December 31, 2011
Massachusetts

Appeal of ZBA decision goes to trial

By Christopher Kazarian, The Falmouth Enterprise, 30 December 2011

Neil P. and Elizabeth L. Andersen’s appeal of the decision earlier this year by the Falmouth Zoning Board of Appeals to uphold Building Commissioner Eladio R. Gore’s determination that the town did not need a permit to build Wind 1 is heading to trial.

Judge Robert C. Rufo of Barnstable Superior Court rejected both the Andersens’ and the town’s request that he issue a summary judgment in the case as a matter of law.

He issued the ruling on Wednesday, writing that
“after a hearing and rigorous examination of the summary judgment record, this court finds that there are genuine issues of material fact which preclude summary judgment.”

At issue, he continued, is whether a special permit was required to install and operate the wind turbine at the town’s Wastewater Treatment Facility off Blacksmith Shop Road. “This question cannot be answered without first determining whether the wind turbine serves a ‘municipal purpose’ pursuant to Bylaw 240-30(B) or whether the wind turbine is an accessory use’ pursuant to Bylaw 240-33(G)(5),” he wrote.

Because the question cannot be resolved “as a matter of law,” he declined to issue a summary judgement for either the Andersens or the town.

Falmouth Town Counsel Frank K. Duffy Jr. wrote in a e-mail that this means the case will proceed to a trial. That may not happen for some time, as Mr. Duffy noted a pre-trial conference may be scheduled for July.

Mr. Duffy noted the decision indicates that “the judge believes there are issues of material fact to be determined at a trial…”

On March 3 the Zoning Board of Appeals denied the Andersens’ appeal, effectively upholding Mr. Gore’s decision in approving the wind turbine by right. The Andersens then appealed that ZBA decision on March 21 in Barnstable Superior Court.

In April Judge Rufo denied a request by J. Alexander Watt, the attorney for the Andersens, seeking a preliminary injunction to shut down Wind 1. Mr Watt had argued that the turbine was causing significant physical harm to his clients.

A phone call seeking comment from Mr. Watt was not returned as of press time.

Attorney Christopher G. Senie of Westboro, who is representing six abutters to Wind 1 in a companion case to this one, said the judge’s decision was not unusual. “It is difficult to have a case be disposed of by summary judgement,” he said. “I haven’t read the decision, but the judge may have found factual disputes that have to be resolved at trial before he can make an ultimate decision. That probably happens in 80 percent of cases there there is a lawsuit.”

URL to article:  https://www.wind-watch.org/news/2011/12/31/appeal-of-zba-decision-goes-to-trial/