Court takes a tilt at Falmouth windmills

A long-standing controversy over the permitting of one of Falmouth's town-owned turbines went before a Barnstable Superior Court judge Monday.

The first day of the trial saw testimony from plaintiffs and from former and current town officials, who answered questions about Falmouth's zoning bylaws and the timing of notification to neighbors about turbine construction - two issues at the heart of the trial.

"These neighbors have had their lives turned upside down," said Brian Schwartz, the attorney representing six of the plaintiffs in the case.

In the suit, six plaintiffs - all Falmouth residents who live near two turbines at the wastewater treatment facility on Blacksmith Shop Road - are challenging a 2011 ruling by the town's zoning board of appeals that affirmed Building Commissioner Eladio Gore's approval of the first turbine to be erected.

Todd Drummey, Mark Cool, Brian Elder, Barry Funfar, Lawrence Worthington and Robert Laird want a cease-and-desist order on the operation of so-called Wind 1, that first turbine, until it receives a special zoning permit from the town. The suit has been consolidated with one brought by Neil and Elizabeth Andersen on the same grounds.

A town zoning bylaw requires windmill projects to receive a special permit from the zoning board, but Gore exempted Wind 1 from that stipulation under a different bylaw that allows the town to bypass the special permitting process for "all municipal purposes."

When the question of whether Gore could bypass the permit came before the zoning board in February 2011, three of the four members voting said he needed the special permit. But because two members had recused themselves from the vote, the board didn't have the required four votes to overturn Gore's decision.

But Monday's trial began with a side issue: a three-hour controversy sparked by J. Alexander Watt, who represents the Andersens. Watt filed a motion to bar Falmouth resident John Carleton-Foss from videotaping the proceedings.

"Mr. Carleton-Foss has a demonstrated bias," Watt said. Carleton-Foss often videotapes wind-related public meetings in Falmouth for Falmouth Community Television and has spoken out against calls to decommission Falmouth's turbines in public meetings and local newspapers.

Schwartz, who joined the motion, said clients Elder and Drummey have complained that Carleton-Foss has stalked and harassed them and "excessively" zoomed in on people when he records meetings.

In an interview, Carleton-Foss called the allegations of harassment and stalking "absurd."

Schwartz and Watt eventually dropped the motion with the stipulation that Carleton-Foss provide them with a full copy of the video.

When witness testimony began, Drummey, Cool and Funfar said that they had never received notice about the turbine's pending construction.

But when called to the stand, Megan Amsler of the town's energy committee testified that she sent about seven mailings between 2004 and 2009 to everyone living in homes within 900 feet of the wastewater treatment plant, updating them about the process.

"We decided that full disclosure, educating (the abutters), was important," Amsler said.

Amsler and David Bailey, Falmouth's former director of assessing, both said they lacked proof these letters were ever received.

Judge Robert Rufo continued the trial until Feb. 4, after which both sides will have three weeks to submit further material.