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Sunday, August 19, 2012

BREAKING NEWS: Judge dumps Whalerock wind farm lawsuit back in Charlestown’s lap

Irate judge blasts town staff, Zoning Board, citizen plaintiffs and Whalerock for sloppy and incompetent work
By Will Collette

On Thursday, RI District Judge Judith C. Savage issued her long-anticipated ruling in the consolidated case involving developer Larry LeBlanc’s controversial Whalerock wind turbine project that would have placed two huge turbines on the peak of the glacial moraine that runs north and parallel to Route One.

Judge Savage’s 51-page ruling sends the case back to Charlestown to be done properly. Through the 51 pages of her decision, Judge Savage blasts the town of Charlestown, the Zoning Board of Review, Larry LeBlanc’s lawyer and the abutting residents to the land where LeBlanc proposed the wind farm. 

She labels their various filings as incomplete, uncertified, irrelevant and a waste of the court’s time. She blasts the town and the Zoning Board for failing to follow state law and Charlestown Code.

In her words, This Court is appalled at the state of the record…” (page 35). Read the entire decision here.

Unhappy Peeps in Judge Savage's court
This case is the combination of four separately filed lawsuits. Two suits were filed by a group of residents living near the Whalerock proposal. The lead plaintiff in both those cases is Joe Dolock. In one Dolock case, the plaintiffs ask for the Zoning Board of Review’s 2011 decision favorable to Whalerock to be set aside. In the second Dolock case, the plaintiffs ask the court to rule that the Town Council’s 2010 wind ordinance and partnership deal with Whalerock were illegal and thus void.

The Town of Charlestown also sued the Town of Charlestown’s Zoning Board to try to set aside the same ZBR decision that the Dolock plaintiffs challenged.

The fourth lawsuit, filed by Larry LeBlanc and Whalerock, argued that the Town Council acted properly in 2010 to allow Whalerock to go forward, that the town signed off on Whalerock’s paperwork and the ZBR made the right decision to uphold Whalerock’s appeal.

Judge Savage thought all four lawsuits were poorly crafted and failed to meet the legal requirements for documentation and proof.

She singled out the Zoning Board of Review for particular criticism for failing to conduct a proper appeal hearing – at least, that’s what she thinks, based on what she frequently cited as a terrible record of the decision that leaves most of the key facts unproven.

The Town hardly did any better, as Judge Savage tore into them for failing to provide appropriate documentation to support the town’s challenge to the Zoning Board.

She criticized the Dolock plaintiffs and Whalerock as well:
“Whalerock and the Dolock Plaintiffs compounded this problem by submitting a large volume of documents to this Court that appear to be outside of the Zoning Board record. They provided many documents that are not among those documents filed by the Town and may well have not been before the Acting Town Planner or the Building Official in making their decisions or before the Zoning Board in overturning the Building Official‘s decision on appeal. Whalerock supplied the Court with an unofficial transcript of the Zoning Board hearing that may or may not be accurate. These materials cannot serve as the statutorily required certified record for the purpose of this Court‘s review of the underlying Zoning Board decision….In addition, these documents are not even relevant to the other claims and defenses asserted by Whalerock and the Dolock Plaintiffs, which raise purely legal issues. The submission of this volume of material served only to delay this Court‘s review process and obfuscate the issues pending before it in these consolidated cases(pages 38-9).

The Decision

Judge Savage took the four lawsuits that had been consolidated into one case apart so she could dispose of them based on her analysis of the record and the facts.

She ruled that Dolock et al. vs. Charlestown Zoning Board of Review and Charlestown vs. Charlestown Zoning Board of Review are remanded to the Zoning Board of Review. There the issue will have to be “fixed” if it’s fixable. Judge Savage makes no judgment on that because, as she repeatedly stated, the records before her were “appalling.”

Indeed, she called the Zoning Board’s decision in favor of Whalerock to be “devoid of findings of fact and conclusions of law” (page 39).

The second Dolock lawsuit that sought to overturn the Charlestown Town Council 2010 wind ordinance was tossed out as “moot.” Judge Savage noted that when the new Town Council (controlled by the CCA) took over in November 2010, they began to do just what the Dolock defendants wanted – to nullify the actions of the old CCA Town Council. Since the issues Dolock et al. raised no longer exist, this case has no further purpose.

Finally, Judge Savage refused to rule on Whalerock’s cross-claim which argued that the Planning Commission is illegitimate because it is elected, rather than appointed as required by state law, and that the Planning Commission exceeds its authority by acting as a regulatory as opposed to advisory body.

Judge Savage noted that it is not clear from the record before her that the Planning Commission is even a party to the lawsuit, or that there is any action by Planning that is ripe for action by the court. She says that it appears that Whalerock wants her to issue an abstract advisory opinion that would affect what might happen when Whalerock goes before Planning, but that she declines to issue such an opinion. (Pages 47-50).

So the Planning Commission dodges this bullet.

We’ll have more on this case as we get comments from the parties and some expert opinion on the case.

At this early stage, we don’t know what Whalerock, the Dolock plaintiffs, the Town or the Zoning Board will do next.

You can see for yourself in Judge Savage’s decision that the Judge believes that none of the parties to this case got their money’s worth from their lawyers.

The Dolock defendants scored one important win – they set the Whalerock project back. If Larry LeBlanc decides to continue fighting this case, he will have lost precious time and most likely, any hope of access to federal grants and tax breaks. That factor alone could be enough to kill Whalerock, although given the lack of on-shore wind energy at the Whalerock site, the project didn’t seem very practical anyway.

The Town should take a close look at Judge Savage’s decision and do some reflection on the “professionalism” called into question by Judge. Remember that the CCA controlled town government on both sides of the debate – it was a CCA's five Council members that made the 2010 decision that is under challenge by the current CCA Council majority.

I have noted in prior articles on Whalerock that, to me, it is yet another one of Larry LeBlanc’s attempts to force the town to keep its promise to buy the 81-acre prime, undeveloped site. If it’s not Whalerock, then it will be something else that Larry pitches until he forces the town to come to terms.

There is a simple way to end the controversy once and for all, and that’s for Charlestown to make a truly strategic open space acquisition decision and negotiate a fair purchase price with LeBlanc. It’s the one issue where Planning Commissar Ruth Platner and I have publicly agreed. This nightmare must end, and it should end with the town owning that strategic stretch of the moraine forever.

Stay tuned for more on this case.