Falmouth Appeals Board to Resume Hearing on Town's Turbine

By: Brent Runyon
Published: 01/18/11

Falmouth Zoning Board of Appeals on Thursday will continue hearing testimony on whether the town should shut down the municipally owned wind turbine at the wastewater treatment plant off Blacksmith Shop Road because it did not apply for a special permit.

Last month, more than 70 people filled every available seat in the meeting room at Falmouth Town Hall to witness the debate over how the local zoning bylaw should be applied to the project.

The board took the matter under advisement and continued the hearing until this Thursday, when more public testimony is expected.

Since the hearing closed, there have been several developments related to wind turbines.

The board hired an attorney, Mark Bobrowski of Concord, to advise it in the matter. Acting Chairman Dennis M. Murphy said he could not answer any questions about the board’s contact with Mr. Bobrowski.

“I’m not able to answer any questions. I’m sorry, I’m not trying to be rude, but I don’t want to do anything to jeopardize this hearing in any way,” Mr. Murphy said in response to questions on Thursday.

He said he would contact zoning administrator Sari D. Budrow to see what he could say publicly before the hearing.

 

Mr. Murphy is vice chairman but took over as acting chairman when Town Counsel Frank K. Duffy Jr. asked Chairman Matthew J. McNamara to step down because of comments he made in the past about the town bypassing its own permitting process.

 

At the first hearing, Mr. McNamara stepped down at Mr. Duffy’s request. Mr. Duffy cited comments he made at two previous joint meetings with the Falmouth Planning Board regarding wind turbine permitting. At those meetings Mr. McNamara said in his opinion the town should not have bypassed the local permitting process.

Since the first hearing, the Falmouth Planning Board took three steps toward restricting future wind turbines in town. The board voted unanimously to recommend that all land-based wind turbines be declared a district of critical planning concern on the Upper Cape.

The board also voted to bring a one-year moratoria on wind turbines to Spring Town Meeting, and to draft a more restrictive bylaw for regulating turbines.

Residents who live near the turbine have repeatedly complained about the sound the turbine makes, and they showed up in force at the first hearing.

The town-owned turbine at the wastewater treatment plant is a 1.65-megawatt Vestas turbine that is 262 feet tall at the hub.

Residents have also filed a noise complaint against the Notus Clean Energy Turbine in Falmouth Technology Park, which is the same size as the town turbine.

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.

“Wind I is a windmill. Windmills require a special permit. The town did not receive a special permit,” Mr. Watt said last month.

The town’s side was represented by Acting Town Manager Heather B. Harper, Building Commissioner Eladio R. Gore, Mr. Duffy and Town Planner Brian A. Currie, who argued that the turbine is a municipal use and therefore permitted by right, and did not require a special permit.

1 Responses to "Falmouth Appeals Board to Resume Hearing on Town's Turbine"

1. markjcool says: 01/19/11
   

   The Town contends it’s Community Outreach Program adequately satisfy the Public open forum hearing process for the statutory impact of the WIND1 project. The Building Commissioner contends the phrase ALL MUNICIPAL USE, and the Town Counsel and Planner contends the phrase BY RIGHT OF A MUNICIPALITY makes exempt the discretionary nature of a special permit process. I would contend, ALL projects concerning HEALTH and SAFETY must be evaluated on whether the proposed use has a negative impact on the specific neighborhoods near where the project is proposed. Thereby, mandating the special permitting process. The Town Counsel and acting Town Manager presented a litany of informational forums, BoS meetings, Town meetings, media coverage on the matter, periodic letters to abutters via the Energy Committee, not to mention, construction activity at the site, hoping the Board agree that these efforts gave reasonable public notice concerning the impact of Wind1. Giving notice of intent to build implies that it wasn’t a question of “IF” it was to be built, rather, the notice acted simply as satisfying a timetable check list item of “WHEN” it was to be built. I attended a BoS meeting where the Energy Committee Chair longingly glossed over all the attributes, but gave no pause to problematic possibilities our community wrestles with today. The public was provided only the information suited for the desired outcome. There was no Public opportunity given to receive unbiased, objective, expert impact review of information. §240-216 (Decisions) makes conditional provisions for project and/or activity uses. Where no specific restriction on a new activity exists (§240-166 directly and specifically addresses windmills and cites §240-216), “a special permit granting authority shall grant a permit ONLY upon written determination that the proposed use” (nature of activity) “will not have adverse effects which overbalance its beneficial effects on either the neighborhood or town”. The 2005 Community Wind Project Feasibility Study summarized “the project may need a Special Use Permit from the Town of Falmouth”. (page ii) The study further suggested (page ii) “this project will require community outreach”. The Town of Falmouth desired to install an energy generating facility on its land and the provisions noted in both §240-216 and §240-110 required the use and/or activity NOT CAUSE HARM TO PUBLIC SAFETY AND GENERAL WELFARE. The suggestion from the 2005 Feasibility Study for such a process, while anticipated by the neighborhood to introduce ALL impact aspects, went ignored. The Town Administration deciding a community outreach program was notice enough. Absent was the expected comprehensive and focused review (pro’s and con’s) by boards of health, planning and zoning. This development path chosen and campaigned for by town hall administration and the energy committee, bypassed the local boards responsible for the scrutiny of such health and safety impacting project. This is a direct VIOLATION of §240-216. There was no allowance given either opposing proof or plausibility that, on balance, any impairment or detriment to my neighborhood may have outweighed common good, municipal use or by right. Those most at risk, the neighborhood citizens and taxpayers, as well as those local boards relied upon for their tasking to protect, were left outside the legal due process system, the special permit process, designed to give them their say! This is preposterous! Wind1 is a “stand-alone”, completely separate and distinct “use” compared to that of the WWTF. A Community Outreach Program does not constitute a Special Permitting Process. This process is LONG OVER-DUE!