”
Peterson said her board was never officially notified by Plymouth authorities during that town’s regulatory review of the turbines. She said the project should be reviewed by her board as well under its wind-turbine protection regulation.
Attorney Jonathan Fitch took issue, saying legal case law is clear; that is, he said, it does not allow one town board to intervene on a commercial project that is appropriately zoned and reviewed in a neighboring town.
Fitch said he sent case-law arguments and citations to Troy and awaits a reply from the town counsel.
Fitch said legal aspects of the issue involve likelihood of success at court as well as “the consequences of failure and the uncertainty of cost.”
Fitch urged Bourne selectmen to apply “careful and thoughtful analysis” to the issue of the South Plymouth turbines and any effects they might cause in Bourne.
“We should not rush into court on this,” he said. “There is no Bourne jurisdiction over activity in the Town of Plymouth. It’s as simple as that. This sort of issue has been (legally) tested with second opinions. There is no case law to support the (Bourne) Board of Health’s control of activities across the town line.”
Fitch predicted that, if Troy is successful with a civil injunction, the entire matter will drag out in legal action and the “appeals will take years. This is not a trial court case.”
Selectman Donald Pickard wondered what the town’s legal affairs budget would total next year while Mealy said that, given operating constraints facing the town, Troy “would be limited to his budget line-item.
“If this issue turns into a quagmire, the town counsel can come back for additional funding,” Mealy said.
Selectman Michael Blanton said that if more funds are needed for legal aspects of the turbine matter, the town could tap $50,000 in mitigation money paid Bourne for the transport of turbine parts through Buzzards Bay to South Plymouth.
Pickard predicted that if legal issues become protracted, Troy likely would be forced to recommend special counsel. Selectmen generally agreed this would dramatically hike the town’s legal expenses in the matter.
Selectmen voted 5-0 to support the health board’s efforts with Troy to chart strategy against turbine construction.
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