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Falmouth selectmen to seek permit for turbine; Building commissioner reverses earlier decision on need for ZBA approval

FALMOUTH – Five years after it became operational, the town will seek a zoning permit for one of its twin wind turbines, potentially setting the stage for another round of contentious public hearings on the devices’ operation.

Earlier this month the Massachusetts Supreme Judicial Court denied Falmouth’s petition for further review of a Court of Appeals ruling that the town needed approval from the Zoning Board of Appeals before installing Wind 1, one of the two turbines. Building Commissioner Eladio Gore had ruled that, since the 397-foot-tall turbines were owned by Falmouth and being installed on town land, zoning laws didn’t apply.

On Thursday, in line with the court ruling, Gore reversed his earlier decision and gave the Board of Selectmen 30 days to apply for the permit. After meeting in a closed-door session for the second time this week, the board members announced that Town Manager Julian Suso would submit the application.

The suits brought by a cluster of neighbors were 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.

In a letter to selectmen, Gore also ruled that the town’s original zoning bylaw would be used for the ZBA’s determination because the courts consistently referred to the original bylaws in its decisions. 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-related 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. Selectmen also announced Thursday that they would continue to fight an attempt in that case to shut down the turbines all together.