The Massachusetts Appeals Court rejected a motion to intervene in the court order to shut down Falmouth’s two wind turbines as a nuisance, upholding Barnstable Superior Court Judge Cornelius J. Moriarty II’s decision.

“We see no reason to disturb the judge’s ruling,” Associate Justices Peter J. Rubin, Gabrielle R. Wolohojian, and Amy L. Blake wrote in their decision, noting the history of the litigation.

“Here, [Judge Moriarty] properly considered that intervention would delay and complicate the final resolution that was achieved between the original parties, and would therefore prejudice those parties,” the justices wrote. “Indeed, the original parties considered the matter to be concluded. Moreover, reopening the case would cause the original parties to incur additional legal expenses.”

Filed by The Green Center Inc. of Hatchville and 12 Falmouth residents, the motion requested Judge Moriarty to reconsider his 2017 decision that upheld a Falmouth Zoning Board of Appeals decision deeming the turbines a nuisance and ordered the turbines shut down. Through a motion to intervene, The Green Center sought to replace that order with a “more equitable remedy for all parties.”

Judge Moriarty denied the request.

“The judge denied the motion concluding that the interveners could not likely establish standing, and that the motion was untimely,” the appeals court judges wrote. “We affirm.”

The judges noted the interveners had 60 days after the judgment was entered on June 21, 2017, to appeal the decision. The motion to intervene was not filed until November 15, 2017. In addition, their decision notes The Green Center failed to establish a compelling interest in filing the motion to intervene.

“As an organization, The Green Center has not offered sufficient evidence to support the assertion that its interest in reducing environmental contamination will in fact be harmed by the judgment,” the judges wrote.

Falmouth residents listed on the motion to intervene are George M. Woodwell, Ronald D. Zweig, Christina C. Rawley, Earle A. Barnhart (the principal officer of The Green Center), John Carlton-Foss, Rhona N. Carlton, James Churchill, Hilde Maingay, Pamela D. Pelletreau, Robert H. Pelletreau Jr., Allison B. White and Katharine R. Woodwell.

Although the appeal was denied, The Green Center can petition the Massachusetts Supreme Judicial Court for further review.

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(2) comments

FrankHaggerty

FYI -The court updated the "The judges noted the interveners had 60 days after the judgment was entered on June 21, 2017, to appeal the decision." Now reads 30 days in corrected court papers

FrankHaggerty

Falmouth Neighbors Never Gave Up Fight Against Wind Turbines
Neighbors of Wind Turbines Suffered Major Health and Financial Litigation Costs While The Town Knew Prior To Construction They Were TOO Loud

Barry and Dianne Funfar (the Funfars) Falmouth residential homeowners filed a request with the Falmouth building commissioner for enforcement of the zoning code as to the operation of two wind turbines in Falmouth. The litigation has gone on at the expense of their health and finances for eight years.
Barry Funfar is a 72-year-old Vietnam veteran who spent most of his time since retirement fifteen years ago working with the hundreds of flowers and trees planted around the quiet suburban house that he built.
A Marine, Funfar flew 127 combat missions as a helicopter mechanic/door gunner on Huey helicopters and was awarded seven Air Medals for meritorious service.
The Town of Falmouth had been warned by email, letter, and maps prior to the installations of the two town-owned wind turbines the turbines generate 110 decibels of chest pounding noise. The Vestas wind turbine company letter warning of the 110 decibels remains not disclosed on the town wind turbine website.
In June 2012 Falmouth Board of Health members: Gail Harkness, Jared Goldstone, George Heufelder, Stephen Rafferty,and David Carignan heard from 63 residents. Of the 47 people reporting health effects from the turbines. 41, or about 85% reported sleep disturbance, 25 reported stress, 21 reported mental health problems, 2 reported suicide attempt or ideation.
The state and town ignored thousands of written noise complaints about the wind turbines. To date, the state has never interviewed any of the abutters of the wind turbines.
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Former Selectman Brent Putnam was on the board in 2010. At Falmouth Town Meeting November 10, 2015, Brent told Town Meeting this about residents around the turbines:"And they're going to continue to fight this. They'd been fighting this when I was a selectman, they're fighting this now and I'm not a selectman. They have a vested interest in this, ladies and gentlemen, that most of us don't. And they, as just pointed out, they're continuing to spend their own money and their own energy and their own time to fight this, and guess what? They're winning."
"When I was on the Board, we were given legal advice and, quite frankly, looking back on it-- because hindsight always is 20-20, isn't it --we were told,"No problem, slam dunk", and then we lost."Oh, no problem, slam dunk", and then we lost. And then we lost and then we lost."
"And right now, Folks, we're looking at several articles here that are asking us to spend more money. One article that's asking us to retroactively rezone the property so we can win a battle that we've lost. This is really getting comical, if not, as one recent writer pointed out, absurd."
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Barnstable Superior Court Judge Cornelius Moriarty had deemed the turbines at the town's wastewater treatment facility a nuisance and ordered that they be permanently shut down in June 2017. The selectmen voted not to appeal the decision.
On October 15, 2018, the Falmouth Select Board announced plans to move one of the turbines one-half mile to sidestep the Judge Moriarty decision.
The Falmouth Select Board plans to put the cart before the horse does not include an expert acoustic noise study or have made a decision if Falmouth Wind II is a non-conforming or non-compliant structure.
Falmouth complaints of adverse health impacts from those forced to live close to wind turbines continue to rise worldwide. Today the World Health Organization has confirmed noise is a problem for people that live in the proximity of wind turbines.
These turbines involve both audible noise measured in decibels including low-frequency noise, and inaudible noise below 20 Hz, known as infrasound.
This is the way the Town of Falmouth thanks some one for their service
Massachusetts Appeals Court Throws Out Green Center Wind Turbine Appeal -
Barry and Dianne Funfar Neighbors Win Another Costly Victory Again
November 6, 2018 Mass Court Documents
https://www.mass.gov/files/documents/2018/11/06/18P0104.pdf

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