

Turbine projects marred by litigation: Fiasco in Falmouth

For those concerned about possible missteps when developing wind energy projects, the story of Falmouth’s municipal wind turbines is instructive. These 400- foot turbines, known as Wind 1 and Wind 2, were each intended to generate 1.65 megawatts of clean energy for Falmouth’s municipal wastewater treatment plant, with excess output sold to the electric utility. Economic studies supported the turbines’ $10 million cost. Unfortunately, the benefits have fallen short, because of negative impacts on neighbors and resulting litigation.

After the turbines became operational, nearby residents complained about sound pressure, noise and flickering shadows from the turbines, causing insomnia, headaches and other health issues. Several lawsuits followed, with neighbors claiming that the turbines were nuisances that violated zoning laws. A Barnstable Superior Court judge issued an injunction in 2013, limiting the turbines’ operating hours to 7 a.m. to 7 p.m., Mondays through Saturdays.

Wind 1 encountered additional legal challenges. The neighbors asserted that Wind 1 violated the zoning bylaws because it was built without a special permit from Falmouth’s zoning board of appeals (ZBA). They asked the building commissioner to shut it down. The commissioner declined, after determining that the zoning bylaws allowed Wind 1 to operate as-of-right as a “municipal purpose.”

The bylaws defined “municipal purposes” to include government administration, parks, playgrounds, public beaches, fire and police stations, and sundry traditional governmental activities, but not wind turbines. A separate section of the bylaws specifically required that wind turbines obtain special permits from the ZBA, with no stated exemptions for the town.

The neighbors appealed the building commissioner’s decision to the five-member ZBA. Three board members voted to reverse the decision, but one voted to uphold it. The Zoning Act requires that four members vote to reverse the commissioner’s decision, so even though the neighbors garnered a supermajority of the votes cast, they lost at the ZBA. The neighbors appealed to Barnstable Superior Court, without success.

The Appeals Court was more sympathetic to the neighbors. Its 2015 decision Drummey v. Falmouth held that the Superior Court incorrectly interpreted the zoning bylaws’ definition of “municipal purposes.” Noting that the bylaws’ list of municipal purposes did not mention wind turbines, the Appeals Court invoked the Latin maxim inclusio unius est exclusio alterius, which is legalese for “if a law omits an item from a comprehensive list, the omission is regarded as deliberate.”

The Appeals Court bolstered this reasoning by citing the other bylaw that specifically required special permits for wind turbines. It vacated the lower court’s decision without difficulty. After the Supreme Judicial Court denied the town’s appeal, the ZBA issued a cease and desist order, bringing Wind 1 to a standstill. Desperate to save its investment, the town petitioned the ZBA for a special permit for Wind 1. With three members having voted earlier against Wind 1, the ZBA predictably denied the special permit in April by a 4-1 vote. The town’s board of selectmen brought suit against the ZBA in the Land Court to force the issuance of the special permit.

Not A Sparsely Populated Area

Meanwhile Wind 2 has its own problems. After the neighbors prevailed in the Appeals Court’s Drummey decision, they raised the same arguments against Wind 2 because it also had been built without a special permit. However, the ZBA unanimously rejected the neighbors’ appeal this time around, maintaining that the neighbors’ arguments were untimely and should have been raised earlier. While neighbors appeal the ZBA’s decision in Superior Court, Wind 2’s future remains uncertain.

The town of Falmouth had admirable goals when it installed the turbines, but it underestimated adverse effects on nearby residents and their resolve to fight the nuisance. According to the neighbors’ attorney Christopher Senie, the town “accepted a technology offered by the industry that fits in areas much less densely populated, where wind energy developers have thousands of acres to work with, and much greater setback distances from homes.”

Today Wind 1 sits idle in the Cape Cod breeze. Wind 2 continues to operate under court imposed restrictions, but it faces the same legal challenges that put Wind 1 out of business. The town’s cost to decommission or relocate the turbines would be exorbitant. In hindsight, Falmouth should never have placed giant wind turbines so close to homes.

Christopher R. Vaccaro is a partner at Dalton & Finegold in Andover.