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Town of Falmouth v. Town of Falmouth Zoning Board of Appeals

Superior Court of Massachusetts, Barnstable

June 19, 2017

Town of Falmouth
v.
Town of Falmouth Zoning Board of Appeals et al

          Filed June 20, 2017

          MEMORANDUM OF DECISION

          Cornelius J. Moriarty, II, Justice.

         Procedural History

         Barry 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, [1] which prohibits offensive uses with excessive nuisance qualities.

         On June 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.

         The 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.

         STANDARD OF REVIEW

         When an 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).

         A 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 807 (1976).

         A jury 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 are made.

         FINDINGS OF FACT

         1. The 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 By-law.

         2. The 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.

         3. The Funfars have resided at 27 Ridgeview Drive, located in the Craggy Ridge neighborhood of West Falmouth, for over 34 years.

         4. 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.

         5. 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.

         6. The 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.

         7. The 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.

         8. The 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.

         9. 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 1.[2]

         10. Soon after Wind 1 commenced operation, Barry Funfar and other neighbors authored letters to town officials complaining about the noise from Wind 1.

         11. On 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.

         12. Other residents of the neighboring area have lodged complaints about the turbines, including several of the Funfars' neighbors in the Craggy Ridge Neighborhood.

         13. 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.

         14. In 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 ...


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