Falmouth Health Board Won’t Act But Court Will

The town couldn’t justify the financial cost of shutting its two town-owned turbines off for 12 hours, so they turned them on again for 16 hours, only allowing uninterrupted sleep for wind neighbors from 9:00 pm to 5:00 am. On November 4th the Board of Health decided not to take action to change those hours. But 3 days later, the Superior Court in Barnstable restored the 12-hour relief from 7:00 pm to 7:00 am. This came in a tentative agreement between the town and the Andersens who had brought a successful “nuisance” complaint in 2012. In spite of this ruling, the turbines have still turned on at 5:00 am.

According to Heather Wysocki reporting for the Cape Cod Times (Factions reach accord on wind turbine hours, 11/7/13), the judge’s action pressed for a compromise between the town’s need for the income from turbine operations and Neil and Elizabeth Andersen’s request for an injunction stopping all turbine activity. Barnstable Superior Court Judge Christopher J. Muse said the “abutters were ‘injured in some way’ by the turbines”  and had earlier denied the town’s request to throw out the ZBA’s decision–finding the turbines a “nuisance.” Another hearing, to finalize the  agreement between the Andersens and the town, is scheduled for November 21, 2013.

This is only the beginning of the process, though, as Christopher Kazarian wrote in “Town Agrees To Reduce Operating Hours Of Turbines” (Falmouth Enterprise, 11/8/13)

As part of the agreement, the town will also direct building commissioner Eladio R. Gore to devise a plan to eliminate the nuisance. The first step in that plan will be to begin acoustic testing in a variety of conditions, with one turbine running and both running at various times.

….

While progress has been made toward a final resolution, Mr. Senie (representing several wind neighbors) said nothing has truly been settled. “There really isn’t any agreement that has been reached. There’s been a consensus that we should take a look at a possible global settlement of [four] different pieces of litigation. We have a long road to travel to get there,” he said.

Those four lawsuits, he said, include yesterday’s as well as two separate nuisance claims against the town, one brought forward by the Andersens and another by his clients, who live near the wind turbines. The fourth lawsuit is an appeal of Barnstable Superior Court Judge Robert C. Rufo’s decision in June that Mr. Gore did not need a special permit from the appeals board to erect Wind 1, which became operational in March 2010.