A plaintiff arguing that one of the town’s two wind turbines requires a special permit to operate was too late in bringing an appeal, a Barnstable Superior Court judge ruled Thursday.
Ridgeview Drive resident Diane Funfar challenged the operation of Wind 2, the second of the two municipally-owned turbines, in 2015. However, Judge Gary Nickerson ruled that the challenge was “too little too late.”
Diane and Barry Funfar successfully challenged a finding by then-building commissioner Eladio Gore and subsequent decision from the Falmouth Zoning Board of Appeals that the other turbine, Wind 1, did not require a special permit in order to operate. The Massachusetts Court of Appeals ruled in September 2015 that the turbine did require a permit from the appeals board to continue operation.
When the ZBA voted not to grant a special permit to Wind 1 on grounds that it constituted a nuisance to neighbors, the town unsuccessfully appealed the decision. A Barnstable Superior Court judge ruled Tuesday that both turbines constituted a nuisance to neighbors.
However, while the plaintiffs challenged Wind 1′s need for a special permit, the same action was not taken regarding Wind 2 until 2015, Falmouth Town Counsel Frank Duffy said.
In his decision, Judge Nickerson said that too much time had elapsed for the plaintiffs to appropriately challenge Wind 2′s operation. He noted that the Funfar delayed challenging the status of the turbine despite being aware of a building permit being issued for the structure as far back as late 2010.
Duffy said selectmen will discuss both decisions during an executive session to be held on Monday, June 26.
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