Settlement discussions disclosed at turbine appeals hearing 

The actions of Falmouth town administrators and wind turbine neighbors throughout a nearly six-year legal battle were spotlighted at a zoning board of appeals meeting on Thursday.

Residents filled the audience in the selectmen’s meeting room throughout the three-and-a-half-hour meeting, the majority of which focused on abutters’ appeal of building commissioner Eladio S. Gore’s decision not to file an enforcement order against Wind 2, one of two town-owned wind turbines on Blacksmith Shop Road that were installed without special permits. A separate appeal against Wind 1 was granted by the board at a previous meeting and followed by a cease-and-desist order to shut down the turbine. Although Wind 1 has since been turned off, its identical companion is still spinning.

That day, chairman Kimberly A. Bielan said that the board had received more than 100 pages in documents from the attorneys representing the town and neighbors. The board’s policy is that materials must be sent a week in advance. Due to the late submittal, she said, the board may not go into deliberations during the meeting.

Attorneys focused heavily on whether the complainants appealed the issuance of a building permit for the turbines in a timely manner. A doctrine called “laches” is defined as an unreasonable delay or negligence especially in pursuing a right or claim.

Attorney J. Alexander Watt argued that abutters Neil P. and Elizabeth Andersen, whom he represents, had no notice of the issuance of a building permit for Wind 2. The Andersens, he said, initiated an appeal process in the summer of 2010 with respect to Wind 1, which had been erected that spring. They were not informed that a building permit was issued for the second structure in March, which is why they did not appeal the decision during the 30-day appeal period.

An attorney for several other abutters, Christopher G. Senie, drew a differentiation between the residents. He said that one of his clients, Linda H. Ohkagawa, learned about plans to construct Wind 2 later than her neighbors. Other abutters had begun meeting with town administrators and urging them to halt plans for a second turbine, he said, but Ms. Ohkagawa was uninformed of the plans throughout that time.

The first time she heard about the project was in October of 2010, when resident J. Malcolm Donald knocked on her door and presented her with a map of the proposed site and a pamphlet of information.

“She had no problems with Wind 1… she could even see it from her property through the trees,” Mr. Senie said.

He said that despite warnings of sound pressure issues and numerous complaints regarding Wind 1 from other neighbors, the town moved forward with its plans for Wind 2.

If Ms. Ohkagawa had commissioned an enforcement request that October, Mr. Senie said, it is unlikely that the town would have halted the construction of the turbine. Therefore, they filed a new request within the six-year period required to do so.

Regardless of whether neighbors had received direct notice from the town of plans for Wind 2, Diane C. Tillotson, the town’s attorney, argued that they all had constructive notice—in other words, they should have known of the project through observations of their surroundings, media coverage and other sources of public information.

“They knew or reasonably could have known that no zoning board of appeals special permit had been sought for either Wind 1 or Wind 2,” Ms. Tillotson said.

She said that information about the project, including the awarding of a contract, was widespread through local newspapers and public board meetings. In April of 2010, a letter was sent by the town’s energy committee to every abutter that—although it did not state that a building permit was issued—mentioned that the town was proceeding with construction plans to erect Wind 2.

Even if the zoning board finds that the neighbors did not have constructive notice, Ms. Tillotson continued, there is more than enough evidence to find them guilty of laches. The abutters first challenged the issuance of the building permit for Wind 1 in August 2010, but did not challenge the permit for Wind 2 until July of this year.

“Five years is inexcusable,” she said.

Unlike the neighbors, Ms. Tillotson said that the town was not negligent, did not delay and proceeded in good faith at all times. When she said that town administrators “proceeded with diligence” while responding to abutters’ complaints, a few chuckles could be heard from the audience.

Moreover, Ms. Tillotson said that the town did not “skip” the special permit process. It was the decision of the building commissioner that the turbine, which supplied power to the town’s wastewater treatment plant, would be allowed by right because it was being used for a municipal purpose in a public use district.

In regard to claims that the turbines have caused health issues, Ms. Tillotson said, “There is no scientific evidence or data that links sounds form wind turbines to disease or any other adverse health impact.”

She drew a distinction between health impacts and annoyance, arguing that in a sense, the neighbors have been “creating their own harm.”

Then she described a series of financial settlement discussions between the town and the Andersens that previously had not been disclosed. According to Ms. Tillotson, the two parties had negotiated a settlement amount, after which the Andersens rejected their own counter proposal.

Town manager Julian M. Suso and assistant town manager Heather B. Harper spoke about the financial impact of shutting down the turbines and the town’s response to neighbors’ complaints. Both gave almost identical information to that which they presented at a planning board meeting on Tuesday, October 20, related to a Special Town Meeting article that would allow the turbines to continue operating without a special permit.

During his presentation, Mr. Suso said that the town offered the Andersens a “comprehensive and reasonable settlement” that they turned down, to which a man in the audience shouted, “That is wrong!” Ms. Bielan told the man that it was not his time to speak.

Upon being permitted to speak again, both of the neighbors’ attorneys said that they were “shocked” that settlement discussions were disclosed at a public meeting.

“I object to the town demonizing the Andersens,” Mr. Watt said, adding that such a matter was not supposed to be used as evidence in any judicial proceeding.

Of the nuisance that the turbines have caused to his clients, Mr. Senie said that it is “something between annoyance and harm.” There is disequilibrium in Ms. Ohkagawa’s home that can be felt even with the windows and doors closed, he said. Mr. Senie asked that the record for the meeting remain open, as he plans to submit a full rebuttal to Ms. Tillotson’s claims in writing.

During a public comment session, selectman Rebecca R. Moffitt referenced a November 2013 Barnstable Superior Court case involving town counsel Frank K. Duffy Jr. and the Andersens that she attended. Because she, a public official from Falmouth, happened to be there, she was asked by Judge Christopher J. Muse to join a private meeting for negotiation between the two parties.

“It became incredibly emotional. In that time, Mr. Andersen said in a voice of distress, ‘Please help me.’ I certainly thought about that,” she said. “I was a selectman who put together an offer to help the Andersens financially. It was offered and it was refused and that was very upsetting to me because I listened to those words.”

Mr. Andersen himself rose from the audience. It was “totally inappropriate” of Ms. Moffitt to discuss events related to the settlement discussions, he said.

Mr. Andersen said that he and his wife have filed six or seven complaints concerning Wind 2 in the past month, including one that they filed that day. The turbine began to impact their lives when it was erected and he said that it affects them the same way today.

“We’re just asking you to turn it off, do the right thing,” Mr. Andersen said.

The hearing will be continued at a board meeting on Thursday, November 19, at 6 PM.