Zoning board lacks votes to override Falmouth Building Commissioner 

Falmouth Zoning Board of Appeals was unable to decide this week as to whether Falmouth Building Commissioner Eladio R. Gore made the correct decision to approve construction of the town’s first wind turbine at the Wastewater Treatment Facility without a special permit.

That turbine, dubbed Wind 1, was erected in November 2009 and became operational in March of last year. Since that time, residents of the neighborhood have been outspoken about the impacts the machine has had on their lives.

At the appeals board meeting on Tuesday, they showed their emotion several times, becoming upset with the board when it elected to delay their vote until next Thursday.

“Thank you. Does anyone want to go home to my house now?” Elizabeth L. Andersen of Blacksmith Shop Road, yelled, near tears as she walked out of the meeting.

“I’ve been living in the back room of my house for a year.”

Just minutes earlier, her husband, Neil P. Andersen, stood up, interrupting the board as it debated the matter.

“Do you know what this is doing to us? I’m going to kill myself. She [my wife] is going to kill herself,” he said.

A Divided Board

In December the Andersens appealed Mr. Gore’s decision to permit the wind turbine without a hearing. Two appeals board members, Chairman Matthew J. McNamara and board member Patricia J. Favulli, recused themselves from the case, leaving four members—Acting Chairman Dennis D. Murphy, Kenneth H. Foreman, Ronald H. Erickson and Patricia P. Johnson—responsible for determining the merits of the Andersens’ appeal.

On Tuesday the board was divided, with Mr. Murphy and Mr. Foreman arguing that Mr. Gore had erred in not requiring the town to apply for a special permit to erect the wind turbine. On the other side were Mr. Erickson and Ms. Johnson who defended Mr. Gore’s ruling.

Who is right? Based on what the board’s attorney, Mark Bobrowski of Concord, said, it is a gray area based upon inconsistencies in the town’s zoning bylaws.

“It is the cat chasing its tail,” he said.

“Remember, the burden of proof is on the applicant,” he said, noting there has to be compelling case that Mr. Gore “made a mistake and his decision was arbitrary and capricious.”

Accessory use requires special permit

The Andersens’ two attorneys, J. Alexander Watt of Barnstable and Christopher G. Senie of Westboro, argued that there is a section in the town’s zoning bylaws that specifically references windmills, mandating they are required to have a special permit.

Mr. Gore should have applied that section of the zoning bylaw to this case, Mr. Watt said.

Mr. Senie focused on identifying what type of use the turbine represented.

“It is either an accessory use allowed as a right by special permit or a piece of the wastewater treatment facility,” he said. “The town is understandably trying to take the position that Wind 1 is an upgrade of the facility.”

Mr. Senie tried to refute this argument, noting that the turbine does not have anything to do with the way the facility treats its sewage. And he noted that the treatment facility had been in production for a long time prior to Wind 1 being erected.
Because this is the case, he suggested that the turbine required a special permit since it is an appendage of the use allowed on the parcel.

Roughly one-third of the energy produced by the turbine is used to cover the electricity on site while the remainder is being used to cover electricity costs elsewhere in town.

“I do not agree with the town’s position this is just a piece of the Wastewater Treatment Facility,” he said, “nor is this a brand-new use… I think it is an accessory use.”

While he appreciated the difficulty of the board’s decision—“It is never easy to overturn a town’s decision,” he said—the fact that the matter is so complex required the project go through the special permitting process.

That process, he said, is not a “death knell to Wind 1,” but rather makes sure all sides are considered and that the turbine is sited in a location that is most appropriate.

Public use exempt from special permit

Mr. Gore defended his ruling based upon the “public use” section of the zoning bylaw, allowing for “all municipal purposes,” including wind turbines, to be exempt from a special permit.

“The question before the board is whether the wind turbine is a municipal purpose,” he said. “The conclusion I came to was ‘yes.’ ”

He said it does not matter whether the turbine is producing all or just one-third of its electricity for the Wastewater Treatment Facility.

“All municipal purposes are permitted by right,” he said, even if not listed specifically in the “public use” section.

Wastewater treatment facilities are not listed specifically in this section, he said, noting that “it is impossible to list each one [use].”

He listed other examples, including radio antennas, parking garages and common driveways of projects that the town could permit by right, if used for municipal purposes.

He also questioned ongoing claims that the wind turbine does not meet minimum requirements for safety and setbacks. “It meets and exceeds those requirements,” he said.

Mr. Foreman asked if there is any municipal activity that would be prohibited and require a special permit.

“We have to go case by case,” Mr. Gore said.

“Who decides?” Mr. Foreman asked.

“The building commissioner does,” Mr. Gore said.

A special case

Mr. Foreman also questioned the fact that the state enacted special legislation in order for Falmouth to erect the turbine.

Falmouth Town Counsel Frank K. Duffy Jr. said that this special legislation was focused on the financing of the project and not the zoning issues being brought up at the hearing.

“You could have photovoltaic cells on there [the treatment facility] and no one would think twice about it because you can’t see them,” Mr. Duffy added.

“I suggest his [Mr. Gore’s] interpretation of the zoning bylaw and his decision should be affirmed.”

But the board was not entirely convinced of this argument, and several residents complained about the town’s lack of transparency with the project.

“I feel town employees circumvented due process and demonstrated questionable leadership by not seeking a special permit then and now,” Kathryn L. Elder of Blacksmith Shop Road said.

Mr. Foreman agreed that the town should have gone a different route with the turbine.

“If I look at all sections of the bylaw, it leads me to the conclusion that we should have gone through the special permit process,” he said.

He was joined by Mr. Murphy who said the turbine is an accessory use, particularly since it is producing more power than the treatment facility needs.

Unanimous vote required

“I’m not ready to say the building commissioner didn’t make the right decision,” Ms. Johnson said, in arguing the other side. “I still feel like he did.”

Mr. Erickson said the board should respect Mr. Gore’s expertise and go with his interpretation of the zoning bylaws.

Mr. Foreman said this would be passing the buck, stressing that the board’s decision is to take an applicant’s concerns seriously and not merely accept Mr. Gore’s decision because of his position.

In addressing this question, Mr. Bobrowski stressed that this is “de novo” review by the appeals board, meaning they are essentially reviewing the case on its own merits.

With the two sides at a stalemate, Mr. Bobrowski noted that such a vote would affirm Mr. Gore’s decision. The Andersens would need an unanimous vote of all members based upon appeals board regulations for the town to seek a special permit for the turbine.

Despite the deadlock, the board did agree that they should not issue a cease and desist to stop operation of the turbine, if they elected to have the town seek a special permit.

“This is not to say having a wind turbine for the benefit of the town is not a great idea,” Mr. Foreman said. “It is to say the process wasn’t done correctly and might have been improved upon.”

After more than two hours of discussion, the board extended the meeting another 20 minutes before electing to continue their deliberations until next Thursday at 6:30 PM.

“I think it is a good idea,” Mr. Foreman said of delaying the vote. “It will give us some breathing space before we vote, and maybe we can sleep on it.”