Appeals court strikes down Falmouth’s permitting of wind turbine

Credit: ELIZABETH W. SAITO | The Enterprise | February 26, 2015 | www.capenews.net ~~

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An appellate court ruled on Thursday, February 26, that the Town of Falmouth erred in erecting Wind 1 without a special permit. Wind 1 is one of two town-owned turbines located off Blacksmith Shop Road at Falmouth’s Wastewater Treatment Facility. It was put up in 2009, and since then, many neighbors have complained of mental distress and poor health caused by the turbine’s sound pressures and noise.

Neil P. Andersen is one of the nine abutters listed as plaintiffs in the case. “This is an extremely positive step,” Mr. Andersen said of the decision, which overruled a a 2013 Barnstable Superior Court ruling that upheld the town building commissioner’s decision to erect the turbines without a special permit.

“It will be interesting to see how the town handles this,” Mr. Andersen said.

Town counsel Frank A. Duffy Jr. said, “We’re disappointed with the decision,” and that the town manager and the Falmouth Board of Selectmen will discuss the town’s response options at Monday’s board of selectmen meeting.

One option is to file an appeal of the decision with the Massachusetts Supreme Judicial Court, Mr. Duffy said. The town has until March 18 to file a petition for further appellate review. The Supreme Judicial Court hears cases on a discretionary basis, and could elect not to take the case, Mr. Duffy said.

The appeals court’s eight-page decision in favor of the abutters found that Falmouth’s building commissioner, Eladio S. Gore, erroneously interpreted a bylaw that automatically allows all “community service uses,” such as water towers and town offices, to be built on town land. “We think that this interpretation of the bylaw to include Wind 1 as a permitted community service use was [an] error,” the ruling reads.

“Obviously, we’re elated,” said abutter Mark J. Cool of Fire Tower Road. “It’s grand our appeal was upheld.”

“But personally, I’m not certain what this means for the neighbors and myself,” he continued. “We don’t know the clear end game on this. It’s just one more step.”

Mr. Cool said he hoped the February 26 ruling would open a dialogue between stakeholders and the town, “hopefully working together rather than continuing to fight.”

In November of 2013, a Barnstable Superior Court judge ruled, in a separate nuisance complaint lawsuit, that the turbines only be allowed to run from 7 AM to 7 PM Monday through Saturday.

Source: ELIZABETH W. SAITO | The Enterprise | February 26, 2015 | www.capenews.net

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