The ZBA, after carefully considering all of the facts and evidence submitted at the hearing, makes the following Findings with regard to the application for a special permit for Wind 1:
1. It is uncontroverted that Wind 1 constitutes a “windmill” as that term is defined in Section 240-13 of the Zoning By-Law.
2. It is uncontroverted that the ruling of the Massachusetts Appeals Court in Drummey established that the Town’s construction, operation, and maintenance of Wind 1 required a special permit. The Supreme Judicial Count denied the Town’s Application for Further Appellate Review.
3. Section 240-33.G(5) if the Zoning By-Law states that to be eligible for special permit consideration the “windmill” must be accessory. The Zoning By-Law defines “accessory building” and “accessory use” as follows:
ACCESSORY BUILDING: A building such as a garage or shed, located on the same lot with, and accommodating a use accessory to, he principal permitted use of the premises.
ACCESSORY USE: A use of land or building on the same lot with, and customarily incidental but secondary to, a permitted use except that if more than 30% of the floor area or 50% of the lot area is occupied by such use, it shall no longer be considered “accessory.”
4. The ZBA finds that Wind 1 is not an accessory building, structure, or use. Wind 1 has a tower height of two hundred sixty-two (262’) feet, a rotor diameter of two hundred sixty-nine (269’) feet and an overall height to the topmost blade extension of three hundred ninety-seven (397’) feet. The size of Wind 1 dwarfs the Town’s Waste Water Treatment facility (“WWTF”) and it is neither “incidental” nor “secondary.”
5. Moreover, The Town’s Energy Committee decide to install a larger turbine than one calculated to “match the load” (meet the electricity needs of the WWTF). The decision occurred when it looked like the Green Communities Act would be adopted by the Massachusetts Legislature making “net metering possible” (i.e. the Town could generate revenue by selling excess electricity to the grid at the same rates as it purchases electricity and by selling Renewable Energy Certificates on the open market. Wind 1 and Wind 2 combined, if not constrained, would generate 4.5 times the amount of electricity needed to operate the WWTF. The Board finds that Wind 2, even while operating under the temporary injunction issued by the Superior Court, generates more than the amount of electricity needed for the WWTF. Therefore, Wind 1 cannot be considered “incidental” or “Secondary.”
12. Section 240-166.B requires the ZBA to find that there shall be “no adverse impacts on the neighborhood in terms of television interference, ice throw, prop throw, noise, etc.” Furthermore, “there shall be a rebuttable presumption that noise from the windmill in excess of 40 dba, as measured at the property line, shall not be excessive.” The ZBA finds that the inclusion of the word “not” is this sentence is a typographical error and shall construe that sentence without the word ‘not.” Thus, the ZBA shall consider noise in excess of 40 dba to be “excessive.”
13. In making the assessments required by Section 240-166.B, the ZBA is mindful of its earlier decisions in cases #2-13 and #69-13. In these cases, the ZBA deemed Wind 1 a nuisance pursuant to Section 240-110 which states:
14. No use shall be permitted which would be offensive because of injurious or obnoxious noise, vibration, smoke, gas, fumes, odors, dust or other objectionable features, or be hazardous to the community on account of fire or explosion or any other cause. No permit shall be granted for any use which would prove injurious to the safety or welfare of the neighborhood into which it proposes to go, and destructive of property values, because of any excessive nuisance qualities.
15. The ZBA finds the testimony of residents who complain of distress from the operation of Wind 1 to be credible. Neighbors living in close proximity to Wind 1 who opposes the special permit application due to the adverse impacts caused by the wind turbine.