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Falmouth ZBA: special permit not needed for turbine  

Credit:  By Aaron Gouveia, Cape Cod Times, www.capecodonline.com 18 February 2011 ~~

FALMOUTH – Close, but no special permit.

Three out of four members of the Falmouth Zoning Board of Appeals said Thursday night that the town building commissioner made a mistake by not requiring a special permit before the town built a municipal 1.65-megawatt wind turbine last year.

But without a unanimous vote at Thursday night’s ZBA meeting, an appeal that would have forced the town to go through the special permit process failed.

Kenneth Foreman, Dennis Murphy and Patricia Johnson voted in favor of the appeal, which would have overturned Building Commissioner Eladio Gore’s decision to exempt the town from having to go through a special permit process to erect Wind I at the wastewater treatment plant.

But the one holdout, Ronald Erickson, held firm to his previous opinion that the zoning board should put its full trust in Gore.

“I still feel that because the town made Mr. Gore head of the building department, he had the right to make the final decision. Right or wrong,” Erickson said.

But Christopher Senie, an attorney who represents more than a dozen residents affected by the turbine, said the zoning board has the right and responsibility to question the town’s decision-makers.

Senie said the ZBA takes on all the powers of the town official who made the decision in question during an appeal, so “essentially (the ZBA) are the building commissioner tonight.”

“It’s unfortunate there was confusion about that,” Senie said after the hearing. “If someone feels a decision was incorrect, they come to the zoning board.”

The board was deadlocked 2-2 last week, but Johnson said she changed her mind after researching the planning board’s “legislative intent” when it recommended the town’s windmill zoning bylaw in 1981.

The planning board enacted the bylaw, which requires special permits for all windmills in town, to establish a balanced effort to allow windmills while simultaneously protecting neighborhoods, Johnson said.

Gore exempted the town from a special permit based on another, contradictory local zoning bylaw, which states the town can bypass the special permit process for “all municipal uses.” But Johnson said she was unconvinced by the building commissioner’s rationale.

“I really feel we need to listen and hear that and be reminded of why the town adopted this bylaw,” Johnson said of the 1981 windmill regulation.

The turbine helps power the wastewater treatment facility and creates revenue by allowing the town to sell the excess energy the windmill produces.

Reactions from the two dozen residents in attendance was one of disappointment, but also cautious optimism.

Neil Andersen, a homeowner who lives less than 1,500 feet from Wind I and has complained of headaches, hearing loss and trouble sleeping because of the turbine’s noise, said he knew the vote wouldn’t go his way.

But the fact a majority of zoning board members feels the town made a mistake by not requiring a special permit is somewhat of a consolation, he said.

Todd Drummey, who lives close to Wind I and the identical Wind II, which is not yet operational, uttered an optimistic “it’s not over yet” before leaving the hearing.

The spirits of the neighbors has also been buoyed by a letter from the state Department of Environmental Protection that recently surfaced.

The letter faults the town’s noise study for being incomplete and inconclusive as to whether or not Wind I complies with noise standards.

Residents also learned they have another recourse for relief because the board of selectmen, acting as owners of the town turbine, have the power to apply for a special permit at any time.

Senie said he will consult with his clients regarding what steps to take next, which could include a meeting with selectmen or suing the town.

Source:  By Aaron Gouveia, Cape Cod Times, www.capecodonline.com 18 February 2011

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

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