FALMOUTH – The town will petition the state’s highest court to review a recent legal defeat in its ongoing battle over two municipal wind turbines.
The Massachusetts Court of Appeals ruled Feb. 26 that Falmouth should have obtained a special zoning permit before it put up Wind 1, one of its controversial wind turbines located at the town’s wastewater treatment plant. Neighbors had argued that the town’s zoning bylaws required a special permit for the turbines, but the building commissioner and Zoning Board of Appeals claimed the bylaw didn’t apply since it was the town that was erecting them.
Monday night, following a second closed-door session in two weeks to discuss legal strategy for the turbine case, selectmen voted 4-0 to have Frank Duffy, the town’s lawyer, petition the Supreme Judicial Court for further appellate review. Selectman Rebecca Moffitt was absent.
“This board has always been very consistent,” said Mary Pat Flynn, chairman of the Board of Selectmen. “All of our decisions have been to support continuing operations of the wind turbine.”
Duffy said Tuesday that the application will be submitted by today, the last day of the town’s 20-day window to file its petition.
The Court of Appeals overturned Barnstable Superior Court Judge Robert Rufo’s June 2013 decision and ruled in favor of a cluster of neighbors who sued the town over its 2009 installation of Wind 1. The ruling was based on two lawsuits that were merged at the lower court: one by Elizabeth and Neil Andersen, and another by Todd Drummey and other neighbors.
The town’s zoning bylaws exempt town buildings from the zoning permit process, but the bylaws don’t specifically exempt wind turbines. Although turbines don’t have to be named to be covered by that bylaw, the Court of Appeals wrote that, since the town has a bylaw specifically for wind turbines, it is reasonable to conclude that the devices were not intended to be exempt from the zoning process.
If the decision stands and the turbines have to go through the zoning process, it is still unclear which version of the turbine bylaw will be applicable. In 2013, town meeting approved a revised bylaw that prohibits turbines with a capacity of more than 250 kilowatts anywhere in town. Both Wind 1 and its mate, Wind 2, have capacities of 1.65 megawatts, more than six times what’s permitted by the newer restrictions. The bylaw also limits to 6 decibels the noise levels audible to neighbors.
On Tuesday, Annie Cool, a turbine neighbor and party to one of the lawsuits, said she and her husband, Mark, aren’t surprised that the town is pursuing an appeal.
“We’re still very hopeful the decision will stand,” she said.
The favorable ruling from the Court of Appeals was vindicating and validating, she said.
“It’s nice to know that even though we’ve been told by certain powers-that-be that we were wrong, that we stuck to our guns,” she said.
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