The trial in the lawsuit against the town of Falmouth over the permitting process for the now Wind 1 turbine is scheduled to open in Barnstable Superior Court today.
Six plaintiffs – all Falmouth residents who live near two turbines at the Wastewater Treatment Facility on Blacksmith Shop Road – are challenging a 2011 ruling by the town’s Zoning Board of Appeals that affirmed Building Commissioner Eladio Gore’s approval of the first turbine to be erected.
“The point we were trying to make is the town should have got a special permit,” Todd Drummey, one of the plaintiffs, said. “They should have held hearings.”
Drummey, along with Mark Cool, Brian Elder, Barry Funfar, Lawrence Worthington and Robert Laird, want a cease-and-desist order on Wind 1’s operation until it receives a special zoning permit from the town. The suit has been consolidated with one brought by Neil and Elizabeth Andersen, on the same grounds.
A town zoning bylaw requires windmill projects to receive a special permit from the zoning board, but Gore exempted Wind 1 from that stipulation under a different bylaw that allows the town to bypass the special permitting process for “all municipal purposes.”
When the question of whether Gore could bypass the permit came before the zoning board in February 2011, three of the four members voting said he needed the special permit. But because two members had recused themselves from the vote, the board didn’t have the required four votes to overturn Gore’s decision.
Gore declined to comment for this story.
Falmouth’s special permit exemption rule does not apply to Wind 1, in part, because the turbine is for “accessory use” at the wastewater treatment plant, not municipal use, said Brian Schwartz, the attorney representing six plaintiffs.
A Superior Court judge should overturn a town decision only if there is an error in its legality or if it is arbitrary or capricious, said Frank Duffy, Falmouth’s town counsel who will represent the town in court. Duffy said he does not believe the town acted outside its own bylaws.
Even if the judge rules in the plaintiffs’ favor, the planning board earlier this week approved a measure filed by Duffy that freezes zoning for Wind 1 and Wind 2. Now, current windmill bylaws will apply to the turbines for the next three years. The move protects the turbines from being held to stricter zoning standards proposed in an article placed on April’s warrant by the planning board.
Monday’s trial comes days after state Rep. David Vieira, R-Falmouth, filed a Wind Energy Relief Act at the Statehouse, which would create two funds totaling $22.5 million. The funds would go toward compensating people and businesses for detrimental effects on health or property resulting from turbines in locations chosen in cooperation with the Massachusetts Clean Energy Center. Funds would also assist towns in relocating or decommissioning turbines.
The suit also comes amid scheduled deliberations among Falmouth selectmen next week over another possible town meeting article related to the operation of Wind 1 and Wind 2. On Friday, Selectman Kevin Murphy said the lawsuit will not be a factor in their proposal.
|Wind Watch relies entirely
on User Funding