##VIDEO ID:1FlkPCB6v-s## e e e e e oh well good evening welcome to the September 17th 2015 zoning board of appeals meeting um going to go through with some opening comments and then we'll get into our hearings we have four public hearings tonight um and then open meeting um I'll I guess start I don't have my introductory comments like I usually do so I'll wing it but if you could just silence your cell phone um what we'll do is that once we open public hearing we will call um the applicant or pent up um to give a presentation usually we allow 15 minutes um for each presentation then um I know tonight we have the wind turbine so the town will be offered um an opportunity to speak as well um um and object um public comment will then be received when you're called upon to step up um give your name and address and we'll hear comment and if there's questions we'll try to get answers to those questions um I'll start with introducing the board um furthest to the right is John Southerland he's an associate member um to John's left is Mark cool he's also an associate member to my immediate right is Ken Foreman he's Vice chairman of the board to my left is TJ hurry he's the clerk of the board um to TJ's left and you're right um is Ed van Kieran he is a regular voting member of the board and then Paul Murphy is at the end he's also a regular voting member of the board um s budro is our zoning administrator Dade Gyer is here our recording secretary and we also have um special counsel to the board Mark barowski who is in attendent as well so we will start um I believe the first matter is 7115 Mi sorley if the clerk could read that in being all persons team affected by the board of appeals under Section 11 of chapter 4A of the Massachusetts general laws you were hereby notified that Peter W murle of Branch Massachusetts applied to the zoning board of appeals persuant to section 24-3 c of the code of f to raise and reconstruct the pre existing non-conforming single family dwelling on subject property known as 10 nadav fth for referrals uh no comment from planning uh fire department no issues from building uh new construction shall conform to all flood zone construction requirements per Massachusetts State Building Code uh from Health this law will be served by the little Pond sewer service area project uh the proposed reconstruction delling will have the same number of bedrooms as the existing and absent any indication of existing septic system in Failure no objection we also have one let's see this would be from looks like engineering and it's the staring com excuse me Madam chair all the members will be regular voting regular voting MERS thank you Madam chair members of the board for the record my name is Kevin Clow I'm an attorney with on that law firm fman and I represent Peter and Donna mle the owners of 10 Tucket Avenue and the applicant in this matter in the back row here uh the mes have owned this property for over 30 years due to some recent life events they have decided that now at the time to make significant Renovations that they've been discussing and dreaming of for years uh there before you tonight for that reason tenan Tucket Avenue is a residential lot located in the family Heights neighborhood consisting of 3,717 square ft in a residential seed District the current structure is a 1 and a half story four bedroom home built in approximately 1870 it is non-conforming as to setbacks from Massachusetts Avenue being 4.8 ft where 25 ft is required setback from n Tucket Avenue being 3 2 ft where 25 ft is required and uh loot coverage by structure being 28.9% where 20% is allowed by right and up to 25% is allowed with a special permit in addition the property is also in an A113 flood zone the existing first floor elevation is at 11.59 FT like many other homeowners in this neighborhood the mle are seeking to update the home to make it more aesthetically pleasing more functional and as a result of that those Renovations bringing the property into compliance with the flood zone standards they are seeking to raise and rebuild the structure and applying under found zoning bylaw section 2403 which states that pre-existing non-conforming structures may be changed by special permit provided they're not substantially more detrimental than the existing structure the bylaw goes on to state that the board should consider the standards of 240- 216 and whether the alteration of the structure creates a new dimensional non-conformity and views of Vistas but is not reasonably conform to the average dimensions in the neighborhood this renovation will increase the living space in the home but no new bedrooms will be created the structure will be raised as to conform with the flood zone standards storage will be moved from the crawl space to an unfinished attic the Mechanicals will like likewise be moved out of the flood zone into the unfinished attic the new height of the structure will be 32 ft below the 35 ft allow uh and the existing deformities will be improved setback to net Avenue will increase from 3.2 ft to 5.8 ft and the lot coverage will be reduced from 28.9% to 28.5% the result of these Renovations is a structure that's more conforming than the current existing home it's going to be in compliance with the flood zone standards and will be more useful and a more inviting space for the applicants further this structure will be in character with the neighborhood based on Assassin's records and the gis map the average lot coverage by structure of the homes within a 300t circle which is approximately a three block radius is 28.94 the proposed residence will be at 28.5% the average bulk of these structures which was calculated by the the finished square footage above grade based on the uh the assessor records is 2,751 sare Ft this home will be 2540 ft both of these figures are below the average Dimensions found in the neighborhood this project is not substantially more detrimental to the neighborhood than the existing structure the project will not cause any adverse effects there will be no new nonconformity the existing non-conformities will be improved no public view of Vista will be impaired and the project will meet the standards of 240- 216 therefore I submit that this project meets the criteria of 240 G3 and we ask that you grant the permit this evening I'd be happy to address any questions that the board may have see if anybody has any questions for you John do you have any questions I no I did not Mark I do Kevin um clerk uh read the initial report and I read um the building referral um specifically that they had asked for consideration regarding a hard surface apron uh a new plan was actually submitted today and I'm sorry if it didn't make it to you but the plan does show a hard surface apron along the southerly edge of the property facing ucket Avenue so that's new yep and that that was done specifically to address that concern I think it was uh I'm not sure was the engineering department or which department it was building I think we have that Kevin that's what the board is looking at okay and that's I think Mr cool just doesn't have a plan in front of them um not the most recent I apologize there you go and so that was done to uh specifically address that that concern and that was the only change to the plan all right and so um which BR brings me um you were talking about a average bulk um in the file there was no list of U Heights uh lot coverage comparison uh why was that I mean why was that absent you know CU I finished it at midnight last night you have something to submit to the board I can submit to the board [Applause] absolutely properties highlighted in each uh exceed 25% lot coverage the property is highlighted in yellow between 20 and 25% loot coverage uh height is not height and feet is not shown on there because we do not have the height calculations for all the buildings in the neighborhood we do show story height which was obtained from the assessor records and I do have a specific height for some properties uh in the in the immediately immediate surrounding area which I can provide if You' like um just a uh a clerical um question on the application it uh the proposed project or the proposed um specifies to bedroom that was an error I noticed that today actually I caught that myself so that is it is remaining a for that's shown on the plans that was submitted just for application purposes that's good um and the existing height of the current structure is 23 uh I believe it's 23.2 232 23 23.3 23.3 existing building he is 23.3 okay 23 um and just toh clarify the attic space purpose uh it's going to be for storage and Mechanicals unfinished unfinished that's all I have thanks M te dry let's see um this might be another discrepancy that was in the application with the testimony given Kevin um believe the application said it was a two-story dwelling but through testimony you said it was one and a half yes um that was based on my the application was based on my eyeball view of it the actual definition of it within the assessor records is one and a half stores that's it for thank you and no no questions Ken so just the bulk estimate is just the sum of the square footage of each of the stories [Applause] yes that's it oh okay um I have some questions Kevin um the the existing septic I know the Board of Health referral um I guess referred to the adequacy of that is that uh I think the Board of Health referral said absent any evidence of failure which I we don't have any evidence of failure but we title five uh inspection was not completed okay but there's nothing indicating a failure to this point okay and obviously if it does fail then have to address it okay is the existing shed calculated into the lot covered it's calculated the existing lot coverage uh but we'll actually you know what I take that back I believe the existing lot coverage he says existing dwelling deck portion existing loot coverage by structures dwelling deck portion steps he did not calculate the 37 foot shed but that will be removed it will be yes okay any plans to put any new shed no what's the height of the existing porch the existing height of the first floor is uh [Applause] 11 11.59 ft okay p and do you know it's width and I'm as shown on the plan I starting route granden headthe Main Street ex set to the dog you're going to better than me and you said the story height the existing um stor is one and a half yes and it will be two and a half what is the square footage of the TIC uh it is 451 ft okay and that was not calculated then into your bul calcul that was we count so if you look at the building plans I had actually been under the impression that the rightand portion of the attic was going to be finished and I was just corrected of that by my clients this morning the right hand portion of the attic was calculated okay all right the leftand unfinished attic is not calculated because we only looked it I only looked at the uh what I thought was going to be the finished area because that's all I calculated in any of the B calculations was finished right okay so our bolt would be even less if if that's not to be finished okay what's the ceiling height in the I don't have that figure okay okay that's all my questions for now well so I mean I think what Kim is kind of driving at is what's the proposed use in the Attic Mechanicals and storage that's it that's it no habitable space no okay but that is as as required the Mechanicals can't be within a flood zone they don't want them on the first floor of the second floor because that's going to be their living and sleeping accommodations so they're going to put the Mechanicals in the a as is done in a lot of these cases makes sense and that's really their only storage space as well do you have any questions I have one more Okay Kevin can you um you had mentioned it but I didn't catch the gist of it uh Title 5 inspection was or was not was not completed was not compl the health department referal simply said absent any evidence of failure to this point there has been no evidence of failure it's a seasonal system used few months out of the year and um address are there they on the docket for the Little Pond um sewer system expandion I don't believe so I actually the sewer map myself and I was surprised that was in the referral because I did not looking at the sewer map I did not see this area highlighted um so I was surprised that was in the health department referral um but maybe they know something I don't know so we at the very least have a bit of confusion it's not scheduled it's not scheduled okay so that's not correct does anybody else have any questions for right now see if anybody has comment is anybody here to speak in opposition to this application in favor of this application okay let's see what the board wants to do thank you anybody like to have any discussion on this sure okay um I like the plan with the exception my contention would be both again um um realizing the uh the flood zone map changes that are going to have effect but we have to go on what we have to work with as far as my L um though in my walk about through the neighborhood on my site visit I did notice and um what Kevin provided us there are quite a few um two and a half St single family dwellings in close proximity to this so just putting it out for the board's consideration but um at the end of the day I would go forward on this project anyone else coming I mean I think it's a customary reconstruction uh you know these folks are a bit constrained they've got a 3700 square foot lot uh they have to elevate out of the flood plane um they're encouraged to do so by the federal regulations um it's two stories with storage in the Attic uh yeah I mean I I I have no objections at all I think it's uh it's uh consistent with the trend and what's going on uh in the neighborhood yeah I have no objection to it TJ no no overall objection um you know I think it's in keeping with the with the neighborhood and the Heights area um I did have some concern about the bulk but after looking at these calculations I'm all right with it okay shaking your head no I'm I'm shaking my head in agreement I I think uh you know very good presentation and the data on the bulk is quite clear that they're right in the middle range so um they're only elevating the first floor 4.6 feet so four and a half feet I guess um compared to some we've seen I think this one is reasonable so I'll move to close second oh sorry all those hey you're the chair you look like you wereing I was no I was thinking about I didn't say anything and you moved close you didn't make any comments so second and you can okay speak well that's we'll vote to close all those in favor oh I can't vote so no you can't can I even make the motion no if you can't you can't make them that's why I don't take so can we revoke that please second okay so that was Mr foreman and Mr vanar all those in favor unanimous I had some concerns about the project but now we've close I I really am I guess troubled by the bul and I I do appreciate the calculations I think it shows it's in keeping with the immediate neighborhood but I think that there's a difference from having a porch and that's why I was asking about the porch the the height of the porch because now you're going to have a structure that's 32 feet 5 feet in or what whatever instead of a porch That's 11t tall so I think that that's a big change and I think it's a substantial change um so that was my only concern bulk the height of I guess the height of the structure too um in that area and I'm always a little bit concerned when projects and I understand it's a small Lot F Hees is tight but in lot coverage I know that there's a lot of lot coverage but I think that there's a difference between having a cottage on a small lot and having a 32 foot four-bedroom home on a small lot um so that's my concern but everybody else seems to be in favor so again I'm just looking at the the calculations the calculations and our criteria which is really in keeping with the neighborhood M and this neighborhood it's it is yeah okay okay then shall we move uh move in favor Grant Mr foran second and Mr vanen so findings so uh we have uh you just have one keeping keeping with the neighborhood small reductions in uh the setback non-conformity lot covered nonconformity um so that it's not more detrimental with respect to those uh shed was going to be removed right uh no let's see the bedroom count remains at four I guess we could do a finding that they're ra elevating it because it's in the flood zone to meet flood zone regulations right the utility of the space is improved functionality anyway um testimony had it that attic space will be U for storage and mechanical and unfinished and unfinished 240 216 how do you want to address 24216 e with regard to the uh septic I guess you want to make a finding on that oh adequacy of the method of su disposal I would I would make a finding that a Title Five inspection was not conducted but the Board of Health has to address that prior to the building permit being issued so so you're going to make a finding testimony was that the septic has not been inspected not been inspected in the history of no um no testimony that there was no that they haven't had any problems yeah then conditions would be per plan per plan and uh basically uh per plans unfinished attic right four bedrooms remove the shed I'm sorry removal of the shed and there was no response from the water department correct no rep so I'd like to keep the standard condition in there that they need to contact the DPW because when you upgrade you don't know what size water service you have that may need to be upgraded one more finding for the board's consideration um via testimony um it was discussed as opposed to what's the referral from the health department setting that this site is not planned for the little on sewer system upgrade it's not in the plans at the moment I'd like to make that finding as opposed to what the uh yeah that's I agree that's important okay so I'll just tie that in with the other finding if that's okay testimony and then the Board of Health referral in the finding okay any other conditions so you have the one about attic space have per plans unfinished attic storage and Mechanicals excuse me four bedrooms remove shed contact the water department um I think that's it because they fixed the apron yeah M so it would be per all right okay so that was Mr foreman and Mr vanur all those in favor you know thank you thank you very much [Applause] thanks sorry Mark sorry sorry for misleading you I was thinking about what what my thoughts were the of the past three meetings I'm always saying okay I'll move either me or jump in there I got a good so Madam chair given the uh next agenda items I'll recuse myself from the next three hearings and uh and excuse myself uh from the open the end of the agenda okay all right I John could you scoot in a little bit so the camera and the speaker pick you up please thank you good night Mark okay so next we'll open these three hearings together but I do want to know um once they're open I'll make some comments about how we're going to be handling those hearings um they are all separate independent hearings so they're not combined consolidate they're all separate um so TJ do the honors thank you being all persons deem affected by the board of appeals under Section 11 of chapter 4A of the Massachusetts general laws you hereby notified that Neil and Elizabeth Anderson of West fouth Mass filed an appeal with the town clerk pursuant to section 24 -22 of the code of fouth regarding a lack of zoning enforcement by the zoning enforcement officer to cease and assist operations of wind one and wind two turbines located at the town's wastewater treatment facility known as 154 blacksmith shop Road West fam withth mass and for referrals uh from planning no comments and from the building department no comment continue on with these being all persons deem affected by the board of appeals under Section 11 of chapter 4A of the Massachusetts general laws you're hereby notified that Brian Elder at all of West ex me Malcolm the door is not allowed to be closed during a public hearing she take care of the talking thank you very much sorry uh Brian Elder all of West fouth Massachusetts filed an appeal with the town clerk pursuant to section 240- 202 of the code of fouth regarding a lack of zoning enforcement by the zoning enforcement officer to cease and assist operations of wind one turbine located at the town's wastewater treatment facility known as 154 blacksmith shop Road West Family Massachusetts for referrals uh planning no comment and building no comment being all persons deem affected by the board of appeals under Section 11 of chapter 40a of the Massachusetts general laws you are hereby notified that Linda gawa at all of West bouth Massachusetts filed an appeal with the town clerk pursuant to section 240- 202 of the code of Falmouth regarding a lack of zoning enforcement by the zoning enforcement officer to cease and assist operations of wind two turbine located at the town's wastewater treatment facility known as 154 blacksmith shop Road West fam mass and for referrals planing Department no comment and building department no comment okay thank you T so at the outset I know that there has been some correspondence between the attorneys as to the best um I guess format of tonight um I think what we will do um is handle wind one first so the Elder appeal deals specifically with wind one as does the Anderson it deals with wind one and wind two um we pre previously had a hearing for cease and assist on wind one so I think it makes sense to address wind one first um because it may present different legal um and factual arguments versus um wind two so we'll address wind one first um and then we will get to wind two so Mr Sunny if you'd like to speak as to wind one thank you madam chair members of the zoning board my name is Christopher C I'm an attorney in Westboro Massachusetts and I represent a dozen F citizens who live in neighborhoods around uh the town's two wind turbines wind one and wind two uh in cooperation with Council for uh this board and also Council for the board of Selectmen attorney tillon uh we agreed that I would uh take the board through a PowerPoint presentation uh if it's okay if we Orient it toward win one but it's going to have reference in it to win two if that's okay uh but I can direct my comments more to win one than win two if you'd prefer well I think I and I just I do want to address the PowerPoint to some degree and not to stop you kind of in your tracks as you're proceeding um I know that you spent a lot of time preparing this I flipped through the PowerPoint today um I think a lot of it goes to the substantive aspects of the special firm appeal so I think we need to focus or we do need to focus now I think we do need to focus this appeal as to the special permit uh as to excuse me as to the cease and assist not the special permit so whether your clients have a legal right to a cease and assist so to the extent that this touches on different aspects of um the the operation of the wind turbines and whether or not the town could be entitled to a special permit or is not entitled to a special permit that is obviously for a different day and we will will be hearing about that um soon in October so if you could focus on um decease and desist I think that that would be good and of course you can always present this for in that hearing as well but I just want to make those opening comments the reason I prepared this PowerPoint presentation is that the question of whether uh the neighbors or the community are entitled to ceasing assist order on when and wind two is related to how we got to where we are today and the question of the actions taken by the town back in 2008 and in 2010 when decisions were made to build the two turbines and to some extent uh going through that history helps us put a perspective on whether or not this board uh believ we've arrived at a point where it should order a uh a ceasing assist order at least until the the turbines have gone through the special permit process so I would like to proceed with the PowerPoint as I said I can try very hard to uh minimize discussion about the special permit but again it's really only a context U most of of the board members were not on this board uh when it heard the original appeal about whether or not a special permit was needed or when it heard uh nuisance claims by the funds of the so this is an attempt to sort of assess where we are and put some perspective in place for this discussion at the end of the PowerPoint presentation I focus in exactly on whether or not this board will consider a season assist I'll go very quickly would you mind advancing the SL where is the best place for me to stand right there right here yes uhuh so the so the camera and the TV can pick you up no not which of the top ones right that help there you go okay next our clients are Neil and Betsy Anderson I represent them together with attorney Alec W who's here Todd and Terry drummy Kathy and Brian eler Brian Diane funfar John Ford Robbie Linda and Mark uh these are some samples of clients worn testimony Barry funar said my perception sees hears and feels a rather multifaceted sometimes bewildering array of effects things were fine before the machines were erected we are under continual bombardment of unwanted stimuli that has caused my quality of life my health and my rights to use and enjoy my own my property my own property to be severely marginalized Linda has ttif since the turbines are not running on Sundays per an injunction in another case I experience relief from stress fatigue Etc I plan my week around Sunday to be at home to accomplish tasks to invite others to the house the value of this resit and knowing this is a peaceful time I can count on is incalculable next Terry grubby has testified when I am woken up from that sleep in the background there is often a low thumping swooshing noise Andor vibration and pressure this never occurred before the turbines were built last ly the butterfly wings description that I give is difficult to explain but when you get settled and are trying to go to sleep or if you get woken up from sleep and are trying to get back to sleep sometimes you slightly feel the turbines it is a very gentle weight or pressure on your chest and body City Diane funfar testified as for me I began having symptoms soon after the turbine began at first I did not associate some of them with the turbine after several trips away from home I realized many symptoms disappeared I've experienced frequent headaches of which pre- turbine I RAR had a headache next Katherine Elder I can generally predict when there will be a problem such as when there is a moderate to high wind and coming from the southwest or from a Northerly Direction but there are other times when it is not windy at all and the pressure waves of the turbine penetrate my home next this next slide is addressing acoustical studies that have been conducted there are two categories studies done before wind one was installed and the distress experienced and studies done after before there is only one study it was uh it's known as the November 2005 Kema study or Kema next Kea was done three plus years prior to win One Construction start it contained sound pressure contour maps of 2 GE model turbines only not F attorney sunny I don't I I don't want to interrupt you because I understand that you've prepared um and spend a lot of time preparing but at the same time as I said in my opening remarks the legality of a cease and desist order um whether or not during the pendency I guess of right now we're talking about win one in the context of wi one while the town is applying for a special permit whether there's a legal right by your clients to seek SE or have a ceasing dis disorder um I think that this is really going to the special permit um and so I I would I'm not going to say you can't do the presentation but you will again have the opportunity to give this presentation during the special permit hearing and if you focus on the cease and desist aspects to the extent there are any um I think that that would be helpful for I I don't plan to repeat this PowerPoint pre presentation again I brought with me hard copies paper copies and digital copy copies on flash drives and Siri received this and and the board members received um copies of of this as well today I promise you you won't have to sit through this again but as I contemplated how I wanted to present three separate appeals uh asking again on win one for cease and assist and for the first time on win two the presentation I decided I wanted to try to make to your board was one that would provide this context uh your rules usually allow 15 minutes uh for an applicant and since we have three of these I hope to be able to do this in less than half an hour it does communicate a great deal of information that provides some context for the board members and if some of that is usable in connection with the special permit application that will start October 29th that's great I will not repeat this at that time I may ask that it be considered part of the record but if you would indulge me I think the board will see that this ties very nicely at the end into the assist like I said you can make the presentation that you want to make um to the extent that it's relevant and I think this board affords 15 minutes for presentation on an application to the that is information that is relevant to the application we've always been very strict about that so obviously you're counsel to your clients I know that you did spend a lot of time on this but we have to look at the legal requirements for cease and assist order so to the extent I I understand that this is context but I think it speaks to the special Firma and I I think it speaks to the cease and assist in the sense that this board will be more inclined to issue a ceasing assist order if it understands a lack of good faith when I stood before you on my appeal of the June 11 2015 order of Mr Gore you refused my request to issue a ceas because you said the town had acted in good faith by applying for a special permit it has not done so with wi two I excuse me I said that the town had acted in good faith in Seeking a building permit and that they did what they need to do they're due diligence prior to constructing the permits in my opinion so I didn't say that the town proceeded in good faith in applying for a special permit that wasn't what was said so if you're going to quote what I say then please please limit it to what I said so that was what was said so you can proceed you can proceed I'll do this very very quickly the Kea study the two GE models for which there are contour maps have quieter methods of shedding unwanted wind feather or pitch control instead of stall predicted exceedances the cha study predicted exceedances of local uh 40 d DBA limit at the property line and it indicated that noise will be studied further in Fuller detail as part of the require required special permit process which was skipped by the town next the kma study was really about uh feasibility Financial feasibility the November 2005 Kema study was oriented toward wind resources at the site and the financial feasibility of constructing a turbine at this location it did not claim to be nor was it a proper and full assessment of potential adverse acoustical vibration impacts of L one in fact out of a total of 55 Pages only two and a half are dressed and white this is why the study itself referenced further treatment of noise generated by the planed turbine as part of the special permit there was a contradiction there's a statement in Kema consistent with the town ordinance there should not be excessive noise from the wind turbine above 40 DBA at the property line of the site that's hard to square with a sentence that appears eight lines earlier in both cases the estimated Maximum Impact is about 42 to 44 DBA at the property line of residences to the west and south next the Kema study mentioned a special permit it referen uh the bylaw that we are applying under now a special use permit is required for construction and operation of windmills in the town of fouth issues considered in the process include setback and noise based on our preliminary project assessment the recommended location should be able to satisfy its requirements and no overly contentious perming issues have been identified it didn't say that you don't need to do it it said we think you'll be able to get through it no special permit or special use permit has been issued for wind one or wind two the town is presently seeking one for wi one next the Kema study referenced the bylaw that your board has said will be applied to the application for a special permit the board of appeals shall ensure through the use of appropriate engineering data that there shall be no adverse impacts on the neighborhood in terms of Television interference ice throw profer throw noise Etc there shall be a rebuttable presumption that noise from the windmill in excess of 40 DPA as measured at the property line shall not be excessive the word not was inserted in Era and has been removed moved by the town clerk with Town Council approval next who paid for the cha study and what do they think of it now the cha study was paid for by the administrator of the state's Renewable Energy Trust Fund up to 2009 this was the Massachusetts technology collaborative or MTC since 2009 the administrator of the fund has been the Massachusetts clean energy center or CC together I refer to them as mtcc uh the mtcc sold win one to the town today the mtcc recognized that the cha study was insufficient next Kema had not accurately or sufficiently predicted sound pressures in April 2013 the MTC CC staff told its board of directors that the cha study had not accurately or sufficiently predicted sound pressures in the surrounding residential neighborhoods from the proposed turbine before wind one was sold to the town and constructed in March of 2015 dmtc CC announced that it was awarding fou relief in the amount of $1,800,000 to help the municipal mitigate the financial impacts associated with reduced operations of its Town owned wind turbine project next why why did the mtcc staff point out that the the insufficiency of the cha study it had funded eight years earlier four years prior to its SES wi one to FMA the only treatment of Acoustics before wi one was built answer to get financial support to the town while avoiding setting a precedent precedent what will be the impact on other projects that are subject of neighbor concerns if the mtcc helps fou financially there is a there is substantial evidence that conditions for the fouth wind project are unique both justifying the action contemplated herein and providing reasonable assurance that the fouth resolution will not represent a pre precedent for other wind projects for example and here are the next here are the two ways that Kema was different bouth one was one of the earliest municipally owned megawatt scale wind turbines installed in Massachusetts even though the original MTC Comm feasibility study for Fountain Kea overestimated the likely acoustic impact that study did not include a detailed acoustic analysis based on sampling of ambient acoustic conditions as is our current more rigorous practice which might have identified a potential exceedence of the 10 deci limit the fouth wind turbines are of an older design which does not offer low noise operations or other retrofit options why the financial support the mtcc paid for the cha study in 2005 in 2006 and 2007 the MTC C had wind one and another turbine in storage and wanted to find a fire wind one came to be contracted to be sold and installed in the town of Fair Haven a special permit was applied for in Fair Haven and granted by that town CBA but appealed to the court in support of the sale to Fair Haven the mtcc paid for a 2007 acoustical analysis which considered Ambient sound pressure levels and the degree to which those would be increased by turbine the prevailing standard of Care at the time next the town of Falmouth urged the mtcc to abandon the Fair Haven project because of the time needed to defend the granted special permit and sell when w to FMA the town stated through its consultant that there is no similar permitting risk in F the mtcc agreed and sold wi one F without causing to be done an acoustical analysis that met the then prevailing standard of care the mtcc in the town knew that winw was being sold to the town without such a study this is why in 2015 the mtcc awarded the $1,800,000 in assistance how do we know this from an email sent by Jason gford consultant to the town of fou former employee of mtcc the March 28 2008 email was addressed to the town manager at assistant Town manager of F I made sh Dedra underst good but there is no similar permitting risk in fet that arranging power and Rec contracts was the only step left before Falmouth could execute a turbine Supply agreement she agrees that Falmouth is a great Pro but I also sense that MTC feels some commitment to fa Haven next um while Consulting for the town Mr gford work as a senior director of sustainable energy Advantage LLC while previously at the Massachusetts technology collaborative Mr gford was industry investment and development manager how badly did MTC CC want to sell one one and the MTC CC was aggressively looking for buyers where it's two store turbines on December 8th 2006 the mtcc issued a notice of availability of two 1.65 Mega turbines that notice addressed local permitting permitting schedule the project proponent must present a credible and documented plan for obtaining all necessary permits in time to construct the project by December 31 2007 MTC has a preference for projects that have completed the pering process so this was to be sold and erected by December 31 2007 next about four months after win one was supposed to have already been bought and installed somewhere fouth approached TC and encourag it to not wait for the Fair Haven permit to be defended in court with the expected time delay of uh if it's stuck with The Fair Haven project the MTC CC was anxious to get one one sold next the Massachusetts Renewable Energy Trust Fund is supported by a non- bypassable Sarge of a certain amount of money per kilowatt hour imposed on customers of all investor owned Electric utilities and competitive municial Utilities in Massachusetts the fun col millions of dollars every year from R payers the fund does not have an exploration date did everyone agree to skip the special permit process in found not initially the town's contracted professional engineer Weston and Samson whose scope of work included local permitting on both Turin prepared permitting drawings and a special permit application for win one dated May 7 2008 the application now before the CBA was actually prepared in May of 2008 and not submitted next the override six days after West Samson prepared the zba application the FMA Town planner presented a memo to the Building Commissioner asking him to sign off that no permit was needed the town's professional staff overrode the opinion of the town's contracted professional engineer next a representation to its board the MTC staff told its board in April 2013 that study Kea did not include a detailed acoustic analysis based upon sampl sampling of ambient acoustic conditions as is our current more rigorous practice which might have identified a potential exceedence of the that's what was that full story in 2007 mtcc funded the Fair Haven study by Tech environmental Inc when wi one was going to be sold by mtcc for installation on town of Fair Haven land it does not appear that the staff explained to its board that it had funded such a study when the turbine was considered for Fair Haven and did not fund or require that such a study be done prior to it selling the turbine to fou next fouth also knew what a serious acoustical analysis when the F zba reviewed the special per application for the notice clean energy tur turbine in early 2008 same size and model as wind one and two it reviewed an AC acoustical analysis dated March 4th 2008 prepared by Epsilon Associates the Epsilon study ran 23 pages and contained over a dozen charts tables maps and figures evaluating the potential acoustical impacts of the notice turbine on adjacent neighbors beginning with an analysis of existing Ambient sound levels in the adjacent neighborhoods and the degree to which those would be increased by the proposed tur while the EP Epson study had many shortcomings it demonstrates a standard of care knowingly skipped by the mtcc and the town of fouth on wi one and later on wi two fou 6ba standard the FMA zoning board of appeals has consistently applied a 6ba above ambient standard to win turbine project not the D's default policy standard of 10 D of when it granted the notice clean energy special permit the 60b level was was a condition when it granted the scanland turbine special permit that condition was added in deciding Neil and Betsy Anderson's appeal it recognized the six deal standard also the Barry and Diane funf far appeal in 2013 the town replaced the prior version of The Windmill zoning bylaw with a new version which incorporates the zba 6db standard for Turbine projects and appeals related to turbines this board is bound by the standard it has appli consistently thank why is the zba set the six DBA standard wind turbine sound pressures are unique with infrasound lower frequencies and with a modulating repetitive impulsive and variable character in 2012 the found for selectman ordered a report on wind one and wind two by a firm known as dnv Renewables USA Inc sometimes referred to as dnv Kema because for a short time dnv had acquired the outfit that had done the5 Kea study the report is dated March 15 2012 and contains an excellent description of the unique attributes of wind turbine sound pressures the DMV report on page 22 mentions four often present characteristics of wind turbine sound pressures infrasound low frequency noise amplitude modulation and impulsivity the so-called annexa test neither the town of fou nor any of its Consultants have ever treated studied or analyzed these unique sound pressure qualities in any manner for either win one or win two the 6 DBA standard set by the CBA for large turbines is a way to account for the turbine sound pressures that can cause distress to nearby residents next a penalty of several dbaas the dnv report recognized the 5db penalty for tonal audibility of turbines in DMV's experience test data May reveal tones or tonal AUD abilities not previously predicted or included in a specification although not included in the DP or town noise ordinances in some locations turbines containing tones are penalized by adding for example 5db to to the tonal sound power level to the turbine during the planning phase of a wind farm project resulting in a greater setback in setting the 6ba standard for wind turbines the found CBA has assessed a 4 DB penalty recognizing the unique character of wind turbine sound many Acquisitions apply such a penalty uh there are two papers mentioned here which talk about the 5db penalty for wind turbines next studies completed after win one after the win one distress was known there have been many studies done after the distress became known while only addressing Broadband sound pressures and not the anxa test mentioned above by the town's consultant dnv taken as a whole these studies impeach any serious claim that wind one and wind two can meet the zoning bylaw provision the town says applies the board of appeal shall ensure through the use of appropriate engineering data that there shall be no adverse impacts on the neighborhood in terms of Television interference ice thr proper Etc next hmmh was hired by the town to do a study it reported noise levels above 40 DBA the town limit at the property line an average nighttime value of 8 DB above background for a single operating term ride modeled results for both turbines operating concurrently indicated noise of greater than 60 VA for eight of the 11 sight sample okay noise control engineering did a report commissioned by the neighbors and found amplitude modulation is present am is the repetitive swishing bead or thump occurring at blade rotation frequency not as amplitude modulation of the aerodynamic turbine noise furthermore the total noise violates both the 40 DBA Town bylaw and the state limit of 10 DBA above background hmmh did a supplement and reported modeled noise levels as high as 15.1 dbaa above background both turbines operating concurrently and gred than 60 VA for 10 of the 11 sight samples conected Weston and Samson the towns engineer uh did a study in 2011 and found that sound insulation and air conditioning would provide modest Improvement in homes with windows closed but no improvement for low frequencies physical bar sound barriers are prohibitively expensive and impractical Shadow flicker mitigated by turning off turb the DMV study recommended curtailment at wind speeds less than 8 met a second at night to comply with the D noise limits insulation of nearby homes purchase at fair market value and resale of homes most affecting of the most effective to butter reduction of Noise with blade modification however no commercially available means for further noise mitigation on the v82 is Av how many homes when asked to consider how many properties would require testing to confirm the exceedance is indicated by asentech noise model Tony Rogers dnv Kea replied to Stacy Smith the CBI facilitator dnv ke K suggests that the number of houses to be considered for mitigation is between 20 and 40 next the nxa test I've read to you the test this lower box says without these anxa test result governmental bodies do not have a basis on which to determine realistic and appropriate noise ordinances okay the Board of Health review in uh May of 2012 the purpose was to determine the scope of self-reported health effects from turbines testimony was taken from 47 household members representing 63 individuals the major health effect reported was sleep deprivation 85% with attendance stress 3% mental health problems 45% hearing problems 32% cognitive difficulties 25% the D nighttime study uh the D had two studies one nighttime one daytime the nighttime concluded results indicate that wi one exceed 10 DB above background sound level during nighttime hours which is the limit above which Mass DP considers a noise a nuisance regulated by mass dp's noise policy the measurements were made for wind one only the second turbine wind two was not yet operational results from 11 of 12 field studies were greater than 6 DBA above background four of 12 were greater than 10 DBA above background also related to the town's 40 DBA limit seven of 12 field studies show turbine sound pressure is greater than 40 DBA the de daytime study although maximum po both turbines was not sampled due to low wind speed several locations exhibited levels greater than 60 a above back the wind toop report multiple perspective statement how do we assess the relative weight of the five4 interest should health safety and well-being of our neighbors carry the same weight as any of the four other interests we conclude that it should be more heavily weighted above the other interest should Town unity and Reconciliation be weighted the same as climate action implementation or fiscal impact we conclude that town Unity is second only to the health safety and well-being of our neighbors if the board of selectman seeks to end the T turmoil surrounding the turbines then there's only one option following the wind top final report on January 31 2015 the fouth sorry 2013 the fouth board of Select voted unanimously to remove wi one and win two the decision was approved by the representative town meeting but failed to Garner enough referendum votes to be implemented the neighbors have studied the anxa test while the town and its Consultants have not studied unique sound pressures from win one and win2 the neighbors have commissioned an Annex a type study and a that study these were turned over to the town in February March this year with no reply noise control engineering concluded the methods used here in allow for the collection of infrasonic sound pressure levels with inside within the inside of the Anderson residence as shown in figure six there is a readily identifiable acoustical signature that can be definitely attributed to win one and possibly win two located outside the Anderson Hall it went on to NC's knowledge this is the first time such measurements have been performed and reported with respect to the fth turbine however this is not the first time such measurements have been performed and other researchers have collected lowf frequency infrasonic acoustic signatures at other word wind turbine sites in Wisconsin and Australia references 11 and 12 as reported in these other studies the same blade passage rate infrasound and harmonic shown inside the Anderson home have been have been identified given nce signature analysis and the dramatic change in the acoustic signature when the wind turbines are shut down nce can unequivocally state that the infrasonic signature captured inside the anders residence is 100% attributed to either one or both of the town of found with wind turbines the wind turbines produce acoustic emissions which are acoustically trespassing into the Anderson's home the peer review by Richard James these outcomes were anticipated by the wind turbine studies conducted by NASA and the department of energy scientists in the 1980s their research was broadly disseminated through acoustical and wind energy conferences the exper es reported by the complainants were entirely predictable in the Wisconsin and Australia projects as they were for the found project had the found project relied on all of the evidence about wind turbines and adverse health effects as described in the statement had due diligence been conducted to seek out information not from the industry or its promoters but the project would not have been presumed to be safe for Neighbors the nce report documents these conditions and supports the complaints that have been made publicly and privately by residents found this comparison of findings in the NC report and recent study shows that the occupants of the homes near FAS when one2 turbines are exposed to similar levels of acoustic energy in the same frequency range and with the same colonal characteristics as the occupants of homes in Wisconsin surely wind and Australia's Cape Bridgewater communities these occupants experience Sensations strong enough to result in them vacating their homes it is reasonable and prudent to apply those findings to the homes in the to wind tech environmental performed the study for wind one when it was going to go to fairh it was inadequate in many respects but it did begin with an examination of Ambient sound pressure levels and predict predicted the degree to which these would be increased by the turbine if installed in that location the Fair Haven study predicted sound pressures at the closest neighborhood of nine de above ambient which may be part of why the Fair Haven permit was appealed to Support Tech environmental is the only acoustical Eng engineer listed so far who will be a witness for the town at the trials on the Wind one and wind two turbine matters though no te work related to fouth has been turned over to the neighbors even though the town has had the reports of nce and Rick James for months in July of 2006 the president of tech environmental in Mr Peter Goldberg testified before the state of Vermont Public Services Board regarding a wind turbine project proposed by UPC Vermont wind LLC the testimony supports the claims made above that wind turbines have a unique set of characteristics that require serious consideration no impulsivity analysis was performed Recent research reveals that low frequency modulated sound from wind farms at night are the most annoying audible sounds these installations produced Mr Bad deck of hmh failed to consider these impacts 10 times rotor diameter one reason there haven't been more FAS on the cap is that the Cap Cod Commission adopted a minimum performance standard that imposes a presumptive setback distance for turbines size of wind one and wind two of 10 times rotor diameter minimum performance standard e 1.8 noise all applicants for a w wind energy conversion facility greater than 660 KW shall perform a noise study and fund a k c commission approved consultant review of the noise study and adhere to a setback of 10 times rotor diameter of the proposed turbine from the nearest receptor or residentially Zone parcel multiples of rotor diameter the Anderson home is located 4.3 times rotor diameter from wind one the yagala home is located 4.1 times roed di from wind two even the wind industry recognizes setback between turbine to avoid wind interference of seven times rotor diameter in the downwind direction if the industry is trouble by low productivity at seven times rer diameter one can easily appreciate that a turbine the size of wind one and wind two can impact residents located less than five times R diameter away the serious warning from vesus on wi two before the supply contract for wi two was signed with the manufacturer vesus the town was asked by vestus and its general contractor on the project Lumis to sign a letter taking full responsibility for the sighting of wind two in light of ves's articulated concerns about the sound pressures this turbine is capable of creating in this location this request came in the form of a letter from Lumis dated August 3rd 2010 the town had its Wastewater superintendent Gerald pus respond the same day the lumus letter was received by sending a separate letter directly to vesus in that letter the Wastewater superintendent assumed for the town all such sighting responsibility and liability an earlier draft the pus letter dated July 1 2010 so more than a month before the pus letter was sent to V called for the signature of the found Town manager during the month this month of discussion of what to do about the bestus refusal to sell wi to because of sound pressure concern it appeared that no one on the staff brought this to the attention of the board of Selectmen based on board of selectman minute meeting and the signer was switched from the town manager to the waste water superintendent who apparently signed this letter assuming responsibility without ability why was vest this concern the concern of the turbine supplier is easier to appreciate by reading the Luminous letter which reads in part due to the sound concerns regarding the first wind turbine installed at the wastewater treatment facility the manufacturer of the turbine bestest is is Keen for the town of FMA to understand the possible noise and other risks associated with the installation of the second turbine the town has previously been provided with the OCTA band data Sound Performance for the v82 turbine this shows that the turbine normally operates at 103.2 Deb but the manufacturer has also stated that it may produce up to 110 Deb under certain circumstances the difference between 110 and 103 is important to note that the hmh studies commissioned by the town after the distress was known acknowledged the maximum P sound power level of 110 for the vest v82 but inputed the average OCTA band data of 103.2 power into its projected sound pressures thus the hmmh studies are low by about 6 to S DB even so both the main name hmh study and the supplement showed many instances of exceedences at the neighbor's home Mr puses reply to best the town of fouth was responsible for citing the turbines and we recognized the publish OCTA ban data Sound Performance for the v82 understand that the option to mitigate sound from the v82 through curtailment of operation of the turbine at certain wind speeds and directions will detrimentally affect power production and recognize the potential for ice throw from wind turbo the distress was well known as of that date the date of the lumus letter and the pamus letter the town had received numerous complaints from Neighbors Brian and Katherine Elder had sent the town a registered letter May 10th 2010 and met with the assistant Town manager and building commission at their property to show the degree of distress to town officials by the warning date the town planner had sent an email to neighbor Barry funar that was June 3rd 2010 regarding the turbine distress also by the warning date the zbaa and the f planning board had held a joint meeting to discuss the problems with wooden one that meeting took place on June 4th 2010 by the warning date the town and held a meeting to discuss the scope of a sound study to be done by enging firm ninous hmh of win one actual and win two projected sound pressures that meeting was held on June 10th also a letter had been sent from assistant Town manager Heather Harper to neighbor Barry far funfar dat June 15 2010 discussing measures being taken by the town in response to complaints in her letter to Mr funf she indicates that the town has instituted a mitigation measure which turns off wind W in certain wind conditions which had by that date the date of that letter been utilized 39 times and had a positive impact besus even asked Weston and Samson about their concerns an email from Brian Hopkins at vesus to Steph we of West and Samson read Steve I don't believe I saw feasibility study for fouth other than the site plan was a sound study updated with the additional turbine does the information I provided in the OCTA band data support the conclusions that you are conservatively within Mass state sound regulations the table highlights the fact that the v82 produces greater decb when it reaches its stall regime beyond the high EC design standard at 95% capacity the table also helps recognize the effect of Shear on the sound levels experienced at receptors which should also be considered with the sound study my email was lost from the last time we did the first turbine so I don't have a great record of information but do do you have this decibel mapping profound no there was no decibel mapping the answer there appears have been no answer to the email I gather this from documents that have been requested through Discovery there never was any decibel mapping for the second turbine or for both turbines operating together as of the date of the potamus letter accepting responsibility the concerns of vestus accurate acoustical mapping was apparently ignored the representation about two turbine configuration the entirety of the treatment by the town and its Consultants of installing a second turbine at the wastewater treatment plant was a representation by the assistant Town manager made at town meeting we've passed the technical feasibility test the size of the site is over 240 acres it can support two turbines the distance to residences is greater than 1,000 ft from many residents and the prior studies that we have done are relevant for a two turbine configuration that comes right out of the town meeting transcript the only prior study was the Kema study and it dealt with a single F wind two received no acoustical analysis at all the town did not even do a chema level review of the potential adverse impacts of wind to as insufficient as as Cho was there was no sound study there was no review of the impact of two turbines operating in close proximity and the phenomena of beating that happens when adjacent turbines beat into and out of synchronization with one another no study whatsoever just the assistant Town manager telling to meting that the prior studies are relevant the zba ruled in the funfar appeal therefore the board affirms the appeal by Baran Diane funf that the town wind turbines located at 154 blacksmith shop Road in East Al ra nuisance to the property located at 27 R Drive in West that directly and negatively affects the health and well-being of bar and diar owners and residents of set Park and they ruled in the Anderson appeal the board does fine through testimony given at the hearing and through site visit by the board members that in its Collective judgment a nuisance does Exist by virtue of excessive and obnoxious noise likened to the repetitive takeoff of jet plane and other objectionable features including pressure waves caused by the operation of the wind turbine and that the combination of these conditions negatively impact the appellant's ability to use and enjoy this property judge Muse issued an injunction in the Anderson case uh a preliminary injunction which remains in effect today limiting of both wind one and wind two to daytime 7 to 7 with no operation on Sundays and three specific holidays the bar for such an injunction is extremely high the applicant must show irreparable harm if it's not issued and a strong likelihood of success in the case here's what judge M said the Anderson have submitted affidavits and medical records supporting their claim that the nuisance produced by the turbines has resulted in substantial and continuous insomnia at a psychological disturbances Dental injuries and other forms of malays the Court find the Anders claim that they did not experience such symptoms prior to the construction and operation of the turbine and that each day of operation produces further injury to be credible taking the evidence of irreparable harm in conjunction with the moving party substantial likelihood on the merits of their claim to uphold the zba's finding of an ongoing nuisance the court finds that there is substantial risk that the Anderson will sufferable physical and psychological harm if the injunction is not gr the B La as stated about the zba has determined that it is the proper special permit granting Authority and that the town is entitled to apply and has applied for a special permit under the old version of section 240 uh 166 a claim not accepted by the neighbors and preserved as an appeal issue the old version of section 24166 like the ver like the new version only allows turbines as accessory usage as to the old version it was incorporated into the public use District through Section 24033 G5 which allowed windmills only as accessory uses and only by special firment wind one and wind two are not accessory sized tur each of wind one and wind two is designed to produce over 3,000 kilowatt hours per year of electricity roughly double what is needed at the wastewater treatment plant which uses about 1500 kilowatt hours if one turbine is double both together can if not mitigated generate about four times the electricity needed at the waste water treatment plant four times the electricity needed at the wastewater treatment plant renders the turbines greater than accessory the town told the neighbors that a smaller accessory sized turbine was planned in 2004 the town sent a mailing all neighbors with a questionnaire seven neighbors filled out the questionnaire indicating that noise was an important concern this questionnaire advised the neighbors of the size of the turbine plan when the town shipped it to a larger turbine and then a second larger turbine it did not right back to the neighbors and disclose the switch the field trip to Hall not only did the town send such a questionnaire but it organized several field trips to see a turbine known as call one the size turbine mentioned in in the question mail call neighb none of the warant articles on the town's turbines at the wastewater treatment facility the published warrants providing notice mention the side turbine to be installed ask the neighbors the zba in curs to ask neighbors Katherine Elber and Barry funar both of whom filled out the questionnaire and went to see Hall onean with the town if they believed up until the moment when Juan appeared above their homes that the size turbine being installed was the size of whole one a 660 turbine not the 1650 KW size of both wi one and two each of wi one and wi two is three times larger than Hall one in terms of blades fo here the following is what the questionnaire said there were never any follow-up mailings of any kind to contradict this communication about purpose and side in the summer of 2003 the town of fouth conducted an energy audit which revealed that the town spent over $140,000 in fiscal year 2002 on electricity to operate the West B waste the plant as Energy prices continue to rise and upgrades to the plant are made these costs are estimated to increase to $200,000 per year at this time the town of fouth has undertaken a feasibility study to evaluate the potential of installing a wind turbine the wastewater treatment plan to provide the needed electricity the location currently being considered for the wind turbine is approximately 1500 ft from any residents with dense vegetation existing in the buff areas wind turbines of the type and size being proposed stand approximately ft high from the ground to the tip of the blade at its highest position 12:00 the phrase the type and size being proposed stand approximately 240 ft high from the ground to the tip of the blade in the questionnaire describes a 660 turbine the size of Hall one and the turbine at the Mass Maritime Academy and board in contrast wi one win two are 398 ft the difference between a 660 and a 1650 turbines material the sound pressures from a turbine the size of hole one are considerably less both in terms of overall aeed sound pressure and especially the lower frequency pressure L1 is a best v47 45 me across the diameter whereas wind one and wind two our V is B 82 82 M across the diameter comparing published best of sound pressures for the lower frequencies the differences become very pronounced for example at 63 Herz a low frequency but still Audible The Sound pressures from the vestus b47 are 15.9 d lower than the same measurement for the best B in the spring of 2005 there appears to have been a shift to going big within the fou Town Hall one sentence of the minutes of the fou energy committee meeting of March 28 2005 shed some light on this ship is it better to have too much power if we get a great deal on a bigger turb the same minutes had suggestions for visual comparisons compare to local big things downtown radio tower put things in scale compare wires for ground to the to background photo art compare whole turbine 660 to 1500 to 2300 turbine noise Etc compared to water generation generators vertical wind turbines compare cost of battery power backup to grid power backup why they need to compare Hall one turbine to the larger size the reason is simple up to this point the 660 turbine is what the town had told the neighbors that was planning to install questioner and field trips the town never prepared and presented any comparison of the generated by a 660 turbine with the sound pressures of a 1500 or 2300 Kow turbine a significant difference stall versus pitch win one and which two win two use an older and disfavored mechanical technique to shed unwanted wi called stall regulation the vestus v82 is no longer manufactor the State Rec has recognized that stall regulated turbines are Lou wind turbine health impact study published jointly by the state of Massachusetts Department of Public Health and Department of Environmental Protection dated January 2012 pendix app stall versus pitch control noise issues pitch regulated turbines are quieter than those with stall control this is particularly the case in higher wind spe the turbine specifications the authors of the November 2005 cha feasibility study on page 21 state it should be noted that special low noise versions exist which as a consequence have lower power output the town did not specify the low verion when issuing specifications for the turbines to be constructed at the wastewater treatment the town did not follow its own plan the town of fouth did not follow its own plan in implementing the wind energy program at a treatment that plan is embodied in the zoning bws at the time special permit for all turbines required not just private turbines and the November Kema feasibility study the Kema studies specifically called out section 24166 of the bylaws and stated that further study of noise would be completed as part of a special permit review process required under that bylaw this was skipped not withstanding that the town's engineering consultant had actually prepared the application the standard of care was not met then once the sound pressure distress caused by wind one was well known the town ignored a serious warning from the turbine manufacturer and proceeded with no acoustical analysis of the second turbine and no study of the combined impact of both turbines ring at the same time this got far below the normal standard of Care at the time and constitutes good faith in denying the neighbors appeal of the June 11th order by the Zeo this board accorded the town flexibility due to its good faith in submitting an application for special permit Madam chair if I got that wrong I call it thank you this the application is incomplete with no treatment of acoustical impacts on neighbors required to be shown through engineering data as per old version of section 24166 but also the town do not applied for special permit for win too Council to the board of Selectmen has indicated that the town may or may not apply for such a permit unwind to this was by email Mark bosski your attorney wrote to Diane the gentleman that means Alec Wad and me we're asking when we might expect the session second special permit application when you know please inform us thank you Mark attorney tillison replied Mark I'm not certain there will be one we are considering it I will of course keep everyone informed thanks that hand wi two is situated exactly the same as when one it was constructed without proper permitting under the zoning bylaw it was built in the same Zone and is the same type and size turine the town is evidencing a lack of good fi by not yet applying for a special permit for wi to the town's wind one application the old version of the windall bylaw 166 which this board says applies to the town special permit applications contains these five requirements a through b setback total height plus 10 ft adverse impacts on neighbors including noise through engineering data wires to be underground use perit required turbine not to be operated without one protected from unlawful access the town skipped Acoustics again the win one special permit application addresses a setback C wires and E protecting from unlawful accident as to the requirement of a special use permit before the operation the town is in violation more importantly as it did in 2008 the town has skipped treatment of potential potential sound pressure impact the application which consists of one a filled in form two a one-page summary and three a set of plans contains no acoustical treatment of wind one and the impacts on adjacent neighbors as required by the B the town has submitted a onepage substantive information about one this is a sharp contrast to the application filed in 2008 by notice clean energy when it applied for a special permit from the zba for the sister turbine to win one sister turbine because it is the other turbine that the MTC CC had in storage and is the same model ins size the noce special permit application was lengthy and included a full though faulty acoustical analysis beginning with an evaluation of existing sound pressures in the neighborhood and treatment of how by how much these would be increased by the proposed turb the town might Supply an acoustic study later in order for an application for the special permit for a turbine under either version of section 24166 to be considered complete and ready for a public hearing it must include an acoustical analysis that shows no aders imp on the neighbors the town has submitted none the public hearing should not have been started without this study so the public has time to hire its own consultants and critique the study the town of Peru Massachusetts zba recently refused to commence a zba public hearing until the turbine application was made complete with the necessary acoustical study the town can't delay its study and submit it later in the special permit process which would limit the ability of other parties to critique if the town files a late acoustical analysis some questions arise will will the public and the neighbors be given time to have a peer review done will it apply a penalty due to the unique character of win turbine sound pressures will it address the annexa test the zoo's refusal to cease operations until turbines are permitted as to wind one the Zeo responded to the present request for enforcement that in my opinion it is my opinion that any deviation from those parameters will constitute a violation of a court order referring to judge Muse's injunction this reason is empty and illogical judge Muse did not know that wi one and wi two were operating without lawful permits when he issued his injunction order issuing a cease and assist order would expand on and not conflict with an order prohibiting operations at night and on Sunday as to Wi two the Zeo responded to the present request from enforcement that today there has been no decision from any port of competent jurisdiction relative to win two and therefore no enforcement action shall be taken at this time this is one ation of a Duty which at this stage belongs only to the zoo and two a pretext to hoping that the neighbors will have to endure another set of years litigating the same legal question as has just been resolved by the courts as to win one this is more evidence of a lack of good faith the town attorney's guidance in February of this year Town Council Frank Duffy gave the Building Commissioner and the zba an opinion favorable to the granting of the ceas and assist order this was the case of Tavarez 10414 where such an order was issued from the February 12 2015 email from Frank Duff bura The Building Commissioner has authority to issue cease and assist orders when he observes a violation of the zoning bylaw the power is inherent in the office where there is a violation of the Town zoning bylaw issuance of the ceas and assist order is an acceptable and common enforcement practice among Municipal officers charged with enforcing Zony bylaw the CEO should be consistent in the exercise of his authority and issue a ceasing assist order to the town since it is very clear that are operating in violation of the Zone other neighbors the 12 Neighbors of wi one of wi one and wi two listed at the start of this presentation are not all of the Palou residents distressed by the sound pressures and Shadow flicker caused by the town's tur one neighbor ref represents himself in the litigation two couples dropped out of the litigation process for financial reasons but were listed as parties and lawsuits there are other neighbors not comfortable participating publicly but who have reported distress he can't turn them off an email from Linda okagawa to Neil Anderson in 2013 I saw lore this afternoon he said he got my email he said he can't turn it off although he understands the flicker situation he said he has been to Barry's house and doesn't does not hear the wind turbine over traffic I said that today it sounded like a jet plane clearly very audible at the receptor's location even when there is traffic I explained that the really bad days for me are when it is running in high winds and even over the name plate then the blades are sending off little tornadoes hurt your ears he said that he understands what I'm saying but he can't turn it off I said that the wind toop group had said flicker mitigation is needed cited study and explained that I have experienced excesses over what model predicted he won't address it can't turn it off I said if you're not going to help send me a note and I'll go to the board of appeals this is a nuisance limit the standard can't be met the standard you'll be applying is uh you should ensure through the use of appropriate engineering data that there should be now no adverse imp in the neighborhood in terms of Television interference ice throw prop throw noise Etc and then the rebuttable presumption next zba Authority on appeals such as this and exercising the powers granted by this section the board of appeals May in Conformity with the provisions of this chapter make orders or decisions reverse or affirm in whole or in part or modify any order or decision and to that end shall have all the powers of the officer from whom the appeal is taken and May issue or direct the ISS of a permit appreciating that the issuance of a special permit for either W one or wind two might well be legally untenable given the evidence of adverse impact and the long history of failing to meet the prevailing standard of care this board should use the powers provided by chapter 40 section 14 and issue the cease and assist orders for wind one and wind two sought by the neighbors until wind one and wind two complete the special permit process that should remain out of operation conclusion the board should issue the cease and assist order for win one and win two recogniz we are in this situation not by oversight but by intentional decisions to skip critical analyses and ignore serious warnings the town customarily uses this enforcement tool where it is clear that a zoning bylaw is being violated when one and win two are operating without any permits a building permit without a special permit required where required is not a legal building permit the Hadad and cases cited in the board's initial treatment of this question are focused on allowing time to avoid in order to remove a structure not cease operations until permits are procured the neighbors continue to experience distress on a daily basis the likelihood that the town can meet the applicable standard no as adverse impact is Slim given the zba's past recognition that the turbines constitute a nuisance and the conclusions of many studies in hand including those commissioned by the town I thank you next I thank you for allowing me to make this full presentation I apologize if it took longer than expected it's a background I think it's an important amount of information it may have been too much information to try to communicate as quickly as I did I will stop here uh Alec watt the attorney I work with who represents the Andersons uh as as well as I do uh will would like to come to the podium and more specifically address just the legal questions if that's okay can you turn the lights back on please thank you and I will just note as to a timing um because I do want to address win one first um certainly we want to afford you time to speak as well um it's been about an hour 55 minutes to an hour so if you could limit to 15 minutes I think would be more than generous um and then of course you know we'll probably have questions the town will want to respond and again I'd like to focus just on win one because I think that there are some different complexities going on with each turine so you'll be afforded another opportunity to speak to Wi thank you thank you may be a little difficult to strictly adhere to that the Andersons did appe both but I will try to try to focus it in um the basic premise here is that the Building Commissioner is empowered his responsibility to enforce the zoning bylaws of the to of f it's this board's mission statement that this board will uphold the zoning bylaw of the town of f we are now into our sixth year this the litigation began 2010 when the Andersons first raised the issue that W one needed a special permit although not legally sufficient this board voted to uh in favor of Neil Anderson's appeal uh holding that a special permit was required we also have three separate nuisance cases that have occurred since that time U there's the Anderson appeal which this uh board voted unanimously uh to find that the when one and wi two were nuisances there was the funfar appeal was again Allowed by this board and there was the opawa appeal which again although not legally sufficient um did vote in a majority to overturn the building inspector's decision so this leads us to the appeal of the June 11th uho Gore decision um his enfor letter um but for which this board would be unanimously in favor of the Anderson's position that these wind turbines are in violation now that decision and I think the board will probably um raise the issue of race judic in that case that they've that you've already ruled on the the went one cease and assist order um but I'd like to just point out how the board was in error on that the board's decision stated that uh it relied on the Hadad case for the proposition for the purported proposition that enforcement is not warranted where there is a possibility that the uh land owner may cure the uh defect or the zoning violation through appropriate permitting or or what well Hadad did not go that far it did not go that broadly the Hadad case dealt with the question of whether a structure must be demolished in the Hadad case there was a permit for a single family residence uh which was turned out enormous which turned out in the opinion of the building commission to constitute an inn rather than a single family residence uh at some point there The Building Commissioner did in fact issue a cease and desist order and that order was never appealed in fact uh the work was stopped following just a a period of time agreed to between Town officials and Hadad that they can would enclose the structure just to keep it weather proov during the pendency of appeals um following trial and in the appeals court the ruling was that the building should be demolished when the SJC got the case they said no demolition is too extreme a condition where the applicant can possibly cure that defect and as long as he proceeds expeditiously to doing that so Hadad which really only has about five cases uh citing it for the same proposition all of which deal strictly with the question of demolition um is limited to that finding just the proposition that demolition is not warranted where an applicant can possibly cure and proceeds expeditiously do that so I don't think that was sufficient for this board to say that uh cease and desist order uh was not warranted now this board has established a rule of decision with respect to cease and assist orders I think this particular board uh is probably familiar with the uh Tavaris case the gstv LLC case which was decided earlier this year so in that case uh Taris was operating a landscape yard for 10 years under a special permit disputes arose and the Building Commissioner actually the assistant zoning enforcement officer determined that uh tarus was operating outside of the special permit advised the advised tarus to uh seek a modification of the special permit or obtain a new special permit which tarus did he applied for a permit which was subsequently uh denied and which he then appealed to I believe L court within two months of him appealing to L Court during the pendency of that appeal the Building Commissioner issued a cease and assist order Mr Tavaris appealed that uh decision which this board upheld unanimously I believe uni s but they did uphold The Building Commissioner um and the basis upon which this board uh stated that the assist order was proper was that if there is a violation of the zoning bylaw then a cease and desist order is proper unless there's some arguable basis that the property is not in violation in other words if it's being appealed to court or whatnot it was being appealed to court but nevertheless this board found that the ceas this order was proper because because the applicant actually admitted that at that present time at that time at that point in time the property was in fact being operated unlawfully did not have the uh benefit of a special permit this court I mean this board rejected other precedents cited by the applicant there and stated that as long as uh there's a zoning violation but there's a reasonable dispute as to whether that is in violation or not then a Cee and deist order uh would not be proper but where an applicant acknowledges that there's a zoning violation then the cease and deis order is an order well that's exactly the case that we have here the appeals court has ruled that um and definitively that wi one is a violation of the Five Laws because it doesn't have a special permit and on this date where we stand right now when one does not have a special permit uh I know you don't want me to get into win two but just by analogy win two as stated by attorney s is identical to win one stands in exactly the same factual and legal position as when one so it too is in violation the other violations of course are that this board has found uh went one and went to to constitute a nuisance that's another violation so why did why did uh commissioner Gore deny the C assist order well he he denied the C assist order based on Judge Muse's um preliminary injunction he claimed that he could not deviate from that decision uh at all otherwise it might be a violation of the uh court order and that's included in his July 17th supplemental letter uh in the Anderson appeal um it's just disingenuous at the best because Mr Gore is Raising that order to a talismanic status that judge M says well you can't operate outside the hours of 7 to7 um and therefore that's that it must Mr Gore interprets it that you must operate between 7 and S but that order that preliminary injunction is just setting an upper limit of what the town is allowed to do the town could certainly voluntarily not operate it and likewise there would be nothing prohibiting Mr Gore from issuing a cease and desist order um with respect to that I've included in the packet tonight um that order from from from Judge Muse and what Mr Gore also conveniently uh ignores in that order is not only did the judge set certain time parameters for the operation in win one and win two uh he also ordered specific actions to be taken and those actions were that he was to direct the town to engage an acoustical engineer to do a study he was to direct the town to contact the turbine manufacturer to determine if modification was possible was feasible he was to direct the town to develop and Implement a remediation plan and he was to ensure that the town perform all of the above in an expedition expeditious Manner and without unreasonable delay finally he was also required to keep the uh appellants informed all developments all information that he received relevant to those we're almost two years later and not one thing has been done by Mr L respect to that so I would say his Reliance on Judge M's decision is arbitrary capricious has no uh supporting relevance to his decision to cease and desist that's it in a nutshell any questions thank you let me see if anybody has any questions John that no question okay Paul no questions thanks TJ okay K yeah so the the nuisance decision just reminds me I was here but the the limitation that were placed on the operation as a result of that well of course that uh well talking about the zoning board zoning board um I don't have the decision with me my recollection though is that uh well the procedure was the Anderson sought uh enforcement based on the the nuisance Zing bylaw uh this port returned it and I believe directed the uh directed the building inspector to require the town to take appropriate mitigation measures I don't know am I stating that essentially correctly not the exact word that that would was of course appealed to Superior Court so nothing was done with respect to that this board set no okay uh no particular conditions only directing the uh Building Commissioner to take appropriate steps there so there were no as part of that there was no mandate to cease and assist or anything like that um there was there was not not by this board thanks um I just have a question you said that there were five I believe five cases citing the hadag case um and I believe it was for the proposition and correct me if I'm wrong that where an applicant can cure and proceed expeditiously uh correct okay were any of those five cases um for just concerning use or were they all um with respect to tear down orders or structures um well they were all with respect to tear down orders um one was a rescript opinion I included that uh unclear from that uh decision exactly what was going on it was one paragraph and it really didn't explain history um one was uh one was a situation where uh a structure I believe that was the [Applause] I believe it was the chambers case the 1996 case which dealt with uh an apartment building that was I believe oversized there were say something like 20 extra units I didn't provide the board with all copy of all these decisions so these were elderly residents who were residing there but the court said well go back and see if you can get variance a special permit or what we're not going to throw old people out on the scet and tear down the structure um and I apologize I just I don't I don't have the Cornell case with me which would be the most recent case but again iterating specifically with respect to the issue of demolition no [Applause] question that was all I had for the time being I believe okay that's set okay so I think what we'll do is take a short break before the town's presentation um and five minute break so we'll plan on coming back at 825 thing that I have never [Applause] seen oh yeah well it doesn't look like I'm going to get dinner does it is there any place that stays open later e e