FALMOUTH – Two wind turbines at the town’s wastewater treatment plant have been under a court order since June 2017 never to spin again.
While plans are being made to haul Wind 1 off the site, allaying fears of neighbors who have battled the town in court for years, Wind 2 may remain where it stands for some time.
Neighbor Barry Funfar filed a complaint with the building commissioner June 25 regarding a requirement that Wind 2 be dismantled and hauled away.
He had waited until Wind 2 had been shut down for 12 consecutive months, which he said triggered a provision that it be dismantled and removed under the town’s wind energy systems bylaw.
Barnstable Superior Court Judge Cornelius Moriarty determined in June 2017 that Wind 1 and Wind 2 were nuisances and ordered that neither operate again on their current site.
Wind 1 had been shut down since 2015, when the Zoning Board of Appeals denied a request for a special permit for its operation
Mark Cool, a fellow neighbor to the turbines, had filed a complaint regarding Wind 1 in December, citing the wind energy bylaw Funfar has now used.
A few weeks later, Building Commissioner Rod Palmer gave the selectmen until the end of May to come up with a plan to remove Wind 1. Engineers are working on options now, according to Town Manager Julian Suso.
Funfar was expecting Wind 2′s future to be the same, but his complaint on Wind 2 has not generated the quick response Cool received.
“I have not heard back,” he said Wednesday. The building commissioner is required to provide a response within 14 days. “The town is just sort of ignoring their own rules and ignoring me.”
Palmer did not return calls seeking comment, but Falmouth Town Counsel Frank Duffy said Wind 1 and Wind 2 do not share the same legal status and therefore will not share the same fate.
In determining his course of action for Wind 1, Palmer did not use the wind energy bylaw, which went into effect in 2013, after both turbines were already operating. Palmer had said he ordered the dismantling and removal of Wind 1 because the structure did not comply with zoning laws after it was denied a special permit.
The Massachusetts Appeals Court, settling a lawsuit by abutters in 2015, had determined Wind 1 needed a special permit to operate. The zoning board then denied the permit request and Wind 1 could no longer operate. Wind 2 was not part of the suit.
Wind 2 also lacks the special permit, but “there were no successful challenges,” Duffy wrote in an email.
“Wind 2 exists today without a special permit from the ZBA and it is too late to mount a challenge to its existence,” he wrote.
Moriarty’s decision prevents Wind 2 from operating on the site due to nuisance, “but its removal has not been ordered and there are no grounds to do so at this time,” Duffy wrote.
“Wind 2 is eligible to be relocated in Falmouth with a special permit from the Planning Board,” Duffy said. Under the 2013 bylaw, special permitting authority switches to that board.
Attorney Chistopher Senie, who represented Funfar and other neighbors in lawsuits related to the wind turbines, said he thought the Board of Selectmen was working with its engineering consultants “to study options for removal/relocation/repurpose of each of the two turbines.”
Senie believes the turbines must comply with the wind energy bylaw.
“I think both turbines are subject to the current bylaw that would govern removal of an inoperative turbine, but the implementation of the bylaw may be lagging due to the board’s engineering considerations,” he said.
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