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Friday, August 31, 2012

What’s next for Whalerock?

Is it alive? Dead? Undead?
By Will Collette

At the August 20 Town Council meeting, the young lawyers filling in for absent Town Solicitor Peter Ruggiero confirmed my initial report that state District Court Judge Judith Savage’s recent court ruling dumped the Whalerock wind turbine project back in Charlestown’s lap. Read the decision here.

All four Whalerock-related lawsuits, which had been lumped together into one case, were rejected by the court, each for a different reason.

But now the spin-doctoring begins on the meaning and story behind these lawsuits, as well as what comes next.

The first big question on most people’s minds is whether this court ruling means that we will get a two-turbine industrial wind project perched on top of the Charlestown moraine any time soon. The answer is no.

The second important question is why didn’t we see a definitive ruling, favoring one side or the other, after so much time and so much spent in attorney’s fees by the town, the private plaintiffs and by Whalerock? Why did the judge dump the controversy back in Charlestown's lap?

Angry Judge Judith Savage thought all the parties in the
Whalerock litigation screwed up
The answer to that question is found in Judge Savage’s scathing criticism of the actions and the cases presented by all of the parties. Never before have I read a court decision where the judge used such sharp language to take all the lawyers for each of the parties to the woodshed for sloppy and unprofessional work.

Besides me, only Chris Keegan of the Westerly Sun covered that aspect of the decision. The accounts from town lawyers at the Council meeting, in the CCA blog, and an Ill-Wind RI memo re-circulated by the Sachem Passage Association all gloss over Judge Savage’s anger at the "appalling" way they presented their evidence and arguments to the court.

I do agree with Mike Chambers, the Voice of the CCA, that Whalerock is almost certainly dead. One thing I learned from working with hundreds of local environmental groups who wanted to block bad projects is that time is on the side of the opponents.

Any project developer must meet a certain timetable  to secure funding, financing and investment capital. If NIMBY opponents can stall a project for long enough, the project will die because that money goes away. I believe this is the case with Whalerock.

Because Judge Savage has remanded the two lawsuits that were aimed at the Charlestown Zoning Board of Review back to the Zoning Board, this costs Whalerock developer Larry LeBlanc time he doesn’t have. The Zoning Board botched its action on LeBlanc’s appeal to them so badly that they may not be able to fix it without starting at Square One.

By the way, I don't blame the Zoning Board so much as I blame the attitude in Charlestown that volunteers are supposed to handle all manner of complex matters with little or no staff support, although sometimes, the volunteer commission members don't follow or don't trust the input they get from staff. 

Any hope, however slim, LeBlanc might have had to line up federal money or investors is probably gone. However, anyone who does due diligence on the project would find the Energy Department’s maps that raise questions about whether there’s enough wind at the site to make a commercial wind farm viable at that site.

Energy Dept wind map for RI south coast. Click to enlarge.
Unless LeBlanc decides to fund this project entirely out of his own pocket, or is driven by sheer stubbornness to keep pushing, I suspect LeBlanc may shift to Plan B, which is to push his pending alternative proposal for an affordable housing project.

LeBlanc has yet more litigation in the pipeline to force the town to allow that alternative plan to go forward.

There are a few points in the post-judgment commentary that warrant some attention.

In the Ill-Wind RI analysis of Judge Savage's decision, forwarded to others by the Sachem Passage Association,  there is this claim: “Judge Savage declined to address Attorney Gorham’s cross-claim challenging the authority of the Planning Commission.  In short, her decision reaffirms their legal status as a duly elected body as opposed to an appointed one.”  

The first half of the claim is true. Judge Savage expressly said she would not address Whalerock’s argument that the Planning Commission is illegitimate because (a) it is elected, not appointed as state law prescribes and (b) the Planning Commission has overstepped its authority by acting as a regulatory body, not as an advisory one, again as prescribed by law. She noted that these were interesting claims, but not germane to the litigation before her.

The second part of the claim is at best, a stretch and, at worst, a deliberate misstatement. Judge Savage said she would not address the claim because it wasn’t clear from either the town’s  or Whalerock's filings before the court whether the Planning Commission is even a party to this case. She also said it appeared to her, based on the mish-mash of material presented to her, that any such claim against the Planning Commission is premature.

Taking a pass on addressing these issues is not the same as reaffirming the Planning Commission’s "legal status as a duly elected body as opposed to an appointed one.”  By declining to rule on the matter, Judge Savage simply allowed the status quo to stand, leaving open the possibility that the question of Planning's legitimacy might be heard in some other case.

The Planning Commission is, as Progressive Charlestown readers know, the epicenter of power for the Charlestown Citizens Alliance (CCA). They certainly cannot admit to any uncertainty about Planning’s status or supremacy.

Since 2008, under CCA rule, the Planning Commission has become the town’s principle legislative body – nearly every ordinance now comes from Planning – as well as the town’s top regulator. These powers are not enumerated in the Town Charter.

Perhaps the misleading statements, one from Maureen Areglado on behalf of Ill-Wind RI and the other by Peter Herstein, President of the Sachem Passage Association, may have to do with their ties to the CCA, since Ron Areglado is a CCA candidate for Town Council and Herstein is a CCA candidate for Planning.

The rub for the CCA in this ruling is that if it lines up with Mike Chambers’ remarks on the CCA blog that Whalerock is dead, they are denied yet another hobgoblin.

The CCA loves its hobgoblins and boogeymen, whether it’s the potential for evil by the Narragansett Tribe, the impending though totally fictitious danger that the federal government might take back Ninigret Park, or in this instance, the fear that Larry LeBlanc might do something nasty in the woods atop the moraine.

So Mike Chambers may have screwed up by telling the truth for once. There's a lesson to be learned in that, Mike – telling the truth has never been a viable election strategy for the CCA. Better to return to slinging your usual unsubstantiated, undocumented cow pies.

With about 70 days to go before the November 6 election, the CCA really needs all the Fear Factor it can muster. Fear has been the driving force behind the CCA for the past six years and, as Charlestown tires of their mismanagement of town government, they’ll need to drum up all the fear they can.

As I noted in my initial review of Judge Savage’s decision, Charlestown needs to do some reflection on the lessons the Whalerock case offers us. The clearest message in Judge Savage’s decision is that Charlestown needs to put its house in order.

She details so many mistakes, so many fundamental flaws in the way we operate and so many botched jobs by people who should know better, that we can’t simply ignore it, as the CCA, Ill Wind and Sachem Passage folks would have us do.

Charlestown likes to run its government on the cheap. Keep the professional staff lean and in their place. Use consultants. Contract out legal work. Rely heavily on volunteers who, however well-meaning and hard-working, are often in over their heads. This recent Whalerock ruling is a reminder that we get what we pay for.

I’m glad Whalerock is dead, or at less moribund. It was a bad project that was never going to work. I doubt LeBlanc ever really intended to build it. I believe it was simply being used as leverage by LeBlanc to get Charlestown to buy his land.

I still think that buying that land for open space is the best course of action. Yes, on this subject, Ruth Platner and I have publicly agreed, and after this decision, maybe we might be able to negotiate a fair deal.

But this whole Whalerock episode exposed much of the worst of Charlestown – the vicious neighbor-vs.-neighbor battles that weren’t remotely “civil,” decisions and deals that were hardly “open and transparent” and performance by all that sure wasn’t very “professional.” And the CCA was in control of both sides of this almost four-year running battle.

And who knows if this one especially nasty battle is truly over?