September 10, 2016
Massachusetts

Judge dismisses Bourne taxpayers’ lawsuit against town

Judge dismisses Bourne taxpayers' lawsuit over Plymouth turbines | By Ethan Genter | Cape Cod Times | Sep. 9, 2016 | www.capecodtimes.com

BARNSTABLE – A Barnstable Superior Court judge has dismissed a lawsuit against Bourne officials accused of filing a suit challenging a set of Plymouth wind turbines that the town did not intend to fight.

A group of taxpayers in Bourne filed the lawsuit against the town administrator, selectmen, town counsel, and the Board of Health in March. Bourne officials had sued Future Generation Wind, which was also included in the taxpayer’s lawsuit, for not following the town’s bylaws when it built four wind turbines just over the border in Plymouth.

The taxpayers accused the town of acting outside of its legal authority and of trying to silence its own Board of Health and residents.

“There is an overarching defect in the complaint,” Judge Gary Nickerson wrote in his order, which was dated Aug. 24 and sent to the parties on Thursday.

In such a lawsuit, a group of at least 10 taxpayers has the right to sue under state law when town boards raise or spend money or take on tasks that are beyond the board’s legal power, Nickerson wrote.

“Nothing in the present action comes within the purview of” that law, according to Nickerson. “In other counts the plaintiffs seek relief that belongs, if at all, to the Board of Health and its members.”

The town’s lawsuit against Future Generation Wind was dismissed in June because Bourne has no jurisdiction over turbines located in Plymouth. But the court allowed an avenue for future recourse if the turbines become a nuisance to Bourne residents.

“Nevertheless, a Board of Health has broad powers to regulate and prevent nuisances that affect the public health,” Nickerson wrote in the order dismissing the town’s lawsuit. “It remains to be seen as to whether the operation of the wind turbines will constitute a nuisance which affects the health of inhabitants of Bourne, and, if so, whether the Board takes lawful action thereon.”

Although the taxpayer lawsuit has been struck down, lead plaintiff Ian Davies plans to continue to fight the turbines. He pointed to the town of Falmouth, where residents fighting the operation of their town’s turbines recently gained ground after battling them for years.

The group of taxpayers involved has grown to about 50 members since the lawsuit was filed, Davies said, and they have talked about other possible avenues to stop the turbines in Plymouth from spinning.

“We may have lost the battle, but we have not lost the war,” Davies said.