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Wednesday, June 5, 2013

Dueling experts, dueling lawyers and one surprise

Whalerock Zoning Board hearing, Part Deux
LeBlanc tells the ZBR he will pull the application if there's science showing
anyone will be hurt by Whalerock
By Will Collette

The second Act in Charlestown’s summer stock theatre run of the play entitled “Whalerock: Threat or Menace” is done. There will be at least two more acts and probably more. Tonight, the Zoning Board of Review (ZBR) only heard two witnesses, but at the very start of the hearing, there was a surprise witness.

That was Whalerock’s owner, developer Larry LeBlanc. 

In an emotional ten minute sworn statement, LeBlanc acknowledged “there is a concern among my friends and neighbors” about the health and safety issues that have been raised about the Whalerock project, which consists of two, 410 foot tall industrial wind turbines that would be sited right off Route One near King’s Factory Road.

LeBlanc explained that he was asked by the town to create this project in 2008 as Charlestown’s part of the national effort to reduce the use of fossil fuels. He said the town asked him to do it, went into partnership with him and wrote a town ordinance to expedite the project.

He nodded at Town Solicitor Peter Ruggiero and noted that Ruggiero was part of that process and actually wrote the ordinance and defended it in court, only to switch positions after a new Council was elected in 2010.

“I tried to do the right thing,” he said, adding that he spent two years studying the technology and hundreds of thousands of dollars in developing the project.

But all that said, LeBlanc said “to every member of this audience I pledge I will continue with this process until everyone of you has had a chance to have your concerns addressed.” Further, he said,I pledge that if the project is unsafe, I will withdraw it….But the science has to be there.”

He said, “I have the one vote it takes to withdraw this application.”

The crowd for Part Deux was hushed until LeBlanc’s lawyer Nick Gorham stood to resume the presentation of Whalerock's case.

Let me take a step or two back and make this observation: the remainder of this installment of the Whalerock ZBR series was the worst case type of public hearing to watch. After LeBlanc’s surprise testimony, the hearing devolved into two witnesses giving dueling testimony and evidence and two lawyers grandstanding with objections and counter-objections.

When I used to advise NIMBY groups on how to block undesirable facilities, such as dumps, incinerators, mines, chemical plants, etc. I always advised them to avoid letting the fight degenerate into dueling experts/dueling lawyers. The same thing happened in Part 1.

Smaller crowd this time.
It’s already taking its toll on the Whalerock opposition. The crowd for Part Deux was about one-third smaller than the big and rowdy crowd that showed up for the premiere on May 21st. I figure the count at around 200 – still pretty good, but a noticeable decline.

After the ZBR called a half-hour long 10 minute recess at 8:30, less than a hundred people remained and people kept getting up to leave  as the dueling continued.

For Part Deux, Nick Gorham went to great lengths to avoid challenges to his witness’s credentials by the town's lawyers. He presented Christopher Menge, a senior VP with Harris, Miller, Miller and Hanson, and the author of the original 2010 sound study commissioned by Larry LeBlanc in 2010.

Christopher Menge (from his
LinkedIn profile)
Menge did a competent job of presenting the findings from 2010, complete with lots of charts and graphs I didn’t understand. The gist of his presentation was that according to the data he collected, the Whalerock turbines will generally not be louder than the normal background noise at every abutting property line, except maybe for a couple of properties. He noted that people usually don't notice changes in sound unless it exceeds 5 decibels above background.

Joe Dolock’s home would be one of them where there might be a difference of up to 5 decibels bringing to sound up to around 43 decibels which is audible, but well below the 50 decibel level specified in the Charlestown wind ordinance applicable to the project. Joe stood up to point out that the sound samples done near his property line were done on a Labor Day weekend which is, as we all know, a time when background noise near Route One is at its worst.

Menge presented a lot of information, which I will not attempt to recap since by no stretch of the imagination am I a technical expert.

He did stress that when he programmed variables into his analysis he used the most conservative factors to provide an extra margin of safety. For example, his calculations assumed there were no trees and the ground was rock-hard.

Then the hearing started getting weird.

ZBR member Ron Crosson took the mic to ask a question. But instead of asking a question, he read summaries of four “studies” he said he "read on the internet." One was actually an op-ed. Another was the study by pediatrician Nina Pierpoint that was debunked by the Massachusetts Departments of Environmental Protection and Public Health. Another was a report by a D.J. Hall that seemed to say the opposite of what Crosson intended which was that there are no peer-reviewed studies on the health effects of infrasound.

Attorney Gorham objected, saying that Crosson wasn’t asking a question but was giving testimony against Whalerock himself and that was not proper conduct for a ZBR member.

ZBR Chair Mike Rzewuski made one of the many peculiar rulings of the night by dismissing Gorham’s objection and request to strike Crosson’s “testimony” from the record.

An aside: there seem to me to be so many errors being made – no rulings by the chair, bad rulings by the chair, the chair’s inability or unwillingness to control the audience outbursts and pretty clear bias – that this case is ripe for challenge and a ruling against the town. From the remarks of members, it seems probable the ZBR will turn down Whalerock’s application. The ZBR must vote 4 to 1 to approve and I count two members as definite NO votes - Rzewuski and Crosson, and Ray Dreczko, will probably vote NO. 

I wish the ZBR would get its act together because rejecting Whalerock's application for the wrong reasons and with tons of procedural errors will bite us in the ass. Maybe it’s too late to clean up the process since the record of these two hearing installments is what it is. Ultimately, I believe the town will have to rely on reaching a reasonable deal with LeBlanc – something that should have been done a year or two ago, to buy the land for open space.

Now, back to the hearing....Menge tried to patiently address Crosson’s “testimony” point by point, but by this point, the crowd was clearly a factor.

Then the town’s $50,000 Special Counsel John Mancini started to heavily engage Gorham in wide ranging procedural arguments over who should or could speak and who couldn’t.

RI Superior Court Justice Kristin Rodgers
Gorham repeated, for the record, his objection to the town’s participation in the case since Judge Kristin Rodgers had already ruled that the town of Charlestown lacked standing to do so

Mancini offered the remarkable rejoinder that he was simply exercising his free speech rights as a concerned citizen, as guaranteed by the First Amendment of the US Constitution. Yeah, right, for which we pay him $275 an hour, but the crowd gave him a standing “O.”

The judge that gets this case will get a big laugh out of that one.

Mancini also cracked wise later in the hearing when Chair Rzewuski asked him a question and Mancini got cute and said he couldn’t hear him and pointed to the ceiling fan immediately overhead. The crowd laughed, but that drew a rare rebuke from Rzewuski.

Side note: Mancini said nothing, not a peep, about his unnamed abutter clients that he featured in the first hearing. I don’t know if he was told not to ever say anything about that again, because of the potential ethical problems, or if it was just circumstance. Gorham didn’t bring it up either perhaps because he too, as I noted in this article, has his own conflict of interest issues in this case.

Mancini insisted that he should present a rebuttal witness at this point, to which Gorham not only objected based on Judge Rodger’s ruling on the town’s standing, but also on the mutually agreed procedure that Whalerock would have the chance to present its case uninterrupted. But again, Rzewuski ruled against Whalerock and allowed Mancini to continue.  

From the cover of Ambrose's report on
the Falmouth turbines. That's his car.
Mancini introduced his rebuttal witness, Stephen Ambrose of Maine. I can’t really do justice to Ambrose’s presentation other than to say it was more along the lines of anti-science. Ambrose disparaged scientific measurement and data collection, saying that his approach was to experience the physical phenomenon of noise from various industrial sites “as the neighbors perceive it.”

For that, he relies on going to a site and seeing what physical effects it has on his own body and mind. Suffice to say that he seems to have never met a wind turbine that didn't make him sick.

There was a pretty heated argument before Ambrose was accepted as an expert witness because of his limited academic credentials and scope. Ray Dreczko in particular felt that Ambrose did not measure up to the usual standards the ZBR required, but his colleagues outvoted him to accept Ambrose as an expert. That's another decision that may come back to bite them.

Ambrose told the story about how he and a colleague spend a couple of days in a house 1700 feet from the infamous Falmouth turbines and how he immediately felt ill and impaired, but that when he and his buddy went to breakfast four miles away, they felt better.

It was all due to the infrasound. At this point, Gorham couldn’t contain himself anymore and objected to Ambrose’s entire testimony, saying this was anecdote, not science. And besides, Ambrose himself admitted he was not an expert in infrasound.

Because Ambrose also said that the town’s ordinance that set a 50 decibel limit at the nearest abutting property line was wrong. Gorham noted that this is a town-paid witness coming in to say that the town’s ordinance – which is the legal standard upon which the ZBR’s decision must be based – is wrong.

Gorham wanted the testimony struck. Rzewuski did not agree. Ambrose finished his testimony such as it was, and will probably be called back at a future date to be cross-examined.

The next installment, Part Three, will be held on June 19.

Because this hearing was held in the Charlestown Elementary School, there was no live-streaming Clerkbase video. Ever reliable Ray Dussault videoed the meeting and will give the DVD to Town Clerk Amy Weinreich to upload so that you can watch it later in the week.

Sorry for the inevitable typos that result from dashing back at the end of the hearing to get this written and on-line for the midnight deadline. I will update and correct errata over the next couple of days as I gather more information and get feedback from readers.