Judge Limits Wind Turbine
Posted in the Milton Forum
#1 Feb 8, 2013
filed: February 7, 2013 Massachusetts
Judge limits turbine
Credit: By Laura Griffin, Milton Times Staff ~~
"Miltons wind turbine plans hit a major snag this past week when Judge Gordon Doerfer officially ordered that the proposed turbine be shut down during golfing hours for the seven and a half months from April 1 through Nov. 15.
Judge Doerfer referred to the towns legal obligations to its lease-holder, Quarry Hills Associates, and the operation of Granite Links Golf Course, a professional golf course, throughout his 27-page binding arbitration decision issued Jan. 31.
I am satisfied by a fair preponderance of the evidence that the operation of the wind turbine would present a significant distraction to the play of golf on the holes most proximate to it, namely 4, 5, 6 and 7, declared Judge Doerfer in his decision.
As a result, Judge Doerfer ordered a specific schedule protecting golf-play hours and limiting turbine operation to hours of darkness from April 1 through Nov. 15. His order allows turbine operation 24-hours a day from Nov. 16 through March 31. Neither Selectmen Chairman Thomas Hurley nor Town Counsel John Flynn issued a statement on the judges decision by the Times deadline this week.
However, when the judges draft decision was first issued in October, Hurley said that town officials would review the decision and assess the financial impact of limited operation.
Flynn represented the town in the arbitration procedure; Jeffrey Tocchio of Hinghams Drohan Tocchio & Morgan, PC, represented QHA.
In an emailed statement, Tocchio said,The arbitration process was very positive and professional, and we are pleased that both positions were fully presented and considered by the arbitrator.
Town officials originally planned the construction of a wind turbine on town land at the former landfill near the border of the Quarry Hills Golf Course and in 2010 authorized a $6 million borrowing for the project."
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#2 Feb 8, 2013
"However, QHA challenged that plan in Norfolk Superior Court, charging the turbine would violate terms of their 50-year lease with Milton for the adjacent property, which now sports eight holes of the 27-hole golf course.
Since the dispute involved terms of the lease, the court ordered the case be decided by binding arbitration. Both sides agreed to the choice of Judge Doerfer who determined that QHA had no claim regarding aesthetics, but the noise of the turbine was an impediment to a professional golf course.
Thats going to make it economically tough to operate, said Shaun Pandit when asked to comment on the decision. Pandit is a member of the towns Wind Energy Committee and a consultant in green energy. His firm, Early Bird Power, recently negotiated a major solar energy project for Cape Cod Hospital.
Pandit described the decision as unfortunate and said the committee has not met since word of the judges draft decision was publicized in November. The committees chairman Richard Kleiman resigned in October for personal reasons.
Daryl Warner, Matthew Cammack, and Kevin Chase also serve on the committee, which worked on the project for more than four years.
The arbitration process involved seven days of testimony by 15 witnesses and a review of 70 exhibits.
Here the threat posed from the noise and motion of the turbine is a threat to the character or value of the leased premises, concluded Judge Doerfer.
In his decision, Judge Doerfer also described several unusual steps by which the town approved the turbine project. He cited the towns creation of a wind turbine overlay district.
Judge Doerfer noted that the creation of the overlay district eliminated the requirement for a review process and prevented abutters from voicing objections.
In September, 2010, Town Meeting approved the proposed Industrial Turbine on Town-owned land as of right, noted Judge Doerfer who added,This circumvented all of the controls that a developer normally has to fulfill.
The judge also addressed the eminent domain landtaking for an access road that was authorized last year by Town Meeting vote. He stated,It is clear that no taking is authorized or created under terms of the Lease.
However, Judge Doerfer declined to rule on the land-taking issue, stating the question was not a part of the claims before him. Neither party was awarded damages, costs or attorney fees.
Judge Doerfer discounted the towns contention that the turbine noise would be no more of a distraction than the airplane noise currently coursing over the golf course and wrote the following:I am satisfied from the testimony that the distraction presented by such aircraft is not comparable to the distraction that would be presented by the sound and motion of the wind turbine blades when in operation at the location above.
Judge Doerfer described the proposed wind turbine as 410 feet tall with blades that, at the tip, would travel at up to 100 mph.
Miltons not alone in hitting detours on wind turbine projects. As the Boston Globes Emily Rooney recently reported, five of the 16 communities in Eastern Massachusetts with working turbines have residents that say the turbines near their homes have caused health problems."
Source: By Laura Griffin, Milton Times Staff
#3 Feb 8, 2013
This is an important -- but bizarre -- decision for all of the following reasons:
1. The court found that the flicker and the noise from the wind turbine would definitely disrupt the use of the golf course and that the noise would be significantly disruptive, and not analogous to an airplane passing overhead. The judge ruled, therefore, that the wind turbine would deprive the owner of the golf course of the reasonable use and enjoyment of the property under their lease.
2. As a result, the judge limited the operation of the wind turbine "to hours of darkness" during the golfing season (but not during the entire year)-- which is precisely when the wind turbine noise is likely to cause the most profound disruption to the lives of the nearby residents through sleep deprivation.
3. The judge found that the nearby residents and abutters seemingly have no right to object to the SAME disruptive impacts of the wind turbines because the town had established a "wind turbine overlay district" and had installed the wind turbine "as of right." According to the ruling, "This circumvented all of the controls that a developer normally has to fulfill" and "eliminated the requirement for a review process and prevented abutters from voicing objections."
[Note that this is precisely what the Brewster Board of Selectmen attempted in 2011, after the Brewster Planning Board denied a "special permit" to CVEC, under the Brewster wind turbine bylaws, for the Brewster Wind project. The Brewster BoS, with CVEC's support, endorsed an article on the warrant for Town Meeting to grant the Brewster BoS the authority to install industrial wind turbines in Brewster in the same location "by right" -- i.e. in the absence of any controls or requirement for review! Brewster citizens rejected this illegitimate, dangerous and offensive initiative and the warrant article failed.]
According to this ruling then:
a) The judge believed that the disruptive impacts from the operation of the wind turbines, through flicker and noise, had been adequately demonstrated and would constitute unreasonable interference for anyone who wished to play a round of golf.
b) The judge ordered that the wind turbines could not be operated during daylight hours -- during golfing season -- because doing so would deprive these golfers of their right to the reasonable use and enjoyment of the facilities.
c) The judge found that the ONLY REASON that these rights were protected was because the golf association had SIGNED A LEASE with the town which protected their rights.
d) The judge found that abutters and residents -- who would naturally suffer from all of the same disruptive influences from the wind turbines -- enjoyed no similar rights because the Town had EXEMPTED itself from all of the customary requirements for review and controls!
How is it possible that a golf course has a legal right to the reasonable use and enjoyment of its property -- because it signed a lease -- but that the residents of the town -- who can be expected to use their property 24 hours a day -- who must try to sleep at night -- who may be subjected to intolerable adverse health impacts -- and who certainly have the same desire and expectation that they should be able to have the same right to the "reasonable use and enjoyment of their property" -- should have no rights at all because the Town simply deprived them of these rights by building the facility "as of right"?
Note also that according to the ruling, the Town was not entitled to acquire an access road through the leased property "by eminent domain" saying that this "taking" of property was not legal under the lease.
#4 Feb 8, 2013
How can it be, therefore, that the Town can compromise and/or destroy the quality of life, the health and well-being and the value of the property of nearby residents -- "as of right" -- without compensation -- but that the only reason it cannot impose the same harsh treatment on the golf course is because of a lease?
Do the residents have no fundamental rights as pre-existing, legitimate stakeholders? Can any Town gain unfettered access to property -- and do unlimited damage to abutters and neighbors -- by simply acquiring the ability to install such industrial facilities "as of right" -- even though a judge concludes that, yes, in fact, the adverse impacts are significant and intolerable -- i.e. INCOMPATIBLE with other uses of the land and the rights of other stakeholders?
I would hope that the abutters and the nearby residents in Milton would run -- not walk -- to the appropriate court house with this ruling in hand, which acknowledges the palpable harm from these installations, to insist upon equal protection under the law.
I would hope that other abutters and residents who live near industrial wind turbines all over the country would the same.
I would hope that residents in MA would run -- not walk -- to their representatives in the MA state house and senate with this ruling in hand to implore them NOT to enact the newly reconstituted Wind Energy Siting Reform Act which would essentially have the effect of allowing the construction of industrial wind turbines AS OF RIGHT -- compliments of a politically remote Siting Council that is politically captive to the Governor -- from one end of Massachusetts to another.
If the latest version of WESRA passes -- and the current version is more onerous than any of the prior versions that have been proposed and defeated -- then golf courses that lease land from municipalities may be protected; but individuals will certainly not be protected.
If WESRA is enacted, individuals and businesses all over Massachusetts will suffer the same fate as the helpless residents of Milton -- the "collateral damage" to the town's industrial wind energy boondoggle that the Town of Milton established "as of right" in order to deprive these residents of their proper rights.
#5 Feb 8, 2013
The Patriot Ledger
Posted Feb 08, 2013 @ 11:06 AM
An arbitration judge has ruled that Miltons proposed wind turbine cant play through at the Granite Links Golf Course.
Retired state appeals court judge Gordon Doerfer said this week that the town must shut down the turbine during daytime hours of the seven-month golfing season at the course, which is mostly in Quincy but includes eight of 27 holes in Milton.
Doerfer told town officials and Quarry Hills Associates, the courses owner that the turbines operation would pose a significant distraction to the play of golf on four holes closest to where the turbine would be erected.
The binding arbitration ends a two-year dispute between the town and Quarry Hills.
He said the turbine could be operated round the clock from Nov. 16 to March 31, but only at nighttime and predawn hours during the April 1-Nov. 15 golf season.
Doerfer ruled that Milton violated taking provisions when Town Meeting voted in 2010 that a turbine could be built on town-owned land as of right. He said that action sidestepped all of the controls that a developer normally has to fulfill.
The dispute began when Milton proposed putting up a turbin on town land near the border of the Quarry Hills Golf Course. The town approved a $6 million loan for the project in 2010.
Quarry Hills Associates took the town to Norfolk Superior Court, saying the turbine would violate the terms of a 50-year lease with Milton for that acreage. A Superior Court judge ordered that the lawsuit be decided by binding arbitration, since the dispute was about lease terms.
Lane Lambert may be reached at [email protected]
Read more: http://www.patriotledger.com/topstories/x1893...
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