Neighbors of proposed turbine file suit

By Lynne Hendricks
Correspondent

September 11, 2008 03:58 am

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NEWBURYPIORT ¬— Erecting the city's first 600-kilowatt wind turbine just got a little tougher for Mark Richey Woodworking of Parker Street, as two neighbors living in the vicinity of his proposed turbine site have filed a complaint with Essex County Superior Court to overturn an Aug. 13 Zoning Board of Appeals decision granting a special permit for the turbine construction project.

According to Newburyport's newly adopted ordinance governing wind turbines, residents have 20 days from the date of permit issuance to file complaint. Plaintiffs Scott and Caroline Blackman of 16¬½ Hill St., and Daniel and Sheila Twomey of 16 Hill St., submitted theirs on Sept. 5, saying procedural protocol was not followed by the applicants and therefore the application should have been denied.

Foremost among several complaints, the Blackmans and Twomeys contend Richey neglected to file public notice of a July balloon test intended to demonstrate to residents and interested parties the height of the future turbine. Advertising of the testing date is not required by state law, but is a requirement written into the City Council's newly adopted wind turbine ordinance. Richey said yesterday the public notice of the balloon test was something he thought had been carried out by the city, but it was becoming clear there was no record that such a notice was published.

"It was certainly our intention, and our lawyer Lisa Mead was explicit," Richey said. "City Hall had responded they would take care of it. We assumed it would happen."

Since Richey's proposal represents the first special permit of its kind to be granted by the ZBA under the ordinance, Planning and Zoning Department Administrator Emily McCourt said this procedural step may have been missed as the test date drew near.

"It was a new ordinance, so the process was different than all our other applications," McCourt said. "That may have played into it. It's not a state requirement, but our local ordinance requires that extra advertisement."

Mark Richey did say notification was sent out to the Zoning Board of Appeals, and abutters of his Industrial Park property, and he clarified the residents lodging the appeal are not legal abutters though their properties are located near the proposed site. He and ZBA Chairman Edward Ramsdell feel the spirit of the notification requirement may have been met regardless, especially in the case of the plaintiffs.

"One of the tests is, whether or not individuals received sufficient notice," Ramsdell said. "Were they notified? I think it seems to me some of the people in that suit were at the hearings prior to the balloon test, where the balloon test was announced, and in fact came to the hearing with photographs of the balloon test. If they were at the meeting before, where it was announced, and they came to the meeting afterward with photographs of it, it would seem they had notification. But I'm not the courts. That's what the appeals process is for."

Richey and his team were originally shooting to complete the turbine project by December, and he still hopes to meet that deadline. Written into the city's turbine ordinance is the right of the permit holder to proceed, realizing the risk of not winning the appeal.

"We certainly hope to stay on track with the project," Richey said. "We have the option to build at risk, which we may choose to do. We might just keep going."

The complainants cite as grounds for ZBA reversal several issues beyond the absence of public notification, such as the flashing red beacon light required by FAA for structures of significant height, the "flicker" phenomenon sometimes created on abutting properties that coincide with certain weather conditions, and the visual impact the turbine would have on the surrounding community.

"Plaintiffs submit that their property values will be negatively affected by the adverse impact of this wind turbine on the visual character of their neighborhood," reads the civil complaint.

Having considered the above complaints, the plaintiffs contend Newburyport's ZBA issued the permit without considering "the adverse impact of the wind turbine on the visual character of the plaintiff's neighborhood."

Ramsdell disagrees with that assertion.

"Obviously I think it was a vetted decision," Ramsdell said. "I think the decision was well done and well founded — that's my opinion. But they have a perfect right to appeal — that's how the system is set up."

For his part Richey said there are a number of avenues he's considering at this point, including holding another balloon test if necessary.

"(The test) in itself is not a huge issue," Richey said. "If we had to, we'd perhaps do the balloon test again."

It's Richey's plan to make his woodworking business completely energy self-sufficient, and he is prepared to accomplish that at whatever cost.

"We'll fight to the end," he said. "We're well within the zoning ordinances which were written for the city. We did all our homework and all our studies, and did everything correct. But it's an appeal and you have to deal with it."