Plaintiffs in a wind turbine zoning lawsuit filed opposition recently in response to the Town of Falmouth’s request for further judicial review, stating the case lacks substantial public interest.
“I don’t think an issue that does not go beyond one town’s bylaw requires Massachusetts Supreme Judicial Court review,” said Christopher Senie, attorney for the plaintiffs. He wrote in his opposition that the issue does not extend beyond a correction of an erroneous interpretation of a local zoning bylaw.
Mr. Senie, a Westborough attorney for nine Falmouth turbine abutters listed as plaintiffs, filed the document after the Town of Falmouth petitioned the supreme judicial court seeking review of an appeals court decision last month that the town installed Wind Turbine 1 in error.
The appeals court decision reversed an earlier ruling that the town installed Wind 1 correctly. It overruled a 2013 Barnstable Superior Court ruling that upheld the town’s decision to install the turbine without a special permit from the local zoning board.
The town and superior court maintain under Falmouth zoning law that all municipal purposes are allowed by right in a public use district and therefore do not require a special permit. Both the town-owned turbines are at the municipal wastewater facility off Blacksmith Shop Road, which is in such a district.
But the appeals court that sided with the turbine neighbors ruled that another town bylaw that windmills used for accessory, or secondary, purposes require a permit despite the community services exception.
“The appeals court decision had a lot of strengths and corrected a past decision,” Mr. Senie said.
In the town’s petition for further review to the state’s highest court, town counsel Frank K. Duffy Jr. wrote the operative word in the bylaw is “all” and therefore all municipal purposes are allowed there without seeking a permit.
“The town has recited a mantra that ‘all means all,’ but none of the other customary municipal uses allowed by right in the district are also subject of a special protection zoning bylaw intended to provide a set of safeguards,” Mr. Senie wrote.
The turbines, 397 feet tall from base to blade, generate electricity that augments power used at the wastewater facility.
Generally these districts are places where a town operates its infrastructure and many municipal activities generate noise, traffic and other objectionable features, making them less attractive to neighbors, Mr. Duffy wrote.
Wind 1 was erected in 2009 and since then many neighbors have complained of mental distress and poor health caused by the turbine’s sound pressure and noise. The plaintiffs all live within 1,300 to 3,200 feet of the structures, according to the appeal.
Mr. Senie said it will probably be a month before the state Supreme Court judges decide to review Falmouth’s petition. If the court does not agree to accept the case, the turbines might have to go through the zoning process.
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