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.
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| 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.