FALMOUTH — 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.
Article 3 of Tuesday's special town meeting warrant would declare that any wind energy system owned by the town and used for municipal purposes now in existence is exempt from the town's windmill zoning bylaw, which prohibits turbines the size of the two, 397-foot-tall devices now at the town's wastewater treatment facility on Blacksmith Shop Road. If the bylaw passes, it would remove the need for the town to obtain a special use permit for the devices, a process that began last month and was driven by a Court of Appeals decision that ruled the turbines were illegally erected.
But the bylaw has a tough road to travel. It will need two-thirds approval of the town meeting voters in attendance and, although sanctioned by the Board of Selectmen, it does not have the support of the town Planning Board. At its Oct. 27 meeting, the board voted 7-0 to recommend indefinite postponement on the article. Discussion resoundingly was against not only the merits of the article but the timing in which the Board of Selectmen brought the matter forward.
The special town meeting warrant was open for only 24 hours before being closed in late September, and only three articles are being presented to voters.
"It's been tossed to us without discussion," said Planning Board member Patricia Kerfoot. "We have no idea of the future repercussions of this to other bylaws. They're trying to get around a legal issue."
The planning board spent more than a year crafting a new wind turbine bylaw that prohibits devices the size of what's at the town wastewater treatment plant. To go back and approve an end-run around it, board member Kenneth Medeiros said, would be "so wrong."
"It's a waste of the board's time to say we want to chop up the bylaw," he said. "They're trying to protect themselves from the bylaw the town voted on to make sure that turbines like this would never exist again in this town."
The twin devices have been a source of controversy nearly since they were erected in 2009. Residents have complained about health effects from their operation and have used a number of avenues to try to shut them down but, until recently, have been unsuccessful. This year, however, the scales have tipped in the neighbors' favor.
In February, the Massachusetts Court of Appeals overturned an earlier ruling by Barnstable Superior Court Judge Robert Rufo and ruled that Wind 1 was constructed without proper zoning approval. The state's Supreme Judicial Court later declined to review the case, forcing the town to apply for a special permit for a turbine it's been running for years.
A cease-and-desist order was issued Sept. 17 by the Zoning Board of Appeals, and the Board of Selectmen ordered the turbine shut down while it pursues a special permit application with the Zoning Board of Appeals. That hearing began Oct. 29 and likely will be continued several more times before the end of the year, Town Manager Julian Suso said.
Suso said the zoning article was one of the options on the table after the SJC declined to hear the case and it became clear the town would need to get a permit for turbines that have been running for five years.
"When we had that setback ... we said 'what are our other options.' It was among the assortment of things for the selectmen to consider," he said. "An even-handed discussion about what options are available to the town and the taxpayers led to the determination that this was one of the options. It should see the light of day. What happens to it, ultimately, should be a matter of public discussion."
If the bylaw passes, it would take only one turbine-related problem off the town's plate. The town would no longer have to pursue the special-permit process but any nuisance or damage claims against the town over the turbines' operation would go forward, Suso said.
The town also is asking for $200,000 to be transferred from the town's certified free cash account to cover the shortfall covered by the Wind 1 shutdown. The figure in Article 1 is based on an estimate of Wind 1 being out of service roughly through the end of the year, and it doesn't include any contingency for Wind 2 being similarly shut down.
"This is only a reaction to what has occurred with Wind 1," Suso said.
Article 2, submitted by residents Richard Latimer and Ronald Zweig, calls for the town to support "maximizing the benefits and thereby minimizing any financial burden" to the town from operation of the wind turbines. Although the article doesn't specifically mention how to achieve that, Latimer said it could include anything from buying an easement on the affected properties to using eminent domain to purchase the homes.
Instead of spending millions of dollars to decommission the turbines, Latimer said, the town should spend that money in a way that will allow the turbines to keep running.
"To spend $15 million to tear them down, that's nutty," he said.