The Fairhaven Board of Health is open for business—but closed for residents

For over a year now, the residents have petitioned the Fairhaven Board of Health to have an open public hearing so that those who are being harmed by the turbines can tell their story and have their voices heard. Peter DeTerra and Jeanine Lopes have steadfastly refused to grant this request. They have refused to take any steps to investigate the large and growing list of complaints. They have slammed the door shut in the face of residents who desperately need help.

DeTerra and Lopes put any doubt about their intentions to rest when they voted to reject a motion by fellow Board member, Barbara Acksen, to hold a public hearing. DeTerra and Lopes actually voted to refuse to listen to those being harmed.

In effect, they voted to ignore the responsibilities of their office to protect the health of residents— and to defer simply human decency. They voted to continue ignoring residents and reject any shred of empathy. No surprise. For a year and a half, they have completely turned their back on almost 500 health complaints and refused to hold a joint session with the Select Board or even discuss the problem with them. They have made no effort at all to investigate the validity of these complaints. The Fairhaven Board of Health is closed to residents.

At the same, DeTerra has repeatedly granted full access for a public hearing and executive session to the wind developers he is supposed to regulate. DeTerra’s Board may be closed for residents, but it is definitely open for business—with extended hours.

So, before casting your vote on September 9th, there are some things you should know about Peter DeTerra and his responsibilities, or the lack thereof. The most fundamental responsibilities for any local Board of Health are defined by Massachusetts General Law, Chapter 111, sections 142 – 150. The most important of these is section 143, the so called “Noisome Trades” law. The first thing you need to know about this law is that it is NOT about noise regulation per se.

Section 143 is a very old, well-established law in Massachusetts. The English word ‘noisome’ actually comes from a Middle English term ‘noiesome’ or ‘noysome’ which actually means ‘harmful’—not noisy. The terms nuisance and annoyance derive from the same root and they mean harm, not mild aggravation. So when you read the expression noisome trades in sections 143 – 150, you should read this to mean harmful trades. This is the only way that you can make sense of such expressions as “noisome and injurious odors,” for example.

This law is about the regulation of trades which are harmful and injurious, regardless of whether it is odor, sound, or toxicity. That is what the Board of Health is supposed to do. This fact has been established in case after case for many, many years. Turbines are a noisome trade because they are harmful to people, not because they are noisy. Making them quieter does not matter if people still get headaches or nausea, for instance.

The concept of ‘assignment’ is also extremely important in this context. It is the power to assign a new location to harmful or injurious trades in order to protect residents who live near them. The Board of Health has this power to relocate any business or trade which is harmful when it is too close to residents. It can order such a trade to move to someplace it deems to be safe for the public.

Section 143 is very clear and easy to understand once you know what these terms actually mean. It says:

No trade or employment which:

1)      may result in a nuisance, or

2)      [may] be harmful to residents, injurious to their estates, dangerous to public health, or

3)      may be attended by noisome or injurious odors 

~shall be established in a city or town

~except in such a location as may be established by the Board of Health

~after a public hearing is held [on the subject],

~subject to [G.L.  c. 40A] and …

~[the] board of health may prohibit the exercise [of trade or employment] within the …city or town in places not so assigned, in any event.

This is the law in every city and town in Massachusetts. Notice that in the second clause the law says ‘may’ be harmful. This language means that the Board of Health can act even when the evidence is not conclusive. It can act when it has reasonable grounds to believe that there is harm, injury, or danger to public health.

For example, the 450 complaints of sleeplessness, headaches, ringing ears, dizziness, and nausea that residents have lodged with the Board, constitute more than sufficient reason for the Board to take action to protect people. Notice also that the law says that the location must be established by the Board after a public hearing. In Fairhaven, no such assignment ever occurred and no hearing was ever held.

There is one more very important point about this. Peter DeTerra claimed that Fairhaven Wind had the automatic right to have a public hearing once they were ordered to shut the turbines down at night. This is actually completely false. Fairhaven Wind has no such right. What the law actually says is this:

[A]ny person, including persons in control of public land, aggrieved by the board of health in assigning … places for the exercise of any trade or employment … may, within sixty days, appeal from the assignment of the board of health to the [DEP] [which] may, after a hearing rescind, modify, or amend such assignment.

In other words, the only time a business has the right to appeal a decision by the Board of Health is when it has made an assignment of location. DeTerra stated publicly that Fairhaven Wind did have a legal right to appeal the nighttime shutdown order; but, in fact, no assignment of location for Fairhaven Wind was ever made. Therefore, they have absolutely no legal right to appeal or to a hearing of any kind. Even if the Board had made an assignment of location, Fairhaven Wind would have to appeal the assignment to the DEP—not the Board of Health.

DeTerra gave Fairhaven Wind full and unfettered access to a public hearing and executive session purely because he wanted to do so, not because of any legal requirement as he claimed. He gave the opportunity to be heard to the party causing harm, but refused the same opportunity to those being harmed. He ignored their written complaints, too. There is no doubt that DeTerra’s door is open for business, but closed to the public. His door is closed to the very people the law requires him to protect.

Fortunately, the voters will have the chance to close the door on DeTerra come Monday, September 9th. They will have a chance to close the ugliest chapter in the history of Fairhaven’s Board of Health. If you want to stand by your neighbors, if you think they should be allowed to air their grievances and be heard, and if you want to change Fairhaven for the better, then you know what to do.

Vote for John Wethington for the Board of Health and put an end to business as usual in Fairhaven’s Board of Health. Help make Fairhaven a truly fair and safe haven once again.

Curt Devlin, Fairhaven, MA

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