Defense of town project sets a precedence 

This Thursday, the Falmouth Zoning Board of Appeals will hold what may be an unprecedented public hearing on whether the town-owned wind turbine off Blacksmith shop Road violates the town’s own zoning bylaws.

“This is the first time in my memory that the town has been a party to one of these proceedings,” said Frank K. Duffy Jr., who has been town counsel since 1983. The town has been attached to lawsuits regarding zoning bylaws before, he said, but never when the town was the owner of the land.

The hearing will take place during the regular meeting of the Falmouth Zoning Board of Appeals at 6:30 PM in town hall. Mr. Duffy, Building Commissioner Eladio R. Gore, and Town Planner Brian A. Currie will all be on hand to defend the town.

The other side – Neil P. and Elizabeth L. Andersen of Blacksmith Shop Road – is represented by Barnstable attorney J. Alexander Watt, who argued that the wind turbine should be shut down immediately. In a letter to Mr. Gore in August, Mr. Watt wrote that the town is subject to zoning unless it has specifically exempted itself. “The town has not exempted itself,” he wrote.

According to a chapter of the zoning bylaw, the town is allowed all municipal purposes by right, but Mr. Watt argued that the section of the zoning bylaw governing wind turbines overrides the municipal purposes section.

He also argued that the list of exempted municipal purposes does not explicitly include wind turbines, which is unlike every other use listed in the bylaw.

“I would suggest to you that a 1.65 megawatt wind turbine, which is used to generate electricity into the power grid is not a similar use to, ‘administration of government, parks, playgrounds, recreation buildings, Town forests,watershed, water towers and reservoirs, beaches, fire and police stations and armories.’ ” he wrote, quoting from the bylaw.

Mr. Gore responded in a letter that the list of municipal uses in the bylaw are not all-inclusive: “I would further argue that a water tower, reservoirs, wind turbine or other municipal purpose would be considered by right uses, which would not require a special permit.”

Mr. Gore further argued that the town is a net meter facility, which means that all of the power generated by the existing and proposed wind turbines will be used to offset only the power used by municipal buildings.

Mr. Watt appealed that decision, which placed the matter before the board of appeals this Thursday.

If board members do decide that the town should have applied for a special permit, the town may have to apply to the zoning board of appeals as an applicant under the existing bylaw.

The existing wind turbine bylaw, which refers to the devices as windmills, is an outdated document, according to board of appeals Chairman Matthew J. McNamara. Mr. McNamara has worked with planning board Chairman Patricia H. Kerfoot to draft a new, more restrictive and updated bylaw that they hope to put before Town Meeting this April.

Falmouth Planning Board will discuss the draft bylaw tonight during its regular meeting at 7.

The existing bylaw only has minimal restrictions on lot setbacks, stating that a wind turbine must be able to fit completely within the petitioner’s land if it were to fall over. The bylaw does require that there should be no adverse impacts to the neighborhood in terms of television interference, ice throw, prop throw, or noise.

Mr. McNamara said a joint meeting with the Falmouth Planning Board this summer that it was wrong that the town bypassed its own bylaws to put up the wind turbine.

That statement could disqualify him from participating in the hearing on Thursday. Mr. McNamara said he will make a statement at the beginning of the hearing, quoting what he said at the joint meeting, and explaining by he feels he can be objective.

If any member of the board of appeals, the town, or the appellant thinks he should not participate in the hearing, he will not, he said.