Legal fight over shuttered Falmouth turbines drags on

FALMOUTH — A Hatchville-based group, seeking reconsideration of a court judgment that permanently shut down two town-owned wind turbines, does not have the standing needed to file a motion to intervene and has made its move too late, according to an attorney representing a neighbor of one of the turbines.

Both sides filed their positions in Barnstable Superior Court late this week.

At issue is a June 20 ruling by Barnstable Superior Court Judge Cornelius Moriarty to uphold a decision by the Falmouth Zoning Board of Appeals that the turbines were a nuisance to Barry and Diane Funfar.

The ruling resulted in both turbines being shuttered.

Wind 1 went online in 2010 and Wind 2 began operating in February 2012. Their operation almost immediately drew intense opposition from neighbors, who said they were experiencing turbine-related health issues and were concerned about their property values. Several neighbors filed lawsuits to get the turbines shut down.

Wind 1 has been shut down since 2015 when it was denied a special permit by the Zoning Board of Appeals. Wind 2 was ordered permanently shut down in June when Moriarty deemed the operation of both turbines a nuisance to neighbors.

Selectmen, who had filed the court action to overturn the zoning board’s decision, decided not to appeal Moriarty’s ruling.

Late last month, the Green Center and a dozen citizens filed the motion asking to be allowed to intervene, arguing taxpayer interests had not been adequately protected by town officials.

The group emphasized it is not trying to overturn the court’s ruling, but is seeking a court hearing to present some alternative remedies to a total shutdown of the machines.

On Friday, Barry Funfar expressed frustration that the debate over the turbines continues.

“To me, the ones who filed the motion aren’t just regular citizens,” he said. “It’s more like a political coalition advocating for green energy.”

Paying the attorney costs for turbine suits has forced the 71-year-old to remortgage his house three times.

“We’ve essentially lost our home,” Funfar said. “I have the feeling my best years were used fighting the turbines. I’m never going to be able to reclaim what I had.”

Attorney James Rosenblum, representing the Funfars, argued in his submission that the people looking to intervene have no stake in the issue other than as local taxpayers and town residents, which isn’t sufficient to give them legal standing.

“What they have is a sort of generalized interest in wind power that qualifies for resolution in the political sphere alone, e.g. by petitioning their elected town representatives for action — which they did — or by voting those representatives out of office, which they can try to do,” Rosenblum wrote.

In his rebuttal, Green Center’s attorney George Boerger wrote that his clients don’t need to establish standing to file a motion to intervene in an existing case.

Rosenblum argued the motion comes too late in any case.

“The case has already been decided on judgment, the time for motion for a new trial and for reconsideration of judgment has elapsed, and the time for appeal has elapsed,” he wrote.

In response, Boerger argued the motion filed by the Green Center was made five months after Moriarty’s ruling. A motion for relief from judgment can be made up to a year after a decision, in certain instances, and within “a reasonable time” for all others.

The motion was not filed earlier because it wasn’t apparent that taxpayers weren’t being properly represented during the trial, according to the filing. It only became evident when the selectmen decided not to appeal Moriarty’s ruling, they argued.

In addition to the Green Center, the list of proposed intervenors includes Earle Barnhart, John Carlton-Foss, Rhona Carlton, James Churchill, Hilde Maingay, Pamela Pelletreau, Robert Pelletreau, Christina Rawley, Allison White, George Woodwell, Katharine Woodwell and Ron Zweig.

If the motion is granted, Rosenblum wrote, it could delay the settlement of several other wind turbine court cases Falmouth officials are trying to address.

Boerger said such reasons don’t meet the standard for a decision in the case. The aim of the motion “is to seek changes in the Court’s order that could save the town millions of dollars,” he wrote.

The Green Center has calculated the town’s costs at about $10.5 million.

That amount includes $4.62 million left in debt on the construction of Wind 1, $2.9 million for the loan on Wind 2, $1.4 million to $1.8 million for electricity to operate the wastewater treatment plant over the next 12 years, and $1.65 million owed to the Massachusetts Clean Energy Center over the next 15 years in place of renewable energy credits.