June 20, 2017
MEMORANDUM OF DECISION
Cornelius J. Moriarty, II, Justice.
and Diane Funfar (" the Funfars"), residents of 27
Ridgeview Drive, Falmouth, filed a complaint in March of 2013
with the Falmouth Building Commissioner (the " Building
Commissioner"), and sought to compel the Town of
Falmouth (" Town") to stop operating two wind
turbines on the Town's land off Blacksmith Shop Road. In
their complaint, they alleged that the operation of the
turbines violated § 240-110 of the Zoning Bylaw,
which prohibits offensive uses with excessive nuisance
7, 2013, the Building Commissioner denied the request (the
" Denial"). The Funfars appealed the Denial to the
Falmouth Zoning Board of Appeals (" ZBA") which,
after a public hearing, voted to overturn the Denial. The ZBA
found that the operation of the wind turbines constituted a
nuisance at the Funfars' property. The ZBA filed its
decision with the Town Clerk on December 17, 2013.
Town, the owner and operator of the wind turbines, appealed
the ZBA decision, pursuant to G.L.c. 40A, § 17, to this
court. The Town asserts that the Building Commissioner
correctly issued the Denial, and that the ZBA decision
overturning the Denial was unreasonable, arbitrary and
capricious and otherwise unlawful.
appeal to a local zoning board is determined, an aggrieved
party is entitled to seek judicial review of the decision
pursuant to G.L.c. 40A, § 17. Cumberland Farms, Inc.
v. Planning Bd. of Bourne, 56 Mass.App.Ct. 605, 609-10,
779 N.E.2d 159 (2002). In such a case, " [t]he court
shall hear all evidence pertinent to the authority of the
board or special permit granting authority and determine the
facts, and, upon the facts as so determined, annul such
decision if found to exceed the authority of such board or
special permit granting authority or make such other decree
as justice and equity may require." G.L.c. 40A, §
17. On appeal to the Superior Court, the matter is heard de
novo. Bicknell Realty Co. v. Bd. of Appeal of
Boston, 330 Mass. 676, 679, 116 N.E.2d 570 (1953).
" The decision of the board is no more than the report
of an administrative body and on appeal has no evidentiary
weight." Devine v. Zoning Bd. of Appeals of
Lynn, 332 Mass. 319, 321, 125 N.E.2d 131 (1955). The
judge is required to make his/her own findings of fact,
independent of any findings of the board, and to determine
the legal validity of a zoning board's decision.
Roberts v. Southwestern Bell Mobile Systems, Inc.,
429 Mass. 478, 485-86, 709 N.E.2d 798 (1999); Britton v.
Zoning Bd. of Appeals of Gloucester, 59 Mass.App.Ct. 68,
72-75, 794 N.E.2d 1198 (2003).
review of a board's decision, " while based on de
novo fact finding, is nonetheless 'circumscribed . . .
[and] cannot be disturbed unless it is based on a legally
untenable ground, or is unreasonable, whimsical, capricious
or arbitrary.'" Davis v. Zoning Bd. of
Chatham, 52 Mass.App.Ct. 349, 355, 754 N.E.2d 101
(2001), quoting Roberts, 429 Mass. at 486. So long
as " any reason on which the board can fairly be said to
have relied has a basis in the trial judge's findings and
is within the standards of the Zoning By-Law and The Zoning
Enabling Act, the board's action must be sustained
regardless of other reasons which the board may have
advanced." S. Volpe & Co., Inc. v. Bd. of
Appeals of Wareham, 4 Mass.App.Ct. 357, 360, 348 N.E.2d
waived trial was held before the undersigned. Based on the
credible evidence and the reasonable inferences drawn
therefrom, the following findings of fact and rulings of law
Town is the owner of 314 acres of land (" The
Property") located on Blacksmith Road. The Property lies
within a Public Use District under the Town's Zoning
Property is the site of the Town's wastewater treatment
facility (" WWTF"), which the Town constructed in
the early 1980s. It also houses the Town's dog pound,
which located there in 2001-2002, as well as the two subject
wind turbines, known as Wind 1 and Wind 2.
Funfars have resided at 27 Ridgeview Drive, located in the
Craggy Ridge neighborhood of West Falmouth, for over 34
Route 28 abuts the Funfars' property to the east. It is a
busy four-lane state highway with two lanes in each direction
divided by a median strip in the middle.
Sometime in 2004, the Town informed residents that it was
undertaking a feasibility study to evaluate the potential of
installing a wind turbine with an overall height of 240 feet
at the site of the WWTF.
Town also organized a field visit to the Town of Hull on June
22, 2004 to view the Hull 1 wind turbine, a 660 kilowatt
turbine. Mr. Funfar went on the trip.
Town subsequently decided to install a significantly larger
turbine, (a Vestas V-82 1.6 MW Turbine instead of a 660 kW
Turbine), than what was installed in Hull. The overall height
of the Vestas V-82 is approximately 400 feet.
Town installed its first wind turbine, known as Wind 1, at
the WWTF which became operational in March of 2010. It sits
approximately 1660 feet from the Funfar Property.
Prior to Wind 1's construction, the Town's engineers
recommended the Town obtain a special permit. Five days
later, the Building Commissioner determined that a special
permit was not required and issued a building permit for Wind
Soon after Wind 1 commenced operation, Barry Funfar and other
neighbors authored letters to town officials complaining
about the noise from Wind 1.
prior occasions, Mr. Funfar complained of noise emanating
from the WWTF including such sounds as back up beepers and
barking dogs. However these complaints were sporadic at best
and made with nowhere near the frequency with which he
complained about noise from the wind turbines.
Other residents of the neighboring area have lodged
complaints about the turbines, including several of the
Funfars' neighbors in the Craggy Ridge Neighborhood.
Prompted by complaints from the neighbors, some of whom
described the noise emissions as thunderous and thumping, the
Town commissioned a study to address issues involved with
Wind 1. The Town retained Weston & Sampson Engineers,
Inc., which in turn retained Harris Miller Miller &
Hanson (" HMMH"), an acoustical consulting firm.
The study purported to assess the noise impacts from Wind 1
and to model and predict sound levels expected from the
operation of Wind 1 and the yet to be constructed Wind 2.
June 2010 the Town provided sound log sheets to approximately
300 property owners within a one-half mile radius of Wind 1.
The purpose of the log sheets was for residents to record
their perceptions of sounds they heard from the ...