November 7, 2018
Massachusetts

Appeals Court upholds Falmouth wind turbine decision

Christine Legere | Cape Cod Times | Nov 6, 2018 | www.capecodtimes.com

BOSTON – The latest attempt by a citizens group to pursue a less drastic alternative to the court- ordered permanent shutdown of Falmouth’s two wind turbines has failed, ending eight years of litigation related to the controversial machines.

Barnstable Superior Court Judge Cornelius Moriarty had deemed the turbines at the town’s wastewater treatment facility a nuisance and ordered that they be permanently shut down in June 2017. The selectmen voted not to appeal the decision.

But a local citizens group, The Green Center, filed a motion in November 2017 to intervene in the case in Barnstable Superior Court.

Moriarty ruled the group did not have standing to intervene and had filed too late, since it was five months after his ruling.

The Green Center then appealed Moriarty’s ruling to the Massachusetts Appeals Court but again failed to gain any traction, with a panel of three judges upholding Moriarty’s decision.

“We see no reason to disturb the judge’s ruling,” the judges wrote in a decision released Tuesday. “Here, (Moriarty) properly considered that intervention would delay and complicate the final resolution, that was achieved between the original parties.”

The panel went on to say, “reopening the case would cause the original parties to incur additional legal expenses.”

Brewster Attorney Christopher Senie, who represented several abutters bringing turbine-related suits against the town, said it marked the last of the court cases involving Wind 1 and Wind 2.

“Since June of 2010, I’ve been working as the attorney for a group of Falmouth residents,” Senie said. “It’s been a long process for everyone, and I hope this ends it.”

The Green Center emphasized it was not trying to overturn the court’s decision but was seeking a hearing to present alternative remedies to a total shutdown of the machines.

In its submission, the group wrote that the motion was not filed earlier because it was not apparent during the trial leading to Moriarty’s ruling that taxpayers were not being properly represented. It only became evident when the selectmen decided not to appeal that ruling, according to the group.

Wind 1 went online in 2010 and Wind 2 began operating in February 2012. Their operation drew intense opposition almost immediately from neighbors, who said they were experiencing turbine-related health issues.

Wind 1 has been shut down since 2015, when it was denied a special permit by the Zoning Board of Appeals, so it can never operate in Falmouth. Wind 2, which has never gone through the local permitting process, was ordered permanently shut down when Moriarty deemed the operation of both turbines a nuisance.

Falmouth Town Counsel Frank Duffy said there remains one avenue The Green Center could pursue.

“They do have an option to petition the Supreme Judicial Court for further appellate review,” Duffy wrote in an email. “This is not a right, but is discretionary with the SJC. The SJC accepts very few such petitions (the figure I have heard is less than 5%).”

The Green Center member George Woodwell could not be reached for comment.

Selectmen recently hired an engineering firm to look at possibilities for relocating Wind 2. The firm has suggested another location on the wastewater treatment plant site, about a half mile from where the turbine now stands. Wind 1 would likely be used for spare parts.

“That might lead to an additional round of litigation,” Senie said of the proposal. “Let’s hope there are other alternatives for locating Wind 2.”

URL to article:  https://www.wind-watch.org/news/2018/11/07/appeals-court-upholds-falmouth-wind-turbine-decision/