October 20, 2017

Falmouth residents plan to oppose turbine decision in court

By Brittany Feldott | The Falmouth Enterprise | www.capenews.net

A dozen Falmouth citizens and The Green Center Inc. of Hatchville plan to file a legal motion to intervene with the Barnstable County Superior Court decision that caused shutdown of the town’s second wind turbine in June.

On June 20, Barnstable County Superior Judge Cornelius J. Moriarty II upheld a zoning board of appeals decision deeming Wind 1 and Wind 2 a nuisance to neighbors Barry A. and Diane C. Funfar, and ordered that the turbines be shut down. The decision only practically affected Wind 2, as Wind 1 had already ceased operations in 2015 by order of the zoning board of appeals.

The Green Center and group of Falmouth citizens have prepared legal papers requesting that Judge Moriarty reconsider the complete shutdown of the turbines, and replace that order with what they view as a “more equitable remedy for all parties.”

The motion to intervene does not take issue with the court’s determination that the turbines posed a nuisance to neighbors. Rather, the Falmouth residents argue that there were other courses of action available to mitigate the court-deemed nuisances associated with the wind turbines besides shutting them down entirely, at significantly less cost to the town.

“The town should have had the choice of how to address the nuisance,” spokesperson and Falmouth resident George M. Woodwell said on Wednesday, October 18. “That was an inappropriate thing to do because there are other ways to correct a nuisance and the town should have had those choices.”

Falmouth residents leading the effort to revise the court order are Dr. Woodwell, Ronald D. Zweig and Christina C. Rawley. Other individuals listed on the motion are Earle A. Barnhart (also principal officer of The Green Center), John Carlton-Foss, Rhona N. Carlton, James Churchill, Hilde Maingay, Pamela D. Pelletreau, Robert H. Pelletreau Jr., Allison B. White and Katharine R. Woodwell.

The parties plan to request representation by environmental attorney Richard E. Ayres of Ayres Law Group LLP in Washington, DC. Mr. Ayres participated in the Environmental Protection Agency rulemaking proceedings under the Clean Air Act for more than 40 years. He also co-founded the Natural Resources Defense Council in 1970, and led the National Clean Air Coalition during Congressional considerations of key amendments to the Clean Air Act.

On Wednesday, October 18, attorney George H. Boerger of Boerger Law in Duxbury served papers to the attorneys of the parties involved in the original court case, on behalf of the group of Falmouth citizens.

Those parties include the Town of Falmouth as plaintiff, and the Falmouth Zoning Board of Appeals, zoning board members Matthew J. McNamara, Patricia P. Johnson, Kenneth H. Foreman, Edwin P. Zylinski, David A. Haddad, and Falmouth residents Mr. and Ms. Funfar as defendants.

Mr. Boerger requested response from the town and the defendants within 10 days. Following receipt of responses from the town and defendants, the group plans to submit the documents and responses to Barnstable County Superior Court. Judge Moriarty would then determine whether or not the group of Falmouth citizens has a legitimate objection to be heard by the court.

The papers include a motion to intervene in the civil action suit, based on the argument that the Town of Falmouth did not adequately protect their interests. It also includes a motion for relief from judgment to modify the remedy handed down by Judge Moriarty.

The motion argues that no evidence was presented during or after the trial regarding potential remedies available to mitigate the noise from the turbines. In addition, it states that no consideration was given to the “enormous costs associated with ceasing operation of the turbines.”

A memorandum included in the papers states that the cost to the Town of Falmouth and its taxpayers of shutting down the turbines will exceed $10.5 million. The document states that the town will pay $4.62 million in debt over the course of 12 years to pay back the long-term municipal bond used to finance Wind 1; $2.919 million in debt to repay the federal American Recovery and Reinvestment Act loan used to finance Wind 2; between $1.44 million and $1.8 million to purchase replacement power in the next 12 years; and $1.65 million over the next 15 years to the Massachusetts Clean Energy Technology Center in place of renewable energy credits.

Some examples of alternative mitigation measures include insulation of nearby houses, shutting off the turbines at night and shutting them down when the sun is in position to create a flickering shadow. If necessary, Dr. Woodwell said the town could opt to purchase neighboring homes as well.

Dr. Woodwell said that the board of selectmen could join the group of Falmouth citizens as an intervenor, if the board changes its decision on whether to appeal the court decision. Selectmen voted on July 10 against appealing the court decision.

Falmouth Board of Selectmen will meet Monday, October 23, in executive session to discuss the motion to intervene.

URL to article:  https://www.wind-watch.org/news/2017/10/20/falmouth-residents-plan-to-oppose-turbine-decision-in-court/