Special town meeting possible to address cease-and-desist order
FALMOUTH — Selectmen may hold a special town meeting in November to discuss changes to the town's wind turbine bylaw in the midst of a battle over one of the machines at the town's wastewater treatment plant that was officially ordered shut down on Wednesday.
The board will discuss the possibility of a special town meeting at its next meeting, scheduled for Monday, board Chairman Doug Jones said at Tuesday's meeting. He didn't initially provide any detail on what changes the board would be pursuing, and Town Manager Julian Suso declined to elaborate.
“As to the specific details, that's still unfolding,” Suso said. “Obviously the current situation has been in place only for a number of days, so it's difficult to speculate.”
The Zoning Board of Appeals filed a cease-and-desist order Wednesday against the town that requires that Wind 1, one of the two turbines, be shut down immediately. The ZBA voted 4-1 last week to overrule Zoning Enforcement Officer Eladio Gore's decision not to shut down the turbine in the wake of a Massachusetts Court of Appeals ruling that the device was constructed without proper zoning approval. The town is seeking a special permit from the ZBA for the turbine, and neighbors of the turbine want it shut off in the interim.
The order and its accompanying decision were filed Wednesday morning with Town Clerk Michael Palmer, although the turbine could continue to spin at least through mid-October. The town has 20 days, or until Oct. 13, to file an appeal of the ZBA ruling in Barnstable Superior Court, Town Counsel Frank Duffy said. During that time, the cease-and-desist order will not be enforced. The Board of Selectmen is scheduled to address the ruling in executive session Monday night.
If the board votes to hold a special town meeting, it would likely hold the warrant open for only 24 hours and meet again Tuesday to discuss specific articles, Jones said Wednesday.
It would be inappropriate to discuss specific articles on the special town meeting warrant ahead of next week's meetings, Jones said, adding, however, that the financial shortfall that would ensue if Wind 1 was offline for a prolonged period would likely be discussed.
“Our budget would have to be adjusted,” he said.
The board still has time to hold a special town meeting during the week of Nov. 9, the day scheduled for the annual town meeting, Palmer said. In a special town meeting, the warrant is held open for a shorter period of time but still must be advertised four weeks before the meeting.
“I think they're getting pretty close,” he said.
In its enforcement order, the Zoning Board of Appeals outlined seven reasons why it decided to overrule Gore:
The harm to the neighbors outweighs the economic harm to the town that would result from the turbine being shut down.
Two previous ZBA decisions ruling that Wind 1 was a nuisance.
Wind 1 has run for five years without the required special permit.
The special permit application for Wind 1 will take months to be resolved.
A cease-and-desist order would not conflict with a ruling by Barnstable Superior Court Judge Christopher Muse limiting the hours of operation for Wind 1 and Wind 2.
The matter is different from an earlier ZBA ruling declining to shut off the turbine following a request by neighbor Todd Drummey. In his denial, Gore did not address that request for a cease-and-desist order.
The town has the ability to appeal the order in court and seek a delay of its enforcement.
The town's twin, 397-foot-tall turbines were erected at the wastewater treatment plant on Blacksmith Shop Road in 2009 and have been a continuing source of controversy ever since. Neighbors have complained about ill effects from their operation and have used a number of avenues to try to stop their operation.
The town's wind turbine zoning bylaw was last amended in 2013 when town meeting approved a revision that prohibits turbines with a capacity of more than 250 kilowatts anywhere in town. Both Wind 1 and 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 allowable noise levels audible to neighbors from the machines.