Library filed under Legal from Massachusetts
Judge Robert Rufo declined to issue a cease-and-desist order requested by neighbors in the wake of a Court of Appeals ruling that said the town should have received a special-use permit from its Zoning Board of Appeals before erecting Wind 1, one of its two turbines.
The town is locked in several legal battles over the turbines, including a pair of lawsuits it has brought against its own Zoning Board of Appeals. The board has twice ruled that the turbines are a nuisance and directed the town to take whatever steps are necessary to remedy the situation. The town has spent hundreds of thousands of dollars on special counsel for turbine-related matters.
Crucial to the trial court's finding was the mistaken concern that the suit would frustrate state efforts to implement policies enunciated in the Green Communities Act and Global Warming Solutions Act, according to the ruling. Writing for a three-person panel, Judge Williams Kayatta said precedent indicates that "a plaintiff may frustrate the efforts of a state policy when those efforts violate or imminently threaten to violate the plaintiff's constitutional rights." (Emphasis in original.)
A suit brought by Cape Wind foes who claim the role of Gov. Deval Patrick's administration in a power purchase agreement between a utility and the offshore wind energy developer was unconstitutional will return to U.S. District Court after being dismissed a year ago.
Neighbors of Falmouth's controversial wind turbines say the appeal of a zoning lawsuit should not reach the state's highest court because it does not involve issues that could affect the entire Commonwealth.
"Many municipal activities generate noise, traffic and other objectionable features which make them less attractive (to) neighbors," Duffy wrote in the brief, filed Wednesday. "For this reason it is logical and reasonable for a municipality to craft its zoning bylaw and permit municipal infrastructure in designated districts by right."
According to board Chairman Sherman Derby, the three-year Payment In Lieu Of Taxes agreement expired Jan. 1, 2014. Negotiations for a new PILOT agreement have stalled, he said, because the two sides can't agree on a figure. "Green energy is great, but when they have to pay green money, it's a problem," Derby said. "They're making more money than they thought they would, but we're not getting anything."
The Falmouth Board of Selectmen is holding off on deciding how the town will respond to a legal defeat in the ongoing battle over its wind turbines.
The court overturned Barnstable Superior Court Judge Robert Rufo’s June 2013 decision and ruled in favor of a cluster of neighbors who sued the town over its 2009 installation of Wind 1, one of the twin, 1.65-megawatt wind turbines erected at the town’s wastewater treatment facility.
This important ruling by the Massachusetts appeals court found that the Town of Falmouth was required to obtain a special permit for the wind turbine (Wind 1) sited at the town's wastewater treatment center. The town argued that no permit was necessary since the turbine was viewed as a municipal purpose and therefore exempt from the zoning ordinance. The appeals court voided the decision of the lower court.
Cape Wind, the first proposed offshore wind project in the United States, sent letters to the two utilities that contracted to purchase nearly 80% of the project's output, including energy, renewable energy credits (RECs) and capacity. The letters, one to National Grid, the other to NSTAR, stated the company was invoking the 'Force Majeure' clause of the contracts due to on-going litigation as its reason for not meeting the December 31, 2014 deadline for securing project financing. Both utilities responded within six days with official notice that the contracts were terminated. Cape Wind could have sought a six-month extension of the contracts by paying $1.29 million in consideration but opted not to take advantage of that option.
Playing out in Massachusetts is a saga in which a private developer is using his political connections to trump the interests of state electric ratepayers - and in the process creating a precedent for much broader misuse of governmental power. The saga involves a court case in which state officials invoked an arcane provision of the U.S. Constitution to deny aggrieved ratepayers access to federal court.
The town of Barnstable, the Alliance to Protect Nantucket Sound and local businesses and residents filed a legal brief with the U.S. Court of Appeals in Boston this week seeking to overturn a lower court decision dismissing their lawsuit, which alleged that the state illegally coerced utility NSTAR to purchase power from the Cape Wind project. The introduction to the filing is provided below. The full appeal filed with the court can be accessed by clicking the link(s) on this page.
The plaintiffs argue that U.S. District Court Judge Richard Stearns' ruling in May was "gravely flawed" because it concluded that their lawsuit was barred by the U.S. Constitution's 11th Amendment, which largely shields states from lawsuits in federal court made without their consent.
"Our case alleges that NSTAR was coerced into signing a no-bid contract that violates federal law, discriminates against affordable green power producers from out of state, and burdens small businesses and municipalities with unnecessarily high electricity costs," said Audra Parker, President and CEO of the alliance.
Noted constitutional law professor Laurence Tribe has agreed to represent the Alliance to Protect Nantucket Sound in its appeal of a federal court decision, which dismissed a multi-party challenge of Cape Wind's high priced contract with NSTAR.
The state Appeals Court on Wednesday upheld a Land Court decision in favor of a proposed wind turbine on Turkey Hill. ...The judge also dismissed the argument about the shadow flicker, saying the nursing home is surrounded by trees that will block most of the shadows. The planning board required that the turbine be shut down if the flicker exceeds 30 minutes a day or 30 hours a year.
"If instead of a judicial robe, I were to wear the hat of John Muir or Milton Friedman, I might well conclude that the Cape Wind project should have been built elsewhere (or not built at all), or that the NStar-Cape Wind contract should never have been approved," Stearns wrote. ...The banks expect to provide more than $400 million in debt themselves in addition to $900 million in potential financing from other sources.
Stearns said he doubted the plaintiffs — which include several Cape Cod businesses, individuals, the Alliance to Protect Nantucket Sound and the town of Barnstable — could get past the constitutional amendment which generally gives states immunity from being sued.