December 17, 2017
Blogs, Massachusetts

Anxiously awaiting Father Christmas

Falmouth's Firetower Wind | December 12, 2017 | mjoecool.wordpress.com

The order to cease and desist Wind 1 operations September 2015 by Falmouth’s Zoning Board of Appeals triggered the countdown to the turbine’s removal. At least that’s what the Wind Energy Systems [WES] Bylaw (adopted 2013) establishes.

The bylaw reads “Any WES which has been abandoned shall be removed.” And further states “the WES shall be considered abandoned when the facility fails to operate for more than 12 consecutive months.” The 12 consecutive month deadline has come and gone. Wind 1 is definitively abandon. Yet, bylaw compliance goes unresolved each day Wind 1 is not removed.

More often than not, zoning compliance is generated by resident complaints rather than initiated by town government staff. Wind 1 is not unique in this case. That is why a resident formally submitted a request for enforcement action to Falmouth’s Building Commissioner (BC) December 7 2017. The complainant is suppose to receive a response from the Commissioner within 14 days of submission.

In his examination of the enforcement request, the BC will likely weigh whether the cited Wind Energy Systems Bylaw governs Wind 1’s possible removal. Of notable mention is that in 2015 Wind 1 was found not eligible for a special permit pursuant to Windmill Bylaw 240-166 [1981] by Falmouth’s ZBA. Thus, any opportunity for governance from said bylaw is not available.

Essentially, Wind 1 is an unlawful structure. As an unlawful structure Wind 1 can never achieve nonconforming status because its’ construction and use never had lawful protection. Not having the benefit of being a nonconforming structure eliminates any possibility, or position held by the Building Commissioner, that Wind 1’s presence should simply be tolerated.

The Building Commissioner’s refusal to order removal on grounds the new bylaw (Wind Energy Systems 240-166 [2013] does not control removal would be inconsistent with the goal of Zoning and, in deed, the intent of the new bylaw – to safeguard Falmouth’s future land use and development, in the expectation that bylaw revisions and modifications will repair mistakes of the past.

The BC will likely seek out other local bylaw examples involving abandonment. A cursory search reveals a limited but broad scope of templates. § 219-12 vending machines. § 269-6 Abandonment of tackle. § 231-25 Abandoned vessels, moorings and other objects. § C8-9 Lapse of appropriations. §184-16 Removal of signs.

It’s hard to comprehend why the BC would not be compelled to order the removal of Wind 1? It will be difficult to argue that the new Wind Energy Systems Bylaw does not apply. A BC denial on these grounds would signal a substantial disconnect with the intent of the presiding bylaw and the will of Town Meeting.