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Wednesday, November 28, 2012

Déjà vu all over again

Let’s do the Whalerock time warp again
By Will Collette

Developer Larry LeBlanc has refiled his lawsuit against the town of Charlestown and the Planning Commission in the long-running dispute over LeBlanc’s proposed industrial wind farm that would be placed at the top of Charlestown’s moraine between King’s Factory Road and Prosser Trail.

Last August, RI Superior Court Judge Judith Savage angrily rejected all of the lawsuits that had been filed in this controversy and either dismissed them or remanded them back to Charlestown. She ruled that each lawsuit was flawed because either the litigants were sloppy or the case was not timely (one was declared moot and, in LeBlanc’s case, the judge deemed his case to be premature). Click here to read her August ruling.

Judge Savage identified so many mistakes by the town – by the Zoning Board of Review and by the Town itself – that it seemed that Whalerock had been buried alive in error and would no longer trouble the town. But, nope. The Zoning Board of Review reheard Whalerock’s appeal on November 13 (click here to watch and here for the Westerly Sun’s coverage) of the Building Official’s denial of a permit and decided to uphold Whalerock’s appeal.


On November 19, in its first meeting of the new session, the Charlestown Town Council members went straight from their swearing-in ceremony to executive session to discuss what to do about the Zoning Board’s decision. They quickly reported that they decided that Charlestown needed to file suit to block the Zoning Board, setting up yet another Charlestown v. Charlestown lawsuit.


Click here to hear the decision by the Council to sue and click here to read the Westerly Sun coverage.

Now LeBlanc has filed his complaint against the town in Superior Court, raising the same arguments he had raised earlier. Click here to read LeBlanc’s new lawsuit.

In his suit, LeBlanc once again argues that Charlestown’s wind energy ordinance for large wind installations gives the Planning Commission decision-making powers it is not entitled to hold under state law. Under the state’s enabling legislation, according to LeBlanc, the Planning Commission can only serve as an advisory body to the actual permitting authority.

LeBlanc also argues, as he did in his earlier case, that Charlestown’s unique elected Planning Commission is illegal under state law. Charlestown is the only municipality in Rhode Island that elects its planning body. In all other municipalities, the planning board or commission is appointed.

LeBlanc argues that any actions or decisions by the Charlestown Planning Commission are null and void because of these fatal flaws.

When Judge Savage dismissed LeBlanc’s lawsuit, as well as all the other Whalerock suits, last August, she did not rule on the merits of LeBlanc’s argument. She simply noted that because the record was so muddled – largely due to poor legal work by the town – she could not tell for sure whether the Planning Commission had played any active role in the controversy.

I think most Charlestown residents who followed the Whalerock controversy would disagree – it certainly looked to me like Planning, and especially Planning Commissar Ruth Platner, were heavily involved – but Judge Savage’s point was that the actual legal record was too messed up for her to rule on LeBlanc’s case.

At the start of 2011, Whalerock was tied up in court. The Zoning Board had overruled the town Building Official. The Town was suing the Zoning Board. LeBlanc was suing the town. And neighbors of the proposed wind farm site had filed several lawsuits of their own to block the project.

Now, with the filing of LeBlanc’s lawsuit, we are almost back to exactly that point, minus the lawsuits by the residents (so far). Their original lawsuits were consolidated by Judge Savage into one case and then dismissed for being overloaded with so much extraneous material that Judge Savage rebuked the plaintiffs for trying to “obfuscate” the judicial process. If the residents decide to spend another boatload of money to file their own lawsuits, we’ll then have the exact same nerve-racking gridlock we had two years ago. 

Unless we do it to music....