Falmouth Planning Board will recommend indefinite postponement on a Special Town Meeting article that would allow two town-owned wind turbines to operate by right. The decision was made Tuesday, October 27, following strong opposition from residents at a public hearing to the article.
The article proposes an amendment to the zoning bylaw that would allow any town-owned wind energy system used for municipal purposes, in existence as of the date of that bylaw, to be exempt from the provisions of the article and allowed to operate as a matter of right in public use districts. It was requested by the Falmouth Board of Selectmen.
The amendment, planning board member Douglas C. Brown said, is similar to the first item of the section where it would be inserted in the zoning bylaw, if approved. The existing item, listed under “Exceptions,” reads as follows: “Any WES lawfully in existence as of the effective date of this article shall be considered conforming and may apply for a special permit under this article to alter, modify, re-locate, or otherwise make improvements consistent with Article XXXIV (34).”
Mr. Brown noticed that the main difference between the proposed statement and the provision in the current bylaw, which was created by the planning board and approved at Town Meeting in 2009, is the word “lawfully.”
“It’s not up to us to determine whether they [Wind 1 and Wind 2] are lawfully in place. We’ve already made a provision for existing wind turbines,” he said.
Issues related to the two turbines, board member Kenneth W. Medeiros II said, were the primary reason that the planning board began working on the bylaw in 2009. He said that he views the selectmen’s article as an attempt to disentangle the town from its ongoing legal situation related to the turbines.
Mr. Herbst emphasized that the “lawful” existence of the town’s wind turbines has not been established, referring to Mr. Brown’s point about the absence of the term from the warrant article.
“Obviously this is an end run on attempt of the board of selectmen, who, by the way, never consulted us about this article before they presented it, never talked to us about our own bylaw, never came to us and said anything, [such as] ‘Do you think we should go ahead with this? Does it make sense? What do you think the public is going to think?’” Mr. Herbst said. “Never did that. All they did was throw it out there for us at a public hearing. So to me, I couldn’t possibly endorse this article the way it is written.”
In the town zoning bylaw relating to public use districts, board member Patricia H. Kerfoot said that wind energy systems are listed as one of the municipal purposes allowed by special permit—subject to the requirements of Article XXXIV on wind energy systems, which include special permits.
The board was presented the amendment with no information regarding its impact on other bylaws and no time to research that impact, she said.
“It’s the smell test,” Ms. Kerfoot said. “Trying to get around a legal issue… and I’ve got a problem with that, too.”
When Mr. Fox asked whether members would want to spend additional time on the recommendation, Mr. Herbst said that he had heard enough. More than the content of the article, he said that he is opposed to the philosophy behind it.
“It’s wrong and I don’t want to be a part of it,” Mr. Herbst said.
Mr. Medeiros suggested that if the board makes no report, it will send the message that the article has not enough merit to stand on Town Meeting floor. However, Mr. Fox argued that then the article could return to them later.
“The ball is not in our court. The ball is in the court of the board of selectmen,” Mr. Herbst said. “It’s their issue.”
If approved, the amendment would allow town government the “special treatment” of exempting itself from its own bylaws, Ms. Kerfoot said. She and Mr. Brown agreed that the town should not be allowed that type of treatment.
Mr. Herbst made a motion to recommend indefinite postponement on the article. The vote passed unanimously.
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