As Falmouth selectmen consider challenging a cease-and-desist order that left the community’s second wind turbine inoperable, they are taking into account all legal action surrounding the town-owned machines near Blacksmith Shop Road.
Since construction, Wind 1 and Wind 2 have drawn the ire of neighbors. Complaints include excess noise, harmful health effects, drops in property values and officials failing to follow proper rules as they allowed the projects to move forward.
A Barnstable County Superior Court judge’s decision agreeing with the zoning board of appeals in deeming Wind 2 a nuisance—and ordering it shut down—is the most recent development to garner headlines. Wind 1 powered down in 2015 after officials failed to earn a special permit from the town appeals board following another round of litigation brought on by abutters.
In a statement released after a lengthy June 26 executive session on the issue, selectmen asked all litigants to renew efforts to resolve the various legal actions involving the wind turbines outside of court.
The most pressing is the suit recently weighed in on by Judge Cornelius J. Moriarty II. Selectmen have until July 20 to decide whether to appeal, according to Town Counsel Frank K. Duffy Jr.
They likely will continue deliberating the issue in executive session—closed to the public—before their regularly scheduled meeting on Monday, July 10, Town Manager Julian M. Suso said. The next time selectmen are expected to meet is during a joint session with the planning board set for July 24—four days after the deadline.
Were selectmen to fight the ruling, the case would be heard in the Massachusetts Appeals Court.
A similar case is pending in Barnstable Superior Court. The town is appealing a decision by the zoning board of appeals to grant relief to neighbor Neil P. Andersen, who successfully argued the two turbines constituted a nuisance. A scheduling conference for that case is set for September, Mr. Duffy said.
A case pending in the Massachusetts Land Court revolves around the zoning board of appeals’ aforementioned decision to reject a special permit for operation of Wind 1. The town is appealing that ruling, and a trial assignment conference is scheduled for September, Mr. Duffy said.
Three common law cases also are pending in Barnstable Superior Court. Funfar v. Town of Falmouth, Ohkagawa v. Town of Falmouth and Elder et al v. Town of Falmouth all seek financial damages because of the nuisance caused by one or both of the turbines. None have been scheduled yet, Mr. Duffy said.
Decisions that went in town hall’s favor include one in a case arguing Wind 2 also needed a special permit to operate. A Barnstable Superior Court judge ruled in June that the effort had come too late in the process.
Still, Barry and Diane Funfar, the plaintiffs, could appeal, Mr. Duffy said.
In Laird v. Falmouth Zoning Board of Appeals, the plaintiff argued officials needed to apply regulations approved since the construction of the turbines on a request for a special permit to operate. The court sided with the appeals board.
In April, a Barnstable County Superior Court jury rejected a common law nuisance case brought forward by Mr. Andersen, who sought financial compensation for physical injury, lost property value and income.
Falmouth stands to lose a significant amount of money if litigation keeps the turbines powered down. Wind 1 largely was funded through a $5 million loan, which the town pays about $400,000 toward annually, whether or not it operates.
To erect Wind 2, the town sought a $4.85 million loan through the Massachusetts Water Pollution Abatement Trust. Although the loan initially offered interest-free by the trust, officials there have threatened to charge Falmouth principal and interest if the turbine ceases operating.
Additionally, the town has an agreement with the Mass Clean Energy Center, which helped defray some of the costs associated with Wind 1, to generate renewable energy over the course of several years.
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