Time ticking down on Savoy wind project’s appeal period 

SAVOY – It will be known within days whether Savoy’s official “no” to a commercial wind power project is the last word.

Odds are, it isn’t.

As reported by The Eagle in July, the town’s Zoning Board of Appeals rejected a request from Minuteman Wind LLC to let the company move forward with a plan to erect five turbines on West Hill.

The project, more than a decade in the making, needed the ZBA to overturn a building inspector’s April decision to deny Minuteman a building permit.

At the second of two hearings, members of the ZBA voted July 18 to uphold Building Inspector Phil Delorey’s decision, saying the work Minuteman proposed to do in a first phase, as outlined in its application for the building permit, fell short of qualifying as construction and, for that reason, a special permit deadline of May 20 had expired.

The board also ruled that changes in Minuteman’s plan, related mainly to the amount of electricity to be produced, meant it was not the same project that had won a special permit in 2010.

At hearings in the town fire station, Minuteman’s attorney argued that the change in expected generating capacity – from 12.5 megawatts to 7.5 megawatts – was not a meaningful difference.

Town officials countered that the shift meant they had not been able to study environmental factors, including sound levels, or likely tax payments related to the size of the new turbines.

The ZBA’s decision notes that the 2010 special permit was granted based on information “as described in the Special Permit application and supplemental information submitted by the Applicant during the public hearing process. The ZBA found, by a unanimous vote, that the changes to the project were substantial and material enough to require a modification of the 2010 Special Permit or an application for a new special permit.”

The wind company didn’t have that second option, though, because town residents revamped their bylaws late last year to ban commercial wind power in Savoy. The shift in sentiment appeared to be triggered by an effort that year by Minuteman’s former partner, Palmer Capital Corp., to win approval for slightly taller turbines.

Minuteman’s attorney, Ruth H. Silman of the Boston firm Nixon Peabody, also told the ZBA that planned work on access roads and foundations constituted major construction.

The board decided otherwise.

In its decision, drafted by attorney Mark Bobrowski of Blatman, Bobrowski & Haverty of Concord, the board cited three legal cases it believes supports its conclusion that “this activity would not constitute `construction’ under the statute.”

On July 31, the board filed its decision with Minuteman Wind and Brenda Smith, the Savoy town clerk.

Under state law, anyone “aggrieved” by this type of vote can appeal further, either to the Massachusetts Land Court or to a superior or district court, depending on the county involved.

John Tynan, chairman of the Select Board and the ZBA, said he expects Minuteman to use that legal recourse.

“We kind of planned on that anyway,” Tynan said.

Two principals with Minuteman Wind, Steven Weisman and Larry Plitsch, did not respond to requests for comment on their plans.

At the first ZBA hearing, May 29, their lawyer made the company’s position plain: “Minuteman is clearly a party aggrieved,” Silman told the board. “Minuteman Wind believes the denial must be overturned.”

As of Thursday, no sign of an appeal had been recorded in the electronic databases for the Massachusetts Land Court or Berkshire Superior Court.

If the case is appealed in court, Minuteman Wind would try to establish that the ZBA did not have grounds to reject its attempt to win a building permit.

They would hope to see this language in state law borne out: “The court shall hear all evidence pertinent to the authority of the board or special permit granting authority and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board or special permit granting authority or make such other decree as justice and equity may require.”