Members of the Falmouth Zoning Board of Appeals came to a consensus on Monday, November 30, to deny appeals relating to Wind 2, one of two town-owned wind turbines on Blacksmith Shop Road. The board will discuss a draft decision and possibly vote on the matter at its meeting next Thursday, December 10.
The purpose of the meeting was to discuss and deliberate on residents’ appeals of a lack of enforcement against the turbine by the building commissioner. Separate appeals against Wind 1 were already granted by the board, leading to the issuance of a cease-and-desist order. That turbine has been shut down as the town completes the process to obtain a special permit, as ordered by the state Supreme Judicial Court.
Mark Bobrowski, the town’s special counsel, advised board members that they would have to identify whether the parties—Linda H. Ohkagawa and Barry A. and Diane C. Funfar, represented by attorney Christopher G. Senie, and Neil P. and Elizabeth L. Andersen, represented by attorney J. Alexander Watt—have standing in the case. In order to file an appeal, he said, they would have to be aggrieved in some way or suffer harm or injury that separates them from the general public.
Referring to testimony provided throughout the appeals hearing of noise, shadow flicker and other issues caused by the residents’ proximity to the turbines, board members unanimously agreed that the parties had standing.
The next questions, Mr. Bobrowski said, were whether they had knowledge of the building permit for Wind 2 within 30 days after it had been issued—the deadline to make an appeal—and whether they had a duty to inquire about the turbine. If there is no knowledge of a building permit within that period, the deadline extends to a maximum of six years, or within a “reasonable” time after knowledge is obtained.
Most of the board members agreed that Ms. Ohkagawa had no knowledge of the permit, which was issued in March 2010, until October of that year.
Mr. Senie had argued that Ms. Ohkagawa did not experience the same issues with the first turbine as she later did with Wind 2. If that was true, board member Kenneth Foreman said, then she would have no reason or duty to inquire about Wind 2.
“Why would she [expect to] have any problems?” he asked.
However, board member Edward Van Keuren said that all of the residents should have been generally aware of plans for the turbine.
“It was [voted on] at Town Meeting, it was in the paper… I don’t know if there was anyone who did not know about it,” he said.
Regarding the other parties, chairman Kimberly A. Bielan said that she did not believe they knew that a building permit would be issued for Wind 2, and therefore, that they had no duty to inquire.
The town’s attorney, Diane C. Tillotson, had argued that residents should have assumed there would be a second turbine based on the fact that the first was named Wind 1. However, board member Terrence J. Hurrie said, “that doesn’t necessarily give you notice that Wind 2 is going to be on the same property. It could have been somewhere else in town.”
The board was then prompted to address the doctrine of laches, a legal term for an unreasonable delay or negligence in pursuing a right or claim in a way that prejudices the adverse party. The building permit for Wind 2 was issued in March 2010 and the appeal was filed in June of this year, Mr. Bobrowski said—was that a reasonable time period or were the complainants guilty of laches? He reminded the board that the turbine was not operational until February of 2012.
Even if Ms. Ohkagawa did not have knowledge of the building permit within 30 days and even if she did not have a duty to inquire, Ms. Bielan said, she chose to wait to file an appeal until after the court decision was made on Wind 1.
“We were told that these were impacts that affected them every day, and yet, still, an appeal wasn’t filed,” she said. “They could have flooded [building commissioner Eladio S. Gore] with letters, and if he didn’t act, they could have appealed that.”
Due to the fact that the appeals were “significantly staggered” and given the complexity of the case, Ms. Bielan said that she believes the town was harmed as a result. Perhaps, she said, the town would have responded to the complaints differently if the Wind 2 appeal was filed earlier—now the residents are approaching the end of the six-year period.
The board agreed unanimously that laches would bar the appeals from moving forward for all parties involved. Mr. Bobrowski will draft a decision and it will be discussed and possibly voted on at the December 10 meeting. The board has until December 23 to make a final decision.
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