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Barnstable Superior Court Judge Christopher Muse dismissed Francis and Wendie Howland's challenge to the planning board's denial of their special permit for a 132-foot-high turbine on their Barlows Landing property in a decision handed down July 29.
The planning board had denied the Howlands twice on the grounds that their proposed 132-foot turbine was almost double the town's 75-foot height restriction. The board also ruled that debris, or even the entire unit, could collapse onto neighboring properties, and it would have an adverse affect on the character of the neighborhood.
Muse ruled the planning board's decision was not based on "legally untenable grounds" and was not "unreasonable."
The majority of Cape towns have wind turbine bylaws, but they range in scope, varying from the purpose of the turbines to their size. Attorneys said that unless the federal government or the state Legislature acts to make such projects easier to permit, local board findings are binding.
"Judges are pretty deferential to local bodies and state agencies unless there is clear evidence that the town is operating on a flawed representation of the facts," said Patrick Parenteau, a University of Vermont law professor who specializes in environmental issues. "People have kind of overlooked the obstacles to deploying renewable energy sources (on a small scale). This is going to be a battleground."
The Howland's attorney, Jonathan Fitch of MacNeil & Fitch in Sandwich, agreed. Fitch said that while he was disappointed by the court's ruling, it is very rare that a local board's decision is overturned.
During the Howland's three year battle for the turbine, it became apparent to them that a 75-foot turbine would not be cost effective, Fitch said, so they had to go bigger. Turbines are consistent in appearance, he added, so approving a bylaw for residential turbines then saying that they are out of character is contradictory.
"The lesson for the community should be significant," Fitch said, noting Bourne's wind turbine bylaw was overwhemingly approved at town meeting.
"I was surprised at how every section of this bylaw was used as a reason to say no. If you don't want (residential turbines), then don't write rules that say that you do want them. You need to know what the technology requires before you make the rules. ... The town of Bourne still has questions to answer. I'd bet you won't see another application for a residential wind turbine unless the bylaw is changed."
Planning board member Peter Meier defended the board's bylaw, noting that it was modeled after a similar bylaw in Block Island, R.I.
"People say we're giving lip service to alternative energy, and I do not agree," he said. "We're on the leading edge. It just has to be done right. I commend the Howlands (for their efforts) but it was just the wrong site for what they wanted to do."
Still, many renewable energy advocates said that the Bourne Planning Board's denial of the Howlands' turbine brings an important question to the forefront of the debate: Do town boards fully understand wind energy technology?
Barbara Hill, executive director of Clean Power Now, said Bourne has a "fairly progressive" wind turbine bylaw, but she considers the planning board's ruling a step in the wrong direction, especially now that more and more people are interested in pursuing residential renewable energy projects following Gov. Deval Patrick signing of the state Green Communities Act in July 2008.
"It seems to fly in the face of where we're trying to head," she said. "This example in Bourne says to me that there needs to be education in towns (across the Cape) in terms of the technologies associated with turbines and what they can produce. How educated are the people on these boards on the technical aspects? Have their town energy committees educated them?"
Small-scale wind turbines
There are currently 53 wind turbine projects at residences, businesses, schools, and other facilities in Barnstable County that have either been installed or in the planning phases, according to Emily Dahl, a spokeswoman for the Massachusetts Renewable Energy Trust.
- Falmouth leads the way with 11 total wind projects either installed or in the planning stages. Bourne is second with nine. Barnstable has eight.
- Harwich, Brewster, Dennis, Falmouth, and Sandwich each have one residential wind turbine in the works.
- Bourne and Orleans lead the way with two (including the Howland's case).
Source: Massachusetts Renewable Energy Trust
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