A resident filed an enforcement action request (June 2018) alleging Wind 2 violates Chapter 240 Section 3B of the Falmouth Zoning Bylaw (the local provision copied from M.G.L. c. 40A, s. 7).
In his response Building Commissioner Palmer said “The building permit (Mar. 2010) and the date of initial operation (Feb. 2012) are both beyond the six year enforcement provision of M.G.L. c. 40A, s. 7 for structures erected in reliance upon a building permit”. In effect, denying the resident’s request for zoning enforcement.
Note that when another resident filed an enforcement action request on Wind 1 (Dec. 2017) [building permit (2009) & initial operation (April 2010)], Building Commissioner Palmer determined Wind 1 to be an illegal structure not in compliance with Falmouth Zoning Bylaw and ordered it dismantled and removed. (see https://www.capenews.net/falmouth/news/falmouth-building-commissioner-orders-wind-removal/article_d3402481-490b-5f29-aa12-095be04249c0.html)
Despite the building commissioner’s (BC) application inconsistency between now and then, does Mr. Palmer make a case for Wind 2 that would otherwise convince the Zoning Board of Appeals (ZBA) to uphold the BC’s determination?
The basis for Mr. Palmer’s argument is in M.G.L. c. 40A, s. 7. In condensed form – if real property [Wind 2] has been improved [non applicable] and used in accordance with the terms of the original building permit [see terms of ANY building permit below], no action intended to compel the removal of a structure erected in reliance upon the permit by reason of an alleged violation shall be acted upon (by the BC) unless the action and notice of the action is filed within 6 years of the commencement of the alleged violation (2011).
Was the resident’s enforcement action request filed after the 6 year limit? YES. Yet, before going any further, a review of the opening sentence of M.G.L. c. 40A, Section 7 is necessary. Section 7 – The building commissioner shall be charged with the enforcement of the zoning by-law and shall withhold a permit for the construction of any structure if the structure would be in violation of any zoning by-law (condensed).
This preamble broadly outlines the fundamental “do’s & don’ts” afforded the building commissioner’s authority. In effect, it describes what the BC is legally authorized to do, and in this instance, it provides terms for ANY building permit. Any action outside these regulatory parameters shall be considered illegal.
OK, back to the 6 year enforcement provision.
The underlying issue that triggers the application of this provision is all about “the Building Permit”. Recall the critical phrase “… and used in accordance with the terms of the original building permit, …” Was the use of Wind 2 in accordance with terms of the original building permit? In light of the aforementioned charge and authority of the BC (enforcement of the zoning by-law), enforcement of the zoning by-law required the BC to withhold a permit for the construction of ‘windmill’ structures if not in accordance with the zoning by-law. The former Falmouth BC didn’t and the Massachusetts Appeals Court, in DRUMMEY vs. TOWN OF FALMOUTH (February 26, 2015) ruled that Wind 1’s compliance with the zoning by-law was not satisfied without a special permit from the special permit granting authority (the ZBA). Not satisfying compliance requirements of the zoning by-law, in essence, qualifies an existing windmill as an illegal non-complying structure.
Exactly the Wind 1 determination made by Building Commissioner Palmer December 2017.
It logically follows that if Wind 2 has not met the by-law special permit requirement, it’s reasonable to hold that an illegal Wind 2 cannot be afforded regulatory immunity from enforcement action by an unlawful building permit.
Frankly, the “… used in accordance with the terms of the original building permit …” provision can’t get triggered. The building permit defense is non-applicable. A building permit, failing to comply with zoning by-law (requirements of 240-166 Windmills) can’t be a lawful permit (see DRUMMEY vs. TOWN OF FALMOUTH – https://www.natlawreview.com/article/troubles-massachusetts-town-s-wind-turbine).
The former building commissioner’s error (2009) was corrected by Mr. Palmer’s Wind 1 determination (2017) and then unexplainably reversed regarding Wind 2 (2018). Unfortunately, somewhere between December 2017 and September 2018, between identical turbine towers with identical zoning status, Mr. Palmer’s zoning objectivity was compromised.
Is there an explanation for this “turn-about”? Perhaps, but if similar to town hall shenanigans employed during the 8 year nuisance battle, an explanation and the truth (often different until an uncertain amount of taxpayer $$$ has been wasted on lengthy litigation proceedings) will take time to materialize.