Falmouth appeals board fails to overturn decision on wind turbine 

Falmouth Zoning Board of Appeals last night came one vote short of requiring the town to apply for a special permit for Wind 1, the functioning town-owned turbine at the Wastewater Treatment Facility.

Board members Dennis D. Murphy, Kenneth H. Foreman and Patricia P. Johnson said Building and Zoning Commissioner Eladio R. Gore was wrong when he allowed the turbine to be built without requiring a special permit because it is a municipal use.

But board member Ronald H. Erickson said the building commissioner was correct in his decision, and Mr. Erickson’s vote kept the board from reaching the required four votes to reverse the decision.

At the previous hearing, Ms. Johnson also defended Mr. Gore’s decision, but over the days that elapsed since the last hearing, Ms. Johnson said she reviewed the relevant local zoning bylaws and changed her mind.

“I was really appreciative to have a week off to think about this decision,” Ms. Johnson said.

She took the time to study the Falmouth zoning bylaw, going back to the 1950s, when the municipal use section of the bylaw was written, exempting the town from seeking special permits for “all municipal uses.”

Ms. Johnson also reviewed the Town Meeting vote in 1981 that added a special permit requirement for all wind turbines in Falmouth. Those two sections of the zoning bylaw are in conflict, and resulted in the confusion about the town’s wind turbine, she said.

“I found the appropriate sections of the bylaw conflicting, opaque, confusing and outdated,” Ms. Johnson said.
Bylaw predates technology

But another board member said he did not see a problem with the bylaw. “I don’t find as much conflict in the bylaw as you do,” said Dr. Foreman.

When the town adopted the municipal use section of the bylaw, wind turbines like the ones that exist today had not been invented, Dr. Foreman said.

“Wind turbines, especially like the ones being constructed, are fairly intrusive,” he said.

When the zoning bylaw is in conflict with itself, Dr. Foreman said, the bylaw states that the more restrictive bylaw should be used.

But Ms. Johnson said towns can build power generating plants to sell energy to its citizens and those are considered to be municipal uses and allowed under the municipal use section.

Dr. Foreman said the town’s turbine does not supply power to the citizens of the town.

“What it’s really doing is defraying the power needs of the wastewater treatment plant,” he said.

If the town’s only goal were to make money, the town could build an adult book store to make money, he said.
Building commissioner decision upheld

But Mr. Erickson did not follow the same logic as his fellow board members. “I feel because the town gave Mr. Gore this power and he made the decision, we should follow that decision,” he said.

He said the town could not build a nuclear reactor, but this situation is less extreme. “What’s happening is similar to the taking of land.”

Residents can appeal the building commissioner’s decision to the zoning board of appeals, and Mr. Erickson said they could also appeal the board’s decision and take it to superior court.

Dr. Foreman attempted to clarify Mr. Erickson’s reasons for his decision. “But if they were to do another project, they would come for a special permit,” he said.

Mr. Erickson said they could, but they might not.

Ms. Johnson said the intent of the wind turbine bylaw is to require all wind turbines in town to require a special permit. “I really feel we need to listen to that,” she said.

“We can argue for a long time, but everyone has their own opinion,” Mr. Erickson said, adding that the town bylaw should be rewritten to reconcile conflicting sections.

With the discussion at a stalemate, Dr. Foreman made a motion to overturn the building commissioner’s decision, which Ms. Johnson seconded.

The board voted three to one to overturn Mr. Gore’s decision, with Mr. Erickson the dissenting vote, falling one vote short of overturning the decision.

“The building commissioner’s decision has not been overturned,” Mr. Murphy said.
The next step

After the hearing, Neil P. Andersen of Blacksmith Shop Road, and his attorney J. Alexander Watt of Barnstable, who contested the building commissioner’s decision, said they would discuss whether to appeal the board’s decision to Barnstable Superior Court within the 20-day appeal period.

“I’m going to sit on it for a little bit,” Mr. Andersen said. The board’s decision was expected, he said, but he was glad to see Ms. Johnson change her mind.

The two board members who recused themselves from the hearing, Chairman Matthew J. McNamara and Patricia Favulli, might have voted with the majority and overturned the building commissioner’s decision.

Mr. McNamara stepped down at the request of Falmouth Town Counsel Frank K. Duffy Jr. because he had previously stated the town should not have exempted itself from its own zoning bylaw.

Ms. Favulli made similar statements at the same meeting, but sat on the board for the first hearing in December, and then recused herself for personal reasons at a later hearing.

Mr. Andersen said he took some solace from news that the board of selectmen might consider requiring the town to seek a special permit for Wind 1 and Wind 2, the other large wind turbine at the wastewater treatment plant.

Mr. Andersen said he regretted stating at the last meeting that he and his wife would commit suicide if the turbine was not turned off. “I should have said heart attack,” he said.

There was a tone of reconciliation in his comments in contrast to his statements at previous wind turbine hearings.

“I’ve offered to help and figure this thing out,” Mr. Andersen said.

Also present was Todd A. Drummey of Blacksmith Shop Road, who said the outcome was also what he expected. “I’d love to see the thing disappear, but it definitely needs to be controlled.”

Living 3,000 feet away from Wind 1, he said, many nights the machine does not bother him, but on the nights the wind is blowing from certain directions, it keeps him up at night.

Tax abatements are another option for residents who live near the turbines, but Mr. Drummey rejected that suggestion. If he decided to sell his house, Mr. Drummey said he would expect the town to make up the difference in the selling price and the town’s assessment.