Library filed under Zoning/Planning from Massachusetts
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.
On the morning of March 5, 2016, the Falmouth Zoning Board of Appeals (ZBA) deliberated over whether the Town's application for a special permit to retain Wind 1 should be approved. Wind 1 is the first of two Vestas V82 1.65 MW turbines erected at the community's wastewater treatment facility. The turbines created significant controversy following noise complaints by nearby residents beginning in 2010 when the turbines were first turned on. In a February 2015 ruling, the Massachusetts appeals court found that the Town of Falmouth failed to meet the requirements under the local bylaws when it erected Wind 1 without first obtaining a permit. The ZBA hearing was to determine whether a newly filed application met the requirements for a permit to be issued retroactively. Wind I has been idle since September 2015. The attached documents represent the arguments by the town's attorney (in favor of issuing a permit), the residents (on why a permit should not be issued), and a spreadsheet itemizing the decisions that need to be made the the ZBA. The below summary by Mark Cool explains how the Board ruled on each of the decisions.
The majority of board members found fault with the application on more than one front, including the zoning requirement that the turbine known as 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.
A six-year battle over the town's wind turbines faces a critical turning point Saturday when the Falmouth Zoning Board of Appeals will deliberate a special-permit application to keep one of the devices operational. The board has scheduled a public meeting to deliberate the application and is expected to vote on it, although a delay is possible. But whenever the board's decision comes, whether it marks the beginning of the end for the fight or simply sparks another round of litigation remains to be seen.
The board is holding a rare Saturday meeting to give itself more time to deliberate on the permit for the 397-foot-tall turbine known as Wind 1, which began spinning five years ago.
Representatives for the town and a dozen neighbors of its first wind turbine, known as Wind 1, gave closing remarks Thursday, January 28, regarding a special permit application for the turbine. The turbine is currently shut down in accordance with a cease-and-desist order issued by the board in the fall.
After hearing testimony and taking public comment, the board then denied an appeal by Linda Ohkagawa, who had requested that a cease-and-desist order prohibiting the operation of Wind 2 be enforced by the zoning enforcement officer. The board also denied an appeal seeking the same for Wind 1 and Wind 2 filed by Elizabeth and Neil Andersen. The appeals were denied based on the “doctrine of laches,” a rarely used doctrine that is enforced when parties assert their claim after a long delay.
The board was tasked with identifying whether the parties each had standing in the case; whether they had knowledge of the building permit for the turbine within 30 days of its issuance and had a duty to inquire about the project; and whether they were guilty of a doctrine called “laches,” defined as an unreasonable delay or negligence in pursuing a right or claim that prejudices the adverse party.
Emotion drove comments at a Falmouth Zoning Board of Appeals hearing on an appeal by wind turbine neighbors on Thursday evening. As with the first, the second meeting addressing appeals of the building commissioner’s lack of enforcement against the Wind 2 turbine drew a full audience. ...Mr. Senie said that the Supreme Judicial Court’s decision relating to special permitting for Wind 1 applied equally to the second turbine. ...the town could have requested a different determination for Wind 2 ...but no such request was made.
Of the $915,000 total, $350,000 was appropriated for the special counsel budget and the rest was designated for service rubbish contractors, recycling services and short-term notes. With seven wind turbine lawsuits pending, Town Counsel Frank Duffy said the current budget would “not get us through the end of the year.”
The bulk of the comments early Monday were against the turbines, including sharp comments from former Selectman Brent Putnam. He was on the board during several key turbine-related decisions and said, in retrospect, the board got faulty legal advice about their installation. "There comes a time where you really have to cut your losses," he said.
Falmouth Selectmen approved a recommendation from the planning board to indefinitely postpone the vote on Article 3 during Special Town Meeting Tuesday night.
The Board of Selectmen will recommend at tonight's special town meeting that a controversial attempt to declare the town's twin wind turbines exempt from zoning laws should be sent back to the Planning Board for more discussion.
The Falmouth Board of Selectmen will support a recommendation from the planning board to indefinitely postpone an article seeking to allow the town's two wind turbines to operate in exemption of the town's existing turbine bylaw when it goes to Special Town Meeting floor Tuesday night, November 10.
Wind turbines will be the focus of another town meeting next week, with voters being asked to approve a sure-to-be controversial attempt to retroactively approve zoning for the twin turbines at the town's wastewater treatment facility.
A hearing on the Town of Falmouth’s application for a special permit to continue operating one of its two wind turbines, located on Blacksmith Shop Road, opened at a zoning board meeting on Thursday, October 29.
We have turbines that lose money and a burgeoning legal budget that self-perpetuates with ongoing litigation that includes the town suing itself and its citizens. The town claims that it would, however, be too costly to simply stop the bleeding and dismantle the turbines. I have yet to see an official breakdown of these costs, and since the town still refuses to embrace transparency and actually post a copy of the town’s budget on its website, it is impossible to assess and understand any financial impacts.
If approved, the amendment would allow town government the “special treatment” of exempting itself from its own bylaws, Ms. Kerfoot said. She and Mr. Brown agreed that the town should not be allowed that type of treatment. Mr. Herbst made a motion to recommend indefinite postponement on the article. The vote passed unanimously.
I can’t help but think that if the town put as much time and money as they have fighting the neighbors into finding a solution to the financial issues, the problem would already be solved.
An appeal regarding lack of enforcement by Falmouth zoning enforcement officer Eladio S. Gore to cease-and-desist operation of Wind 1 turbine was granted last night by the Falmouth Zoning Board of Appeals.