The Falmouth Zoning Board of Appeals tabled a final decision on whether to issue a cease-and-desist order on the town’s wind turbines, but the board indicated its inclination to keep them spinning.
“I think the town proceeded in good faith when they erected them and cessation is the last resort,” said newly appointed zoning board chairman Kimberly A. Bielan at the hearing Thursday evening, July 23.
The town believed it acquired the necessary permits when it erected the turbines, has complied with the operation injunction, and is now seeking the correct special permit, she said.
The Falmouth Zoning Board of Appeals was responding to an appeal of order by Falmouth residents who want the turbines shut down while the town applies for a special permit from the same board.
The plaintiffs oppose an order made by building commissioner Eladio S. Gore, in his capacity as Falmouth’s zoning enforcement officer, that directs selectmen to apply for a special zoning permit, but fails to order the cease-and-desist.
Mr. Gore’s letter is a response to the Massachusetts Supreme Judicial Court refusal to review a Court of Appeals ruling that the town should have received a special use permit from its own zoning board before erecting Wind 1 in 2010. Its mate, Wind 2, was erected two years later.
“Cessation of the turbines is tantamount to tearing them down,” argued Diane C. Tillotson, attorney for Falmouth, stating the consequences would be disastrous.
“The courts have made it clear tear-downs are actions of last resorts and all corrective action should be considered first. It would be inappropriate to shut them down before going through the permitting process,” she said.
Board members, during their deliberations, agreed that cessation was too drastic.
Zoning board member Paul Murphy said it is customary to give relief to the person or entity being harmed.
Some argued that the town and taxpayers would be harmed with loss of income if the two 1.65-megawatt industrial-sized turbines were forced to be shut down.
However Christopher Senie, attorney for the nine plaintiffs, stated allowing the turbines to run when it does not have proper permitting violates Falmouth’s district use regulations.
“Mr. Gore’s decision erodes the bylaw and allows these very large machines to run when proper noise testing has not been done,” he said.
Plaintiff Neil P. Andersen of Blacksmith Shop Road stood to speak in favor of temporary turbine relief.
“The thing is inside my house… the pressure is measurable in my home. I feel it in my chest cavity,” he said.
Resident Linda E. Davis of Boxberry Hill Road said allowing the turbines to spin without the required permitting is akin to a restaurant in business without the proper health and business permits.
“No one is above the law, including the town. I can see where a cease-and-desist is appropriate while the appeal process takes place. It’s logical and fair,” she said.
Questions also arose about whether the plaintiffs have standing since Mr. Gore’s order was directed at selectmen and not to the plaintiffs themselves.
Falmouth special counsel Mark Bobrowski said he felt the appeal was proper since the plaintiffs are claiming personal harm – a consideration according to Massachusetts law.
In a related matter, the board also will have to decide whether the town’s application should be heard under Falmouth’s original windmill law or the amended version, now called wind energy system bylaw. In 2013, Town Meeting approved the revised bylaw that prohibits turbines with a capacity of more than 250 kilowatts anywhere in town. Both turbines have capacities of 1.65 megawatts, more than six times what’s permitted by the newer restrictions.
Mr. Senie contends the 2013 approval not required (ANR) plan that essentially freezes for three years the zoning on the property where the turbines are sited only protects in changes of use, not size. However, Ms. Tillotson argued the new size restriction essentially changes the use by regulating the energy output.
The board will continue deliberations on August 20. They will also be hearing three more cease-and-desist cases and the town’s special permit application in the upcoming months.
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