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Filing flub kills town’s turbine appeal

FALMOUTH – The town’s appeal of a cease-and-desist order shutting down one of its wind turbines will not go forward after attorneys missed a key deadline to file the suit in the town clerk’s office.

Diane Tillotson, a Boston lawyer who was hired as special counsel in wind turbine matters for the town, filed the appeal of the Zoning Board of Appeals decision Oct. 2 with the state’s Land Court, more than a week ahead of the deadline to challenge the board’s Sept. 17 ruling that Wind 1 must cease operations while a special permit application is pending. But it was not filed in Town Clerk Michael Palmer’s office as well, he confirmed Wednesday, which the law also requires.

Without that action, attorneys said, the case was stopped in its tracks.

“We cannot move forward,” said Doug Jones, chairman of the Board of Selectman. “We certainly thought we had given the attorneys that direction. That is disappointing.”

A news release sent Wednesday afternoon by Town Manager Julian Suso couched the turn of events in a different light, however, and suggested the decision was made by selectmen on their own initiative. The board was informed of the issue in executive session Monday night.

“Upon further consideration of its decision to file an appeal of the cease and desist order concerning Wind 1 … the Town has determined that it will not pursue the appeal and has directed special counsel to dismiss the same in Land Court,” Suso wrote in the statement.

The board approved the statement without including the rationale behind its decision, Suso said Wednesday.

“I suppose it could have have been” included, he said.

Town attorney Frank Duffy could not provide an explanation for the filing oversight: “It just didn’t occur.”

Tillotson could not immediately be reached for comment.

The dispute over the town’s turbines is far from settled. The Zoning Board of Appeals is scheduled to begin a hearing Oct. 29 on the town’s application for a special permit for Wind 1 that, if granted, would allow the turbine to resume operations. The town was forced to seek the permit five years after the turbine was turned on after the Massachusetts Court of Appeals ruled in February that the turbine was constructed without proper zoning approval. The state’s Supreme Judicial Court later declined to review the case.

The same night as the hearing, the board is scheduled to hear an appeal of Zoning Enforcement Officer Eladio Gore’s decision not to shut down Wind 2, the second turbine.

The town’s twin, 397-foot-tall turbines were erected at the wastewater treatment plant on Blacksmith Shop Road in 2009 and have been a source of controversy ever since. Neighbors have complained about health effects from their operation and have used a number of avenues to try to shut them down.

Until the zoning process ends, which could take months, the town has shut down Wind 1, although its twin continues to run. The town is also seeking to retroactively exempt the turbines from the zoning process through an article at the Nov. 10 special town meeting.

Todd Drummey, one of the neighbors who has been embroiled in lawsuits over the turbines for years, said Wednesday’s news was a relief, albeit a small one, in a growing thicket of municipal and legal drama.

“I’m certainly glad to not have another lawsuit,” he said.

Christopher Senie, one of two attorneys representing the neighbors in the nine active lawsuits related to the turbines, said case law has been clear that filing with both the town clerk and the courts is necessary to appeal a Zoning Board of Appeals action.

“I’m not sure the failure to perfect the court appeal puts the town in a worse position,” he said. “I don’t think that was a terrible problem for the town. The issues are front and center, and I think the town is doing the best it can. I’m hoping through all of this that we find a way to get to the end and stop all this litigation.”