Emotion drove comments at a Falmouth Zoning Board of Appeals hearing on an appeal by wind turbine neighbors on Thursday evening. As with the first, the second meeting addressing appeals of the building commissioner’s lack of enforcement against the Wind 2 turbine drew a full audience.
Complainants say that the turbine, one of two on Blacksmith Shop Road owned by the town, has negatively impacted their daily lives. A separate appeal over lack of enforcement against Wind 1 was granted by the board in September, leading to the issue of a cease-and-desist order for the turbine. While Wind 1 has since been shut down, Wind 2 remains spinning.
The town is currently seeking a special permit to continue operating the first turbine, per a state Supreme Judicial Court decision that it should have done so prior to the issuance of a building permit in 2010. No special permit is being sought for Wind 2.
Both attorneys for the plaintiffs, J. Alexander Watt and Christopher G. Senie, argued that their clients did not have knowledge of the Wind 2 project in the 30 days after a building permit was issued—the deadline to appeal a project, if there is knowledge about a permit. If there is no knowledge, the attorneys said that appeals can be made within a maximum of six years.
Mr. Senie said that the Supreme Judicial Court’s decision relating to special permitting for Wind 1 applied equally to the second turbine. After the ruling was made, he noted that the town could have requested a different determination for Wind 2, especially considering the complaints filed against Wind 1—but no such request was made.
Linda H. Ohkagawa, one of Mr. Senie’s clients, claims that she did not learn of plans for the turbine until October 2010, more than six months after the building permit was issued. She did not challenge the decision until roughly five years later.
Since Wind 2 began operating in February 2012, Ms. Ohkagawa said that she has experienced multiple symptoms, including headaches, ear pain, balance problems, lack of focus and productivity, stress, dizziness, and heightened sensitivity to flashing light. When she is away from home or the turbines are not operating, she said, her symptoms lessen over time.
“I am determined to protect my good health and, therefore, I’m required to go away from my home,” Ms. Ohkagawa said, adding that people cannot judge or fully understand “the factors that aggravate the distress of living too close” unless they have experienced them firsthand.
Kristi Funfar of Old Dock Road read a letter written by her father, Barry A. Funfar, who is also a client of Mr. Senie. The appeal before the board is a case of the town’s lack of due diligence and its failure to follow its own bylaws, she read. Moreover, her father wrote that “no wrangling over finances” will fix the problem.
Ms. Funfar contributed her own words on behalf of her father, who she said has been treated for Post-Traumatic Stress Disorder since he served in the United States Marine Corps in Vietnam. She described her parents’ residence on Ridgeview Drive as her father’s “safe zone” for many years. But since the turbines began operating, she said that his ability to manage his PTSD has declined.
“He not only hears the turbines, he feels them,” Ms. Funfar said, and her parents are forced to spend time away from home to escape from them.
An attorney for the town, Diane C. Tillotson, offered a different perspective: that the wind turbine project was pursued for the public good. Many members of the public, including some turbine neighbors, are in favor of the turbines, she said.
Ms. Tillotson drew a differentiation between the two turbines: the Wind 2 project, she said, was part of a public process that included townwide votes; and Wind 1 was the only turbine for which the town was required by the state appeals court to have a special permit.
She accused Ms. Ohkagawa of laches, a legal term for an unreasonable delay or negligence in pursuing a right or claim in a way that prejudices the adverse party. Moreover, she said, “there is no medical evidence to support that her symptoms, which I believe are real, are connected to the wind turbines.”
Board chairman Kimberley A. Bielan asked Mr. Watt to clarify the relevance of the Supreme Judicial Court decision to Wind 2. He said that the turbines are identical, and the court determined that all wind turbines must obtain special permits.
“In the Andersens’ [Neil P. and Elizabeth L. Andersen of Blacksmith Shop Road] affidavit you submitted, you said they knew of Wind 1 on March 3, 2010,” Ms. Bielan said. “When did they know of Wind 2?”
When Mr. Watt said that he did not know, she asked, “Wasn’t the point of all this when they had knowledge of the building permit?”
She said that the current hearing is concerning Wind 2, not Wind 1.
Ms. Bielan addressed the doctrine of laches, which states that citizens must act promptly on an appeal upon learning of a building permit. How, she asked, did the Andersens act promptly in this case?
Mr. Watt justified his clients’ delay by the fact that they do not have the funds necessary to pursue all litigation at once. When asked how his clients are harmed by Wind 2, Mr. Watt said that they have still been affected by the turbine since Wind 1 was shut down.
Mr. Senie was asked similar questions about his own clients. He acknowledged that when he began to represent Ms. Ohkagawa in late 2013, perhaps he could have suggested that she challenge the building permit for Wind 2 when the case against Wind 1 went to the state appeals court. However, he knew that she technically had six years to appeal.
Ms. Tillotson said that she disagreed.
“It’s 30 days or within a reasonable time after,” she said.
If the board votes in favor of the town, Ms. Bielan asked Ms. Tillotson whether the town will apply for a separate special permit for Wind 2.
She responded that the special permit for Wind 1, if approved, could be conditioned to protect abutters from experiencing harm from both turbines.
Members of the public were allowed to comment on three matters only: whether the complainants knew of the building permit for Wind 2 within the 30-day period, whether they were guilty of laches, and the balancing of equities.
Matthew J. McNamara said that the neighbors would not have known of the permit within 30 days because the turbine could not be seen at that time. There was not any “real notice,” until the turbine was erected, he said.
Similar to Mr. Senie’s decision for his clients to wait until the Supreme Judicial Court made a ruling on Wind 1 to take action relating to Wind 2, Mr. McNamara said, “The building commissioner said in his decision, ‘I’m not going to act on this until the court makes a decision’… It can’t work one way for the town and another way for the applicant.”
He said that the board of selectmen is required to hold a hearing on all public projects on town land, but “the town” sometimes confuses public meetings and hearings. If such a hearing was held, Mr. McNamara said, “there would have been public notice.”
Kathryn L. Elder of Blacksmith Shop Road said that she and her husband, Brian W. Elder, were represented by Mr. Senie in the appeal related to Wind 1. It was only at the current meeting that she realized they should also bring forward the issue of a special permit for Wind 2.
“With Wind 1 off now, I realize that Wind 2 does affect me,” she said. “It wasn’t until Wind 1 was off, that I could distinguish [between the two].”
Ms. Bielan said that was a subject she [Ms. Elder] would have to address with her attorney.
Prospect Street resident Richard K. Latimer voiced support for Ms. Tillotson’s argument that the complainants did not challenge the turbine project within a “reasonable time.” Town Meeting voted on Wind 2 well before its construction, he said, raising his voice.
When the turbine was being erected, he said, “couldn’t they hear the trucks, the heavy equipment?”
Ms. Bielan attempted to ask Mr. Latimer whether he lived near the turbines, but he interrupted her several times. When he began to shout, Ms. Bielan said, “Sir, there is a police officer outside. That is all.”
Mr. Andersen rose to speak and suggested that everyone take a breath. He said that Wind 2 does affect him, but he “gave up” on filing complaints with the town.
“If [building commissioner Eladio S. Gore] informed me directly that he’s not going to do anything about my complaints, why bother?” he said.
The hearings were closed. The board will deliberate on the appeals and file a decision by December 23.