FALMOUTH – The town has the right to use its land for all municipal purposes, including running wind turbines, and doesn’t need a zoning permit to do so, Falmouth’s town counsel argued in a petition to overturn a Court of Appeals ruling it lost last month.
Town Counsel Frank Duffy wrote in a 22-page brief to the state’s Supreme Judicial Court that town bylaws permit using town land for “all municipal purposes.” As such, the town’s building commissioner decided that the 2009 installation of Wind 1, one of the town’s twin turbines at its wastewater treatment facility, could proceed without a review by the Zoning Board of Appeals.
“Many municipal activities generate noise, traffic and other objectionable features which make them less attractive (to) neighbors,” Duffy wrote in the brief, filed Wednesday. “For this reason it is logical and reasonable for a municipality to craft its zoning bylaw and permit municipal infrastructure in designated districts by right.”
That’s the position the court held in a 2013 trial in Barnstable County Judge Robert Rufo’s courtroom, but the Court of Appeals overturned that ruling. Although turbines don’t have to be named to be covered by the municipal use exemption, 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.
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.
After the town lost its appeal, selectmen voted unanimously to petition the SJC for further review of the case. If it does not agree to accept the case, or if it lets the Court of Appeals decision stand, then the turbines will have to go through the zoning process. But 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.
Christopher Senie, a Westborough attorney representing the neighbors, has until Thursday to file his response to the town’s petition.
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