Drummey v. Town of Falmouth Zoning Board of Appeals

• Decision Date: 18 June 2013
• Docket Number: BACV201100166,BACV201100168.
• Parties: Todd DRUMMEY, et al.[1] v. TOWN OF FALMOUTH ZONING BOARD OF APPEALS, et al.[2] Neil Anderson, et al. v. Town of Falmouth Zoning Board of Appeals, et al.
• Court: Massachusetts Superior Court

Todd DRUMMEY, et al.^[1] v. TOWN OF FALMOUTH ZONING BOARD OF APPEALS, et al.^[2]

Neil Anderson, et al.^[3] v. Town of Falmouth Zoning Board of Appeals, et al.^[4]

Nos. BACV201100166, BACV201100168.

Superior Court of Massachusetts, Barnstable

June 18, 2013

FINDINGS OF FACT, RULINGS OF LAW, AND ORDER FOR JUDGMENT

ROBERT C. RUFO, Justice.

INTRODUCTION

The Town of Falmouth constructed a wind turbine, known as Wind I at the waste water treatment facility which it owns and operates. The building permit for Wind I was issued by the town's building commissioner on June 30, 2009 after he determined that a special permit was unnecessary. Wind I became operational in March of 2010. Thereafter, on October 4, 2010, the plaintiffs appealed to the Falmouth Zoning Board of Appeals which, on March 3, 2011, affirmed the issuance of a building permit for Wind I without a special permit.

A jury-waived trial on these consolidated actions was conducted on January 28, 2013 and February 4, 2013, at which a total of eleven witnesses testified and twenty-two exhibits were admitted into evidence. Based on all the credible evidence drawing such fair inferences as this Court finds to be reasonable, and resolving questions of credibility where they occur, this Court finds the following material facts.

FINDINGS OF FACT

Pursuant to a building permit issued by its Building Commissioner on June 30, 2009, the Town of Falmouth (" Town") constructed a wind turbine at the Town's Waste Water Treatment Facility (" WWTF"), which had been in operation for many years utilizing electricity purchased from the grid. The installed wind turbine (" Wind I") is a Vestas V-82, signifying that the diameter of the circle made by the turning blades measures 82 meters (269 feet) across. Wind I has an electrical output rating of 1.65 megawatts (" MW"). The structure has a hub height of 262 feet above grade, and a total height to the tip of the blades in the uppermost portion of 397 feet. In normal operating conditions, Wind I is capable of generating approximately 3, 500 megawatt hours of electricity per year. The WWTF uses a portion of the electricity generated by Wind I, and the excess electricity is sold to the NStar grid and generates revenue for the Town in dollars or energy credits.

The Falmouth Zoning Bylaw is set forth at Chapter 240 of the Code of the Town of Falmouth (" the Bylaw"). (Ex. 1.) The site of Wind I is a 314.6-acre parcel owned by the Town and located in a Public Use District under the Bylaw. The WWTF consists of multiple buildings and structures performing different functions in the treatment process. There is an administration and operation control building, a sequencing batch processor building, an odor control building, and six infiltration basins. Each of these buildings and structures is an integrated component of the treatment facility. The WWTF has existed for many years without a wind turbine, and has undergone numerous expansions and improvements. Wind I is the first installation of a renewable energy facility at the WWTF. The Bylaw does not treat or define the term " wind turbine, " but does, in Section 240-13, define the term " Windmill." All parties agree that Wind I is a " windmill" as that term is defined by the Bylaw.^[5]

The process to permit and build Wind I began in 2002. Between 2005 and 2009, there were seven articles acted upon at town meetings to authorize and advance the installation financing, and operation of Wind I. All sessions of town meetings are televised live on the local public access channel, FCTV 13, and extensively reported in local newspapers such as the Falmouth Enterprise and the Cape Cod Times. At the annual town meeting on April 4, 2006, the Town voted to approve article 15 and authorized the Board of Selectmen to petition the General Court for special legislation entitled, " An Act Authorizing the Town of Falmouth to Install, Finance And Operate Wind Energy Facilities." At the annual town meeting on April 5 2007, the Town voted to approve article 12 and to authorize the Board of Selectmen to petition the General Court for special legislation entitled, " An Act Authorizing the Town of Falmouth to Install, Finance and Operate Wind Energy Facilities." At the annual town meeting on November 13, 2007, the Town voted to appropriate $4, 000, 000 to install a wind energy facility at the WWTF and to authorize the Town Treasurer, with the approval of the Board of Selectmen, to borrow said sum and to issue bonds and notes of the town therefore. At the annual town meeting on November 12, 2008, the Town voted to appropriate an additional $992, 000 to install a wind energy facility at the WWTF and authorize the Town Treasurer, with the approval of the Board of Selectmen, to borrow said sum and to issue bonds and notes of the Town therefore.

The Falmouth Board of Selectmen discussed the wind turbine project and received update reports on Wind I at its meetings on twenty-one occasions during the years 2008 and 2009. (Ex. 20.) The Falmouth Energy Committee, which usually meets twice a month, was involved with the project to install, finance, and operate wind energy facilities at the WWTF from its beginning. The Energy Committee helped identify the site and arranged for meteorological and feasibility studies, then reported to the Town on the benefits of wind turbine energy facilities. The Energy Committee discussed the wind turbine project at its meetings on eleven occasions during the years 2008 and 2009. During the planning process for Wind I, the Energy Committee sent periodic notices to neighbors and abutters of the WWTF within 900 feet of the property line. In sending these notices, the Energy Committee relied upon a list of neighbors and abutters provided to it by the Board of Assessors. A member of the Energy Committee testified that she thought plaintiff Elizabeth Anderson's name was on this list, but the Town did not retain the actual list and could not produce it at trial.

The Town's Building Commissioner is Eladio Gore (" Gore"). He has served in his appointed position since 1990. The Building Commissioner is responsible for issuing building permits in the Town and is responsible for enforcement of the Bylaw. The Bylaw does not expressly exempt the Town from any of its provisions. As noted above, the WWTF is located in a " Public Use District, " which is regulated by Article VII (§§ 240-29 through 240-33) of the Bylaw. Section 240-30 of the Bylaw provides that uses as of right in a Public Use District include " Permitted community service uses, " which is defined to include: " All municipal purposes, including the administration of government, parks, playgrounds, recreation buildings, Town forests, watershed, water towers and reservoirs, beaches, fire and police stations and armories." (Ex. 1.)

The Falmouth Zoning Board of Appeals (" ZBA") is the special permit granting authority under the Bylaw. Section 240-33G(5) of the Bylaw provides that certain uses in a Public Use District require a special permit from the ZBA. Among these uses are enumerated accessory uses, including windmills. Section 240-13 of the Bylaw defines " accessory use" as: " A use of land or building on the same lot with, and customarily incidental but secondary to, a permitted use except that if more than 30% of the floor area or 50% of the lot area is occupied by such use, it shall no longer be considered ‘ accessory.’ " (Ex. 1.)

Article XXXIV of the Bylaw, " Windmills, " contains one section, 240-166, " Special Permit required; criteria, " which states that any lot owner may apply for a special permit to allow construction and operation of a windmill. (Ex. 1.) Section 240-166 incorporates by reference the Bylaw's general special permit requirements and also states that the ZBA shall consider adverse impacts on the neighborhood including noise. The ZBA has the power to impose conditions on the grant of a windmill permit. (Ex. 1.) Section 240-166, as well as sections of the Bylaw applicable to specific zoning districts respectively, was added to the Falmouth Zoning Bylaw by Warrant Article 50, at a Special Town Meeting held in 1981.^[6] Article 50(2) evidences a legislative intent to " generally allow windmills throughout the Town, by special permit from the Board of Appeals." (Ex. 6.)

Gore issued the building permit for Wind I on June 30, 2009, after determining that a special permit was not necessary under the Bylaw. He determined that Wind I is allowed as of right under Section 240-30B as a municipal purpose and issued a building permit for the construction of Wind I, without requiring a special permit from the ZBA. Gore further determined that Wind I was not an accessory use at the WWTF; rather, he viewed Wind I as an integral component of the facility. The footprint of Wind I comprises less than 50% of the area of the site and less than 30% of the area of the WWTF.

There was no credible evidence admitted during the trial that any of the plaintiffs had reasonable notice, actual or constructive, of the issuance of the building permit for Wind I on June 30, 2009 sufficient to require them to appeal within the thirty-day period set forth in G.L.c. 40A, § 15.

The cost to construct Wind I was approximately $5, 200, 000. To finance the construction, the Town, acting on town meeting authorization, borrowed $4, 992, 000 and issued municipal bonds and notes in said amount payable over a 20-year period. The Town also sold approximately $1, 100, 000 in renewable energy certificates based on projected power generation.

Wind I became operational in March of 2010. Wind I provides electricity to run the WWTF and it is connected to the plant " behind the meter" so the plant uses electricity from the turbine directly without an intermediary utility...