By Larry Parnass | The Berkshire Eagle | July 20, 2018 | www.berkshireeagle.com
SAVOY – No.
That was the answer that came Wednesday, when proponents of a commercial wind venture sat expectantly on folding chairs in the Savoy firehouse, hoping to salvage a project underway since 2005.
No building permit.
But it might not be the end of a debate during which Savoy residents first embraced, then rejected, the idea of hosting turbines in their town. A decade passed between those two positions.
When asked whether he will fight the decision in court, Steven Weisman, a principal of Minuteman Wind LLC, said he and his team will wait to see the language the town’s attorney uses to capture this week’s decision by the Zoning Board of Appeals.
The five-member board upheld Building Inspector Phil Delorey’s April 5 decision to reject Minuteman Wind’s application for a building permit to place five 425-foot turbines on land owned by Harold “Butch” Malloy.
Because a special permit the developer was granted in 2010 was going to expire May 20, after one renewal, securing the construction go-ahead this spring was crucial.
Though Minuteman had its special permit, after what Weisman termed “significant” financial investment, Savoy no longer allows commercial wind power. Residents changed the town’s bylaw in December, after a different Minuteman partner tried and failed in 2017 to win support for taller turbines.
If there is to be a court challenge, Minuteman’s case would test how well members of the ZBA handled the company’s appeal of the denied building permit.
Guided by attorney Mark Bobrowski, the panel’s members focused on two issues.
One is whether the project outlined in Minuteman’s building permit application, filed April 2, was substantially the same as the one the town scrutinized, years ago, in the course of granting a special permit under the now-dead bylaw.
The town said no, but Minuteman insisted that the answer was yes.
The other issue is whether the site work Minuteman sought a building permit for, in its first phase, added up to enough to constitute the start of construction, enabling it to meet the spirit of the May 20 deadline.
Town: no. Minuteman: yes.
Minuteman officials said they had a partner with financing lined up but needed the building permit to lock in funding.
Issues in detail
Ruth Silman, the Boston attorney representing Minuteman, said the project her client wanted to get rolling on this summer, after years of delays seeking environmental approvals, financing and other things, was “substantially consistent” with the venture that secured the special permit in 2010.
That’s even though the project dropped its plan to generate 12.5 megawatts of electricity in favor of 7.5 megawatts. In intervening years, technological change forced the company to shop for new turbines.
“The machines that we wanted in 2010 are no longer available,” Silman said.
But John Tynan, the ZBA chairman, challenged Silman, asking why the shift in size had not been discussed with the town.
Weisman said he didn’t think the town would be concerned about a project that generated less electricity.
And during a roughly hourlong public discussion, several people questioned why the town did not have a chance to study issues of noise and light “flicker” from a different device.
Alan Seewald, a Northampton attorney hired by local residents to oppose the project, assailed Minuteman for changing technology in midstream.
“They waited too long and didn’t come back to the board,” he said. “They skipped a step, and it’s fatal.”
He and others also questioned the reason given by Minuteman for shifting to a smaller power output. Seewald suggested that it is because the project couldn’t afford higher connection costs to the electrical grid it would have had to pay at the bigger turbine size.
Salvatore Raciti, a Savoy resident opposed to the project, rose to say that Minuteman should have provided more information to the town about the new choice of turbines.
That way, Savoy could have considered their impact.
“There are a range of factors that the town needed to understand,” Raciti said.
That sense of being kept out of the loop arose repeatedly at Wednesday’s session.
Al Carlow, a ZBA member, questioned why Minuteman did not provide more information on the full project. He cited concerns about the path that trucks would take to get turbines to the site on West Hill, near the Hawley line.
“I think that should be all hashed out first,” Carlow said.
Weisman, of Minuteman, countered that the final transportation plan was not yet due.
But Tynan wanted more information up front. “We expected that before you went to Phil [Delorey, the building inspector]. We never received anything in 12 months.”
To which Weisman replied: The project had experienced a “discontinuity” in its process.
“We needed to rethink what the entire project is going to be,” he said.
That brought another challenge from Tynan, who suggested that the statement was evidence the project presented was not consistent with the 2010 special permit.
When Bobrowski polled the board, all members said they felt the project that sought a building permit represented a “substantial change” from the special permit.
That in itself was enough to uphold the building permit denial, Bobrowski said later in an interview.
Was plan enough?
But the board also weighed in on whether Minuteman’s desired first phase constituted the actual start of construction, thus meeting the deadline.
Silman, speaking for Minuteman, argued that work on roads, creating turbine foundations and laying underground utility lines represented significant forward progress. Actual placement of turbines, she said, is done quickly.
If Minuteman goes to court, that assertion is likely to be crucial to the company’s success.
Since the May 20 deadline for the start of construction already had passed, the question appeared to get a little fuzzy during discussion.
Bobrowski clarified that the issue is whether work planned in the project’s first phase represented significant construction. The attorney thumbed through several legal cases involving construction, sifting for relevance, and sharing outtakes with board members.
The board eventually voted 3-1-1 on the question.
Three members – Tynan, Carlow and Sue Reinhardt – believed that the first phase did not go far enough to be classified as construction. Member Royce Buehler abstained.
And member April LeSage disagreed, calling the question too abstract. She later commented in an interview that it might be hard to use the legal cases as models, since they did not apply to wind power.
LeSage also noted the difficulty the board faced in its deliberations, given the strong feelings present in Savoy.
“It’s a hard one in a small town,” she said.
Legally, to uphold the denial of the building permit, the board only needed two members to feel construction would not have commenced.
It would have taken four votes to reverse the inspector’s permit denial – making the challenge steep for Minuteman all the way along.
Bobrowski has until July 31 to file the board’s decision. The board authorized Tynan to sign on behalf of all members.
Among the first readers: the folks at Minuteman Wind.
URL to article: https://www.wind-watch.org/news/2018/07/21/between-lines-on-savoy-wind-energy-project-denial/