Falmouth Wind II Spoliation of Evidence Special Permit 240 -166

Spoliation of Evidence Doctrine Vs Laches Doctrine

The legal defense by the Town of Falmouth to prevent the neighbors of Falmouth Wind II to ask for Special Permit 240 166 is they waited too long. (Laches Doctrine)

The Town of Falmouth negligently withheld a noise warning letter for 5 years the turbines generated 110 decibels of noise. ( Spoliation of Evidence Doctrine )

The Massachusetts Clean Energy Center admitted three years after the wind turbine installations in 2013 they had made acoustic noise mistakes in preliminary noise tests. The state agency in addition was aware of a map produced in 2005 that showed wind turbines would exceed 40 decibels of noise on Black Smith Shop Road.

( Spoliation of Evidence Doctrine )

The Town of Falmouth is ready to go into Massachusetts Superior Court and tell the court they along with the Massachusetts Clean Energy Center had prior knowledge the wind turbines had a noise danger letter. The noise warning was withheld from the public. In addition the Massachusetts Clean Energy Center was aware of two distinct types of noise from the wind turbines : Regulatory measured in decibels and nuisance noise today known as human annoyance or infra sound.

The MassCEC failed to warn the citizens of Falmouth of the two distinct types of noise that can be found in their prior boiler plate studies done by the MassCEC prior to the Falmouth installations. This information was also withheld from the preliminary Falmouth noise studies.

Spoliation of evidence is the negligent destruction, withholding, or altering of evidence. The spoliation of evidence is the intentional, reckless, or negligent withholding, hiding, of evidence relevant to a legal proceeding.

Spoliation has two possible consequences: in jurisdictions where the (intentional) act is criminal by statute, it may result in fines and incarceration (if convicted in a separate criminal proceeding) for the parties who engaged in the spoliation; in jurisdictions where relevant case law precedent has been established, proceedings possibly altered by spoliation may be interpreted under a spoliation inference, or by other corrective measures, depending on the jurisdiction.

The Town of Falmouth hid the following Vestas warning letter for 5 years to avoid Special Permit 240 -166 for the installation of Falmouth Wind II. The 110 decibel noise warning information in the letter requires additional studies by the Falmouth Zoning Board of Appeals and additional notification to residential home owners around the turbines.

The town withheld the letter from the public, spoliation of evidence.

THE TOWN OF FALMOUTH CLAIMS THE NEIGHBORS TO THE TURBINES WAITED TO LONG TO ASK FOR A SPECIAL PERMIT FOR FALMOUTH WIND II. DOCUMENTS INCLUDING EMAILS, WARNING LETTERS,MAPS AND MEMOS WERE HIDDEN FROM THE PUBLIC FOR YEARS TO AVOID A SPECIAL PERMIT WHICH WOULD HAVE REQUIRED A ZBA HEARING AND ADDITIONAL NOTIFICATION TO NEIGHBORS

The Town has previously been provided with the Octave Band Data / Sound performance for the V82 turbine. This shows that the turbine normally operates at 103.2dB but the manufacturer has also stated that it may produce up to 110dB under certain circumstances.

August 3, 2010

Mr. Gerald PotamisWasteWater Superintendent

Town of Falmouth Public Works

59 Town Hall SquareFalmouth, MA 02540

RE: Falmouth WWTF Wind Energy Facility II “Wind II”, Falmouth, MA

Contract No. #3297

Dear Mr. Potamis,

Due to the sound concerns regarding the first wind turbine installed at the wastewater treatment facility, the manufacturer of the turbines, Vestas, is keen for the Town of Falmouth to understand the possible noise and other risks associated with the installation of the second wind turbine.

The Town has previously been provided with the Octave Band Data / Sound performance for the V82 turbine. This shows that the turbine normally operates at 103.2dB but the manufacturer has also stated that it may produce up to 110dB under certain circumstances. These measurements are based on IEC standards for sound measurement which is calculated at a height of 10m above of the base of the turbine.

We understand that a sound study is being performed to determine what, if any, Impacts the second turbine will have to the nearest residences. Please be advised that should noise concerns arise with this turbine, the only option to mitigate normal operating sound from the V82 is to shut down the machine at certain wind speeds and directions. Naturally this would detrimentally affect power production.

The manufacturer also needs confirmation that the Town of Falmouth understands they are fully responsible for the site selection of the turbine and bear all responsibilities to address any mitigation needs of the neighbors.

Finally, the manufacturer has raised the possibility of ice throw concerns. Since Route 28 is relatively close to the turbine, precautions should be taken in weather that may cause icing.

To date on this project we have been unable to move forward with signing the contract with Vestas. The inability to release the turbine for shipment to the project site has caused significant [SIC] delays in our project schedule. In order to move forward the manufacturer requires your understanding and acknowledgement of these risks. We kindly request for this acknowledgement to be sent to us by August 4, 2010, as we have scheduled a coordination meeting with Vestas to discuss the project schedule and steps forward for completion of the project.

Please sign in the space provided below to indicate your understanding and acknowledgement of this letter. If you have any questions, please do not hesitate to call me.

Sincerely,(Bruce Mabbott’s signature)_________________Bruce Mabbott

Gerald Potamis Project Manager Town of Falmouth

CC: Sumul Shah, Lumus Construction, Inc.(Town of Falmouth’s Wind-1 and Wind-2 Construction contractor)

Stephen Wiehe, Weston & Sampson(Town of Falmouth’s contract engineers)

Brian Hopkins, Vestas(Wind-1, Wind-2’s turbine manufacturer, and also Webb/NOTUS turbine)

http://www.windaction.org/post...

Note # the Massachusetts Clean Energy Center was formerly the Massachusetts Technology Collaborative