Court ruling forces shut down of second turbine

Falmouth Board of Selectmen halted operation of the town’s second wind turbine Tuesday, June 20, after a Barnstable County Superior Court judge deemed the town-owned power source a nuisance.

Falmouth Board of Selectmen halted operation of the town’s second wind turbine Tuesday, June 20, after a Barnstable County Superior Court judge deemed the town-owned power source a nuisance.

Members met in emergency session around 6 PM after learning Judge Cornelius J. Moriarty II affirmed the Falmouth Zoning Board of Appeals’ position on turbines Wind 1 and Wind 2, said Town Manager Julian M. Suso. They will meet again in executive session, closed to the public, on Monday, June 26, to discuss the town’s options, Mr. Suso said. A public session to discuss the executive session business will follow, at the discretion of the board.

The obvious choice is whether to appeal or not appeal, said town counsel Frank K. Duffy.

“The stuff in-between, we haven’t really thought about it,” Mr. Duffy said.

The case is one of several to involve the turbines, which have served as lightning rods for litigation since work on the first began in 2009. Officials were forced to power down Wind 1 in September 2015 also because of legal action.

The pair of 397-foot-tall structures were intended to power the town’s Blacksmith Shop Road wastewater plant and pump extra electricity into the grid in exchange for renewable energy credits. With both now idle, the financial hit to public coffers is “significant,” said Town Manager Julian M. Suso.

He could not provide an exact figure before press time.

“That is among the information that’s going to be assembled and presented and discussed with selectmen in executive session,” Mr. Suso said.

The most recent legal development concerned a case pitting town hall against the Falmouth Zoning Board of Appeals and stems from a complaint made by Barry A. and Diane C. Funfar in March 2013. The Funfars, who own property on nearby Ridgeview Drive, argued that the turbines violated the town’s nuisance bylaws.

The zoning board of appeals agreed with the Funfars, overruling a decision by the town’s building commissioner, prompting the latest round of litigation.

In his ruling, Judge Moriarty found that the turbines represented a nuisance to the property owners and thus the board of zoning appeals correctly deemed the weather-powered machines as such. The body determined that the turbines negatively affected the Funfars’ “health and well being,” a fact that “was well supported by [the Funfars’] testimony.”

The Funfars reported that since the turbines began rotating, Mr. Funfar suffered increased stress, anxiety, insomnia and nausea. He also experienced panic attacks and suicidal thoughts, according to court documents. The couple has noticed the symptoms abating when they leave the area for extended periods of time.

Though Judge Moriarty noted that Mr. Funfar suffered from post-traumatic stress disorder, depression and “alcohol dependence” prior to the turbines running, “I find that his symptoms have been significantly exacerbated by their operation,” he wrote.

Judge Moriarty did reject the Funfars’ claim that the presence of the turbines lowered the value of their property.

Susan L. Moran, chairman of the board of selectmen, said she respected the court’s decision.

“I was pleased that the board was able to meet in emergency session within hours of the decision becoming available and, of course, the board decided to immediately comply with the court’s order and take steps to turn Wind 2 off as soon as practical.”

Two other cases related to the turbines were to be the subject of scheduling conferences in superior court today, said Mr. Duffy. They include a common law nuisance case brought against the town by the Funfars and another nuisance case pitting the town against its appeals board as well as Neil P. Andersen.

In another case also involving the Funfars, Barnstable County Superior Court Judge Gary A. Nickerson yesterday sided with the town. In 2015, the Funfars began arguing the town needed a special permit to erect the second turbine, about five years after a building permit for the project had been approved. Judge Nickerson ruled that the efforts to force town officials to seek a special permit was “too little too late.”

Mr. Duffy said he expects selectmen will discuss the implications of Judge Nickerson’s determination in executive session.


JUN 23 2017
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