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Court: Falmouth should have obtained permit before erecting turbine

FALMOUTH – The town of Falmouth should have obtained a special zoning permit before it put up one of its controversial wind turbines, the Massachusetts Court of Appeals ruled Thursday.

The court ruled in favor of a cluster of neighbors who sued the town building commissioner and Zoning Board of Appeals over its 2009 installation of Wind 1, one of the twin wind turbines erected at the town’s wastewater treatment facility.

The Appeals Court ruled that just because the turbines are owned by the town does not mean they are exempt from the town’s bylaw that requires a special permit to construct a wind turbine.

The court stopped short, however, of ordering the town to shut down Wind 1 until a special permit is issued. The turbines are already operating on a reduced schedule under a November 2013 order from Judge Christopher Muse that curtailed their usage.

The town’s zoning bylaw exempts town buildings from the zoning permit process but it doesn’t specifically list wind turbines as an example of a town building. Although it doesn’t have to be named to be covered by that exemption, the Court of Appeals determined that the wind turbine bylaw’s existence means the devices were not intended to be an exception to the zoning process, the decision said.

Barnstable Superior Court Judge Robert Rufo had ruled otherwise in June 2013.

“Because the by-law does not contain any exemption for the town from its provisions … it is apparent that the decisions of the ZBA and the Superior Court judge, which relied on incorrect interpretations of the by-law, are not entitled to deference,” the Court of Appeals wrote.

Frank Duffy, Falmouth’s town counsel, said he had distributed the ruling to town officials and the Board of Selectmen, who will ultimately decide the town’s next move. The town could petition the Supreme Judicial Court for a review of the case.

“I will be looking for direction,” he said.