Falmouth’s Wind Timeline (February 26, 2015 to present)

A COMPREHENSIVE PRESIDENCE

The Appeals Court of Massachusetts was asked to decide whether the town of Falmouth was required to obtain a special permit from the zoning board of appeals of Falmouth for the installation of a wind turbine on town land.

The specific issue before the Court was an examination of whether the building commissioner’s interpretation of the by-law was correct. That interpretation (denial letter dated September 24, 2010) claimed Wind 1 was constructed and operated for municipal purposes in a zoning district where all such purposes are permitted as of right.

The Court conclude that, under the town’s specific Windmill by-law and the absence of any municipal exemptions, a special permit was required for all windmills (wind turbines).

SELECTIVE ENFORCEMENT PART I

Residents brought suit challenging the absence of a special permit for Wind 1 in 2011. The Appeals Court of Massachusetts ruled in 2015 on that challenge. A special permit was required for all windmills (wind turbines). The building commissioner then ordered the town to apply for a special permit for Wind 1 only (2015). Wind 1 was subsequently found by the Zoning Board not eligible for a special permit (2016) citing that it was not an accessory building, structure, or use.  It was noncompliant with 240­-166.B which requires the ZBA to find that there shall be “no adverse impacts on the neighborhood in terms of television interference, ice throw, prop throw, noise, etc.” (noting the two previous ZBA decisions determining both turbines to be a nuisance [2013]).

Wind 2 had received its’ building permit March 2010 but it hadn’t commenced operation until February 2012. Residents challenged the absence of a special permit for Wind 2 (June 2015) as well.  Believing the comprehensive nature of the Appeals Court ruling addressed all wind turbines including Wind 2. However, the town filed a motion for summary judgement to dismiss the claim against Wind 2 and Barnstable Superior Court Judge Gary A. Nickerson ruled for the town (June 2017) on grounds the wind turbine neighbors failed to conform to the 30 day time limit from issuance of the building permit to seek enforcement (one of two available statutory requirements [the 6 year statutory requirement time limit was ignored]) and also the Doctrine of Laches (see https://legal-dictionary.thefreedictionary.com/Laches) citing the town’s expenditure of significant funds building and operating Wind 2.

SELECTIVE ENFORCEMENT PART II

December 2017 a resident requested enforcement action for the removal of Wind 1, alleging that the turbine is a nonconforming structure (unlawful) according to zoning by-law and subject to removal. The building commissioner agreed (December 2017) and hence, directed the town to submit a Wind 1 dismantling/removal plan NLT May 2018.

More importantly for the present discussion, some believe the building commissioner failed to heed the comprehensive nature of the Appeals Court 2015 ruling. By not including Wind 2 as part of the dismantle/removal order, perhaps he selectively administers the zoning bylaw without regard to consistency?

A distinguishing difference between Wind 1 and Wind 2’s zoning status is Wind 2’s Court exemption protecting it from the special permit requirement. Be that as it may, a question to why Wind 2 was not included in his order lingers. Does the exemption from the special permit requirement afford Wind 2 to qualify for a zoning classification other than noncomplying (i.e nonconforming)? In essence, can a noncomplying (unlawful) structure ever be transformed into a lawful nonconforming structure?

Attorney Mark Bobrowski (special counsel to the ZBA on associated wind turbine matters) says No.  A structure commenced or built “unlawfully” or “noncompliant” with zoning bylaw can never achieve lawful zoning status (see his book – “Handbook of Massachusetts Land Use & Planning Law: Zoning, Subdivision Control, and Non-zoning Alternatives, Second Edition” chapter: Vested Rights and Nonconforming Uses and Structures).

It logically follows then that, absent a special permit to make Wind 2 a lawful structure, and whereas an exemption from said permit requirement affords no zoning protection, Wind 2 is a noncomplying structure subject to the enforcement action due an unlawful structure.

TOWN SILENCE

In an effort to be responsive to the readers interest for government transparency, a Cape Cod Times reporter has been asking Building Commissioner Palmer and Town Counsel Duffy the very same question. “Why isn’t Wind 2 included?” On three separate occasions, over the course of 2 weeks, the reporter has contacted these administrators for comment. The response, the reporter said, has been as silent as the wind turbines.