SouthCoast wind needs town permission, officials say 

SouthCoast Wind must jump through various federal, state and local hoops before making a cable landfall in Falmouth Heights. At the town level, it must win support for an override of Article 97 of the state constitution, which protects public lands.

For months residents have been speculating as to what degree the company can bypass local authorities and bylaws. Can the company get a “carte blanche waiver” from the state to proceed regardless of how the town feels?

But there is no question in SouthCoast’s mind. “The SouthCoast Wind Falmouth Interconnection project can not proceed as planned without local support of Article 97,” SouthCoast Director of External Affairs Daniel Hubbard wrote in an email last week. And Falmouth’s state legislators concur.

SouthCoast Wind plans to construct a 2,400-megawatt wind farm spanning 127,000 acres of federal waters south of Martha’s Vineyard. It wants to bring half the electricity—enough to power 800,000 homes—ashore in Falmouth Heights.

SouthCoast’s preferred landfall sites are Worcester Avenue and Central Park via Falmouth Heights Beach. Mr. Hubbard said both Worcester Avenue and Falmouth Heights Beach are protected by Article 97.

SouthCoast Wind has applied for exemptions to many of Falmouth’s local zoning bylaws with the Massachusetts Department of Public Utilities. However, the company still needs the town’s approval to move forward because of Article 97 of the state constitution.

Article 97 preserves scenic, historical, natural land and space as an established, public right to a clean environment. Parks, coastlines and other land parcels owned by the state, cities, and towns of the commonwealth can fall under Article 97 protection to conserve natural resources.

The only way to override Article 97 is by a two-thirds roll call vote in both chambers of the state Legislature, according to officials from the Office of Energy and Environmental Affairs. “That happens with some regularity,” an energy affairs official told the Enterprise in a phone call last Thursday, March 9.

But no state representative would bring that request to the Legislature without the town’s say-so. Representative David Vieira (R-Falmouth) said all requests to override Article 97 land protections start with the owner of the parcel, in this case, the Town of Falmouth. The override request would be classified as a “home rule petition.”

Mr. Vieira said either the town might vote on a home rule petition at Town Meeting, or the select board could file the petition. A home rule petition, defined under the Home Rule Amendment, Section 8A of Massachusetts General Law, is filed or authorized by voters, such as Town Meeting, or a legislative body, like the select board.

“My job is to pass it on on behalf of the town,” Mr. Vieira told the Enterprise on Monday, March 13.

Mr. Vieira said, to the best of his knowledge, the select board cannot file a home rule petition to the state Legislature without approval at Town Meeting. A home rule petition can be approved with a simple majority.

State Representative Dylan Fernandes and Senator Susan Moran were both uncertain if it would be the select board or Town Meeting to file the home rule petition. But they agreed: the request must come from the town. Rep. Fernandes said on Tuesday, March 14, that representatives must receive a request on an official town letterhead with a raised seal. That request would introduce a bill on behalf of the town.

The state energy and environmental office said approving an Article 97 override proceeds like any other bill; the request is filed by representatives of the town, which then prompts a public hearing before it is sent to both the House and the Senate. It can only be approved by a two-thirds majority.

Article 97 override bills “follow the normal legislative process,” the official told the Enterprise. “There is nothing different about them.”

Each bill has limits and any request for an Article 97 override would have parameters on which parcel is losing its protection and for what purpose, according to the state official. And any land that loses Article 97 protection must either be replaced with a new, protected parcel, or, in some cases, developers can “replace” the land by financially compensating the owner.

Town Counsel Maura O’Keefe wrote in a public memo on June 8 that even the Energy Facilities Siting Board, one of the primary permitting authorities for SouthCoast’s project, cannot override the town “if a proposed article to grant an easement over Town land fails to pass at Town Meeting, for example.” (On Monday, March 13, Town counsel declined to comment on the town’s legal position with respect to SouthCoast Wind.)

SouthCoast Wind wrote to the town in February that it “must and will work with the town with respect to Article 97.” Mr. Hubbard clarified recently what that meant. “When we say [that], it’s in recognition that the process is unlikely to move to the Legislature without the local community support,” he said. “If a town votes against a proposal there is no reason for a local legislator to file a bill for passage.”

Mr. Hubbard said SouthCoast plans to engage with town leaders and residents, answer questions and provide updates as often as possible. SouthCoast Wind met with several members of the community, including potential future abutters to its planned project area, in an energy committee meeting on Wednesday, March 15.

The select board voted to deny SouthCoast Wind (then called Mayflower Wind) continued access to town property for soil and engineering testing that would have gathered more detailed data for the project, first on December 19 and then again on February 27. Board members cited a lack of transparency, engagement, and communication with SouthCoast Wind representatives, among other concerns, as their reasons for denying the developer access.

The board publicly maintains it has not taken an official stance on SouthCoast’s proposed project.

“We understand there has been some frustration with the stop and start nature of the project,” Mr. Hubbard wrote. His email said challenges throughout arranging grid connection and regulatory procedures have made it necessary for the company to “pause occasionally” to perform research.

Mr. Hubbard said the developer will begin seeking permission to override Article 97 once SouthCoast refiles with the EFSB and has laid out a project schedule.

In the meantime, Town Meeting is being asked this April, through a citizen’s petition, to overturn the select board’s denial of SouthCoast Wind’s request to gather data on town land.

Massachusetts voters approved Article 97 as an amendment to the state Constitution in 1972.

Editor’s Note: An hour before our pages went to press, Falmouth Town Counsel Maura E. O’Keefe returned our request for specific comment on which town lands in Falmouth Heights have Article 97 protection. She said she has “not conducted sufficient research into the title for either parcel” to make a determination. “Either parcel” refers to SouthCoast Wind’s two proposed cable landfall sites, Central Park and the green space in the center of Worcester Avenue. Landing at either location would require passing under Falmouth Heights Beach, and SouthCoast Wind maintains that its research shows Falmouth Heights Beach is protected under Article 97.

Ms. O’Keefe wrote that, “Article 97 protects land that is taken or acquired by the Town for ‘conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources.’ MA Const. Amend. Art. 97.” She continued, “If it can be determined that the Town took possession of the parcels for the purpose of promoting any of these dedicated purposes, then the land would likely enjoy the protections of Article 97.” It seems highly likely that the town acquired Falmouth Heights Beach and those two parklands for the conservation, development and use of their natural resources.