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Jury finds in favor of town in Wind 1 trial  

Credit:  By Ryan Bray | The Falmouth Enterprise | www.capenews.net ~~

A Barnstable Superior Court jury found in favor of the Town of Falmouth on Thursday, April 27, in a nuisance trial concerning Wind 1, one of the town’s two wind turbines.

But another case involving the same plaintiffs could start in early May.

Blacksmith Shop Road residents Elizabeth L. Andersen and Neil P. Andersen sued the town in September 2012. The Andersens, who abut Wind 1, claimed the structure’s operation disrupted their ability to enjoy their property.

The Andersens sought damages for physical injury, loss of property value, and loss of income, Falmouth town counsel Frank K. Duffy said.

The trial, which began April 18, concluded April 27 when the 14-person jury found in favor of the town.

The decision came in at 10:40 AM on Thursday, April 27, Town Manager Julian M. Suso stated in a press release.

“The jury determined there was no nuisance at the property and awarded no damages,” Mr. Duffy said.

The Andersens were not immediately available for comment.

Selectmen will discuss the verdict further in executive session at their meeting on Monday, May 1, Mr. Duffy said.

Wind 1 has been inoperative since September 2015. The Massachusetts Court of Appeals ruled in February of that year that the turbine needed a special permit from the Falmouth Zoning Board of Appeals in order to continue operation.

The town has several other turbine-related cases in court.

Another case involving the Andersens and the appeals board is scheduled to go to trial in Barnstable Superior Court on May 8.

In that case, the town is appealing a decision from the appeals board that both turbines, Wind 1 and Wind 2, constituted a nuisance to the Andersens under the town’s zoning bylaw.

Trial in a similar case concluded in November in Barnstable Superior Court. The town is appealing a December 2013 ruling from the appeals board that the turbines constitute a nuisance to Barry A. Funfar and Diane C. Funfar’s property on Ridgeview Road.

The ruling overruled a determination by then-building commissioner Eladio R. Gore that the turbines were not a nuisance to the couple.

A decision from Judge Cornelius Moriarty II is pending.

The Funfars also are in the midst of a superior court appeal of an appeals board decision not to shut down Wind 2. The Funfars argued that Wind 2, like Wind 1, requires a special permit to operate. But the appeals board determined in December 2015 that the Funfars were too late in filing their claim. A trial date has not been set.

The matter of whether the town’s old zoning bylaw or the existing bylaw that was enacted in 2013 should be cited in issuing future special permits for Wind 1 is also before a judge in Barnstable Superior Court. Residents are appealing the appeals board’s decision to follow the old bylaw. A trial date has not been assigned.

The town is also appealing an appeals board decision from April 2016 not to grant a special permit for Wind 1. A trial date has not been assigned for the case, which is before Massachusetts Land Court in Boston.

Three other common law nuisance cases are pending against the town in Barnstable Superior Court. The Funfars, Kathryn L. Elder and Brian W. Elder of Blacksmith Shop Road, and Linda H. Ohkagawa of West Falmouth Highway, are the plaintiffs. Monetary damages are being sought in each case.

Trial dates have not yet been assigned for any of the common law cases, Mr. Duffy said.

Source:  By Ryan Bray | The Falmouth Enterprise | www.capenews.net

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

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