UPDATED: Arrrrr! Thar She Blows!

Night #1 of a series of Whalerock Zoning Board meetings

I estimate that more than 400 people were there at the start

By Will Collette

I confess: I left at 9 PM when Zoning Board of Review (ZBR) chair Mike Rzewuski called a recess. By that time, about three-quarters of the 400+ people who came out for this hearing had also left. I decided, for reasons that will become clear as you read on, that it was better to zip out of the hearing to write this article than to stay for Act I’s closing curtain.

Based on the mountain of testimony ahead, this process is going to extend well into June. The ZBR has already set dates for two more meetings on Whalerock’s application for a Special Use Permit for its two 410-foot high wind turbines which will overlook Route One. Those dates are June 5 and June 19. UPDATE: as it turns out, the Westerly Sun reported that the hearing was halted for the evening before the Whalerock team could complete its presentation.

Let me give you the good news first. Here is the reason why I am more convinced than ever that the Whalerock turbines will not be built: according to Michael Carlino, developer Larry LeBlanc’s son-in-law and partner who testified as Whalerock’s “Project Supervisor,” the turbines will cost “$4 million each” to construct and they are “not using public funds.”

Further, in response to questions from the ZBR, Whalerock lawyer Nick Gorham admitted that Whalerock did not have a contract to sell the electricity to National Grid and in fact, National Grid will not talk to them. Gorham said this is standard, that utilities won’t discuss power sales contracts until projects have gotten completely approved.

Whalerock lawyer Nick Gorham doing the schmooze before the start of the
ZBR meeting. Behind and left, ZBR Chair Mike Rzewuski and right,
vice-chair Ray Dreczko

Gorham admitted that this makes it difficult for Whalerock to make an accurate projection of how much revenue Whalerock will generate. Given the US Energy Department and URI wind data, Whalerock’s site is, at best, marginal for the financial viability of an industrial wind turbine project anyway.

How Whalerock will manage to borrow $8 million for the two turbines from banks or investors without being able to calculate its likely income strikes me as problematic.

One point I haven't heard anyone ask or answer is exactly how will Whalerock deliver its energy to National Grid? If it gets a contract, there will have to be some new cables and transmission system to hook Whalerock up to National Grid's grid. Will this have to go through anyone else's property or through the town's right of way? Or did I miss something?

“I Object!”

Ron Areglado, CCA appointee to Chariho School Committee,
unsuccessful CCA candidate for Town Council, 2012

It took until about 7:20 for chair Mike Rzewuski to call the meeting to order and start. Ron Areglado dashed to the microphone to ask for the floor for a Point of Order, which he was granted. 

Areglado attacked two of the ZBR members, Richard Frank (former Town Council President Marge Frank’s husband) and Bill Meyer for being biased in favor of Whalerock because, Areglado charged, both of them had been heard to make either derogatory comments about the anti-Whalerock materials and members or pro-Whalerock or pro-Larry LeBlanc remarks.

Areglado asserted that this showed these two ZBR members had pre-judged the matter before them and that they must recuse themselves.

In his capacity as Counsel to the ZBR, assistant town solicitor Bob Craven said that it is up to individual public officials to decide whether or not to recuse themselves. Both Frank and Meyer responded to Areglado’s charges saying they felt they could do their duty in a fair and objective manner.

Meyer admitted that he has been friends with Larry LeBlanc for years, but also noted that as past president of the Sachem Passage Association, he has also been friends for years with many of the anti-Whalerock activists. He pledged to follow the law and not his ties to the people on both sides of this case.

Craven ruled that as Counsel to the ZBR, that was that.

“I Object, Part II”

Whalerock attorney Nick Gorham rose to the podium to ask that his clients be allowed to present their permit application case in total, without interruption. Of course, that didn’t happen, as you will read later.

John Mancini, representing Charlestown and
some anonymous abutters

ZBR Chair Rzewuski asked the other attorneys present to introduce themselves for the record.

Newly hired $50,000 Special Counsel John Mancini introduced himself stating that he was representing the Town and certain unnamed private citizens who were abutters.

Town Solicitor Peter Ruggiero introduced himself as such.

This drew the second objection of the evening from Whalerock’s Nick Gorham who objected to the presence of any counsel from the town. Gorham stated that Judge Kristin Rodgers' April decision throwing out the Town of Charlestown’s lawsuit was on the grounds that the Town of Charlestown had no standing to be involved in Whalerock proceedings.

Gorham noted that the Town of Charlestown appointed the members of the Zoning Board and that they and they alone who have the right to represent the town in these proceedings.

“I Object to His Objection!”

Town Solicitor Peter Ruggiero - is he looking for
records of abutting properties two years into the case?

That prompted Peter Ruggiero to pop up to state that he had just discovered evidence to dispute two of the reasons why Judge Rodgers threw the town out of court for lack of standing. He said that he just found out that indeed the town had received notice of ZBR’s proceedings and that he found some town-owned properties near the Whalerock site that made the town abutters.

Ruggiero exclaimed that he was going to go back to Superior Court tomorrow to file papers asking the Judge to reconsider her ruling.

Perhaps Councilor Dan Slattery’s now almost forgotten “Quest for the Phantom Properties” paid off. However, more likely it was what Whalerock attorney Gorham said to rebut Ruggiero’s claim, that Ruggiero might have found some tax forfeiture properties, but that wasn't good enough to become an abutter. That will certainly be an argument for another day.

I don’t know how this will shake out, but it’s seems odd to me that Ruggiero’s discovery comes after Charlestown was booted out of court not once, but twice.

On to the testimony

Gorham had several witnesses prepped to walk the ZBR though Whalerock’s application for the Special Use Permit they need to begin construction.

Whalerock principal Michael Carlino gives away some
vital details

The first of his witnesses was Mike Carlino who made what was, to me, the most important statement of the night about the cost of the construction and that it was going to be, according to him, privately funded.

Other than that, Carlino’s testimony was pretty standard fare, except when he tried to make the case for the public benefit that would come from the Whalerock project.

At this point, Chair Rzewuski broke the no-interruptions rule to ask Carlino to spell out those benefits. Carlino said that wind energy was green energy and that’s a good thing, that the taxable value of the land would go up and that the town would generally benefit.

Rzewuski asked who would make the money and, of course, Carlino said that Larry LeBlanc (and himself) would. The crowd laughed and jeered at that and Rzewuski admonished them to maintain order. Carlino said that this was a business and the whole point was to make money.

But far from clear, in his testimony and in the other witnesses, was HOW they hope to do that.

When Rzewuski pressed the point about how much revenue the project would generate, this led to Gorham intervening to state they had no contract with National Grid and wouldn’t even be talking to them until they received town approval.

Eric Prive

Whalerock’s next witness was Eric Prive, P.E. of DiPrete Engineering. Prive testified as to the site plan and walked the ZBR through those sections of the application. Some key data included the fact that the Whalerock site will run along 4300 linear feet of frontage on Route One. They intend to minimize the impact of the construction on the site but there will be very substantial alternation of the site – now a relatively untouched wild area, eloquently described by US Fish and Wildlife local manager Charlie Vandemoer (who was sitting one row away from me in the back).

The maximum height of the turbine blades will be 410 feet. There are two locations on the site where the turbines can be placed and still allow a “fall zone” of 451 feet. Those two sites are 95 and 105 feet above sea level, so as a practical matter, the turbines will be roughly 500 feet above the Route One roadway.

Rzewuski challenged Prive’s credentials to actually talk about the turbine since Prive wasn’t involved in the turbine’s design or construction. Prive explained that his expertise and involvement was doing the site plan and that the manufacturer of the turbines, Vestas, does the manufacturing.

“I Object, Parts III, IV and V”

The exchange between Rzewuski and Prive over what areas of expertise Prive had or didn’t have was all the cue new Special Counsel John Mancini needed to jump up and object to Prive’s testimony in total. He asked the ZBR to strike all of Prive’s testimony. I thought I was watching a “Law and Order” episode, really.

Attorney Gorham jumped and said, “Oh, so you want to play that game,” and re-stated his objection to Mancini and Ruggiero even being involved, given Judge Rodgers' decision that the town had no standing.

Rzewuski asked more questions and then Mancini took over with more questions. Gorham objected again, complaining to Rzewuski that Mancini was cross-examining his witness when he really didn’t have any right to be there.

Who Does Mancini Represent?

Gorham also said that Mancini needed to identify who is clients really are and that identifying them as “abutters” without naming them was inadequate.

Actually, I think Charlestown taxpayers have the right to know who Mancini is representing, in addition to the town, and to know who is paying him? Is the town paying Mancini for these extra clients? Do these clients have interests separate and different than those of the town?

Mancini didn’t cough up those names, but that is a question I think the town needs to address and soon.

Mancini did argue, again, that Prive’s testimony should be striken from the record in its entirety because he failed to credential himself and be certified by ZBR as an expert witness before he gave his testimony.

Next witness and "I Object" Parts VI & VII

David Mendelsohn

Daniel Mendelsohn of Applied Science Associates attempted to testify on the environment impacts of Whalerock. You can read his credentials here. But, not surprisingly, town attorneys Ruggiero and Mancini were not impressed with his credentials. 

Mancini wanted to disallow Mendelsohn because he is not an expert on noise and did not prepare the noise report he was attempting to explain to the ZBR.

ZBR Chair Rzewuski echoed Mancini’s remark and pressed the point that he didn’t write the report so how could he discuss it? Mendelsohn said that (a) he was qualified to discuss the report and (b) Whalerock had attempted to bring the report writers before the ZBR three times before and they were never heard. 

Need I note that attorney Gorham objected to attorney Mancini cross-examining his witness?

Moving on, Rzewuski and vice-chair Ray Dreczko quizzed Mendelsohn about the various aspects of sound and how it affects people. Mendelsohn was dismissive about the science backing up those claims and attempted to explain what the Whalerock sound experts found.

At this point, the meeting started to break down as Rzewuski kept pressing his questions about the health effects claims and Mendelsohn kept pushing back. At one point, Rzewuski demanded to know whether he could guarantee that absolutely no one would be affected by the sound, vibrations or “infrasound” from the turbines.

Mendelsohn stated that no one could honestly make a guarantee like that. He said that when it comes to such matters, it’s very subjective. He cited a study on infrasound where one group of test subjects were told they were being exposed to infrasound and most of them said they felt something – whether or not they were actually being exposed.

Another group of subjects were not told anything about infrasound. Some of that group were exposed to infrasound, others were not. None of them reported any effects.

That's all for now

At that point, Rzewuski called the recess and most of the crowd, including me, headed to the exits.

Perhaps some amazing thing happened when they re-convened. I doubt it. Even if something remarkable did happen, I’m willing to bet that one or two of the lawyers objected to it.

UPDATE: according to the Westerly Sun, the hearing stopped before the Whalerock team could complete its presentation.

As for all those objections each of the lawyers made, ZBR Chair Mike Rzewuski responded to each by saying "duly noted" but did not rule on any of them, at least not while I was there.

As I see it, Rzewuski and Dreczko have made it very clear through their hostile questioning of witnesses that they are pre-disposed to vote against Whalerock. 

The other three voting ZBR members, including Frank and Meyer who were attacked by Ron Areglado for being biased toward Whalerock, said nothing and asked no questions. If Areglado is correct, Frank and Meyer may be Yes votes for Whalerock, especially since they voted for Whalerock in previous ZBR actions.

That leaves Ron Crosson as a potential deciding vote if these proceedings ever end. CORRECTION: I am told by a land use lawyer that Whalerock's application must be approved by a supermajority. That is, 4-1. If Rzewuski and Dreczko, who were openly hostile to Whalerock, vote the way they acted, Whalerock's application will be denied. However, the grounds for an appeal - bias - have already been provided.

Whatever the ZBR ultimately decides, the unhappy loser will almost certainly go back to court.

But looking back on what I witnessed of Night #1, I think the most important take-away is how financially frail and improbable the Whalerock project is.

From all we’ve learned about this particular project and about land-based industrial wind projects in Rhode Island in general, what bank or investor is going to come up with the millions Whalerock says it will need to build these turbines?