by Ruth Melville

Opposition to construction of a third, larger wind turbine on Flagg Hill Road in Colebrook is moving ahead with a hearing set next month in Superior Court. 

A petition to the state Superior Court seeks to appeal the Connecticut Siting Council’s decision last spring to allow the construction of the new turbine, an Enercon 4.2, even though it is 150 feet taller; on two new parcels of land, a third of a mile away from the location originally approved by the council in 2011; and closer to new abutters and wetlands. BNE Energy Inc. claimed that these changes were merely modifications of the approved plan, and the council agreed, without a formal vote or public hearing.

Current regulations, which were not enacted until 2014, require that the Enercon 4.2, whose blades will reach 646 feet high, be no closer than 969 feet to residential property, but the new location is merely 321 feet from the property line of Norfolk residents Julia and Jonathan Gold.

The group that is challenging the council’s decision is made up of the Golds, a group of siblings calling themselves the Grant Swamp Group, who also own abutting property; the Town of Colebrook; and the Colebrook-based activist group FairWind CT. They have jointly filed a petition seeking to stop BNE from continuing with what they claim is an unlawful expansion of the original project. The petitioners argue that the changes to the original plan are so extensive that it is in effect a new project, requiring a new approval process, and that the siting council has stepped too far outside its jurisdictional authority.

The group first petitioned the siting council to reconsider its decision, but that petition, 1408, was denied in December. Julia Gold asserts that the process was not careful or thorough. A council staff person wrote a report in rebuttal to the petition, but Gold says that during the hearing, which was held over Zoom, it became clear the many members of the council hadn’t read the documents or understood the facts at issue. Only one new member of the council—recently appointed by Governor Lamont—voted in support of petition 1408. He expressed concern that the council was misinterpreting its authority and the state regulations.

The larger issue, the petitioners feel, is that this decision could set a dangerous precedent by taking zoning decisions away from local authorities without due process. Gold says that if the siting council is allowed to act in this way, “What’s to prevent any developer from adding new parcels of land to a project without going through the full public approval process?” The group is also worried that BNE has further plans for expansion, since the company has taken out a lease with the Sportsmen’s Association on additional adjacent property in Norfolk.

The next step is a procedural hearing before a superior court judge on March 30. Keith Ainsworth, the petitioners’ lawyer, says that this is a conference with the attorneys to see if any issues can be settled in advance—Ainsworth thinks that’s unlikely in this case—and to set a briefing schedule.