State Supreme Court sides with siting council and developer

By Veronica Burns

FairWindCT, the grassroots opposition group to BNE Energy’s wind turbine project in Colebrook, has just received the decision on its appeal to the Connecticut Supreme Court: rejection. The judges voted 6–0 that the New Britain Superior Court was correct in 2012 to dismiss the appeal by Colebrook residents who opposed the construction of six industrial turbines on two properties.

The appeal by FairWindCT centered mainly on issues of jurisdiction, noise, hub heights and fundamental fairness. The group challenged the earlier decision of the Superior Court and appealed to the highest court in Connecticut. In its opinion, the Supreme Court stated that even if some of the procedures of the Siting Council were inappropriate, they were harmless error. FairWindCT, did not, in the opinion of the Court, meet its burden of proving harm.

Nicholas Harding, the lawyer for FairWindCT, admits he is not surprised at the Supreme Court’s decision but notes, wryly, that the court sided with his client in certain procedural issues arising under Connecticut’s Environmental Protection Act. “The case,” says Harding, “will be remembered for the thought that no matter how many errors were made by the Siting Council, they will all be harmless.”

“It has been a long process,” says Joyce Hemingson, president of FairWind CT, “but we are glad that the wait is now over.” While there is undoubtedly disappointment, there have also been some positive moments. At the beginning of the push for wind energy in the state, regulations were noticeably absent. The Siting Council claimed that their existing general regulations were adequate and strongly resisted having regulations that were specific to industrial wind turbines. Opposition groups and local politicians thought otherwise and soon began a campaign, which culminated in specific regulations being enacted earlier this year. It should be noted, however, that BNE’s project was exempted from such regulations. “The bill was passed at the eleventh hour on the last day of the 2011 legislative session, without a public hearing,” says Hemingson. “If BNE were submitting the same applications now, they would not meet the new requirements for setbacks from property lines.”

It was not the task of the Supreme Court to rule on the prickly issues of wind turbines, such as setback distances, noise, shadow flicker or ice throw but rather to rule on whether or not the Superior Court was correct in its earlier decision. As a result, Colebrook South (three turbines located on Flagg Hill Road), has been given the go-ahead and will likely soon be built, but the Colebrook North installation (three turbines at Rock Hall Road) is yet to be approved.

Paul Corey, chairman of BNE Energy, clearly feels vindicated. “We are very pleased with the ruling on Wind Colebrook,” Corey says, “It paves the way for the first commercial wind project in the state.”