Wind Turbine Financial Fiasco Falmouth

Town of Falmouth Loses Wind Turbine Case Again

Taxpayers May Be Asked To Pay For More Litigation -No End In Sight

Massachusetts state officials and Clean Energy Center needs the turbines to make their year 2020 renewable energy goal.

The wind turbines are losing money. The taxpayers are spending more money to hire attorneys. The Town of Falmouth and everyone associated with the installation was aware the turbines were too loud prior to any installations. Click here to read the August 2010 letter or copy and paste to your browser :

http://www.windaction.org/posts/41357-vestas-raises-concerns-about-turbi...

The Falmouth Select Board will be deciding by Monday night March 2, 2015 if they will continue to spend taxpayers dollars to appeal the case yet again.

13-P-1498 Appeals Court TODD DRUMMEY & others1 vs. TOWN OF FALMOUTH & others.2 No. 13-P-1498. Barnstable. September 5, 2014. - February 26, 2015. Present: Cypher, Grasso, & Fecteau, JJ. 3 Zoning, By-law, Special permit, Governmental use, Permitted use. Municipal Corporations, By-laws and ordinances.

Civil actions commenced in the Superior Court Department on March 21, 2011. After consolidation, the cases were heard by Robert C. Rufo, J. Christopher G. Senie for the plaintiffs. Frank K. Duffy, Jr., Town Counsel, for the defendants.
CYPHER, J.

We are asked to decide in this case whether the town of Falmouth (town) was required to obtain a special permit from the zoning board of appeals of Falmouth (ZBA) for the installation of a wind turbine on town land. We conclude that, under the town’s zoning by-law (by-law), a special permit was required.

Background. The plaintiffs are Falmouth residents who live between 1,300 and 3,200 feet from a wind turbine known as “Wind 1,” 4 installed in 2009 on town land at its wastewater treatment facility (WWTF). Alleging significant distress from sound pressures and noise from the operation of Wind 1, Neil Andersen and Elizabeth Andersen (collectively, the Andersen plaintiffs), on August 25, 2010, sought an enforcement action by the town’s building commissioner asserting that the town was in violation of the by-law by operating Wind 1 without a special permit. The building commissioner denied their request in a letter dated September 24, 2010, and the Andersen plaintiffs appealed to the ZBA, which affirmed the building commissioner in a decision dated March 3, 2011. Separate actions for relief under G. L. c. 40A, § 17, were filed in the Superior Court by the Andersen plaintiffs and by the remaining plaintiffs. After consolidation of the cases below, and a bench trial, a judge on June 18, 2013, ordered that judgments enter affirming the decision of the ZBA.5

Notes: 1 Mark Cool, Brian Elder, Barry Funfar, Lawrence Worthington, Robert Laird, Neil Andersen, and Elizabeth Andersen. 2 The building commissioner of Falmouth and the zoning board of appeals of Falmouth. 3 Justice Grasso participated in the deliberation on this case prior to his retirement

4 Wind 1, first operational in 2010, is a Vestas V-82, 1.65 megawatt wind turbine installed by the town on a 314.6-acre parcel in a public use zoning district. The WWTF uses a portion of the electricity generated by Wind 1, and the excess is sold to the utility company NStar’s (now known as Eversource) electric grid.plaintiffs and by the remaining plaintiffs. After consolidation of the cases below, and a bench trial, a judge on June 18, 2013, ordered that judgments enter affirming the decision of the ZBA.5

Discussion. At trial, the plaintiffs argued that the building commissioner and the ZBA incorrectly interpreted the by-law to allow the issuance of a building permit for Wind 1 without a special permit, citing § 240-166 of the by-law which provides that a petitioner may apply for a special permit to allow construction of a windmill. 6 The judge, however, deferred to the opinion of the building commissioner, affirmed by the ZBA, that the by-law “does not apply in the limited circumstance where the Town itself desires to construct and operate a windmill for municipal purposes in a district where all such purposes are permitted as of right.”

The plaintiffs also assert that the town failed to obey the use permit requirements in § 240-166D of the by-law. The requirements of § 240-166D, quoted in the margin,9 pertain to considerations of potential impacts on neighbors as well as safety in the operation of windmills, and it appears that many of the requirements are specific to wind turbines and are not found in local or Massachusetts building codes. The building commissioner testified that he issued a conventional use and occupancy permit and did not assert that such a permit indicated compliance with the requirements of § 240-166D. Compliance with those requirements must be made in the course of an application for a special permit.10 Conclusion. For the reasons given, we vacate the June 18, 2013, judgments of the Superior Court. 11 The matter is remanded to the Superior Court, where new judgments shall enter consistent with this opinion. So ordered.

Note # 9 “All windmills shall require a use permit to be in operation. No use permit shall be issued before an inspection and certification of compliance is accomplished by a registered professional engineer with a mechanical or structural background, nor before a determination by the Building Commissioner that all the conditions of this chapter and any special permit have been met. All windmills shall require a biennial inspection by a registered professional engineer with a mechanical or structural background, and any windmill which fails to undergo such an inspection shall be deemed to be in violation of this chapter and the special permit. The Building Commissioner shall require immediate corrective action on any noted deficiency. Failure to comply shall be deemed to be a violation of this chapter and the special permit.”


Certain Sections [truncated due to possible copyright] click below to read the entire decision

http://www.mass.gov/courts/docs/sjc/reporter-of-decisions/new-opinions/13p1498.pdf