Appeals Board requests funds to defend itself from town's suit

Selectmen were faced with an unusual request last night when Falmouth Zoning Board of Appeals Chairman Matthew J. McNamara asked them to approve funding to cover the cost of special counsel to represent them in a lawsuit the town has filed against them.

The lawsuit stems from the ZBA's decision in May that the town-owned wind turbines were a nuisance at Neil P. and Elizabeth L. Andersen's home on Blacksmith Shop Road. Last month selectmen voted in executive session to appeal that decision in Barnstable Superior Court. Since then Mr. McNamara said he and his fellow board members have been served with summonses notifying them that they were named as defendants, along with Mr. Andersen, in the case.

The ZBA has since requested from Town Manager Julian M. Suso that $20,000 be allotted to cover any legal expenses the ZBA might incur as part of the lawsuit. "To our knowledge the ZBA and its members have never been left without representation," he said, noting that "the town manager has authorized funding for special counsel in the past." Although he said the ZBA was not planning to argue against the town, it wanted representation to protect its interests so it is not exposed to potential legal action against the town.

He also suggested that if selectmen wanted to consider a policy regarding appointing special counsel in unusual cases such as this, that it do so independently but act on this request so the ZBA has some legal protection. "We have an expectation of legal representation as special municipal employees," he said. If the board failed to act, he said, it would be viewed as punishment for the decision the ZBA made in May.

Town Counsel Frank K Duffy Jr. weighed in on the request, saying that he was not against providing the ZBA with special counsel. His concern was with the amount that the town should allocate for this expense, recommending $2,500 as opposed to the $20,000 requested. He acknowledged that "it is unusual for one town board to file suit against another. It does happen, but doesn't happen often."

With the ZBA decision, he said, it put the town in a predicament as it was forced to appeal it in Barnstable Superior Court. He explained the reason for the suit was to protect the town, which has already been faced with a lawsuit in US District Court in Boston from two homeowners claiming that the turbines represent a nuisance and are seeking monetary damages. If others who have threatened legal action follow suit, he said, the town could be faced with a potential liability of $215 million in total compensation if those nuisance claims are proven in court. Those claims, he said, would be paid for by the town's insurance company although the "town would be obligated to participate in the denial of those claims."

The vote by the ZBA in May, he said, could be used as evidence in such cases, which is why the town has taken legal action in Barnstable Superior Court. The case in superior court, he said, will be what is known as "de novo," meaning it essentially starts over from scratch with the "judge acting as the board of appeals. The ZBA has no role in this case."

He did not anticipate bringing in any members of the ZBA as part of the trial. "I have no interest in deposing the ZBA or making their life difficult in any way," he said, stressing that the onus is on Mr. Andersen to argue his case in superior court.

At the same time, he understood the concerns raised by Mr. McNamara, noting that "it is no fun getting served and they were served." To that end he recommended the $2,500 amount to ensure the ZBA is protected with the condition that Mr. Suso approve and sign off on the special counsel.

In addition, he said, the ZBA's attorney can in no way provide legal advice to Mr. Andersen. Mr. McNamara questioned the amount, noting that $2,500 would barely pay for clerical work, lobbying for an amount in the range of $10,000 to $20,000. He argued that the ZBA and its members should not be placed in a compromising position where it is left without an attorney to consult because it did not have enough money to spend on legal services.

Selectmen Rebecca Moffitt and Kevin E. Murphy sided with Mr. Duffy with Mr. Murphy suggesting the ZBA could come back to the board if it needed additional funds.

If Mr. Andersen is required to argue the case, Mr. Murphy wondered why a lawyer was even necessary for the ZBA. Mr. McNamara responded that special counsel would review documents and respond to motions made on their behalf. Although he is an attorney he pointed out that others on the board are not and could be confused by what specifi c documents sent to them actually mean. "When the ZBA has been served in the past we haven't had to look at anything," he said. "This seems like such a benign request other than the fact that you are suing us," he continued.

"I don't think the ZBA is a part of this [lawsuit]," Selectman Mary (Pat) Flynn said. Mr. McNamara questioned this claim, referencing the court documents which lists the ZBA and its members as the defendants. "We are not presenting or acting as the defense," he stressed. "We are passively sitting back and watching this lawsuit."

Chairman Brent V.W. Putnam said the issue is not whether selectmen support the ZBA, but how much it was willing to spend for its special counsel. Selectman Douglas H. Jones suggested that it be a higher amount with the understanding that the town will end up spending very little for special counsel. He later made a motion to appropriate $10,000 to cover such costs.

Ms. Flynn said she was uncomfortable with that amount, but she would be willing to consider $5,000 at which point Mr. Jones amended his motion to that lower amount. The motion passed with Mr. Putnam, Mr. Jones and Ms. Flynn voting in favor and Mr. Murphy and Ms. Moffitt voting against it.