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Judge sides with neighbors aggrieved by Falmouth wind turbines  

Credit:  By KENNETH POTTEL | December 04, 2013 | www.southcoasttoday.com ~~

Property rights, for some reason, have been forgotten and neglected by too many leaders, and even by too many citizens. Commonwealth citizens, especially Falmouth’s leaders and residents, were reminded by Barnstable Superior Court Judge Muse (“Battle over Falmouth turbines not over yet,” Oct. 21) that property rights must be protected and that these rights should never be taken for granted. No public benefit or additional (or loss of) tax dollars, justifies taking away fundamental rights. Judge Muse made explicitly clear that the commonwealth resident must value property rights, and that these rights are never negotiable.

Just to refresh the reader, a brief history of events bringing this matter to where it is today: The lack of health and property rights protections triggered the nuisance finding of Falmouth’s zoning board of appeals; the ZBA directed the zoning enforcement officer (also serves as the town’s building commissioner) to develop and implement a mitigation plan eliminating or reducing to the board’s satisfaction the identified nuisance condition; the Board of Selectmen, urged by the town’s wind turbine insurers, elected to appeal the ZBA’s nuisance decision and thereby suspended any mitigation action imposed by the enforcement officer until the conclusion of the appeal.

A family then filed an injunction with Barnstable Superior Court to cease turbine operations.

One of the underpinning injunction considerations the court is sensitive to (the judge’s opening remarks encouraged sensitivity be shown all parties to this filing), is the financial hardship that may be placed upon the town. The town must demonstrate to the court’s satisfaction that a financial hardship exists such that the town needs relief from attending to the health and property rights protection requirements.

Yet, to reach a final settlement regarding the injunction, the town has stated that neighbors will have to submit a list of proposed actions to the town that they believe will end all outstanding zoning and nuisance claims. That list will be discussed by selectmen once Town Meeting concludes next week.

The court has made it clear that attending to the health and property rights protection requirements is not simply a good idea. He has made it clear that it’s the law, and that such any relief shall not nullify or substantially derogate from the intent and purposes of Health & Property Rights Protections.

The obvious action neighbors believe that will end outstanding zoning and nuisance claims, while moving forward toward reaching a final injunction settlement, is non-operation of the wind turbines 24/7.

Neighbors have been saying this since the turbines first became operational. Neighbors said it all through and at the end of the selectmen sponsored “Wind Turbine Options Process.” And finally, the defining evidence supporting the position held by neighbors, the ZBA’s nuisance finding not limited to an identified period of time or contingent upon any reference to a time interval. In other words, the nuisance condition to be eliminated, exists 24/7.

It’s pretty simple, neighbors just want the nuisance to stop and the law to be enforced! Thank you, Judge Muse.

Kenneth Pottel lives in Fairhaven.

Source:  By KENNETH POTTEL | December 04, 2013 | www.southcoasttoday.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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