Norfolk family wins court battle against Siting Council over wind turbine

NORFOLK — The Connecticut Siting Council, which has broad authority over the siting of telecommunications and energy infrastructure in the state, is rarely overturned in its decisions, but on Nov. 30, a Superior Court judge in New Britain, Conn., vacated the council’s approval of a wind turbine in Colebrook, citing irregularities in the decision-making procedure.

The suit was brought by Julia and Jonathan Gold, landowners in Norfolk, whose farm on the Norfolk-Colebrook line is adjacent to the parcel where the turbine was to be built. They were joined as plaintiffs by another abutting landowner, the Grant Swamp Group, a nonprofit environmental organization, FairwindCT and the Town of Colebrook.

A wind turbine in their backyard

For the Gold family, the saga began in mid-January 2020 when a local reporter called for their reaction to the planned construction of a turbine a few hundred feet from their property line. They thought it couldn’t happen. They’d bought their land in 2018, knowing that a third turbine might eventually be added to the nearby Colebrook windfarm, joining the two built in 2015. But the permitted third turbine was not any closer to them than the others. Besides, there was a 37-acre strip of land just across the Colebrook line that would serve as a buffer.

What the Golds were learning, although from unofficial sources, was that BNE Energy was proposing to buy that strip of buffer land, put a large, next-generation turbine there, and have the Siting Council approve it as a mere modification to the original windfarm ruling issued in 2011. From BNE’s perspective, this was clearly expedient. And it would allow BNE to ignore the wind regulations and setback requirements enacted in 2014.

The Golds scrambled to find a lawyer, and in early March 2020, along with the Grant Swamp Group, they requested intervenor status in the council’s proceedings as new abutters to the proposed windfarm expansion. Their request was denied. The approval had been given.

No oversight on Siting Council

The Connecticut Siting Council is intended by statute as a nine-member board whose siting authority supersedes all local land-use agencies. Appointments to it are made by the commissioner of the Connecticut Department of Energy and Environmental Protection and the governor, among others. For several years, however, the Siting Council has had only seven members. And according to Michael Klemens, a Salisbury resident and a conservation ecologist who served on the council from 2012 to 2019, it has had no chairman or vice chairman since 2019.

The approval for BNE’s new turbine was made not by the council’s members but by its executive director, Melanie Bachman, in a two-page letter dated March 6, 2020. There is no record that any member of the council was consulted, gave input, or took notice of the new turbine’s siting.

The Golds felt strongly the unfairness of being denied the right to raise questions or present data before the Siting Council. A period of legal jousting followed. Eventually the Golds and their allies were free to appeal the ruling in Superior Court.

The case was heard on Nov. 29, and the court’s decision, issued the following day, sided strongly with the Golds. Again and again Judge John L. Cordani pointed to the irregularity of approving a new piece of equipment on a previously unconsidered parcel of land as a modification to an earlier approval.

“It is not possible to divorce the environmental compatibility and public need considerations to be made by the Council from the particular location under consideration,” he writes.

Cordani found that the council and its executive director acted unlawfully. He faulted Bachman for making a decision entrusted by statute to the council proper. And he characterized the council’s failure to reverse Bachman’s decision on appeal as “a clear error of law.”

The procedure used in approving BNE’s third turbine, by circumventing the protocols put in place for siting decisions and undermining the public’s participation, “is antithetical to the very purpose and function of the Council, which is to publicly deliberate and make siting decisions.”

Waiting to see what happens next

“We finally feel listened to,” says Julia Gold, who describes the 18 months spent fighting the Siting Council as “like having a second job.” The process was costly as well as time-consuming. And Gold is still cautious about declaring victory, uncertain what steps the council or BNE Energy might take next.

In an interview, Michael Klemens forcefully registered his amazement at the council’s executive director making a unilateral decision in contravention of the council’s statutes.

“Council members are supposed to be the decision makers, not staff,” he added. “The council subsequently supported her decision, which is even more troubling.”

He cites the vacancies on the council and the lack of strong leadership as possible contributing factors.

“I hope it’s a wake-up call to the council members,” said Julia Gold.