Sides discuss wind option; Berkshire Wind and Silverleaf Resorts aim to resolve their issues outside of court 

HANCOCK – The May court date for the lawsuit filed against the Berkshire Wind project by Silverleaf Resorts has been postponed to Nov. 13 to allow the two parties time to work out a resolution of their differences.

According to Michael Vhay, an attorney representing Berkshire Wind Project LLC, a subsidiary of Distributed Generation Systems Inc. in Lakewood, Colo., the postponement is the result of a “joint motion” to allow the parties time to work together.

Since 1998, the owner and president of Berkshire Wind, Dale Osborn, has been planning to construct 10 338-foot, 1.5-megawatt wind turbines on Brodie Mountain in Hancock.

Construction had started on the roadway and on the foundations last summer but was halted when the lawsuit was filed in September 2006.

Silverleaf eyed development

Silverleaf purchased the adjacent former Brodie Mountain ski area for $2.6 million in 2004 with an eye to developing 332 vacation rentals.

In its lawsuit, Silverleaf charged that Berkshire Wind had trespassed on its property while constructing the roadway to the turbine sites, that it had allowed a Lanesborough-issued special-use permit (SUP) to expire before construction began, that Lanesborough should not have issued the SUP, and that four of the turbines were so close to the Silverleaf property that they would negatively affect its value and its development.

Vhay said Berkshire Wind had agreed to accept a $10,000 judgment against it as reparation for the alleged trespass claim, saying that there was an erroneous incursion during construction. He also said that a hearing has been scheduled for June 18 on the SUP complaint.

Willing to sit down

“We continue to be confident that the project has been thoroughly reviewed and permitted and will have no significant impact on Silverleaf property,” Vhay said. “But we are willing to sit down and try to address Silverleaf’s concerns.”

If the wind turbines work at their rated capacity – which takes into account erratic wind patterns – they are expected to generate enough power for 5,000 households. Company officials have called the Brodie Mountain project “the first commercial utility-scale wind-power facility in Massachusetts.”

Michael J. Brown, director of predevelopment for Dallas-based Silverleaf Resorts, declined to comment on the case because it is still in litigation.

Silverleaf attorneys could not be reached for comment.

“Until it gets resolved, it will be hard to get the financing we need to complete the project,” Vhay said at the time of the lawsuit’s filing.

On Oct. 11, 2006, Silverleaf requested a preliminary injunction against continued work on the disputed turbines, which was denied, although the lawsuit resulted in a work stoppage anyway.

“Silverleaf’s purchase of the property was based on its pristine rural landscape, views and serenity,” the company contended in its request.

In response, Berkshire Wind argued that “Silverleaf knew, or should have known, of the project before it bought its property. DisGen’s development activities made the project well-known in New Ashford as early as 1998.”

Silverleaf also said that the turbines “will loom over Silverleaf’s property” and present an “aesthetic nuisance” both visually and in terms of the noise it would create.

“The impact will be particularly profound given the unspoiled, rural and scenic nature of the area,” Silverleaf attorneys wrote.

Berkshire Wind denied the charges, presenting photographic studies suggesting that only two of the turbines would be partially visible from the proposed resort. They also claimed that “Silverleaf presents no evidence concerning the impact of the project’s sound on the proposed condominium development.”

Berkshire Wind then claimed that the lawsuit had negatively affected the wind turbine project, which had already cost $2.25 million.

By Scott Stafford
Berkshire Eagle Staff

Berkshire Eagle

8 June 2007