Falmouth selectmen have two weeks to appeal turbine ruling

FALMOUTH — The Falmouth Board of Selectmen is holding off on deciding how the town will respond to a legal defeat in the ongoing battle over its wind turbines. 

The Massachusetts Court of Appeals ruled Thursday that Falmouth should have obtained a special zoning permit before it put up Wind 1, one of its controversial wind turbines located at the town's wastewater treatment plant. Neighbors had argued that the town’s zoning bylaws required a special permit for the turbines, but the building commissioner and Zoning Board of Appeals claimed the bylaw didn’t apply since it was the town that was erecting them.

The town has until March 18 to petition the Supreme Judicial Court to hear an appeal of the Court of Appeals ruling, Town Counsel Frank Duffy said. 

Wind turbine litigation was on the agenda in the closed-door portion of Monday night's selectmen meeting, but the board made no announcements during open session about the strategy moving forward. 

"We had discussion, but we have yet to consider any action," board Chairwoman Mary Pat Flynn said Tuesday. 

If the town does not pursue an SJC appeal, then the case goes back to Barnstable County, where Superior Court Judge Robert Rufo must make a new ruling in line with the Appeals Court's finding. Rufo made the June 2013 ruling in favor of the town that sparked the appeal. 

If the turbines have to go through the zoning process, it remains to be seen which version of the turbine bylaw will be applicable. In 2013, town meeting approved a revised bylaw that prohibits turbines with a capacity of more than 250 kilowatts anywhere in town. Both Wind 1 and its mate, Wind 2, have 1.65-megawatt capacities. With 1,000 kilowatts in a megawatt, the two turbines far exceed what’s permitted by the newer restrictions. The bylaw also limits the noise levels audible to neighbors to 6 decibels.