For the better part of four decades Bourne Town Counsel Robert Troy has had a direct hand in guiding Bourne’s legal affairs and he is not known for tilting at windmills.
Now Troy is inching forward with a board of health request that he seek a civil injunction in Barnstable Superior Court to stop construction of the controversial Future Generation Wind turbines in Head of the Bay at South Plymouth.
Troy told the health board Dec. 9 that he will control the potential litigation at the direction of selectmen, not the independently elected health panel.
Health board chairman Kathy Peterson chafed at that sentiment, saying there was much to discuss about the South Plymouth turbines on the Mann cranberry acreage off Head of the Bay Road as well as the panel’s efforts to force Future Generation to apply for Bourne wind farm review.
Troy, however, said it his intent to protect confidentiality aspects of the litigation and that give-and-take with the board would violate the Massachusetts Open Meeting Law. He said if a single health board member has questions about the case, he will accommodate them with answers also going to Health Agent Terri Guarino and Town Administrator Thomas Guerino. But he does not invite wider board discussion about the litigation.
The discussion between Troy and Peterson was intense. Peterson was insistent about being involved in the discussion. Troy was just as adamant on his points. He said that, if the health board develops questions about how the case is being handled, members would have to address such issues with selectmen.
Peterson repeated her sentiment; that is, she said there is much to discuss prior to any court filing for injunctive relief. Limited discussion, she said, does not help matters.
Troy stressed his point. He intends to protect confidentiality and strategy involved in pending legal action. “There will be no executive session at this juncture,” he said.
The attorney said there are two key points in the case: jurisdiction of the health board to seek an injunction against an out-of-town wind farm; and whether members can force Future Generation Wind to seek a variance under the Bourne turbine-protection regulation.
Troy seeks a “compendium” of health department documents related to the Plymouth turbines and a written statement about the litigation’s objective. “What you want to do,” he said. “What your goal is. We need clear communication between the board of health and the board of selectmen about what we intend to achieve.
“I’m certain there will be a (legal) challenge to the board of health jurisdiction and the jurisdiction of the court,” Troy said. “We need to defend the provisions of your regulation as it relates to a defense of the jurisdiction. That will be a base of contention, a critical aspect of this case if the court decides this is beyond its jurisdiction.”
The Town Hall hearing room filled to near capacity with wind farm opponents from Bournedale and Buzzards Bay closely following Troy’s parameters being set for legal proceedings.
But Peterson said she could not discuss matters or accommodate questions related to legal aspects of the case still unfolding with Troy.
“But based on the discussion of the last 30 minutes, I’m certain we can prevail,” Peterson said. “Yeah, there are a whole lot of logistics but we can work quickly on this because we’re protecting the health of our citizens.”
Future Generation Wind attorney Jonathan Fitch of Sandwich attended the session but did not comment.
Bourne Selectmen Donald Ellis and Peter Meier attended the session with Troy. They did not comment about the proceeding.
At evening’s end, Morning Mist Lane residents from Buzzards Bay wondered what avenue they could take themselves to force a halt to turbine construction across the Plymouth line, musing that a call to Plymouth authorities might provide them with some relief in terms of noise and night-time construction.
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