FALMOUTH – Both of Falmouth’s controversial wind turbines will keep spinning while the town applies for zoning approval for the five-year-old devices, a Barnstable County judge ruled Thursday.
Judge Robert Rufo declined to issue a cease-and-desist order requested by neighbors in the wake of a Court of Appeals ruling that said the town should have received a special-use permit from its Zoning Board of Appeals before erecting Wind 1, one of its two turbines. Building Commissioner Eladio Gore did not issue such an order when, on June 11, he ordered selectmen to apply for a permit in accordance with the court ruling.
Since Gore would not order the turbines shut down until a special-use permit could be issued, the court must, attorney J. Alexander Watt said. He and attorney Christopher Senie, who represent two groups of neighbors who sued separately over the zoning issue and had their cases joined, argued that Wind 1 continuing to operate is analogous to a restaurant opening in a residential neighborhood before it gets zoning approval.
“For five years the turbines have operated unlawfully,” Watt said. “It’s inherent in the (zoning) bylaw that the cease-and-desist order shall be made.”
The suits 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 do not 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.
But the Court of Appeals stopped short of ordering the turbines shut down, writing in a footnote to its decision that the town’s bylaws give the building commissioner that authority.
Town attorney Frank Duffy argued that the matter should stay at the town level. Senie has petitioned the appeal’s board to overturn Gore’s decision not to issue the cease-and-desist order, and a July 23 hearing is scheduled on that matter. Duffy has already applied for the permit, and the zoning board of appeals will start that process in August or September.
“It’s not a hollow or empty process,” Duffy said of getting the permit. “It’s possible – maybe even likely, I don’t know – (neighbors) will get the remedy they want there.”
There’s also another lawsuit pending over a nuisance claim against the turbines by neighbors before Judge Christopher Muse that is likely to go to trial.
Rufo said he wasn’t going to superimpose any new restrictions on top of the processes that are already underway at the town, but he didn’t rule out further action.
“It doesn’t mean I won’t,” he said. “I will if I think I should at any point in time.”
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