The town of Somerset is pursuing a criminal complaint – and more than $3 million in fines – in connection with a zoning dispute involving the company that owns Brayton Point, a 300-acre property that hopes to become a staging point for the state’s emerging offshore wind industry.
Somerset officials say a private criminal complaint was issued last year against Brayton Point LLC, an affiliate of St. Louis-based Commercial Development Inc. Brayton Point LLC was arraigned on January 4 in Fall River District Court and a pre-trial conference is scheduled for early March, according to Arthur Frank, an attorney hired by the town.
Frank said Somerset’s unusual legal battle with its largest property owner came about because of the state’s Zoning Enabling Act, which allows municipalities to collect fines for violations of bylaws but provides only three ways for fines to be collected – via an indictment in Superior Court, a complaint in District Court, or noncriminal disposition. Frank said he concluded the best option for Somerset was to pursue a private criminal complaint in District Court.
Brayton Point LLC originally came to Somerset as something of a white knight. It purchased the waterfront property, razed what had been one of New England’s coal-fired power plants, and set about transforming the property into a staging area for the emerging offshore wind industry.
But a near two-year delay in the permitting of offshore wind farms by the Trump administration led Brayton Point LLC to lease a portion of its empty property to a scrap metal exporter and a road salt distributor – noisy, dirty businesses that polarized the community and led to an all-out political and legal war.
For several years, Somerset and Brayton Point LLC fought over the company’s decision to allow the scrap metal export business to keep operating at the waterfront property despite a cease-and-desist order from the municipality’s Zoning Board of Appeals.
Once a Land Court judge ordered the scrap metal business shut down in March 2022, town officials demanded payment of fines that had been racking up at a rate of $300 for each offense. The town estimates roughly 11,000 trucks carrying scrap metal entered the facility during the period covered by the cease-and-desist order. At $300 per truck, that adds up to nearly $3.3 million in fines.
Brayton Point has not filed a response to the complaint yet, but Frank said the company believes the most it can be fined is $300 per day, not $300 per truck. In January 2023, an attorney for Brayton Point LLC wrote a letter to the town in which he said the fines would not hold up in court. He offered to pay $15,000 to make the dispute go away.
Company officials say they plan to file a response to the private criminal complaint in the next couple of weeks.
The legal skirmishing over the fines at one point threatened to derail plans by the Prysmian Group to build a subsea cable manufacturing plant at Brayton Point to serve the offshore wind industry. Ultimately, however, the fines and the permits were dealt with separately, according to town officials. Prysmian, after a series of bruising hearings last year, now has most of the permits it needs to purchase land at Brayton Point and begin construction.