What did emerge from a Saturday morning zoning meeting was that the town's attempt to restart one of its twin wind turbines is headed for failure. emailprintCOMMENT
FALMOUTH — Whether it's the light at the end of the tunnel for neighbors or the spark that ignites another round of lawsuits remains unclear. But what did emerge from a Saturday morning zoning meeting was that the town's attempt to restart one of its twin wind turbines is headed for failure.
The Falmouth Zoning Board of Appeals is poised to deny a special-permit application for Wind 1, one of the town's wind turbines, following a Saturday morning deliberation. Four of the five members hearing the permit application needed to vote in favor of the permit and any conditions placed on the turbine's operation to achieve the needed supermajority; only one, Edward Van Keuren, appeared amenable to do so at the end of the meeting.
The rest of the board members found fault with the application on more than one front, including the zoning requirement that Wind 1 will not have "adverse effects" on either the neighborhood or the town. Throughout the permit hearing, which stretched over a half-dozen meetings and several months, neighbors of the turbine presented evidence on multiple fronts, including personal testimony, in an attempt to show the negative effects of the turbine.
"Hearing that (turbine) at all hours of the night, I wouldn't want to hear it," said ZBA member Paul Murphy. "The testimony is pretty compelling. I believe it to be honest and compelling. I don't think anyone out there has any agenda. It's a very serious issue and it's not going away."
The ZBA's attorney, Mark Bobrowski, will draft the final document with the board's findings and bring it to the board for a vote at a future session. The board has until 90 days following the close of the public hearing, which ended Feb. 1, to render its decision.
The special-permit application is just one legal issue surrounding the turbines. Nine lawsuits are now pending in Barnstable Superior Court about their operation, said Westboro attorney Christopher Senie, who represents some of the neighbors. The special-permit denial may help quell some of those suits as well as deal with the continuing operation of Wind 2, he said.
"Obviously if they deny the permit, that's going to have an effect on lawsuits that are in the pipeline. Will that put an end to it? Gosh, I hope so after five years," said Todd Drummey, one of the turbine neighbors. "I'm really tired of being involved in this."
The turbines at the town's wastewater treatment facility on Blacksmith Shop Road have been a source of controversy since they were installed. Neighbors have complained about health effects from their operation and have used a number of avenues to try to shut them down, while the town has warned of dire financial consequences should either device be deactivated.
Wind 1 has been shut down since September under a cease-and-desist order issued by the ZBA. The state's Appeals Court ruled in 2015 that the machine should have received a permit before it was constructed. Building Commissioner Eladio Gore had ruled that since the turbines are owned by the town and were installed on town land, zoning laws didn't apply. That ruling forced the town to file the special-permit application.
Before a packed meeting room, the board methodically went through a checklist prepared by Bobrowski for Saturday's session following the zoning laws in effect when the turbine was installed in 2010. From the start, the permit seemed doomed when a majority of the board indicated they believed the turbine was not an "accessory use" at the wastewater treatment plant, or that the turbine's operation was secondary to the land's use.
The wind turbines were erected to offset energy needs at the wastewater plant but can generate more electricity than is needed. The excess power is then sold back to the utility company, bringing revenue to the town. That excess power generation, in fact, was baked into the financing for Wind 1.
The town has indicated the excess power may be needed for future expansions of the wastewater treatment plant, but that argument didn't sway board member Kenneth Foreman.
"We're permitting this now. There's no assurance the wastewater plant will grow to a size to consume that much power," he said. "I just don't buy that argument at all."
"I don't see it as incidental. That's why accessory buildings have size limits. I don't think there's anything 'subordinate, incidental or customary' about this thing," said Murphy, quoting from the zoning language regarding accessory purposes. "I just don't."
Beyond the accessory use issue, the board members all agreed the turbine had adverse effects on the neighborhood. Bobrowski said the language in the zoning code was absolute, almost to a fault, about creating no effects on the surrounding area.
"If you permitted a library, it would have adverse effects," he said.
Van Keuren said he believed the board could craft a set of conditions that would allow the turbine to keep running and reduce the effects on the neighborhood. He pointed to data from engineering firm Weston & Sampson showing the turbine could be shut down overnight and above certain wind speeds and lose only 10 to 20 percent of its output.
"I think it's worth a try," he said.
But he didn't get much company in his willingness to craft conditions that would allow Wind 1 to spin. Board members remained unsettled about the best way to measure sound coming from the turbine despite volumes of evidence supported by both the town and neighbors, which would make creating conditions a challenge.
"These studies are so far beyond the scope of this bylaw, it's not even funny," Murphy said. "What we have before us is a science project. It's so complicated."
"We can condition this perfectly. I don't think this will be put into place perfectly," said Kimberly Bielan, the board's chairwoman.
Diane Tillotson, the Boston attorney hired by the town for the zoning matter, attended the meeting and went into a meeting with Town Manager Julian Suso and other town officials after it ended. Selectman Samuel Patterson, who attended the public meeting, declined to comment on behalf of the town.
Selectmen are scheduled to discuss the matter in a closed-door session before their board meeting Monday and have placed "wind turbine discussion" on the agenda during the public meeting.