FALMOUTH – Town officials have lost their final chance to overturn a court ruling requiring that they secure zoning approval for two existing wind turbines at the Blacksmith Shop Road wastewater treatment facility.
The Massachusetts Supreme Judicial Court on Wednesday denied Falmouth’s petition for further appellate review of the town’s ongoing legal dispute with neighbors over the controversial wind turbines. The state Court of Appeals ruled in February that the town needed approval from the Zoning Board of Appeals before installing Wind 1, one of the two turbines; the town contended that, since the turbines were owned by Falmouth and being installed on town land, zoning laws didn’t apply.
With no more judicial avenues to pursue, the case will return to Barnstable Superior Court Judge Robert Rufo, who must issue a ruling in line with the new findings.
Todd Drummey, one of the Falmouth residents and turbine neighbors who sparked the lawsuit, said Thursday that he and his neighbors were “happy, but not really surprised” the state’s high court didn’t take the case.
“It was hard to imagine that this rose to the level of the SJC,” he said.
In a prepared statement, Town Manager Julian Suso said the town is reviewing the effects of the decision and that the matter would be discussed at a future Board of Selectmen’s meeting.
“No further comments or speculation would be appropriate at this time,” according to the statement.
The Court of Appeals had overturned a June 2013 by Rufo 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 Drummey and other neighbors.
The suit was based on the town’s zoning bylaws, which exempt town buildings from the zoning permit process but 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.
It remains unclear what the next step will be. If the turbines have to go through the zoning process, it’s uncertain which of two versions 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 allowable noise levels audible to neighbors from the machines.
The town is locked in several legal battles over the turbines, including a pair of lawsuits it has brought against its own Zoning Board of Appeals. The board has twice ruled that the turbines are a nuisance and directed the town to take whatever steps are necessary to remedy the situation. The town has spent hundreds of thousands of dollars on special counsel for turbine-related matters and last fall asked town meeting for a $278,000 transfer of free cash to pay for legal fees, including for the turbine lawsuits.
The Appeals Court stopped short 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 Barnstable Superior Court Judge Christopher Muse.