Windmill appeal dismissed, but legal questions abound; 465-foot turbine could face long court battle 

NORTH SMITHFIELD – Following the advice of stand-in legal counsel, the North Smithfield Zoning Board dismissed an appeal by abutters over the Planning Board’s recommended approval of a 465-foot windmill on Old Smithfield Road.

The decision comes on the heels of a move by Wind Energy Development Inc. or WED – the North Kingstown firm behind the project – to challenge the Town Council’s decision to place a mortorium on wind energy proposals in town in state Superior Court.

The manuevering surrounds a request by resident Ruth Pacheco to erect the structure on her 50-acre farm, a project she’s argued would allow her to keep the land as open space, rather than divide it and sell it off to developers. Pacheco’s neighbors, opposed to the plan, argue that the windmill would be the tallest structure in the state and is inappropriate for a residential neighborhood.

As attorneys from both sides argued before the town’s Zoning Board, which was acting as the Board of Appeals Tuesday night, it appeared as though the project could be in for a long legal battle.

“The Planning Board cannot make a positive finding that there will be no significant environmental impact,” said Maureen Souza, one of three lawyers working for the nonprofit group formed in opposition to the turbine. “The Planning Board has a duty to deny the application if it fails to address health and safety issues.”

Souza quoted a statement by Lawrence Tribe, President Barack Obama’s law school mentor, made before Congress during hearings last year. “The burning of the constitution cannot be part of our national energy policy,” she said.

Souza’s arguments were in defense of the appeal, filed by abutter group C.O.U.R.T., Inc., or Conserve Our Unique Rural Town, of the Planning Board’s April 7 recommendation that the town’s Zoning Board grant the developer both the special use permit and dimensional variance needed for the turbine to come to fruition.

Tuesday’s meeting brought out dozens of residents, many carrying the now well-known “No Turbine” signs posted throughout town.

But Attorney Timothy Kane – standing in for town Solicitor David Igliozzi and Assistant Solicitor Stephen Archambault, who were unavailable that evening – quickly told the board that he did not recommend hearing testimony from abutters.

“If you hear testimony tonight, you’ve tainted the process,” Kane told the board. “We have to look at the regulations in state law and follow it.”

C.O.U.R.T.’s appeal argued that planners had not followed the right process in recommending approval of the variances needed for the turbine, and that more stringent review of the project was needed.

But Kane said the board instead must weigh in on the “meat” of the application, and decide whether or not to grant the developer’s request.

Kane pointed out that the Planning Board’s ruling was merely advisory.

“You are the permitting authority,” Kane told zoners. “Advisory opinions aren’t appealable.”

Still, Kane recommended the board hear from legal counsel on both sides.

Attorney William Dowling, speaking on behalf of C.O.U.R.T., argued that the Planning Board’s decision was based on four unsupported findings of fact, among them, the assertion that the project constitutes economic development.

“The Planning Board can’t glance over that issue with no consideration as to whether or not there will be any tax benefit to the town,” said Dowling. “And there’s no demonstration that any businesses would benefit.”

John Mancini, representing WED and developer Marc DePasquale, said he agreed with Kane that it was the wrong forum for the legal arguments.

“It’s like trying a murder case in front of a municipal court judge,” Mancini said. “It’s a non-binding advisory decision of the Planning Board.”

Mancini hinted at further legal action, saying that Tuesday’s proceedings had tainted the process.

“You’re the same board that is going to hear the application in its entirety,” Mancini said. “You have no choice but to sit as the Zoning Board and hear the same testimony. We’ve given the abutters an opportunity to have a dry run.”

“It’s a misstep that in my opinion is fatal to the process entirely,” said Mancini. “There should have been a straight dismissal. It is only going to delay the process for the applicant unnecessarily.”

Kane disagreed.

“I’m sure you can keep an open mind in your capacity when you sit as the zoning board of review,” Kane said to the board. “There’s been no predudice in my opinion here.”

Zoners unanimously voted to dismiss the appeal, saying they would hear arguments from all parties when they weigh in on the original application.

But Manicini’s assertions could be an indication that there will be a long battle ahead surrounding the proposed turbine. WED’s counsel has already launched a legal attack on the town’s handling of the project, challenging the Town Council’s May 19 decision to place a moratorium on “wind power development.” Councilors said the town needs a more comprehensive process for dealing with such proposals, and the emergency moratorium was focused on buying North Smithfield time to develop an ordinance.

A Superior Court suit filed on Friday, June 3 argues that the town had no authority to create such a ordinance, that the action violated the Town Charter, and that the decision should not apply to the Old Smithfield Road proposal because it is already a “vested” project.