Closure rides on the Elder et al v. Town of Falmouth Case
This pending case appeals the building commissioner and the ZBA’s decision wherein both are claimed to have incorrectly interpreted the by-law to allow the issuance of a building permit (Mar 2010) for Wind 2.
The Eilder group’s defense is grounded in a related action by the Court (Drummey v. Falmouth, 87 Mass. App. Ct. 127 (Feb 2015)), wherein Wind 1 required a special permit as part of a comprehensive bylaw scheme to control wind turbine placement and impact in the town. Drummey v. Falmouth was the definitive case forcing then Building Commissioner Eladio Gore to order the town to apply for a special permit for Wind 1. Building Commissioner Gore claimed Wind 2 was not addressed in Drummey v. Falmouth, and was thus exempt from his Wind 1 order.
In light of recent events (Falmouth ordered to remove Wind 1) the underlying question then must ask whether Wind 2 should be subject to and included in Building Commissioner Rod Palmer’s turbine removal order?
As with Elder et al v. Town of Falmouth, the critical issue demonstrated is that zoning is (and has been) selectively enforced when the town’s turbines are involved. Addressing this blatant violation is critical if the Town is to be fully compliant with all applicable zoning laws and regulations.
Mind you, the town’s dismissal argument relating to the Elder et al v. Town of Falmouth is likely to claim that the Court ought to dismiss the appeal on grounds that the related Court shut-down order of both turbines for nuisance finalized all issues relating to Wind 2.
This stragety is doubtful since the “remedy sought” by the Elder group is a ruling that Wind 2 ought to have been ordered to apply for a special permit (not an elimination of nuisance outcome). If the ruling favors the Elder group it would clearly dictate Wind 2’s zoning status and adjoin it to Wind 1 as a non-complying (unlawful structure) and likely be cause for Building Commissioner Palmer to include Wind 2 in his turbine removal order to Selectmen.
Yet, the town’s motion for dismissal gives the impression that Falmouth is not of fair laws but perhaps rather of powerful people who manipulate its’ laws to preserve a mistake. The bottom line is Falmouth built both the turbines in violation of its’ zoning bylaw that requires a special permit. The building commissioner’s recent Wind 1 removal order is conditioned on the fact that the structure is non-complying with zoning bylaw, which affirms Wind 1’s unlawful status.
Unfortunately, there seems a lot of misinformation in the community surrounding the Elder group’s motivation for not agreeing to the town’s filed stipulation to dismiss the Elder et al v. Town of Falmouth. In effect, a ruling by the Court determining Wind 2 an unlawful structure would prohibit the town from applying for a special permit under the new Wind Energy Systems Bylaw (2013). Wherein it states any turbine lawfully in existence as of the effective date of the new bylaw will be considered conforming and exempt from the 250 kilowatts rated capacity, accessory and primary use provisions.
[BTW – a non-conforming (unlawful) structure can never attain a zoning status of either non-conforming or conforming according to Massachusetts General Law 40A sect. 7]
Essentially, if the Elder et al v. Town of Falmouth ruling were to go in the town’s favor, the new bylaw exemption allows a grandfather clause to re-locate Wind 2 on the Waste Water Treatment Plant and nullify the Funfar nuisance ruling.
Beyond forcing Building Commissioner Palmer to include Wind 2 in his removal order, a Court ruling identifying Wind 2 as unlawful would not only be more consistent with the goal of Zoning law and the intent of local regulation, it would act to assure the community that this seven year turbine-trail of tears is fully and finally resolved.