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Judge orders turbine limits
Credit: By Sean F. Driscoll and Heather Wysocki | Cape Cod Times | November 23, 2013 | www.capecodonline.com ~~
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Translate: FROM English | TO English
FALMOUTH – No handshake deal this time: A Barnstable Superior Court judge has ordered limited operations of Falmouth’s two wind turbines, including shutdowns on Sundays and holidays through the end of the year.
Judge Christopher J. Muse’s ruling late Thursday came after the town sued its own Zoning Board of Appeals over a determination that the turbines are a nuisance to nearby residents. Residents Neil and Elizabeth Andersen asked for a ruling to shut down the turbines while the overall court case was decided.
Although Muse stopped short of turning off the turbines, he did agree that their operation was causing the Andersens and many of their neighbors harm, including “insomnia, headaches, psychological disturbances, dental injuries and other forms of malaise,” according to his order. “The court finds there is a substantial risk that the Andersens will suffer irreparable physical and psychological harm if the injunction is not granted,” he wrote. The turbines will be off from 7 p.m. to 7 a.m., except on the days Muse has ordered them shut off.
In a phone interview Friday, Neil Andersen said Muse’s ruling showed “compassion about a complex issue.”
“We’re relieved, certainly. This gives us a little bit more breathing room,” he continued. “It was a positive step.”
Now, according to Muse’s order, the town is to pursue mitigation options with homeowners and give a status update in 75 days on those efforts.
The order followed a Nov. 7 hearing at which attorneys for both sides struck a verbal agreement to reduce the turbines’ operation from 16 hours a day to 12 until the lawsuit was resolved. But the pact never took hold, and the turbines continued to run from 5 a.m. until 9 p.m. every day.
The agreement was informal, and no documents about it were filed, according to Superior Court records.
At a hearing Thursday, Muse said he was “disappointed” the parties did not follow through with the agreement.
“Perhaps (Nov. 7 agreement) was a little too conciliatory, such that it didn’t issue an order,” he said. “But it was understood it would be done. … I take issue with the fact that it was ignored.”
Falmouth Town Counsel Frank Duffy said he brought the agreement to the Falmouth Board of Selectmen, which has discussed the issue in several executive sessions, but the board wanted to include a reduced schedule as part of a negotiated settlement, perhaps getting something in return.
Settlements have been presented to the Andersens and other neighbors but have not been agreed upon, he said.
Duffy said, however, that the town would “absolutely” obey if Muse ordered the change back to 12-hour operations. “We want a resolution as much as they do.”
Duffy said Friday he had no comment on the decision, other than to say the new operating schedule would be put in place. Since the town didn’t get the order until Friday morning, today will be the first day for the altered operation.
During Thursday’s hearing, Neil Andersen testified that he and his wife “just can’t stay in that house” and have their lives affected every day by the turbines. “We were expecting some relief two weeks ago,” he said, adding that they plan to move from their home as soon as possible. “Maybe let us enjoy our last holiday in our home in peace?”
J. Alexander Watt, the Andersens’ attorney, also argued that the town of Falmouth would not suffer the way the Andersens have while waiting for a decision.
But Falmouth Town Manager Julian Suso said during the hearing that shutting down the turbines could lead to a requirement to pay back a loan used to construct Wind 2, thus leading town officials to find money elsewhere.
He dismissed Watt’s notion that the town’s $2 million in available cash could be used to pay those loans temporarily if they were shut down through a ruling by Muse.
“Our only recourse would be to use other resources and reduce town basic services and employees,” Suso said.
The two 1.41-megawatt turbines, located at the town’s wastewater treatment facility on Blacksmith Shop Road, were paid for through a combination of bond sales, state and federal loans, and grants.
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