Falmouth officials learned Thursday, June 4, that the commonwealth’s highest court denied the town’s recent appeal of a decision that the town required a special permit to erect Wind 1 and possibly Wind 2, leaving the future of the turbines in question.
Town Attorney Frank K. Duffy Jr. said he did not know yet if the turbines will be shut down or if the town will apply for a special permit to keep them running.
“It’s up to the selectmen what we’re going to do,” he said.
“The details of the impacts of this decision are being reviewed by town officials and will be further discussed by the board of selectmen,” said Town Manager Julian M. Suso in a prepared statement.
The town posted a public meeting notice yesterday afternoon announcing a 4 PM closed executive session followed by an open public meeting for Monday, June 8, at the selectmen’s meeting room in Town Hall.
Mark J. Cool of Fire Tower Road is one of the nine abutters listed as plaintiffs in the case.
“I think it’s more of a win for the community and Town Meeting that the court is upholding our town bylaws,” he said. “It’s a big loss for town hall politics,” he said.
He said all of the plaintiffs live within one-third of a mile of the turbines, which, at 397 feet tall from base to blade, generate electricity that augments power used at the town’s wastewater facility.
In March, the town petitioned the Massachusetts Supreme Judicial Court to appeal a previous lower court ruling that the town erected Wind Turbine 1 in error. That state appellate court ruling in February stated that Falmouth was required to obtain a special permit from its local zoning board before it put up Wind 1. It overruled a 2013 Barnstable Superior Court ruling that upheld the town’s decision to install the turbine without a special permit from the local zoning board.
The town’s written petition to the Supreme Judicial Court stated the appellate court misconstrued provisions of Falmouth’s zoning bylaws.
Mr. Duffy wrote in the petition that all municipal purposes are allowed by right in a public use district and therefore do not require a special permit.
Both of the town-owned turbines are located in such a district off Blacksmith Shop Road.
But the attorney for the plaintiffs, Christopher Senie, disagreed.
“The town has recited a mantra that ‘all means all,’ but none of the other customary municipal uses allowed by right in the district are also subject of a special protection zoning bylaw intended to provide a set of safeguards,” he said.
The first turbine was erected in 2009, and since then neighbors have complained of mental distress and poor health caused by the turbine’s sound pressures and noise.
Neil P. Andersen and his neighbors filed a suit after the Falmouth board of appeals in 2010 came one vote short of requiring the town to apply for a special permit for Wind 1, the only functioning town-owned turbine at that time at the Falmouth Wastewater Treatment Facility. One board member, Ronald H. Erickson, said the building commissioner was correct in his decision, and Mr. Erickson’s vote kept the board from reaching the required four votes to reverse the decision.
It was then that Neil Andersen, later joined by his neighbors, began their pursuit in court to keep the turbines from spinning.
Mr. Senie said now that the Supreme Judicial Court denied the appeal, the Barnstable Superior Court will be forced to issue a new judgment that the town needed a special permit.
Although the original suit only pertains to the one turbine that was erected at the suit’s inception, he said the neighbors will be moving the court to have the judgment apply to both structures that are similarly situated in the same zone.
Falmouth Town Meeting in 2013 approved a revised bylaw that prohibits turbines with a capacity of more than 250 kilowatts anywhere in town. Both Wind 1 and 2 have capacities of 1.65 megawatts.