A Barnstable Superior Court Judge is considering whether town leaders did enough to stop the construction of four wind turbines on the Bourne/Plymouth town line.
The same judge, Gary A. Nickerson, is reviewing a request by the town to stop the turbines from going online until after the project proponents file for and receive a variance from the Bourne Board of Health. Previously, the health board had ruled that the project did not meet the town’s regulations governing wind energy systems.
The judge is expected to rule on both matters within two weeks, the town’s attorney said.
A group of neighbors who live near the project, 20 in all, filed a lawsuit last Wednesday, March 2, alleging that selectmen, members of the health board, and the town’s attorney were ineffective in stopping the construction of the turbines by Future Generation Wind on Keith Mann cranberry farm at the Bourne-Plymouth town line.
While the health board had ruled that the turbines do not meet the town’s regulations, Future Generation Wind has argued that because the turbines are located in Plymouth, the project is not subject to Bourne’s health regulations.
The residents have expressed anger at the board of health and other town officials for not doing enough to enforce the town’s own regulations. Residents have also claimed that the town did not act expediently to prevent construction of the turbines and protect them from possible negative health effects of living close to these machines.
Attorney Kevin J. Joyce of Boston, representing the residents, filed a motion requesting a temporary restraining order against Future Generation Wind putting the turbines into operation. In his motion, Mr. Joyce stated that the turbines are “undisputedly in violation” of the board of health’s regulations. The motion further stated that preventing operation of the turbines would be in the best interest of public health, safety, and welfare.
The restraining order request was denied in court last Friday, March 4.
The larger question—if the town acted ineffectually to stop the project—was argued in court on Tuesday, March 1.
The neighbors charge that town administrator Thomas M. Guerino and the board of selectmen intentionally violated the Open Meeting Law by ordering the board of health not to discuss matters relating to the turbines during its public meetings and requiring that those discussions be reserved for executive session.
Open meeting law, Mr. Joyce argued, allows for executive session only to discuss strategy with respect to litigation if discussion during an open meeting “may have a detrimental effect on [the town’s] litigating position.” Also, a vote must first be taken in public session to adjourn into executive session.
Mr. Joyce’s motion further contended that the board of health violated open meeting law by not first voting in public session to meet in executive session with the selectmen to discuss litigation relative to the turbines.
“The conduct of the Board of Selectmen and the Board of Health violates the Open Meeting Law and has had a chilling effect on the Taxpayers’ ability to participate in the public meeting process,” the motion read.
Attorney Charles M. Sabatt argued on behalf of the town, saying that the town took appropriate action in the matter when it filed a civil action lawsuit seeking to enforce the town’s wind turbine regulations back in January.
The town’s health agent Terri A. Guarino subsequently issued an enforcement order to Future Generation Wind that was served in February ordering Future Generation to file for variances under Bourne’s wind turbine regulations.
In a written statement, town counsel Robert S. Troy, who was named as a defendant in the neighbors’ suit, stated that “it is regrettable that outlandish allegations have been made against the infrastructure of Bourne’s governance …. It is unfortunate that the filing of a complaint replete with false representations can only undermine Bourne’s effort to enforce its regulations governing Wind Turbines.”
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