A lawsuit pertaining to operation of the second of the town’s two wind turbines that was brought against the town by a Falmouth resident will not go forward, selectmen chairman Douglas H. Jones said Monday.
West Falmouth resident Linda H. Ohkagawa sued the town in superior court after the zoning board of appeals denied her appeal of building commissioner Eladio S. Gore’s finding in November 2013 that under the town’s zoning bylaw, operation of Wind 2 did not constitute a nuisance to neighbors abutting the structures. The appeals board voted 3-1 in favor of her appeal. However a super majority of four positive votes was needed in order for the appeal to move forward, said Christopher G. Senie, the attorney representing Ms. Ohkagawa. Mr. Jones said Monday that Mr. Senie asked the board to agree to dismiss the case with prejudice. The request came during executive session preceding Monday’s open meeting. Town counsel Frank K. Duffy Jr. said Wednesday that signatures were being gathered by all parties involved to dismiss the suit. When reached by phone Tuesday afternoon, Mr. Senie said that there is not a strong legal precedent for a judge to overturn the appeals board’s finding. The case was scheduled to be heard on Monday, December 21, in superior court, he said. “It didn’t seem like a good use of resources to go forward with the case,” Mr. Senie said. The suit is one of two nuisance suits that Ms. Ohkagawa has filed against the town. Mr. Duffy said the second suit, which seeks to overturn the same appeals board decision under general common law, is ongoing. Ms. Ohkagawa is seeking monetary damages up to $100,000 in that suit, which Mr. Senie said will go before superior court judge in the spring. Ms. Ohkagawa is also among the residents appealing Mr. Gore’s determination that Wind 2 can continue to run while the town seeks a special permit necessary for it to continue operation. The appeals are currently being heard by the appeals board.
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