SAVOY – The company wanting to erect commercial wind turbines in this northeastern Berkshire County town cried foul Tuesday, saying it should have received a building permit after more than a decade of preliminaries.
But town officials and their building inspector, along with an attorney for residents opposed to the project, say Minuteman Wind LLC has only itself to blame for coming up short.
While the Zoning Board of Appeals made no decision Tuesday night, its chairman and several members hinted that they are leaning against overturning a building inspector’s decision to deny the company a crucial permit.
A ZBA public hearing was continued to 7 p.m. July 18, when Minuteman Wind will have one more chance to persuade members of the panel to overturn Building Inspector Phil Delorey’s April 5 rejection of its application for a building permit.
For Minuteman Wind, Tuesday’s face-off, watched by nearly 50 town residents in the Route 116 firehouse, was a last chance to save a project conceived more than a decade ago.
Last summer, Minuteman appeared confident that it could have ordered turbines by now and been preparing for construction.
Instead, it lost time when an outside partner, Palmer Capital Corp., tried to win town approval for taller turbines. By the end of 2017, residents had not only said no to allowing the turbines to be 30 feet higher on West Hill, they voided Savoy’s wind-power bylaw.
That left Minuteman as the only possible commercial wind project in Savoy’s future.
And if the venture fails to secure a building permit, and loses any legal appeals, the company’s long quest will be over.
Attorney Ruth H. Silman, representing Minuteman Wind, argued that Delorey should have reached out to the company when reviewing its April 2 application. The building official faulted the application for missing information.
“Minuteman is clearly a party aggrieved,” said Silman, a Nixon Peabody partner who grew up in Great Barrington. “Minuteman Wind believes the denial must be overturned.”
That’s a high bar, since four of the board’s five members need to call for that reversal. They can consider not only the application and denial, but comments at Tuesday’s and any future public hearing.
The board could vote July 18. Its decision is due to be filed to the town clerk by July 31.
In his rejection, Delorey noted what he felt were missing elements of the Minuteman application. Silman, standing before the board Tuesday night, said Delorey could have sought clarification.
“The only communication was the denial,” she said. “We believe that in itself was unreasonable, arbitrary and capricious.”
Delorey rose on the other side of the room in his defense, saying it’s not his obligation to walk applicants through the process.
“I find that pretty difficult for a building official,” Delorey said of Silman’s argument. “In this case, there are a lot of issues. It felt like a rush. They were pressed, it felt like.”
He added, “Capricious? I’m not even sure what that means. I let them know in writing what I found lacking in the application.”
Alan Seewald, an attorney representing neighbors against the project, said Minuteman should have been required to submit a building permit for the same project that had received a special permit in 2010, and then won extensions.
Instead, Minuteman has proposed to build a 7.5-megawatt facility, with five turbines. The special permit called for a 12.5-megawatt array.
Silman argued that the difference is minor and that the change should not affect the company’s eligibility to win a building permit.
But Seewald faulted the project for hurrying through a partial effort, as it seeks an OK not for the full venture, but only for roads, clearing and work on turbine foundations.
“It was a bare-bones application rushed in at the last minute,” Seewald said. “They have a defective application that was properly denied.”
Rejecting it, he said, would be reasonable for the town, and he defended Delorey’s handling of the application.
“It was completely consistent with his obligations,” Seewald said.
Delorey bristled at what he took as a suggestion from Minuteman that he had blocked its progress, noting that he turned the application around quickly.
“Three days out of eight years,” he said of the project’s timeline.
No residents spoke on behalf of Minuteman’s project.
John Tynan, chairman of the ZBA, as well as of the Select Board, said before the session that the appeal period allows Minuteman’s project to remain under consideration, though it has passed a May 20 deadline to commence construction.
The ZBA’s continued deliberations will push that deadline until at least July 31, if not later.
Speaking for Minuteman, Silman said the company had planned to quickly follow its foundation and access road work with an application for a building permit to install turbines.
Though Delorey faulted the company for not providing plans for the full scope of the project, as he said he requested, Silman said they would have been available if he had inquired.
She argued that since it had gotten smaller, the project did not need to seek a new special permit.
Technological change had compelled the company to adjust its plans.
Richard Gross, a Minuteman official, said the company learned that if it created a wind farm with capacity of greater than 7.5 megawatts, it faced limits with the existing Eversource grid that would have been too costly to remedy.
Tynan said he viewed the shift to a 7.5-megawatt facility as a significant change.
Silman countered that the number and height of the turbines remained the same. Seewald, speaking for neighbors, argued that the smaller turbines required modification of the special permit.
And he suggested that after town residents soured on wind power in 2017, rejecting their own bylaw last December, Minuteman might have decided to keep its head down.
“They got the message that they aren’t going to get extensions or modifications,” Seewald said.
Tynan questioned why Minuteman secured a two-year extension, and within days of it running out offered what he felt was too little, too late.
“That’s how we ended up here,” he said of the appeals hearing.
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