11:29 p.m. EDT, October 3, 2012
Opponents of the planned wind farms in Colebrook have lost their case in state Superior Court, as a judge said their claims that the six turbines, as tall as a 40-story building, would not unduly hurt the environment or harm the neighbors.
The two rulings this week by Judge Henry Cohn — for two separate proposals of three turbines each — leaves BNE Energy Inc. closer to building the 9.6-megawatt project in a bucolic northwest Connecticut town. But the opponents vowed to appeal the case further, and a principal at BNE said the firm does not have a timetable for construction.
Connecticut is the only state in the region without a commercial wind farm at a time when the technology takes hold on mountain ridges and, to a lesser extent, in coastal waterways.
As the fight plays on, it’s clear from Cohn’s decisions that Connecticut’s system for approving wind projects is deeply flawed. Even if the public’s need for these things outweighs the harm to the small handful of people who live nearby — which could well be true — there’s no way to compensate those neighbors for noise, or in the case of one Colebrook couple, loss of business at a historic bed and breakfast just a few hundred yards from a turbine.
And there’s no system in place for state regulators to say, “Yup, this is what we need at that location,” the way hospitals, to give one example, must win a certificate of need if they want to expand. Tighter wind farm regulations — which were proposed after the Connecticut Siting Council approved the BNE plan in June 2011 and are still being debated — would not change that.
The opponents argued that the siting council failed to take into account noise, threats to birds and bats, wetlands issues, and the effect on property values of giant towers looming nearby. They also said the council was prejudiced in favor of the developers from the start, and did not have authority to approve the wind farm anyway, because it regulates only those energy plants that use “fuel.”
Cohn, in New Britain Superior Court, rejected all of those arguments, though he did not deny that the turbines could have a real impact on life in Colebrook, for people and animals. Cohn cited precedents that he said required him to reject opponents’ arguments because the siting council has wide leeway in making its rulings.
The lawsuits will not stop the wind turbines, said Greg Zupkus, a partner in BNE, which was located in West Hartford but, he said, has now moved its office to Colebrook.
“It’s obvious that our opponents are just trying to delay the project. But we still will be successful,” Zupkus said Wednesday.
One of the key issues is distance of the turbines from neighbors. Although state rules on wind farms had not yet been written at the time of the BNE proposal, and still are not sealed, “when we brought our projects to the Connecticut Siting Council we followed best practices in the industry,” Zupkus said.
That includes building no turbines within 1,000 feet of a house, said Zupkus, who added, “there are turbines being put up in cities next to apartment buildings.”
Michael Somers, who owns the historically listed Rock Hall Bed & Breakfast with his wife, Stella, said “best practices” call for turbines to be set back on an owner’s property. By contrast, he said, one of the BNE turbines would be so close to the line that its blades would pass within 9 feet of a neighbor’s property.
“To say that’s best practice,” Somers said Wednesday, “is just a lie.”
There are 19 houses within 2,000 feet of the BNE property in the Colebrook South proposal and nine houses within 2,000 feet of the Colebrook North portion, causing Michael Somers to call the area “a residential neighborhood.”
Nicholas J. Harding, a lawyer for the opponents at Reid & Riege in Hartford, said that he and his clients had not decided which issues they would appeal, but that an appeal would happen. BNE is free to continue working on the site, where it has done limited work, but at some risk if an appeals court reverses Cohn’s decision.
Also standing in the way of construction is an Army Corps of Engineers permit, not yet granted, and a separate fight over whether the town of Colebrook has the right to require a zone change. Harding said BNE missed a chance to appeal a local ruling requiring a zone change, thereby losing the protection from local control that energy projects normally enjoy.
This case is loaded with issues, among them “shadow flicker,” which occurs when turbine blades spin between the sun and a neighbor’s property, for a limited number of hours each year. “Shadow flicker occurs early in the morning and it occurs in the evening. Just when you would want to go out on your deck and grill dinner, you’re going to be a victim of shadow flicker,” Harding said.
Looking at the big picture, Zupkus and other wind power proponents say the technology must be part of the state’s strategy for boosting renewable energy generation. They are right, and there will always be offended neighbors in a dense state.
There’s nothing wrong with the distant sight of wind turbines, if they are part of a strategic plan. But the system needs to compensate people like Michael and Stella Somers, who lovingly restored a historic business just a few years ago, only to see it threatened by progress.