Neighbors escalate legal fight against 646-foot wind turbine approved without public hearing 

One of BNE Energy’s two wind turbine towers off Flagg Hill Road in Colebrook (Jon Lender / Hartford Courant)

Neighbors of a proposed 646-foot-tall wind turbine on a northwestern Connecticut hilltop are escalating their legal fight against the project they claim is dangerously close to them and was unlawfully approved by the Connecticut Siting Council in March.

Property owners and environmental activists filed a formal petition Monday with the council seeking a “declaratory ruling” under which the agency would, in effect, admit it acted illegally in March – when, without a public hearing, it approved a request from BNE Energy to expand its existing wind farm in Colebrook onto an adjacent property.

The petitioners’ lawyer expects to lose, but says this is a way of getting her clients the full evidentiary hearing they’ve been denied so far by the siting council.

This hearing, however, would be in front of a state Superior Court judge.

“This petition is the first step in trying to correct the siting council’s gross overreach of its authority,” said Emily Gianquinto, the Hartford-based attorney representing two families and the environmental group FairWindCT.

“It’s truly disappointing that my clients have been forced to spend significant amounts of money on legal fees, filing fees and an environmental survey, all to fight a project that should have been rejected out of hand based on the council’s clear lack of jurisdiction and on the very obvious due process issues,” she said.

In a March 6 decision, siting council Executive Director Melanie Bachman approved BNE’s request to build a wind turbine, with blades reaching 646 feet above the ground, on new land comprising two adjacent parcels that weren’t part of the original wind farm plan that the council approved in 2011.

The new turbine would be much taller than the two already operating on the existing site. The neighbors say the new turbine – and the new land BNE doesn’t own, but only has options to buy – represent such big changes that they should have been treated as an entirely new project, subject to a full-blown public hearing, not merely as an adjustment to a 2011 decision.

By handling it as a 2011 matter instead of as a new proposal, they say the council enabled BNE to bypass new state wind regulations, adopted in 2014, that wouldn’t permit the new turbine where it’s now proposed.

“It just seems like the siting council has bent over backwards to approve whatever has been brought before them by BNE,” said FairWindCT President Joyce Hemingson of Colebrook.

Developers’ lawyer replies

BNE’s lawyer disagreed Thursday. “We have reviewed the petition filed by Ms. Gianquinto, and we have several fundamental disagreements with the contents of that filing,” Lee Hoffman, an attorney from the Hartford firm Pullman & Comley, said in an email to The Courant.

“Contrary to what the petition states, Ms. Gianquinto’s clients were given adequate notice and a chance to participate in the siting council’s proceedings,” Hoffman said.

Gianquinto and her clients also are citing a report by an environmental consulting firm they hired, which found that “BNE did not complete or verify its wetlands delineation or conduct on-site surveys for vernal pools or wildlife,” the petition said.

Hoffman responded: “To the extent that they wanted to bring additional environmental information before the siting council regarding BNE’s filings, they should have done so in response to those filings. They did not.”

“In addition, we disagree with the petition’s assertions that the proposed modifications will cause environmental harm,” Hoffman said. “Indeed, BNE is making these modifications, in part, to improve the environment.” BNE has said that the access road to the third turbine, in its new location, would reduce the effect on a wetland area by 45%.

Gianquinto and her clients say that the siting council’s deliberations earlier this year limited the opposition efforts of people who own properties bordering the land into which the wind farm would expand. Through Gianquinto, they requested legal status as intervening parties to the BNE modification request, but were denied that.

“I want to emphasize how important due process is,” said one of Gianquinto’s clients, Julia Gold. She says the third tower would be “looming over us” at the hilltop house and barn she and her husband, Jonathan, bought two years ago on 50 wooded acres straddling Norfolk and Winchester. The third turbine would be 321 feet away from one of their property’s borders.

“We needed to be able to ask reasonable questions and be given reasonable answers,” she said, but, without a full hearing, “we were denied that process.”

From the Golds’ house in Norfolk, one can look toward the nearby town line of Colebrook and see the tops of the two wind turbines whose blades have been turning since 2015 above BNE Energy’s Wind Colebrook South generating site. They’re the only utility-grade wind turbines in the state.

The Golds knew when they bought their property that BNE eventually would build a third tower, but had read the siting council’s 2011 decision approving three wind turbines on the company’s 79-acre site. “We were comfortable with that,” Julia Gold said, because the plans showed the third tower would be no closer than what’s already there.

But that changed in January, when BNE submitted 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” – whose center hub would be 322 feet above ground, with blades reaching a maximum height of 646 feet.

The surprise was that it wasn’t to be constructed at its originally approved location, but instead on 37 acres (comprising the two land parcels now under purchase options) abutting the southern border of BNE’s existing site, and bordering on the Golds’ land.

Julia Gold says constructing the turbine so close will spoil what’s become a weekend and summer haven for the Massachusetts couple and their two sons, ages 8 and 4. The secluded outdoor setting especially benefits the older boy, Neko, who is deaf and “severely on the autism spectrum,” she says.

Ticket into court

Under state procedures, the siting council’s March 6 approval of the modification to the 2011 plan wasn’t directly appealable to court.

But a denial by the council of Monday’s new petition would be a ticket into Superior Court, where state law says appeals of adverse administrative rulings, such as this one, must be filed. Gianquinto said she could file a lawsuit in hopes of reversing the council’s decision, and the judge would hear witnesses’ testimony and view detailed evidence.

So, in effect, Monday’s filing of the new petition is an early procedural maneuver in a what could become a lengthy legal battle.

The council has 180 days to make a decision on Monday’s new petition, and a court appeal could stretch out much longer than that.

Construction of the third turbine has not begun. A number of conditions were set in the council’s March approval that would first have to be met, and extended litigation could delay the project further.

Although the siting council isn’t among the best-known state agencies, it wields strong statewide authority to approve energy and telecommunications projects in municipalities without having to abide by local zoning. It was created in 1972 by legislators who were convinced that town-by-town restrictions were stalling expansion of the region’s electric grid.

However, such broad discretion to override local restrictions has led town officials and residents to complain, as is being claimed in this case, that they’re being stepped on.

“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,” Gianquinto said in April.

On Thursday, she said: “I can only hope that our legislature will finally take a real, hard, look at the fundamental problems with the way the siting council operates, including the serious barriers to public participation it has put in place, and work to fix the situation, as it started to do when it required the passage of [the 2014] regulations specific to wind turbines.”

Gianquinto represents three petitioners who are seeking the new declaratory ruling: FairWindCT; the Golds; and three local property-owning siblings who call themselves the Grant Swamp Group. One of the three, Adair Mali, signed Monday’s petition for the others.

The president and CEO of BNE Energy is Greg Zupkus, who’s married to state Rep. Lezlye Zupkus, R-Prospect. BNE’s chairman, Paul Corey, is a former executive director of the Connecticut Department of Public Utility Control (DPUC), now the Public Utilities Regulatory Authority. In 2001, Corey and his wife, Christine Corey, gave then-Gov. John G. Rowland a hot tub that made news later when Rowland falsely claimed he’d bought it himself. Christine Corey was Rowland’s executive assistant.