Turbine case in hands of judge

A Barnstable Superior Court judge hopes to make a ruling on a long-standing controversy over the permitting of one of Falmouth's town-owned wind turbines before April.

Attorneys for Falmouth and the plaintiffs who sued the town over the 1.65-megawatt Wind 1 rested their cases Monday after two town officials testified.

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 turbine without a special permit.

Todd Drummey, Mark Cool, Brian Elder, Barry Funfar, Lawrence Worthington and Robert Laird want a cease-and-desist order on the operation of Wind 1 until it receives a special zoning permit. 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."

"I determined that the wind turbine was (for) a municipal purpose," Gore testified on Monday. "Therefore, it was allowed."

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.

During more than an hour of testimony on the trial's second and final day, Gore said he uses town zoning bylaws and state building code to decide whether or not to grant permits and to determine which projects require special zoning board permits.

"I first consider who the owner is," Gore said about the permitting process. "I consider what it is going to be used for."

Gore, who began serving as Falmouth's building commissioner in 1990, said he considered the turbine to be a principle use for the wastewater treatment plant, rather than an "accessory use," which might require a special zoning board permit.

Before Gore took the stand, Falmouth Water Superintendent Amy Lowell testified that the wastewater treatment plant uses between a quarter and a third of the electricity produced by the turbines and sells the rest back to the regional electrical grid.

After Frank Duffy, Falmouth's town counsel, rested his case, Judge Robert Rufo said he will accept additional material from both sides until March 1. From then, he hopes to have a ruling on the case within 30 days