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Appeals board denies special permit for Wind 1

“The special permit has been denied.”

Those words spoken by Falmouth Zoning Board of Appeals chairman Kimberly A. Bielen on Thursday, April 14, concluded a months-long hearing on the Town of Falmouth’s request for a special permit to keep one of its two wind turbines in operation.

The appeals board voted 4-1 on April 14 in support of a draft decision to deny the special permit. Board member Edward Van Keuren voted against it.

The Massachusetts Court of Appeals ruled in February 2015 that Wind 1, which was built in 2010, requires a special permit from the appeals board in order to continue operation. The turbine has been out of service since September.

Abutters have long fought Wind 1 and Wind 2, citing negative health impacts of living near the turbines including headaches, lack of sleep, and depression.

“I’m pleased with the decision,” J. Malcolm Donald, an Ambleside Drive resident, said following the appeals board’s decision. “The facts have come out. The town tried to act above the law.”

The appeals board’s decision took into account several issues, including whether Wind 1 is an accessory structure in which the 50-foot height limitation for community service uses in public use districts applies, or whether the turbine fulfills a “municipal purpose” and is therefore exempt from the requirement. The decision also considered whether Wind 1 meets the performance standards set forth in the town bylaw, and whether adverse effects of the turbine outweigh its benefits to the community.

Among the aspects of the draft decision discussed by the board was a finding that complaints from neighbors are “credible.” The decision also found evidence of excessive noise at neighbors’ property lines during high wind speeds, as well as excessive noise during low wind speeds. These findings make mitigation on the basis of wind speeds “difficult if not impossible,” said Mark Bobrowski, special counsel to the appeals board

The draft decision also found the overall effects of the wind turbine on the town to be “negligible.”

Mr. Van Keuren, the lone vote against the draft decision, said the town should work on preparing a mitigation plan for abutters to the turbine. At the board’s last hearing in March, Mr. Van Keuren spoke in favor of approving the project with conditions.

“I don’t see that anywhere in here,” he said of mention of a mitigation plan in the draft. The decision says the appeals board was not presented with any evidence to show that mitigation would be successful.

A copy of the draft decision was not immediately made available following the decision, as amendments made to language in the draft during the meeting were not yet finalized. Town manager Julian M. Suso declined comment yesterday, having not seen the amended draft decision.

“The people of Falmouth won,” David R. Moriarty, a resident of Lower Road, said after the decision. “They beat the local government. They beat the state government. This is a win for anyone who’s ever been impacted by wind turbines.”

Despite the board’s finding, Mr. Bobrowski said the town could come back to the appeals board again to seek a special permit for Wind 1.

“If they want to come back with a new plan, all they have to do is show material and substantial change,” he said. “It’s state law. That’s their right.”