Falmouth Appeals Board Hears Challenge to Town Turbine
By: Brent Runyon
More than 70 people filled every available seat-- and then some-- in the meeting room at Falmouth Town Hall last night to witness a debate over how the local zoning bylaw should be applied to the municipally-owned wind turbine off Blacksmith Shop Road.
The more than three-hour hearing veered into complex and technical territory, and in the end, the Falmouth Zoning Board of Appeals continued the proceedings until January 20.
The hearing was an appeal of Falmouth Building and Zoning Commissioner Eladio R. Gore’s determination that the turbine is a municipal use and therefore did not require a special permit from the board of appeals.
At stake was whether the town-owned turbine should be shut down with a cease and desist order from the board of appeals. The appellant argued the town did not follow its own zoning bylaws, which require wind turbines to receive special permits, and the turbine should be shut down.
The town representatives, Acting Town Manager Heather B. Harper, Mr. Gore, Town Counsel Frank K. Duffy Jr. and Town Planner Brian A. Currie, argued that the turbine is a municipal use and therefore permitted by right, and did not require a special permit.
- Residents Seek Cease & Desist Order (Nov. 23, 2010)
- Turbine Noise Within Acceptable Range (Sept. 28, 2010)
- Bylaw in the Works to Regulate Turbine Noise (July 27, 2010)
- Turbine Shut Down in High Winds (June 15, 2010)
The hearing got off to a contentious start as board of appeals Chairman Matthew J. McNamara disclosed that he had made comments at two joint meetings with the planning board that the town should not be exempt from its own zoning bylaws, and a new more restrictive wind turbine zoning bylaw for the town is under way.
Mr. McNamara said he felt he could be impartial, but would step down from the hearing if anyone in attendance thought he should.
Mr. Duffy said he did.
“Do you think that I cannot be objective?” Mr. McNamara asked.
“I’m requesting you step down,” Mr. Duffy said. With that, Mr. McNamara folded up his briefcase and vacated the chair, leaving Vice Chairman Dennis Murphy in charge of the hearing, which became rowdy at times, but remained under control.
Appellants: special permit needed
The appellants, Neil P. and Elizabeth L. Andersen of Blacksmith Shop Road, represented by Barnstable attorney J. Alexander Watt, argued that the board should issue a cease and desist order for the wind turbine, because the town never received the special permit required by the town bylaw.
Last week, Mr. McNamara said the board of appeals could not issue a cease and desist order for the wind turbine, but Mr. Watt argued that it could.
“The board shall have all powers from which the appeal is taken,” Mr. Watt said, explaining that if the building commissioner has the power to issue a cease and desist order, then so does the board of appeals.
That turned out not to be in question, as Mr. Duffy confirmed later in the hearing that the board could issue a cease and desist order, if it chose to.
“Wind I is a windmill. Windmills require a special permit. The town did not receive a special permit,” Mr. Watt said.
During the town’s presentation, Mr. Gore countered that statement and explained his reasoning for issuing a building permit to the project without requiring a special permit as well.
The wind turbine is located at the town’s wastewater treatment plant, and is used to power that facility.
“A wastewater treatment facility is a municipal purpose and all that is part of the treatment facility is a municipal purpose and, in my opinion, it is allowed and does not require a special permit,” said Mr. Gore.
Town: municipal uses exempt
He argued that if the town were required to follow the letter of its own zoning bylaw, it would have to receive a special permit for TV and radio towers, fire stations, Department of Public Works garages, and even school buses parked at the high school for football games.
The turbine is a municipal use, Mr. Gore said, because it is used to power the wastewater treatment plant. If it were used to sell power for profit back to the grid, then the turbine would have required a special permit.
“If the wind turbine is not for a municipal purpose, then the town does not enjoy the municipal exemption,” Mr. Gore said.
Mr. Watt pointed out that the town zoning bylaw does not include any special sections about fire stations, garages, or buses, but does include a special section about wind turbines.
Board member Kenneth H. Foreman asked why the municipal exemption trumps the wind turbine section of the zoning bylaw.
Mr. Gore said the municipal purpose section of the bylaw states that all municipal purposes are allowed by right, and therefore the later section of the bylaw regarding wind turbines does not apply.
Ample notice to abutters
Mr. Duffy took a different tack. He claimed that the Andersens had 30 days to appeal the issuance of the building permit, and only filed a request for zoning enforcement 14 months after the building permit was issued.
“This appeal is late,” he said. “There are valid reasons for this short statute of limitations, all clearly evident in the facts of this case. Permits must have finality and certainty. Parties who obtain permits act upon them. They build structures, borrow money, enter into binding legal obligations, and otherwise make plans to move forward.”
Mr. Duffy argued that the Andersens had plenty of notice of the project since its inception in 2002. He said public forums, discussions at public meetings of the Falmouth Energy Committee and Board of Selectmen’s meetings, Town Meeting articles, letters to abutters, and frequent media coverage all gave the Andersens opportunity to appeal the building permit within the 30-day period.
Mr. Duffy also said the residents should have been aware of the activity of the turbine construction.
At one point Ms. Harper said that notice was sent to abutters 900 feet from the property line of the wastewater treatment plant through general mail.
But the Andersens and 10 other residents told the board they never received notice of the project, or the issuance of the building permit.
Westborough attorney Christopher G. Senie, also representing the Andersens and 16 other Falmouth residents, said that there is no reason that the town should not go through the special permit process.
“What is the harm if you issue a cease and desist order?” Mr. Senie said. “There’s no reason that Wind I and Wind II should not go through the special permit process.”
Mr. Senie said that the board of appeals had already issued a special permit for the Notus Clean Energy wind turbine in Falmouth Technology Park, which is the same size as the town turbine.
Among the abutters who spoke out against the project was Barry A. Funfar of Ridgeview Avenue, who said his house is 1,662 feet from the town turbine. He said he did receive a survey and an impact study and was one of only seven people to fill it out.
“We want our lives back,” Mr. Funfar said, imploring the board to issue a cease and desist order.
The most emotional appeal to the board came from Mr. Andersen who described headaches and poor sleeping conditions, and said, “We’re hoping that someone will just turn it off.”
After three hours of testimony, the board decided to continue the hearing until January 20.
Mr. Andersen, still standing at the lectern, asked, “What are we supposed to do until then?” to the emptying room.