Legal language takes wind out of Varian turbine project 

City Council action on $11 million in wind turbines to help the city’s largest company cut its vast electrical bill has been shelved after a legal complication came to light.

The decision by Varian Semiconductor Equipment Associates to ask the council to halt the permitting process will cost it an estimated $860,000 in lost energy savings, the company’s director of facilities said yesterday.

Deep in a yearlong permitting process, Varian sought the delay last Friday after the council published a notice for a public hearing on a draft zoning ordinance – the city’s first comprehensive effort to set standards for wind turbines.

It would replace a 1974 zoning footnote and, due to an obscure state law, apply to the pending Varian project, according to Varian’s land use attorney, Michael Faherty.

Varian’s turbine project would be the city’s first and the wind turbines would be the largest in Massachusetts.

The project also marks the first time a private American company has undertaken a wind energy initiative of the size, yield and cost Varian has proposed for its campus at Blackburn Industrial Park, according to Bob Shattan and Thomas Michelman of the project’s developer, Boreal Renewal Energy.

Varian executives said the company spends more than $2 million a year on the electricity it needs to light its world headquarters, where more than 1,100 people work. They make garage-sized machines, essential in chip making, that use electricity to manipulate subatomic particles.

Faherty said under state law, the scheduled public hearing on a zoning change supersedes previously filed applications such as Varian’s, as well as applications coming in after the notice for the draft zoning ordinance.

Two years ago, a similar notice of a draft demolition delay ordinance inadvertently froze all applications for demolition permits, causing a furor among developers and the rushed withdrawal of the draft.

Rick Johnson, director of facilities for Varian, the publicly traded, world leader in chip-making capital machines, said the company was ready to make a $3.2 million down payment on a pair of the most advanced and tallest turbines – 488 feet to blade tips – until Faherty said he read a legal ad in the Times and recognized detailed standards for Varian’s project had been set even though no vote on the ordinance had been taken.

The emergence of the draft to cover Varian’s project brought conflicting opinions on whether that result was intended.

The main drafter of the ordinance, former City Planner Sam Cleaves, sent an e-mail on Jan. 25 to city officials saying, “It was never my intention or belief that the revised … ordinance should impact the Varian application in any way.”

He apologized for failing to understand that the advertisement for the public hearing on the draft ordinance would give it the power of an enacted statute.

But City Council President James Destino said the imposition of the draft ordinance on Varian’s project was “not at all” inadvertent.

“I don’t know whether it was inadvertent or not,” said Faherty. “I know that it happened and that it took us by surprise.”

The ordinance had been moving slowly through the Planning Board and City Council on what Destino said was “a parallel” track to Varian’s application. He said Varian should have been aware that the ordinance was coming.

No mention of the impending draft ordinance was made on Jan. 17 – five days before publication of the ad that Faherty said brought the project under its strictures – when company and project leaders discussed the wind turbines with councilors for more than an hour before the Planning and Development Committee.

City Clerk Robert Whynott, who placed the ad for the pending wind turbine ordinance, said he did what the council intended when it referred the draft regulations to the Planning and Development Committee. Destino agreed.

But the council president also said, “In a perfect world of process, should the clerk have reached out and said, ‘How do you want to handle this?'”

Steven Magoon, administrative assistant to Mayor John Bell, an ardent supporter of the Varian turbine project, called the situation “unfortunate. The project makes sense for the city,” he said.

On Faherty’s advice, Varian executives decided against the immediate purchase of the turbines until the matter is resolved.

In a Jan 26 letter, Faherty sought and was granted a continuance for the Varian application.

“The reason for this request is that the City Council has advertised notice of a hearing on proposed zoning changes that would apply to my client’s project,” he wrote.

Johnson said the delay in ordering the turbines will cost the company at least six months in getting the generators operational – an estimated $876,000 in lost savings from not having the green technology over that period.

The delay, said Johnson, traces a worldwide boom in wind turbines that has overwhelmed the capacity of manufacturers.

Johnson researched the technology at a manufacturing plant in Germany.

“They had two turbines available,” he said. “We were hoping to get approval of a down payment on the turbines. This has pushed us out six months.” He said that is the time it will take the Fuhrlander company to produce new turbines for Varian.

Varian had earned the approval of the Conservation Commission and a variance from the Zoning Board of Appeals, but was before the council for a height exemption. It may also need to return to the ZBA for additional action.

The wind turbine proposal won broad community support, though there were also opponents. A local group has filed an appeal of the Conservation Commission’s approval.

“We all want to support this,” said Destino. “But with proper protections in place.”

By Richard Gaines , Staff writer
Gloucester Daily Times

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