Falmouth Wind Turbine Update For July 9 2015

The “Falmouth Experience” : UPDATE

QUICK REVIEW –

The Town of Falmouth relied on the interpretation of the Building Commissioner that a special permit was not required for the construction/operation of Wind I and relied upon the issuance of the building permit.

The state Appeals Court determined that a Special Permit is required.

A request was made to the Supreme Judicial Court to review the Appeals Court Decision. On June 3, 2015 that request was denied.

RECENTLY (June 11, 2015) –

Based upon these two Court decisions, the Building Commissioner / Zoning Enforcement Officer for the Town of Falmouth ordered the Board of Selectmen to apply for a Special Permit from the Zoning Board of Appeals.

SINCE THEN –

Neighbors filed a request for an enforcement action (Cease & Desist order) separate from the Appeal Court’s Decision. The Building Commissioner / Zoning Enforcement Officer for the Town of Falmouth denied the request. In part, the denial response reads – “… Further based upon Footnote 10 of that Appeals Court decision which states in pertinent part … “We decline to consider the request of the plaintiff to order the town to cease the operation of Wind I until a special permit is issued.”

The Building Commissioner / Zoning Enforcement Officer for the Town of Falmouth failed however, to include the entirety of Footnote 10 which further reads – “Article XXXVII, §§ 240-179 and 240-180, of the by-law assign such enforcement actions to the building commissioner in the first instance.”

The last sentence of the denial response reads – “In all matters relating to Wind I and Wind II it has been customary and consistent practice of this department (Building Department) not to take any action until such time as a determination/order has been made by the Court.”

JULY 9, 2015 (This Thursday) –

Barnstable Superior Court will decide on the matter involving judicial oversight by way of a cease & desist order upon Falmouth’s town turbines.

The concerning omission from the full content of the Appeals Court Footnote 10 gives the impression that the Zoning Enforcement Officer cannot act without a Court directive. This couldn’t be further from the truth. The last line of Footnote 10 says – “Article XXXVII, §§ 240-179 and 240-180, of the by-law assign such enforcement actions to the building commissioner in the first instance.” Simply put, the Court’s reasoning was that enforcement actions are to be the duty of the Building Commissioner before any other.

Yet, the Building Commissioner in denying the neighbors enforcement request, is on record stating (in matters involving the town turbines) “… it has been customary and consistent practice of this department not to take any action until such time as a determination/order has been made by the Court.”

This may have been a reasonable argument before the turbines were judged to be illegal by the Appeals Court. Now, fully aware a zoning bylaw is violated, it is the Building Commission’s duty to eliminate the violation until a Special Permit is issued.

A CONFLICT CONCERN – A question that “cuts to the quick” of the issue is whether the Building Commissioner’s actions relative the turbine project, are driven by service to Town Hall interests (i.e. fiduciary responsibility) or by service to administering the regulatory guidance of zoning bylaw?

If the former is true, selective enforcement is considered a precursor of tyranny and an abuse of power.

THURSDAY should prove to be very interesting!

Source : https://mjoecool.wordpress.com/2015/07/07/the-falmouth-experience-update/

Credit :  Firetower Wind