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Appeals board hears opening arguments in turbine nuisance claim  

Credit:  Falmouth Enterprise March 8, 2013 | via mjoecool.wordpress.com ~~

Falmouth Zoning Board of Appeals heard initial arguments on an appeal by Neil P. Andersen of Blacksmith Shop Road, West Falmouth, who is claiming that the town-owned Wind 1 turbine at the wastewater treatment facility is a nuisance, but continued the hearing due to a lack of time.

Last night’s hearing did not begin until 9:05 PM due to a packed agenda and an earlier appeal that took up more than an hour of the board’s evening, and Chairman Matthew J. McNamara called for a continuance due to the fact several people in the audience of about two dozen people expressed a desire to testify. “We might as well reschedule for another time,” Mr. McNamara said. “I get the sense with the number of people who want to speak we’re going to need another time for this.”

The May 2 date was chosen due to the board’s busy agendas leading up to the Spring Annual Town Meeting. The hearing will resume at 6:30 PM, and the public will have an opportunity to testify specifically on Mr. Andersen’s complaint and the town’s subsequent denial.

Mr. Andersen has filed several written complaints with the building department in regard to the turbine, but the appeal was on a November complaint asking Eladio R. Gore, the town’s building commissioner, to declare Wind 1 a nuisance by virtue of excessive noise and order it shut down. Mr. Andersen told the board of the discomfort he and his wife,

Elizabeth L., have experienced since Wind 1 was activated in 2011, a combination of the audible noise from the turbine in operation and a sensation of pressure that has led to sleep disruption, headaches, disorientation, and other symptoms.

As a result, Mr. Andersen said he and his wife will retreat to certain parts of their home to try to alleviate the unpleasant sensations, and on occasion leave the property entirely.

Mr. Gore, who made a rare appearance in response to an appeal of one of his decisions, said he did not doubt that Mr. Andersen’s problems were legitimate, but said his decision to reject Mr. Andersen’s complaint that Wind 1 posed a nuisance based on excessive noise was not supported by the evidence. “I don’t dispute what Mr. Andersen says he’s experiencing. The question becomes whether or not that is directly related to and caused by the wind turbine, and that I do not have any information to substantiate,” Mr. Gore said. “I did not have enough evidence, scientific, that would tie the issues that he was experiencing to the wind turbine.”

Town counsel Frank K. Duffy Jr. noted that the point is significant because the burden of proof in a nuisance claim is on the complainant. Both men referred to a Massachusetts Department of Public Health sound study that found that the turbine’s sound output, as measured from Mr. Andersen’s property, was in seven samplings out of eight—four taken during the daytime, four at night—at 40 decibels (dB) or higher and thus in excess of the 40 dB noise limit in the current wind turbine bylaw.

At 40 dB, the sound from the turbine would be softer than the human voice at a normal speaking volume. The highest sound level recorded by the DEP, 50.5 decibels, is about 10 dB softer than a normal conversational voice.

However, Mr. Gore said the basis for his decision to reject Mr. Andersen’s appeal was the DEP’s recommended noise threshold for turbines of 10 dB over a location’s ambient sound levels. Some nighttime readings did exceed that threshold, he said, but he added that the town no longer runs the turbine at night; its official hours of operation are

7 AM to 7 PM. The DEP’s daytime measurements of Wind 1 did not exceed the 10 dB threshold, Mr. Gore said.

He went on to note that Wind 1 and Wind 2, combined, failed to generate enough sound to exceed the 10 dB threshold, and that DEP measurements taken at several other locations near the wastewater facility —Fire Tower Road, Ridgeview Road, Ambleside Drive, and elsewhere on Blacksmith Shop Road—not only failed to record a sound violation based on the DEP standards, but found that the ambient sound levels themselves were in excess of 40 dB. One location recorded an ambient sound level of 52 dB.

Mr. Gore said Wind 1’s greatest sound output measured was 7.6 dB over ambient during turbine startup. Mr. Duffy added that the sound generated by the turbine was not
constant, was not consistent in its volume, did not happen at consistent times of day, and by Mr. Andersen’s own admission, was dependent on wind speed and direction to generate the offending noise levels.

Further, Mr. Duffy said even though the nuisance bylaw was generally “very vague” in many regards “with no specific criteria for how to apply it,” it does assert that noise must be both “substantial and unreasonable” to be declared a nuisance.

He cited Mr. Gore’s findings as evidence the sound was not substantial, and argued that it was not unreasonable because the turbines are located in a public use district.

“His property is in close proximity to a public use zoning district,” Mr. Duffy said, which “is where a municipality locates its infrastructure. It’s where it locates a wastewater treatment plant, a dog pound, it’s where they locate public works facilities, and other facilities that by some people’s standards are considered incompatible with a quiet residential neighborhood.”

Mr. Duffy said case law supports the idea that nuisance complaints do not hold up when the source of the alleged nuisance is an appropriately sited municipal or industrial use.

Source:  Falmouth Enterprise March 8, 2013 | via mjoecool.wordpress.com

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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