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Battle over Falmouth turbines not over yet

FALMOUTH – Opponents of a controversial pair of town-owned wind turbines got a boost in Barnstable Superior Court recently when a judge said they had a “likelihood of success” in their legal battle.

But they haven’t won yet.

Neil and Elizabeth Anderson went to the Falmouth Zoning Board of Appeals to fight the turbines in 2012, claiming the rhythmic noise and pressure was causing negative physical and psychological effects. In May, the ZBA agreed with the Andersons and overturned Building Commissioner Eladio Gore’s ruling that the turbines were not a nuisance.

That forced the town to take its own ZBA to court in an attempt to overturn the zoning board’s decision. While Judge Christopher Muse didn’t rule outright in the Andersons’ favor, he did say the town’s arguments weren’t enough to overturn the ZBA decision outright.

In his ruling, issued Oct. 10, he disagreed with two of the town’s points. Falmouth’s staff attorney, Frank Duffy, argued the town was exempt from turbine-related nuisance complaints because their construction and operation was authorized by the Legislature. Duffy further claimed, according to court documents, that the Andersons complained only about one turbine, Wind 1, and not the pair, which would invalidate the ZBA ruling covering both Wind 1 and Wind 2. Both of the devices are located at the town’s wastewater treatment facility on Blacksmith Shop Road.

Muse said he needed more information on the town’s claims of economic harm that would be caused by limiting the turbines operation or shutting them down outright. He also wants more information from the Andersons about the harm directly caused by the continuing operation of the turbines. He’s given both sides until Oct. 30 to submit that documentation, and scheduled another hearing for Nov. 7.

The two 1.65-megawatt turbines have been the source of anger in the neighborhoods surrounding the wastewater treatment plant virtually since their installation. Some neighbors, including the Andersons, have complained about ill effects caused by their operation, while the town and other residents say they are a needed source of low-emission energy. The town also had planned to make money off their operation by selling green energy credits to power companies.

But those plans have largely been stymied as the furor over the turbines increased. The turbines were off, then each running 12 hours a day while selectmen tried to balance the needs of the town coffers with the ill effects being reported by residents.

This month, the turbines were turned on for 16 hours a day in an attempt to balance their costs with revenues. That decision sparked a return by opponents to another Falmouth governing body, the health board, which is working to determine if the turbines’ “off” period of 9 p.m. to 5 a.m. is sufficient or if their operation is disrupting sleep in the neighborhood.

Emails and messages left for Duffy and Barnstable attorney J. Alexander Watt, who represents the Andersons, were not returned Friday afternoon.