Town's case doesn't meet standard for Supreme Judicial Court review, they say
FALMOUTH — Neighbors of the town's controversial wind turbines say the appeal of a zoning lawsuit should not reach the state's highest court because it does not involve issues that could affect the entire Commonwealth.
Last month, the Massachusetts Court of Appeals overturned a 2013 ruling by Barnstable County Judge Robert Rufo, who ruled that the town didn't need a special permit from the Zoning Board of Appeals to erect Wind 1, one of Falmouth's twin wind turbines located at the town wastewater treatment facility. The town is asking the Supreme Judicial Court to review that decision.
But Christopher Senie, a Westborough attorney representing the neighbors, said the town's petition doesn't meet the bar set for such appeals. The case neither substantially affects the public interest nor does it run counter to the interests of justice, he wrote in a legal brief filed last week.
"This case involves nothing more than the Appeals Court's correction of an erroneous interpretation of a local zoning By-law," Senie wrote. "The case involves no issue which extends beyond the parties themselves and certainly not through the Commonwealth in general. It is simply a zoning case governed by well settled law."
The town has long contended that it has the right to use its land for all municipal purposes, including running wind turbines, and doesn't need a zoning permit to do so. The Falmouth building commissioner ruled that the town didn't need the Zoning Board of Appeals' permission before the 2009 installation of Wind 1, but neighbors of the turbines disagreed and took the matter to court.
Rufo ruled in the town's favor, but the Court of Appeals overturned that ruling. Although turbines don’t have to be named to be covered by the municipal use exemption in the town's zoning bylaw, the Court of Appeals wrote that since the town has a wind turbine bylaw, it is reasonable to conclude that the devices were not intended to be exempt from the zoning process.
The ruling was based on two lawsuits that were merged at the lower court: one by Elizabeth and Neil Andersen, and another by Todd Drummey and other neighbors.
After the town lost its appeal, selectmen voted unanimously to petition the SJC for further review of the case. If the SJC does not agree to accept the case, or if it lets the Court of Appeals decision stand, the turbines likely will have to go through the zoning process. But it is still unclear 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 capacities of 1.65 megawatts, more than six times what’s permitted by the newer restrictions. The bylaw also limits to 6 decibels the noise levels audible to neighbors.