The low-profile but high-powered Connecticut Siting Council wields heavy statewide authority to approve energy and telecommunications projects in municipalities without having to abide by local zoning. It’s had this extraordinary ability since its 1972 creation by legislators convinced that town-by-town restrictions were stalling expansion of the region’s electric grid.
But such broad discretion has a flip side: Sometimes people living near council-approved projects say they’re being stepped on. This is one of those times.
Here’s what’s happened in recent weeks:
- Without requiring a public hearing, the agency is letting BNE Energy, owners of a Colebrook wind farm, expand onto an adjacent property to build a new turbine with blades reaching 646 feet above ground. It would be BNE’s third turbine; they already have two operating on their existing site. The siting agency defends its action by saying it’s merely modifying a 2011 decision that included approval of a third turbine in a different location.
- But neighbors and environmental activists say the siting agency is abusing its discretion by not requiring a full-blown hearing on changes too big to be treated merely as adjustments to a 2011 decision. And they say by leaving the project’s approval date at 2011, the siting agency is enabling the developers to bypass new state wind regulations, adopted in 2014, that wouldn’t permit the new tower where it’s now proposed.
Neighbors say the new wind turbine would loom over them disturbingly and even dangerously. They’ve retained an attorney who plans legal action.
Among the potential litigants are Julia and Jonathan Gold, a Massachusetts couple who two years ago bought a hilltop house and barn on 50 wooded acres straddling Norfolk and Winchester.
Looking from outside their house toward the nearby town line of Colebrook, you can see the tops of two wind turbines whose blades have been scraping the sky since 2015 above BNE Energy’s Wind Colebrook South generating site. (They’re the only utility-grade wind turbines in the state.)
The noise and sight of the two turbines haven’t been intrusive enough to spoil what’s become a weekend and summer haven for the Golds and their two sons, aged 8 and 4. The secluded outdoor setting especially benefits the older boy, Neko, who is deaf and “severely on the autism spectrum,” Julia Gold says.
They walk the woods, build forts with broken branches and inspect the work of beavers.
Neko, “is especially calm when surrounded by nature, and can spend hours at a time sitting under trees, focused on handling tree branches or other natural material,” the Golds’ Hartford-based attorney, Emily Gianquinto, said in a legal memo to the siting council.
The Golds knew when they were buying their property that BNE eventually would build a third tower; they’d read the siting council’s 2011 decision approving three wind turbines on the company’s 79-acre site. “But we were comfortable with that,” Julia Gold said, because the plans showed the third tower would be no closer than what’s already there.
A surprise switch
That all changed this past January.
“My client, BNE Energy, Inc., hereby respectfully submits … a Development and Management (D&M) Plan modification for the construction, operation and maintenance of the third turbine, an Enercon 4.2 megawatt (“MW”) wind turbine with a 128 meter hub height and a 138 meter diameter blade. … The third turbine is in addition to the two GE 2.85 MW wind turbines with 98.3 meter hub heights and 103 meter diameter blades currently in operations at the project site,” Lee Hoffman, an attorney from the Hartford firm Pullman & Comley, wrote on Jan. 9 to siting council Executive Director Melanie Bachman.
The surprise was that under the proposed modification, the third turbine – whose center hub would be 322 feet above ground, with blades reaching a maximum height of 646 feet – wasn’t to be constructed at its originally approved location. Now BNE was proposing to build it on 37 acres abutting the southern border of its existing site. The new acreage comprises two parcels the company doesn’t own, but has obtained legal options to buy.
The new tower would be much closer to the Golds – BNE’s measuements showed it 1,027 feet from their house, 321 feet from one of their property lines and 523 feet from another of their land’s borders. Julia Gold notes that both distances from the property lines are far below the minimum setback the 2014 wind regulations would require in the case of a new application. But the siting agency says BNE is grandfathered out of complying because the regulations were enacted three years after the project’s 2011 approval. Those regulations require a minimum setback from property lines of 1.5 times the turbine’s top blade height (which in this case would be 969 feet of setback).
The third turbine “will be looming over us,” Julia Gold said. “It will take away our right to use our land.”
The Golds talked to neighbors and others about opposing the BNE proposal at a public hearing on issues such as turbine noise levels, winter “ice throw” distances from the blades, effects on wetlands and possible consequences of a tower toppling.
Their lawyer, Gianquinto, asked the siting agency to deny BNE’s modification request and tell the company to file a new petition on which the nine-member siting council would conduct a public hearing, in “a proceeding that will ensure due process” and draw out better answers about the project’s various impacts.
She reminded the agency of its “mission of balancing the need for adequate and reliable public utility services … with the need to protect the environment … while also assuring the welfare and protection of the people of the state.”
But on March 6, Bachman wrote a letter approving MNE’s modification request, subject to a list of environmental and other conditions it will likely take months to satisfy.
“Wind Colebrook South is an existing electric generating facility. It was approved by the Siting Council in 2011 and achieved commercial operation in 2015. It is not a new facility that requires a new petition,” Bachman said in an email to The Courant Thursday.
BNE’s attorney, Hoffman, expanded on that Thursday in an emailed response to Courant questions.
He said: “This project was approved by the Siting Council in 2011 for three wind turbines. Only two have been built to date, so what BNE has sought with this D&M Plan modification is to finish the construction of that which was already approved, namely a third wind turbine. Since the time that approval was granted in 2011, wind turbine technology has advanced considerably. These advances have led to opportunities that would reduce environmental impacts at the site, which is part of the reason why BNE chose to move the location of the third turbine.
“By moving the turbine from its pre-approved location to the new location, BNE is able to: increase the output of clean, carbon-free energy, significantly reduce the square footage of wetlands that will be potentially impacted by a third turbine, move all turbine activity outside of the protective boundary of any on-site vernal pools, and move the turbines further away from sensitive wetlands on adjacent properties. In short, the proposed relocation of this previously-approved turbine presents significant environmental benefits, both to the state in the form of renewable energy and to the local area in the form of protection of local environmental resources.”
Headed for court?
But Gianquinto said: “I think this is something that every citizen who owns property, and every member of the public, should be concerned about – because if this is not a substantial change that requires filing a new petition, then nothing is.”
“If the siting council can do this with wind turbines,” it can also do this with telecommunications towers and solar energy farms and power plants, she said. “It can turn around and approve it in this backdoor process, where there is no public participation and no avenue of appeal.”
Gianquinto is representing not only the Golds, but also other neighbors and FairWindCT, a citizens’ group that advocates for safety in wind projects. She said within weeks she plans to request a declaratory ruling from the siting council challenging its authority to approve the BNE modification. If the council shoots that down, which she called likely, then she said she can appeal in state Superior Court.
In an unsuccessful request for the Golds be to granted “party status” in the BNE matter, Gianquinto said her clients contend that ‘[t]his is a proposal for a turbine to be located on two new properties, to be accessed by a brand-new road, to abut new residential properties and a new town, and to include … a much taller turbine manufactured by a different company and capable of generating more energy.
“An objective comparison between the turbine project originally approved by the Council and the turbine project described in the ‘modification’ confirms that it is a new project at its core” – and “labeling it a ‘modification’ cannot obscure that conclusion.”
“It seems like they are bending over backwards to approve this project without taking into consideration the reasonable concerns that have been presented to them,” Julia Gold told Government Watch.
Bachman responded in an email: “Of the 6 letters of concern received on the D&M Plan Modification, each concern is fully addressed in the Staff Report – applicability of the wind regulations, concerns about Beckley Bog, vernal pools, noise, setbacks, visibility, water quality and lighting.”
Others who objected to the BNE request included the town of Colebrook and Keith Ainsworth, attorney for The Nature Conservancy’s Connecticut chapter.
Ainsworth emailed Bachman March 17, 11 days after she approved BNE’s request, to say the conservancy “is particularly concerned about the precedent that this procedural irregularity might set for other dockets and petitions.” He asked if the siting council would consider “issuing a statement that this particular docket was unique and that the Council does not consider it as precedent for future applicants[,] so that this ‘adding-land-and-moving-approved-facilities-onto-it’ maneuver does not become a practice that limits public participation into the future.”
Bachman replied a day later, saying she found Ainsworth’s statement “rather peculiar … for two reasons. First, the characterization as ‘precedent’ and a ‘procedural irregularity’ is misplaced. … Second, if one sought to modify a rule of general applicability, such as a regulatory provision that allows a change in structure type or location for any energy facility approved by the Council, a petition for a declaratory ruling as to the validity and/or applicability of the regulation could be submitted to the agency with cognizance over the subject matter of the regulation. … In its discretion, the agency may initiate regulation-making proceedings on the subject. Regulation-making proceedings involve public participation.”
BNE Eneergy’s president and CEO is Greg Zupkus, who’s married to state Rep. Lezlye Zupkus, R-Prospect. Its chairman is Paul Corey, former executive director of the Connecticut Department of Public Utility Control (DPUC), now the Public Utilities Regulatory Authority. Corey also served about two decades ago as chairman of the Connecticut Lottery Corp’s board of directors. In 2001 he and his wife, Christine Corey, gave then-Gov. John G. Rowland a hot tub that later made news when Rowland falsely claimed he’d bought it himself. Christine Corey was Rowland’s executive assistant.
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