An appeal that may have hampered the Town of Falmouth's pursuit for a special permit to keep the town's twin turbines operational was denied by Falmouth's Zoning Board of Appeals Thursday night, August 20.
In a unanimous vote, the board denied an appeal of enforcement order signed by nine Falmouth residents who want the turbines shut down while the town applies for a special permit from the same board.
Vice chairman Kenneth Foreman and member Mark Cool were not present.
The plaintiffs oppose an order made by building commissioner Eladio S. Gore in his capacity as Falmouth's zoning enforcement officer that directs selectmen to apply for a special zoning permit, but fails to order the cease-and-desist.
Mr. Gore's letter is a response to the Massachusetts Supreme Judicial Court refusal to review a Court of Appeals ruling that the town should have received a special use permit from its own zoning board before erecting Wind 1 in 2010. Its mate, Wind 2, was erected two years later.
Attorney for the plaintiffs Christopher Senie said after the brief open meeting on August 20 that he will wait until the motion is written up and signed to see if he would take further action, but said the board's decision clears the way for the town's special permit hearing scheduled for September 10.
The zoning board also followed the advice of Falmouth special counsel Mark Bobrowski, who stated that the town's special permit application should be heard under Falmouth's original windmill law that was amended in 2013 and will be heard by the zoning board.
Town Meeting approved the revised bylaw that prohibits turbines with a capacity of more than 250 kilowatts anywhere in town. Both turbines have capacities of 1.65 megawatts, more than six times what is permitted by the newer restrictions. Under the new version, the planning board has the granting authority and would hear the special permit application.
Since the turbine building permit was issued prior to the bylaw change, the old regulations should apply and the zoning board should be that granting authority, said Mr. Bobrowski, basing his reasoning on Massachusetts zoning law.
A building permit does not require a public hearing, unlike an application for a special permit.
Mr. Senie said this upcoming hearing is a long time in the making.