The town has taken a step toward filing a lawsuit against the developers of a wind farm just off Head of the Bay Road, on the Bourne/Plymouth town line.
Selectmen this week voted unanimously to allow the town’s health board to meet with town counsel Robert S. Troy to discuss the possibility of court action to halt the project until the developer comes before the health board for a variance.
Components for four wind turbines were recently delivered over the span of several weeks to Keith A. Mann’s cranberry farm off Head of the Bay Road. One of the turbines has already been erected and a second one is currently being constructed. Members of the health board have contended that, under the town’s regulations governing wind turbines, shadow flicker, the effect of the spinning blades against the sun, and noise from the turbines are considered a public nuisance and pose health risks to Bourne residents abutting Mr. Mann’s farm.
The board of health has stipulated that the developers, Future Wing Generation LLC and Con Edison Solutions, needed to obtain a variance from the town’s regulations. The developers have argued that because the turbines are located in Plymouth, Bourne’s board of health has no jurisdiction over the project.
Health board chairman Kathleen M. Peterson went before selectmen and requested permission for her board to meet with Mr. Troy “with regards to possible nuisances and health risks.” Ms. Peterson told selectmen that not moving forward with taking legal action against the developers would set a precedent for other neighboring towns to ignore Bourne bylaws.
Ms. Peterson told selectmen that she had been advised of the town’s authority in the matter by Mr. Troy and said that the law is on the side of the board of health and the Town of Bourne.
“You cannot go on a site and cause possible health effects to a bordering town,” she said.
Attorney Jonathan P. Fitch, representing the developers, took issue with the suggestion that legal precedent favored the board of health’s position. Mr. Fitch has previously argued that Bourne has no jurisdiction over activity in Plymouth. Tuesday evening, he cited a Massachusetts court case from 1910 that has never been overturned, which “supports the idea of boundaries and that boundaries mean something.”
Mr. Fitch also pointed out that he wrote Mr. Troy in late October, asking him to reference the case law relative to the conclusion that Bourne has jurisdiction over a project in Plymouth. He said that he never received a reply from town counsel.
“No one has cited a case that says the board of health in Bourne can control activities across town lines,” he said.
Mr. Fitch said the two sides should not rush into court and suggested taking “a business-like approach” that would involve negotiation.
Selectman Donald E. (Jerry) Ellis said he was concerned about the potentially high cost of litigation, particularly in light of the recently failed override and what he perceived as residents telling town officials to save money where they can. He questioned why the board of health did not lodge any complaint against the project during the permitting process in Plymouth and agreed that Bourne had no legal standing on a project in Plymouth.
Ms. Peterson said her board received no notification of the project while it was being permitted by Plymouth officials. She also took issue with assertions that the project is sited entirely in Plymouth. It is equally in both towns, she said.
“One turbine is on the border. That’s considered a nuisance; they cannot meet our regulations,” she said.
Selectman Peter J. Meier noted that the board of health had held many public hearings about the turbine project. Mr. Meier added that selectmen should not be saying “no” to another elected town board.
“We should be supporting this board. If we don’t, we’re not giving the board of health the respect they deserve,” he said.
Half a dozen residents spoke up in favor of selectmen supporting the health board’s request. Ronald A. Matheson of Wolf Road said at issue was the loss in property value for homeowners abutting the turbines. Mr. Matheson suggested that a number of houses will take “a huge financial hit.” He said the turbines may be affecting a small section of the town’s populace, but Bourne officials have a responsibility to them.
“We’re a minority, but we still pay taxes, we’re still members of the town. We would like the selectmen and the board of health to pursue this with vigor,” he said.
Karen M. Gibides of Morning Mist Lane said she was shocked that the board had to be convinced to pursue legal action. Ms. Gibides said the issue was that the developers never applied for a variance, in spite of the board of health’s repeated requests that they do so. She suggested that construction of the turbines was turning a residential area into an industrial one.
“It doesn’t comply with Cape Cod Commission or Bourne bylaws and regulations,” she said.
She also asked Mr. Fitch if, as part of his suggested business-like approach to the matter, he would agree to stop construction on the turbines until an agreement had been reached. Mr. Fitch said he did not have the authority to answer that question. At the urging of selectmen chairman Stephen F. Mealy, he promised to speak with his clients on the matter.
Mr. Mealy mentioned that he had received an opinion memo from Mr. Troy, in which the attorney said a judge was unlikely to halt construction of the turbines. Mr. Troy said the health issues raised by the town would be relevant to the case, “once the turbines are operational.”
“The board of health’s position would be assisted by empirical accounts by those directly affected,” Mr. Troy said in his letter.
Despite that, Mr. Mealy sided with Mr. Meier and supported approval of the health board’s request.
“I think the discussion, the planning and the strategy necessary to undertake such action by the town need to be started immediately,” he said.
Selectman Donald J. Pickard echoed the fiscal concerns raised by Mr. Ellis. Mr. Pickard said that approval of the request would essentially be handing over control of the town’s purse strings at a time when the current budget remains roughly a million dollars in the hole.
Despite the reservations expressed by both Mr. Ellis and Mr. Pickard, the board voted unanimously 5-0 to approve the board of health’s request.
Selectman Michael A. Blanton disagreed that approval would mean writing the board of health a blank check. He noted that there is a line item in the current budget for legal services. He also pointed out that part of the agreement allowing transport of the turbine components through Bourne included $50,000 in mitigation funds. Those funds could be tapped to help defray any legal fees, he said.
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