Game of turbines

The Adults take over

By Will Collette

Between the Charlestown Citizens Alliance’s new series of e-bleats and the CCA Party-controlled Charlestown Town Council decision to spend $50,000 on a special counsel, it looks like the adults are taking over the Whalerock fight and the health-obsessed hotheads from Ill Wind RI are being given a time out.

To be more precise, Ill Wind RI now calls itself the Coalition to Stop Industrial Sized Wind Turbines (CTSISWT, pronounced “sits-wit”). They have emphasized controversial claims that wind turbines will cause people all manner of terrible ailments and have been trying to get Charlestown residents to blitz the town Zoning Board of Review (ZBR) with protest letters and e-mails using those claims.

There are several problems with that approach, which I detail HERE, that could backfire and saddle Charlestown with a project that hardly anyone, including myself, wants to see.

Reason: the ZBR is a quasi-judicial body and must make decisions that are fact-based not mob-based, and certainly not based on claims that are at least highly debatable if not dubious.

So in a way, I was actually glad to see the CCA weigh in and actually lay out the ZBR process and how Charlestown residents can weigh in with some reasonable hope of success. 



Hint: it’s not by making wild health effects claims or that it would make you sad that a landscape you've been used to all your life might be changed. Click here to read the CCA advice. I must admit it is an odd feeling to be somewhat on the same page as the CCA Steering Committee, at least as it pertains to the way to address the Zoning Board on this issue.

I am less certain about the Town Council’s announcement on Monday night. The Councilors emerged from a secret Executive Session and announced that they plan to spend up to $50,000 to hire a special counsel and some experts to put a case together in time to present at the ZBR’s special hearing on Whalerock on May 21^st.

That gives the Council less than a week to come up with the team they need and for that team to build a case. Unless the Councilors already have the team picked, I think it’ll take a miracle for them to recruit the team and for the team to craft a credible position.

Let’s remember that the Town (and the former Ill Winders) have a terrible record for doing sloppy legal work and case presentation, each having had their cases thrown out of court twice. But CCA Town Council boss Tom Gentz told the Westerly Sun that “it won’t be hard” to put the town’s case together in under a week. That’s easy for Gentz to say when he’s used to getting away with making things up.

$50,000 is a lot of money for a small town like Charlestown and I wonder about the legality under our town Charter to make snap decisions to spend that kind of money without the usual full public process. Yes, I know there’s no time for that, but that’s all the more reason to question the expenditure.

Whalerock partner (and Larry LeBlanc son-in-law) Michael Carlino sent a letter (click here) to each of the Whalerock abutters formally notifying them of Whalerock’s plan to request the Special Use Permit, the last step among the required approvals, before the ZBR at its special May 21 hearing at the Charlestown Elementary School.

The rated power proposed for this project is slightly less, at 1.8 megawatts, than the figures I had heard before. Click here for the operating specifications. This new figure makes the prospects for Whalerock’s financial viability even more uncertain than before.

While the CTSISWT mailer cries out that the upcoming May 21^st  ZBR meeting is the “Last Chance” with three exclamation points, it really isn’t, although there will be a winner and a loser when the ZBR completes its process on the special use permit application.

The “What Ifs”

Scenario 1: No decision. I think it’s most likely that the ZBR will not make its decision on May 21. If the Charlestown Elementary audience is jammed full of screaming, agitated people worried that their heads are going to explode, that’s not the place to make a decision. If the ZBR gets swamped with thousands of pages of testimony, reports, and such, it would be logical for them to postpone the decision until they can wade through the sea of paper.

If they defer their decision to a later meeting, that will give the opposition a partial victory. I used to counsel NIMBY groups to use the clock– postponing a decision means more time for you and more cost and frustration for the developer. Extra time would also give Charlestown’s crack $50,000 special counsel (whoever that may be) and experts time to get their case together. That presumes the ZBR doesn’t close the hearing at the end of the May 21 meeting (i.e. they won’t accept more stuff from the parties before or at the next meeting).

Scenario 2: the ZBR bows to public pressure. It can be very intimidating, even scary, to get letters, phone calls and e-mails from a whole lot of angry people. Even though the ZBR is appointed, operates as a quasi-judicial body and tries very hard to act only on the law and not politics, the board members are human beings, most with families. They see the people opposing the wind turbines around town. They are not immune to this kind of pressure.

If the ZBR rules against LeBlanc, denying him the special use permit, two follow-up steps are likely to happen. 

First, LeBlanc will almost certainly go back into court and argue that the ZBR made its decision not based on law but on public intimidation and emotion. That’s a case LeBlanc might win.

Second, let’s not forget that LeBlanc also has a pending application for an affordable housing project for the same site. It’s written into his sales-leaseback deal with his Connecticut partner James Barrows. People who have been following this saga know that LeBlanc has been pitching one project after another for that 81 acre parcel for year. LeBlanc is currently suing the town over its failure to permit this housing project. That case is yet to be decided.

I’d put the odds at 500-1 against LeBlanc accepting a defeat in front of the ZBR and walking away. The fight will simply go in another direction. Or two. Or three.

Scenario 3: the ZBR grants LeBlanc the Special Use Permit. Because of their losses in prior attempts, the Town and CTSISWT will probably not be able  to return to state court. Two judges have now basically closed off that option. However, given the addiction some of the principals have to filing lawsuits and spending money on lawyers, I expect they will try something anyway. And history has shown that they could take the Town’s own Zoning Board to court over the decision, effectively tying things up again.

Eagle on Watchaug Pond. Photo by Gerry Matteo

Another option, and one that intrigues me, is the “critter card.” The US Fish and Wildlife Service has broad powers to protect migratory fowl and especially bald eagles. Local FWS chief Charlie Vandemoer has already assessed the Whalerock site and inventoried the species, many of whom come under his jurisdiction. The bald eagles that have been nesting at Watchaug Pond give Charlie even more power and jurisdiction to challenge Whalerock. Click here to read the FWS guidebook on wind turbines.

That card may be played on May 21 or it may be held back to give another option if the ZBR approves the Permit. Just note that the eagle card hasn’t worked that well lately, according to a very fresh Associated Press report.

Ultimately, the only permanent solution to ensure these 81 acres are not used for something the neighbors, and town, hates is public ownership. LeBlanc will only stop when he either gets a fair price for the land or is able to put something there that will generate a profit. Period. If the ZBR turns him down and the courts uphold that decision, LeBlanc will push for something else, such as the housing complex that is already in the works. Or he might propose something unimaginably worse.

LeBlanc has offered to sell the land to the town before. His opening offer has always been high, but instead of actually negotiating, the town has always said “nah, too much.” It’s as if nobody in Charlestown has a clue about how negotiations works.

The purchase-leaseback deal LeBlanc cut with Barrows on December 31 puts the value of the land at $2 million, more than double its tax assessment value. I see that as an opener.

That’s 81 acres of prime real estate that has been largely untouched for decades. Read here for Charlie Vandemoer’s positive assessment of that land as an addition to Charlestown’s open space inventory.

If Charlestown residents were to vote on whether or not to accept Whalerock into the community, the vast majority would vote no. I would vote no even though I believe in wind power – but only with the right technology in the right place.

We don’t get to vote on wind power, but we could find ourselves facing a vote, if the town starts to negotiate in good faith with LeBlanc, to buy the 81 acres to be set aside for open space.

We have to decide how much longer this fight will go on and how much we want to spend to try to stop LeBlanc’s plans. That land is LeBlanc's property and, like every other property owner, he has his own ideas for how to use it. Charlestown will not be able to deny him the right to use his own property indefinitely.

Frankly, I’m sick of it. I think those 81 acres represent probably the most strategic open space investment Charlestown could ever make.

It’s time we cut the bullshit and got on with it.