CAUSE FOR CELEBRATION – FOR SOME … CONFUSION FOR OTHERS
After languishing in legal limbo for seven years, Falmouth’s Board of Selectmen have been cast into a wind tunnel of its own making. The Court’s decision directing the Town of Falmouth to “cease and desist the operation of the wind turbines forthwith” leaves the Board of Selectmen seeking options.
The Court affirmed Falmouth’s ZBA decision (both turbines being a nuisance) based on the following Town Claims:
– the Board was wrong to apply the 6dB(A) standard (instead of the DEP’s 10dB(A) allowance) [residents of Falmouth are governed by Falmouth Bylaw and Falmouth’s Wind Turbine noise standard is 6dB(A)]
– The Board was wrong to allow itself to find a nuisance where there was no expert/medical testimony; [none legally needed or required for nuisance claims in MA]
– The Board had no “causal connection” between the turbines and the claimed distress; [the ZBA & the Court believed the connection clear]
– The Board had no ‘real’ diminution in value demonstrated; [A Professional Land/Property Appraiser’s report on my home (and others) easily contradicted this claim]
The Town had an enormous “burden of proof” to hurdle to win a zoning reversal.
As it is, the ZBA decision STANDS. The likelihood that it would be reversed by futher courts if the Town were to appeal (MA Appeals Court & then possibly the MA SJC) IS REMOTE [4% chance of reversal according to MA Land Court Archives].
* the state court’s ruling history indicates an overwhelming confidence in local zoning regulatory boards dealing in locally familiar land use matters
Since this Court case covered both Wind 1 and Wind 2, and with the ZBA denial to grant the Town a special permit for Wind 1, … this might represent an opportunity to have the Falmouth Board of Selectmen order the turbines removed.
This, of course, is if at their Executive Session meeting on Monday the 26th, they choose not to gamble on a 4% court reversal rate, choose not to waste more taxpayer money on special counsel costs, and admit (FINALLY) the mistake that’s been 7 years in the making…