Falmouth Town Counsel Frank Duffy commented recently, “Wind 1 and Wind 2 do not share the same legal status,” but according to Mark Bobrowski (special counsel to Falmouth’s ZBA on wind turbine matters), they do!
Mr. Duffy recently stated that “Wind 2 exists today without a special permit from the ZBA and it is too late to mount a challenge to its existence.” But, according to Mr. Bobrowski, a structure (inclusive of windmills or wind turbines) commenced or built “unlawfully” or “noncompliant” with zoning bylaw can never achieve lawful zoning status [see his “Handbook of Massachusetts Land Use & Planning Law: Zoning, Subdivision Control, and Non-zoning Alternatives, Second Edition” chapter: Vested Rights and Nonconforming Uses and Structures].
In addition, according to MGL C. 40A, sect 7 and Falmouth’s zoning code § 240-3 B., a structure which has not been in compliance with zoning code for a period of less than 10 years from the beginning of the violation is subject to enforcement action to compel the removal of said structure.
Neighbors are well within their chronological legal rights and the 2015 court ruling does not qualify as a windmill/wind turbine special permit.
It logically follows that, in keeping with the building commissioner’s Wind 1 determination, absent a special permit to make Wind 2 a lawful structure, and whereas the 2015 court ruling affords no exemption from the special permit requirement, nor any zoning protection (Mr. Bobrowski), Wind 2 is a noncomplying structure (exactly the finding made on Wind 1 by Falmouth’s building commissioner) and is subject to enforcement action due an unlawful structure.
Mark J. Cool, Fire Tower Road, Falmouth
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