FALMOUTH – Two town-owned wind turbines have not operated since a Barnstable Superior Court judge in June 2017 ordered that the pair never spin again at their current wastewater treatment plant location on Blacksmith Road.
But neighbors won’t be satisfied until they see both turbines dismantled and removed.
Plans are underway to dismantle Wind 1 and haul it off the site. Wind 2 will not be as easy to get rid of: One neighbor’s recent attempt to have it removed has not met with success.
Barry Funfar filed a complaint with Building Commissioner Rod Palmer June 25, shortly after Wind 2 had been shut down for a year. Funfar said the year-long inactivity constituted abandonment under Falmouth’s wind energy bylaw and triggered a requirement it be dismantled and removed.
In a Sept. 12 written response to Funfar, the building commissioner said the town had fulfilled the mandate of Barnstable Superior Court Judge Cornelius Moriarty that the turbines shut down permanently.
“No further action by this office is necessary to abate the nuisance.”
Regarding Funfar’s reference to bylaw requirements, Palmer said he declined to make the determination that Wind 2 has been abandoned by the town.
“While it is not presently operating, the town is performing periodic maintenance to preserve it for relocation,” Palmer wrote.
Town Manager Julian Suso has hired an engineering firm to evaluate other spots for future operation of Wind 2. “The town manager has agreed to provide me with a status report by Jan. 31, 2019,” wrote Palmer, who apologized for his long overdue reply. The complaint had been misfiled in his office, he said.
Funfar expressed frustration with Palmer’s reply in an email. “Some neighbors have been complaining that, with this foot dragging by the town, they are still afraid to put any money into their homes,” Funfar wrote. “A cloud of animosity continues to hang over us.”
Mark Cool, a fellow neighbor of the turbines, had filed a complaint about Wind 1 in December, citing the same wind energy bylaw Funfar used for Wind 2.
In determining his course of action for Wind 1, Palmer did not use the wind energy bylaw. He said he ordered the dismantling and removal of Wind 1 because the structure didn’t comply with zoning laws. It was denied a special permit in 2015.
Wind 1 has not spun since then, and plans for its removal are in the works.
Palmer could not be reached for comment, and Town Attorney Frank Duffy said he had no comment.
Funfar’s lawyer James Rosenblum argued that Wind 2 is the same make and model as Wind 1, and neither was ever issued a special permit from the zoning board. The lack of a special permit had never been legally challenged in court for Wind 2, as it had for Wind 1, “but that doesn’t mean Wind 2 is a legal structure,” Rosenblum said.
“The structure had a legal building permit but doesn’t have a legal special permit and never did,” he said.
Rosenblum also argues the abandonment provision should apply to Wind 2.
“I believe, either way it has to come down,” he said.
“Actually, it was challenged by our clients – it’s just that by the time the Appeals Court recently heard and then decided the case, the court decided the matter was moot because the turbine Wind 2 had already stopped spinning (after the Moriarty decision),” Rosenblum said.
The two turbines had spawned nine lawsuits during their tenure.
The only remaining case is an appeal of Moriarty’s decision by a group called the Green Center and a handful of Falmouth residents who want to see a compromise reached rather than the removal of the wind turbines.
The appeal failed to gain traction in the local courts and is now pending before the Massachusetts Appeals Court and set to be heard Oct. 2.