FALMOUTH – A six-year battle over the town’s wind turbines faces a critical turning point Saturday when the Falmouth Zoning Board of Appeals will deliberate a special-permit application to keep one of the devices operational.
The board has scheduled a public meeting to deliberate the application and is expected to vote on it, although a delay is possible. But whenever the board’s decision comes, whether it marks the beginning of the end for the fight or simply sparks another round of litigation remains to be seen.
“I think it’s likely that depending on what the decision is there could be appeals,” said Doug Jones, chairman of the Board of Selectmen. “It’s not like this is the answer. Certainly that would be wonderful if that were the case.”
The turbine, known as Wind 1, has been shut down since September under a cease-and-desist order issued by the ZBA. The state’s Appeals Court ruled in 2015 that the machine, which helps power the treatment plant, should have received a permit before it was constructed. Building Commissioner Eladio Gore had ruled that since the turbines are owned by the town and were installed on town land, zoning laws didn’t apply.
The permit application was filed in July but the first hearing wasn’t held until October, and it has taken more than four months and a half dozen meetings to review nearly every conceivable detail on the turbine’s operation. The zoning board has no shortage of materials to consider: five volumes that, stacked together, measure about 2 feet tall and contain studies, health records and correspondence letters dating back to the very conception of the turbines’ installation.
Dozens of letters also have been received from citizens; when the hearing concluded Feb. 1, they were running nearly 3-to-1 in favor of the turbine’s operation.
The board has ruled twice that the turbines were a nuisance to surrounding residents. A key question the board must answer is whether there will be “adverse impacts on the neighborhood” or excessive noise caused by the turbines operation, according to a decision-making flowchart prepared by Mark Bobrowski, a Concord attorney and the ZBA’s special counsel.
Christopher Senie, a Westboro attorney representing some of the neighbors, said it will be very difficult for the board to find there are no adverse impacts at play.
“I think the board is going to look for any basis on which it could approve the special permit with conditions,” Senie said. “I think that’s why it’s been a very long and involved public hearing with expert testimony because that’s the real question here. I think we answered it pretty well, that no matter what sets of conditions one might attempt to fashion, there will be adverse impact on the neighbors. We’ve demonstrated that pretty clearly.”
The turbines at the town’s wastewater treatment facility on Blacksmith Shop Road have been a source of controversy since they were installed. Neighbors have complained about health effects from their operation and have used a number of avenues to try to shut them down, while the town has warned of dire financial consequences should either device be deactivated. Although each turbine was paid through different financing methods, should either shut down, the town would still have to repay those loans – and without the expected revenue coming from selling their electricity.
The town also has spent hundreds of thousands of dollars in legal fees to defend not only the zoning matters but a host of other lawsuits against the turbines’ operation. Senie said nine cases are pending in Barnstable Superior Court; depending on the zoning determination, some of those may begin to find resolution.
“I think the court system is hoping that Falmouth solves this problem itself,” Senie said. “I think it’s possible that once the ZBA has issued its action there might be an opportunity to stop the wasteful process of litigating this and getting to an endpoint.”
The hearings have been unusual on many fronts. Along with their length and the complexity of the subject matter involved, they’ve played out more like a trial than a typical permit application process. The zoning board is also considering a permit for a structure that already exists instead of permitting something that’s yet to be built – and the very real effects their decision could have on the town’s future.
But Senie and Diane Tillotson, the Boston attorney representing the town, have been effusive in their praise for the board’s thoroughness.
“They have really carefully approached this as if they were deliberating on a proposed project, not an actual project,” Senie said. “I believe they’ll deliberate as if this were the case. It’s been a very honest and robust process.”
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