Drummey, et al. v. Town of Falmouth, et al. (Lawyers Weekly No. 11-017-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-1498 Appeals Court TODD DRUMMEY & others[1] vs. TOWN OF FALMOUTH & others.[2] No. 13-P-1498. Barnstable. September 5, 2014. – February 26, 2015. Present: Cypher, Grasso, & Fecteau, JJ.[3] Zoning, By-law, Special permit, Governmental use, Permitted use. Municipal Corporations, By-laws and ordinances. Civil actions commenced in the Superior Court Department on March 21, 2011. After consolidation, the cases were heard by Robert C. Rufo, J. Christopher G. Senie for the plaintiffs. Frank K. Duffy, Jr., Town Counsel, for the defendants. CYPHER, J. We are asked to decide in this case whether the town of Falmouth (town) was required to obtain a special permit from the zoning board of appeals of Falmouth (ZBA) for the installation of a wind turbine on town land. We conclude that, under the town’s zoning by-law (by-law), a special permit was required. Background. The plaintiffs are Falmouth residents who live between 1,300 and 3,200 feet from a wind turbine known as “Wind 1,”[4] installed in 2009 on town land at its wastewater treatment facility (WWTF). Alleging significant distress from sound pressures and noise from the operation of Wind 1, Neil Andersen and Elizabeth Andersen (collectively, the Andersen plaintiffs), on August 25, 2010, sought an enforcement action by the town’s building commissioner asserting that the town was in violation of the by-law by operating Wind 1 without a special permit. The building commissioner denied their request in a letter dated September 24, 2010, and the Andersen plaintiffs appealed to the ZBA, which affirmed the building commissioner in a decision dated March 3, 2011. Separate actions for relief under G. L. c. 40A, § 17, were filed in the Superior Court by the Andersen plaintiffs and by the remaining plaintiffs. After consolidation of the cases below, and a bench trial, a judge on June 18, 2013, ordered that judgments enter affirming the decision of the ZBA.[5] Discussion. At trial, the plaintiffs argued that the building commissioner and the ZBA incorrectly interpreted the by-law to allow the issuance of a building permit for Wind 1 without a special permit, citing § 240-166 of the by-law which provides that a petitioner may apply for a special permit to allow construction of a windmill.[6] The judge, however, deferred to the opinion of the building commissioner, affirmed by the ZBA, that the by-law “does not apply in […]