Falmouth Wind Turbine Amendment Denies Abutters "Due Process"

Falmouth Wind Turbine Amendment Denies Abutters “Due Process”

The Fifth and Fourteenth Amendments to the United States Constitution contain a ‘due process clause’. The due process clause acts as a safeguard from arbitrary denial of life, liberty, or property by the Government outside the sanction of law.

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Massachusetts state courts have ruled the Town of Falmouth illegally installed two commercial megawatts wind turbines avoiding the town special permit bylaws.

All those involved with the installation of the turbines were aware the turbines were too loud prior to construction see note 1 & 2 bottom.

The special permit was avoided because it would have required additional notifications and studies in which case the turbines would not have been installed.

The abutters of the turbines have complained of a noise described as torture from the wind turbines taking health and property rights with no compensation for the past 5 plus years.

The Falmouth Zoning Board of Appeals a semi-quasi judicial town board operating under Mass General Laws voted a cease and desist order to shut down Falmouth Wind 1.

The Falmouth Select Board failed to act to shut down the turbine until the victims filed litigation asking for the courts to enact a cease and desist order.

The Select Board has now decided to take authority away from the Falmouth Zoning Board of Appeals. The town will ask Town Meeting Members on November 10 for an amendment to the wind turbine bylaws.

The Massachusets Supreme Judicial Court has ruled in the past that the Massachusetts constitution “forbids the creation of second-class citizens. The Falmouth wind turbine amendment Article 3 creates a second class group of citizens of up to 200 residential home owners around the wind turbines. Only these citizens have to endure a noise described as torture for the finacial gain of the town.

The amendment in the midst of court litigation and ZBA cease and desist orders asks to make the turbines permanent and may be allowed to operate as a of right in public use districts.

The amendment denies the abutters, up to 200 residential homes, “Due Process.”

The fourteenth amendment forbids “any state” to “deprive any person of life, liberty, or property, without due process of law.

A regulatory taking occurs where a regulation causes a “permanent physical invasion” of private property. The formal process of taking private property for public use by eminent domain is called condemnation.

The Takings Clause of the Fifth Amendment “does not prohibit the taking of private property, but instead places a condition on the exercise of that power.

The policy underlying the Takings Clause is to prevent government from placing a financial burden on certain people that should rightly be borne by the public as a whole.

The concept of regulatory takings, courts have consistently recognized that “where government requires an owner to suffer a permanent physical invasion of her property — however minor — it must provide just compensation. Courts are generally lenient as to what’s considered “public use” for eminent domain purposes. Any type of public benefit for taking private property is usually considered a “public use.”

Article 3 the Falmouth wind turbine amendment is a taking of health and property.

An appraiser will determine the fair market value of residential homes around the wind turbines. In Falmouth a trial by judge or jury would be scheduled to determine the final amount.

In Massachusetts regulatory taking decisions, courts have held that the purported negative economic impact must be a direct consequence of the governmental regulation.The government or agency must give you notice of any condemnation hearings so that you have the opportunity to present your side. In this case the Article 3 wind turbine by law amendment.

This is the general text of Article 3 Published October 2, 2015 in a local Falmouth newspaper :

WARRANT FOR THE SPECIAL TOWN MEETING TUESDAY NOVEMBER 10 At 7 p.m.

“ARTICLE 3 : To see if the town will vote to amend Chapter 240- Zoning-of the Code of Falmouth by adding the following to Article XXXIV (34) Wind Energy Systems: 240-166.D (2) Any Wind Energy System owned by the Town of Falmouth and used for municipal purposes, in existence as of the date of this bylaw, shall be exempt from the provisions of this Article, pursuant to Section 240-30.B. and may be allowed to operate as a of right in public use districts.”

Notes # 1 & #2 Below- All those invloved in the installations knew the turbines were too loud. General Electric a domestic wind turbine company refused to place a single wind turbine smaller than the two foreign made turbines because of setbacks.

April 3, 2013 • Massachusetts :Details on MassCEC’s April 2 Memo on Falmouth turbines

“The original MTC-commissioned feasibility study for Falmouth over-estimated the likely acoustic impact, that study did not include a detailed acoustic analysis based upon sampling of ambient acoustic conditions”

https://www.wind-watch.org/news/2013/04/03/details-on-masscecs-april-2-memo-on-falmouth-turbines/

August 3, 2010 -Mr. Gerald Potamis ,WasteWater Superintendent, Town of Falmouth Public Works, 59 Town Hall Square,Falmouth, MA 02540
“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.”

http://www.windaction.org/posts/41357-vestas-raises-concerns-about-turbine-noise-letter#.Ve9oyhFVikp

The turbines are in violation of the Commonwealth of Massachusetts. Department of Environmental Protection (DEP) Noise Control Regulation 310 CMR 7.10.