##VIDEO ID:5cZ4HQc0SN8## e e e e e e e e e e e e e e okay we're going to continue um and we have attorney tillon for the town thank you very much uh good evening um Madam chair members of the board members of the public um my name again is Diane till and I'm here representing the town of fouth and although I would be the first person to disagree that context in any hearing is important to some extent after listening to Mr Sen's hourong presentation on how we got here and I believe the question he asked at the beginning was how we got to where we are today I would suggest to you all that a far more important question is whether or not there is a viable route to resolution of the issues that have been presented before you tonight through conditions on a special permit that will allow these turbines which are incredibly important to the town to continue to operate while addressing the very legitimate and we acknowledge that they are very legitimate impacts on the neighbor that is not a question that I am going to address tonight I will Reserve uh the presentation at the uh special permit hearing which is scheduled for October um to address that issue but I would suggest that we need to be future focused I'm going to address first uh per the chair's um Direction uh the issue of the appropriateness of the issue on of a cease and desist order with respect to wind one at this time and I would suggest to you similar to your determination uh back uh in uh June and in the decision recently issued by you where you denied uh the enforcement request that was made it is similarly appropriate for you to deny this request to cease and assist and I'd suggest that there are three factors initially that you have to look at the first is whether or not the uh illegality that's complained of and there's no question that a court the appeals court has determined that wind one requires a special permit that it does not have so it does technically it is operating illegally at the moment the question for you is whether that illegality can be remedied by appropriate zoning relief and whether that zoning relief has been applied for and I would suggest to you that the answer to both of those questions is yes the uh in this case wind one can and should I would urge receive a special permit from you you heard Mr Sen's presentation who's already suggesting to you when the hearing the public hearing is not even opened yet on win one that you should deny the special permit because we can't possibly meet the criteria again I'm not going to get into the substance and refute all of the uh slides that were put up on the board but I would urge you um to uh at least put them aside in your mind for purposes of considering tonight's uh request because many of the excerpts from the various sound studies and acoustical studies that were presented up on the board tonight uh were quite selective and secondly were annotated with Mr Sen's own comments who is not an acoustical analyst and not a sound uh technician so again uh I with all due respect to Mr senny I would suggest that much of what was on that uh in that presentation was irrelevant and that I would ask that the board at least defer your determination on the special permit until you've heard uh both sides uh presentations and that if the town obtains the special permit that we've applied for on win one that will fully remedy the zoning violation that's complained of and I would urge you to find that or to defer any action on any type of cease and assist request I do not disagree um with Mr watt that this the S the citation to the haded case in fact most of the cases that deal with the appropriateness of deferring an ultimate remedy where there where there's a zoning violation are related to um tear down cases as opposed to or demolition cases as opposed to use cases I I think perhaps the reason for that is that a cease and desist order uh frequently will be appealed by the person against whom it's directed and a court will make a determination as to whether or not a stay is or is not appropriate you don't necessarily see those cases reported either in the appeals court or in the Supreme Judicial Court the principles however in the hated case in the shepherd case in the Del pret case all of which I cited in the memo that I submitted back in June are the same which is whether or not the board should defer on an ultimate remedy until it has given the applicant the opportunity to apply for zoning relief if zoning relief is available again in this case zoning relief in wi one is available and the town has applied for it and I would suggest that um I don't know know the uh Travers tavers Travers I guess taras taras thank you um case that's been cited uh tonight but I did listen carefully uh to Mr watt's presentation of that case and I would suggest that there's a very uh critical difference between the facts and the procedure in that case and the one that you have in front of you tonight and that is in tus apparently the special permit was applied for for and denied prior to the building inspector issuing an enforcement order that's not the case here this board has not yet ruled on our special on the town special permit application and I would urge that at a minimum the that this board should await a determination on that special permit application prior to making any decision on the cease and desist application um the second consideration which I think is similarly very important and plays in here and I don't disagree that perhaps Mr Gore overstated the importance of Judge Muse's determination if in fact you read that to mean that any uh order by him would be illegal under that injunction I don't think that's what judge Muse meant either but I do think what's critically important about Judge Muse's order in this case is that he did exactly what a board should do and what the court will do if they're asked to look at a cease and desist order and or a request for a stay for an operating Enterprise and I have actually s CE assist orders from the court and gotten them and the orders that I get are similar to what judge Muse issued in this case I represent a sand and gravel company in in Bourne where the building inspector had issued a essentially a shutdown order the court issued a stay of that order subject to certain conditions the same Equitable factors that were employed by judge new in weighing the harm that the uh neighbors were complaining about versus the harm to the town if they were ordered to completely cease operation of the turbine would be exactly the same factors that would be employed by a court in this situation and I would suggest would uh be appropriate for you to look at and again as in in any situation what a court of equity will do is weigh the competing interests of the parties and attempt to Fashion a temporary remedy and ex again the the injunction that was issued um by judge Muse was issued before trial it's a temporary remedy it will be presumably Revisited again after the trial on the merits takes place in our case uh the trial on the merits essentially will be the special permit hearing that will commence at the end of October before you but I would suggest to you that in the interim the um order that was issued by judge Muse is fair there is no more nighttime operation of the turbines turbines don't operate on Sundays and it has had uh at least some mitigating effect the neighbors might not be completely happy but interestingly I haven't heard a lot of comparisons about noise experiences prior to the issuance of Judge Muse's order and afterwards and at least the anecdotal information that I've have gotten from uh Mr pamus is that the complaints have been far far fewer since those T that turbine operation was curtailed so I would suggest to you that in the interim that is uh sufficient it's a it's an order that's in place and that it is sufficient to protect the very real concerns of the neighbors third and finally there is no suggestion I don't think that the town has operated in bad F I know that Mr senny may feel differently he has spent an hour articulating why he felt the town should have done uh a number of things that were not not done uh the town looked to Town Council and to others and in fact were upheld by the Superior Court in the first instance in making a determination that a special permit was not necessary it was not a decision in bad faith in retrospect it may have been a mistake but uh I would suggest to you that we all make mistakes and not every mistake is made in bad faith and that there is absolutely no evidence that the town proceeded in bad faith in this case I would suggest that everyone in this room is at this point attempting to proceed in good faith and to apply the law as they see it so I would respectfully suggest to you that based on all of those three factors the good faith Factor the fact that this violation can and might might well be remedied by the issuance of a special permit and the fact that we have a a preliminary injunction in place that provides some uh measure of mitigation relief to the neighbors uh and to the complainants in this case all of which suggest that uh the cease and deist order that has been requested is inappropriate at this time and I'm happy to answer any questions thank you Paul any questions um no um well uh just one um forgive me but who who determined that um a special permit was required the land Court the appeals court uh the appeals court okay the appeals court and the appeals court determined that it was required I believe in May of this year um the building commissioner ordered uh the town to apply for the permit in June the town did apply for the permit within the 30-day window that the Building Commissioner gave them and were awaiting opening of the office TJ Ken so uh you you brought up I thought a a good point of talking about the harm considering the harm to the neighbors versus the harm to the town and I'm wondering if you have any more information you could give us about what the harm to the town would be of a cease and disorder until such time as the special permit was issued the town the harm to the town is economic in nature um I would need to find uh the specifics but I know it's upwards it's in the millions of dollars range plus a forfeiture on financial obligations um that the town has that uh wouldn't it would be unable to meet in the event that a complete cessation of operation was ordered right but uh would a cease and assist order at this time necessarily be permanent or well it it would not necessarily be permanent uh in the sense that presumably if a special permit were issued um presumably the cease and desist order would be lifted however given the schedule that we're looking at and given the fact that we're not opening the special permit hearing until the end of October and I think that I don't want to get ahead of myself but I think one of the things we'll likely discuss later on perhaps not in the public hearing is a schedu in of time for additional testimony by acoustic engineers and so forth it is very likely that a delay of several months if this board were for example to issue aist season assist tonight it would be likely that there could be a delay of as much as three to six months and that would be a substantial Financial impact on the town so that's what I'm trying to weigh is what's that Impact versus uh at least the alleged continued harm to the neighbors I'm not sure you've heard a lot about the alleged continued harm what you've seen uh up on the screen are quotations that were given in the sworn testimony of these abutters and presumably that sworn testimony was given at the preliminary injunction hearing before judge Muse before he issued that injunction he credited that testimony and I don't disagree with Mr senny that the um that an injunction is not always easy to get I think judge Muse carefully crafted the injunction after listening to either the testimony or the affidavits I don't know where these uh uh abutters would have given sworn testimony except in that Superior Court proceeding meeting or before this board but that would not have been recent that would not have been after the injunction issued it would have been prior to and it would have been the basis upon which the injunction issued I haven't heard any suggestion that there is a any uh change in fact there's been very little testimony that's compared and I'm sure we'll hear it during the special permit process that'll be part of the the hearing there's been very little testimony that's compared the experience of the abutters prior to the issuance of the injunction and after the one quotation you have is uh one that was at the very beginning of the presentation by I cannot recall the name of the the party I'm sorry but basically saying that Sundays were were a break for her I'm sure you remember the slide yeah and um but aside from that there has been very little uh uh suggestion that I'm assuming that the uh neighbors continue to feel that the uh injunction issued wasn't sufficient or we wouldn't be here but uh again I don't know that when I look at the presentation my view is that anything short of a complete cessation of operation is going to be not satisfactory to them but I haven't seen much to support that at this point and again I think that judge Muse did a very good job of trying to balance those harms well judge Muse was addressing the nuisance determination yes that's correct but so so we have a different situation now because we have a a decision of the court that that there there should have been a special permit and they're now operating without one which you that's correct that's correct and and and that's true but again I I go back and I I think they're all the cases are obviously related but there are certainly many case decisions most of which deal with tear down orders but the principle the Equitable principle is the same before this board would issue a final remedy you give the applicant an opportunity to apply for the relief that could fix it there is though a fundamental difference wouldn't you agree if if a tear down order is implemented that's an irrevocable solution whereas that wouldn't be the case necessarily for a temporary stoppage that's correct but again the case of a temporary stoppage uh brings up the question of you know what is temporary and there is already a temporary stoppage on Sundays the town has managed to uh change its projections and to be and and budget in order to meet the curtailment that's been ordered by the court to date I'm not certain that and I haven't done an analysis what would happen if we were stopped operation for two months 3 months four months I have haven't done that analysis I'm not sure the town has done that analysis but I do know that it would be a substantial impact on the financial operations of the town and my last question so when one has been in operation without the required special permit for how many years I believe it was up in 2010 sometime in 2010 so approximately five years is that correct May of 2010 perhaps I think it's March March March all right thanks anybody else have any questions John okay I don't have any questions [Applause] either so we can take public comment and touch please touch on things that haven't already been addressed addressed I know a lot of people are addressed have are represented by Council yeah yeah I'm just going to continue my thought win one or let's limit it to win one because we will have an opportunity to to discuss win two if not tonight possibly at the next hearing so um again I guess I just want to limit to what hasn't been new new matters is usually what we try to limit comment to so if you could just provide your name okay I I'm funf fire 27 R drive and uh the 10 times rotor diameter that was mentioned uh is about 2500 ft my home is between 15 and 1600 ft from both wind one and wi two first I want to comment on uh some comments made by uh uh the town's attorney Diane is it Tillson tillon yes okay uh future Focus it's like I didn't like that it's like I've already lost over five years of my life to these turbines and there's no need to be an acoustical engineer to know when I'm affected by fil as wind turbines the D measured wind turbine noise is high as 11.7 DBA on my property of course they then average it out and oh it's below 10 I don't hear an averages I hear the Peaks if a dog is barking 24 hours a day and we call the dog officer or the police and they get it to quiet down to only $12 a day I'm still not going to be happy and I'm one who I used to Garden that was my life on my property and these things have driven me out of my yard I haven't gone out there for 5 years now it's a jungle far far fewer complaints we have given up on trying to communicate with the town I I submitted to the uh so-called expert panel on health the Massachusetts panel developed by the D and the D I submitted 5 12 pages of all my complaints if I were to just give you all the complaints and all the letters that I have sent to town and state officials you'd be reading for a long time if a cease and assist order were issued the town might hurry up and we wouldn't be doing this for another five years and every quote Chris Chris SNY made of me Barry funf fire I would stand behind now and most of that was it doesn't matter if it's operating at night the daytime is what kills me so the uh cutting it down to 12 hours only uh 7 in the morning to 7 at night that doesn't help me tiny bit I have attended countless meetings of every board in felet that has had anything to do with these turbines I have also attended every seminar and conference on wind turbines that I could find since mid 2010 never have I seen a single Falmouth public official in attendance at any of these informational programs I wonder they have Garner their facts that they should need to make some informed decisions attempting to use the public process of town meeting I didn't just jump into a court wanting to be I didn't want to sue three times I presented articles at town meeting three separate Town meetings and to stop the turbines and they actually passed one and then to no avail Avail I guess there was no money to back it meanwhile we wi Turing victims continued to suffer the avoidance of our homes and properties because of noise Shadow Flicker and fibro acoustic effects there are also psychological factors that enter into this traumatizing equation being called nimes and worse when we are the ones who have suffered and learned firsthand the negative consequences of living too close to these machine only adds to our stress levels at the at a prior meeting of this very board I think it was towards the end of July to hear this board state that the town has always acted in good faith and I heard what you had to say to uh um our attorney Mr SNY I didn't leave that meeting thinking that that explanation for fit the bill there uh to me and my wife we left that meeting extremely Hur because we think you're far far off the track thinking the town is acted in good faith and for a lot of reason we won our nuisance determination from felma zba the town was ordered to mitigate the nuisance how many years should this take as going to Ken foran's question earlier it's like we're in a retirement years how many years do we have left and uh uh we'd like to use our home any and every day when we feel like it we're we're driven out and my last comment is Justice delayed is Justice denied thank you thank you let see anybody have any questions whoever would like to go um we're neighbors and I just want you give your name and it's Kathy Mount and we live on 221 blacksmith shop Road okay and I just want to make it very clear that we are very adversely impacted by the wind turbines um it's a noise issue that's constant most of the days many times we just want to leave our house we go away frequently just overnight or for a few days to get away from it um to give you an example um we said to friends uh come over and anytime you want we didn't know they came over when we weren't home and they stood on our porch and they said they waited till the airplanes went over so they could listen to the wind turbines and they kept waiting and they found out that the airplanes didn't go over it was the winter lines they were hearing and that's sometimes the kind of noise it can be we can't keep our windows open when we have the great Spring weather or the fall weather because the noise is even worse in the house with the windows open so we have to shut our windows down I used to love to work in the garden I don't work in the garden anymore um these are are things that are very upsetting to us and um I ask you to think about the fact that they've been going for five and a half years as compared to the maybe 3 to six months more that this is going to take to resolve that's a big difference for us sure you know 3 to six months seems it's a long time for the town but we've been putting up with it for five and a half years oh if you could just provide them to the clerk he'll stamp them in and he'll disperse to us okay thank you thank you y sir in the BR Dr Henry Nick um I'm a former town meeting member um and I was there when enthusiastically and overwhelmingly voted for these windows um we thought it was great we were not well informed when the two new windmills were proposed we were never told that no sense that he would be made it was not discussed why they weren't being put up in the town where they were originally being put up it turns out they weren't being put up because people had done some investigating and discovered what a bad idea it was so then they got put a brush down to wws Hole where I raised my hand with everybody else and voted in favor and then I discovered what we've done and so I am speaking tonight in the apologies for my negligence as a town meeting member and having voted for this having been for poorly informed by the town of the potential consequences and the fact that they had not done due diligence which is clearly evident from the presentation tonight and for the F first individual here who just spoke ended with Justice late as Justice deny and the truth of the matter is is you can't look at Mr funfar and not realize that he has been Shattered by this experience or any of the others and I think that enough is enough there's a basic principle here that's much bigger than what we're dealing with with this one set of Windows we're settting about what happens when people decide that the state is more important than the individual and our country was designed on the principle and with lots of accounts checks and balances that we would prevent the majority from from infringing on the minority and if you do not give a cease of disorder tonight it sets an unbelievably bad precedent in this town and what this town is about the most important thing in this town is the Health and Welfare of the citizens and the most important in this town is how we deal with when we're wrong and we have been wrong I voted for them I was wrong I was negligent it's time that a firm foot is put down put that down tonight thank you I just have a question um Mr um I just have a question about just your address you don't provide it oh 392 boxbury Hill Road okay thank affected by The Windmills of anyway okay thank you yep ma'am I'm just going to give you um a statement I made at the Board of Health um in 2012 Diane can you give us your name and address please sure I'm sorry Diane fun 27 review Drive um that statement I gave to the Board of Health in 2012 um um pouring out our hearts on what was bothering us um the reason we are asking for the cease and dis dis uh desist is uh whether the town gets a permit or not that's not going to help those of us that are affected healthwise Health matters and there's no getting used to this wind turbine we leave our homes um on a daily basis and we try to leave the town as often as we can and it's not good it's torn our family and our whole family upside down I'm just going to read the range of symptoms that we've experienced um anxiety eye problems stress depression irritability anger palpitations panic attacks high blood pressure migraine sleep deprivation tiredness exasperation of PTSD and even Suicidal Tendencies we are suffering and need relief please help us return to enjoy the peace and Tranquility we once had in our own home please turn these torturous machines off thank you thank you [Applause] ma'am M guessing about these 17 from wind one um the town acted in good faith that upset me because when I got a letter about this meeting tonight on on butter four or five of my neighbors never received notices in the ma you know in our mailboxes from the town notifying us that there were going to be Town meetings regarding these turbines Brian Hunt was one I he didn't even get anything uh hlin didn't get anything I didn't so I'm you know bad faith right there and um just last week when we had high high winds I think it may have been 7 in the morning 8 I can't remember all the dogs went off crazy from the noise from the turbes so it's it's it it affects still you know you you can do what you want but it's still going to affect people who are living in the neighborhood that's all I have to say thanks I would just like to address and maybe sir would like to address the notice the notice is sent by this board this the staff of the zoning board of appeals from a certified um a Butters list within 300 feet of the wind turbine property and I'll be more than happy to go through the file to see if your name was actually on there I know Mr Hunt is not within 300 ft of 15 4 blacksmith shop why would they choose 300 ft because that's what is required of this board to notify the people but it is also published for two weeks in the Enterprise and that's a Mass General law statute so okay well I'm just saying so there was plenty of notice this meting T so that's it's 300 feet and I agree with somebody else just re reiterated I'm going to reiterate turning them back on getting the permit isn't going to help any of us and uh we are a few we're not the whole town but we do have rights thank you thank you what anyone else like to I guess J in [Applause] pink malcol Donald uh 124 amble Side Drive uh it it seems to me um that we're talking uh we have a pretty narrow issue tonight about it's whether uh enforcing uh a ceas and assist order um in other cases do we ask the the uh negligent party um do we ask them how uh how how much of a financial impact it's going to be to them if we cease and assist them I mean this is crazy uh we're talking about uh the law we're talking about right and wrong uh if the the town has to follow the rules it's not the different you know it's the same rules that we live by so I mean the it's irrelevant how much money the town's going to lose well you know okay the second point I want to make is it's just really incredible to hear um Diane tilletson the attorney for the town say that the uh town is acted in good faith I mean it is just Preposterous and you've seen that that was identified uh through these slides tonight I mean this is damning this is this is disgusting that our town is at is has operated this way and furthermore the town has ignored the neighbors it has procrastinated on uh trying to remedy the situation and is attempted to outspend the neighbors uh I mean the town has Deep Pockets it can spend all this money on attorneys spend more money cause the neighbors to uh spend more money out spend them that's the whole thing here that's what we're looking at and you call that good faith I don't I would just can I just clarify I'll just respond to one um and not I I don't think that I think that you referred at the beginning asked about financial impact and I think the question was what the harm was for the town um these of the harm to the abuts and that the town's response was monetary Financial but I don't think that that was the question from the board so I just wanted to to clarify that I don't understand what you're what you're asking we just we asked what the harm was um for the town if the wind turbines get shut down um not what their financial impact was the response was there would be a financial impact but the question from this board was not what is what is why is it relevant the well the harms certainly are relevant to our inquiry of of what the harm is to each side of the equation here as to whether the turbine should be shut off in in the interm pending the special permit application part of our inquiry that's all I I just wanted to clarify that and then the other thing is um uh Miss uh M uh Balan you spent uh a number of minutes five or 10 minutes uh lecturing uh attorney senny about how we weren't going to talk about the special permit and it doesn't have any and then then uh the attorney for the town Diane Tillson gets up and talks about the special permit like that's the uh I'm not going to engage you in in a argument right but I believe M uh attorney tilletson said I'm not going to speak about the special permit but she did she said the special permit will will remedy the situation and so that's why you don't need a cease and assist thank you y sorry and if we could speak to I guess something new and also the cease and assist because it is right day Mount 221 blacksmith shop Road um I filed a complaint today I file them but the town never responds they they send me a little email saying they got it but it's almost useless to file complaints so most most of us have given up I just want to make the point it's a new point the town this issue has been decided it has been decided that the turbines are a major problem here in Falmouth it was decided after weeks and weeks of study by the planning board and they put a proposition up to the town meeting and the town meeting voted unanimously and there was not one selectman not one who opposed that it passed unanimously this town has decided that industrial turbines don't belong here they don't belong anywhere it was not restricted it didn't say it's okay for those ones up there on the hill and my point is it didn't say well it's all right to operate part time or it's all right you know we're only protecting the rest of town for half the time it said they are not appropriate and the the biggest turbine that's permitted is six times smaller than the turbines that the town have out there and that that's my point this is not a purely legal proceeding we are neighbors talking to neighbors they're not court rules please take into consideration that you and everyone else in town is protected by this action of town meeting and the selectman agreed to to it and we the minority are not that's why we ask for cease and desist we want to be the same as everybody else until unless permit is issued until those turbines are turned off everybody else is different and we are class to thank you hi everyone my name's uh Dave morard I live at 93 low road I'm a town meeting member and uh I just like like to say you know there's uh nothing more important in this world than good health you know if you if you don't have your health you don't have anything uh no amount of finances is going to fix bad health and here we are intentionally hurting our neighbors which is unconscionable to me and uh we have a remedy here tonight tonight we can we can stop torturing our friends and neighbors we can do something about this here tonight we've been waiting 5 years the town has done nothing it's had two years to do something they've done nothing if we if you order a ceas and deist here tonight I guarantee you that the court will do something that this e it'll expedite what's going on here we will come to a a quicker remedy of this and and we'll get our town back our town has been completely divided uh neighbor against neighbor neighbor uh East found against Wood's home I mean this is this is just horrible this is unacceptable all I'm saying is uh if you order a ceas and thisiss here tonight you'll be doing every citizen of found a great uh justice thank you very much thank you y sir thank you my name is Neil Anderson from blacksmith sh Road you I really don't know what to say anymore it's been over five years and we're getting the heck beat out of us when we're home it's not very uh not very healthy uh Labor Day it's a windy day some people go out sailing we leave the house drive around just to stay away from the turbine the following Tuesday I was supposed to work all day it was a windy day and I just can't leave my wife she's she stays at home she works at home I couldn't leave her at home so we took off again for the day you got to look at the small picture okay you have an illegal structure it doesn't have a special permit I'm a home builder I know how that works with additions you have you don't have a special permit you get a fluorescent sticker stop work order we have a structure that not only does not have a special permit this thing is invading us it's inside our house you've seen the files there and the and the reports from the acoustics of this low frequency inside our house and as my neighbor said that's inside my house that's inside his house and you know what else it's inside my head it's in my chest cavity it's extremely uncomfortable it raises that flight or fight Instinct into you and we're pretty tired of fighting but we're not going to give up because this is our home this is our house Diane Tillerson mentioned something about future focused you know the permit the permit's going to solve everything well we've been trying to get a permit since five years ago and we're still in the same situation we're still getting beat up every day if you have a restaurant out there that doesn't have a permit are you going to allow them to continue to sell food to the public and the food is even bad once you shut that restaurant right down it's very simple you know shut it down and get your permit that's all we're asking shut it down and get a permit about the complaints I probably have 45 official complaints that I filed with the bilding commissioner last one was maybe a year ago he said don't even bother Neil because I'm not going to do anything with these that's why we haven't filed any more complaints okay now mistakes were made we've admitted that tonight everybody knows mistakes were made well let's fix the problem okay we don't care who did it we don't care about the blame fix the problem not the blame just shut these off for now that's all we're asking you know it's just turn them off go for your permit Diana Tilson also said you complain about the financials about the town it could be 3 6 months before you get into this permit process May the Supreme Judicial Court came down with the order you need a special permit so we're you know a year we're going to get a permit in a year in the meantime those things are beating us up eliminate the nuisance that's what the decision was from the zba on on the nuisance it's not mitigate the nuisance it's eliminate the nuisance so just you know I'm just a human being you know I feel bad for my wife cuz she's home all the time you know she goes in the back rooms when it's bad we leave 7 o'clock okay we're free again let's open the windows we go out in the front yard there no way to live so take the time out of it just you know it's a nuisance please give the order to shut them off go for your permit and then fine you know if you get a permit turn it back on again but in the meantime don't put us through this it's been five years and it's inhumane thank you thank you would the I know the attorneys had asked for a few minutes after everything to make a couple comments so look like anyone else five minutes well thank you very much for listening again I think I took more than my share of time I know this is a difficult uh situation for everyone in town U we do think that if the board focuses on its job and the way it's treated this kind of situation before that you should you should consider and talk with your Council further about whether or not uh these fresh enforcement requests deserve a SE a second look we filed these requests after we uh received final word that a permit was needed it does change things as as uh member Foreman mentioned we're in a different situation than even judge Muse was in some of my clients uh experience much less distress under judge Muse's order uh the town has not put into their special permit application for win one that they're willing to uh incorporate the 7 to7 or the Sunday or any of those other Provisions into their special permit at this moment the special permit application looks like it's it's asking for permission to go back and operate the turbine turbines fulltime I think attorney tellison might have been suggesting that we we focus on those conditions u in that process I'm sure there will be a discussion and I can state to you that about half of my clients have had a significant Improvement in their lives since Judge Muse issued his order in November of 2013 uh the other half haven't uh Linda okagawa leaves her home regularly during daytime hours when it is a bad wind day it's not a bad wind day every day but I would say and not every month is a bad wind month the summer is not bad I mean that is a time when people want to be outdoors but the summer is is not bad wind wise the these two turbines being stall regulated the faster the Wind Blows the harder the Wind Blows the worse it is for my clients so you've got the fall coming up you've got the winter and these are the bad months for these turbines and I can tell you that Linda okaga who's here tonight and didn't speak because we hadn't reached wind two and she's only affected by wind two or so she believes she leaves her home regularly during bad winter months and and this is while it's operating only during the daytime the funf fars and the Andersons are are in distress U not withstanding the 7even to7 operation uh the drummies the elders Mark co uh Robbie leair much much better under the judge mun's order so I don't want you to think that uh everyone is experiencing as much distress today as they were before but about half of my clients report to me ongoing distress so I think it's worth another look I know you ruled not in our favor on our appeal of the June 11th 2015 order that was a different order it wasn't a straight enforcement request uh we were objecting to uh the zoning enforcement officer's self-initiated order after he knew about the appeals court decision but we ask you to take a fresh look because there is distress that's ongoing and we are in a very unique situation now these are turbines that that are really operating without a permit so I know it's a very difficult position that you're in I appreciate all the time you gave me I appreciate that you allowed me to to give you some of the background information and I ask you to just dig deep here and consult with your attorney and just see is this something we ought to consider issuing for both win one and win two and with win two I know we've only sort of partially gotten there tonight when we get there we do have a different situation still because the town has not submitted an application for a special thank you again for your responsibity in orans did you oh you can take a few minutes first of all just a housekeeping matter uh the submission I made tonight was primarily in the Anderson case I did ask in a footnote that it'd be incorporated into the other cases I have a copy for each file if that would be sure yes that would be [Applause] great yeah um the only issue about harm that this board has to consider is whether our clients are grieved by the decision of the uh Building Commissioner otherwise this cor this board is a board set up under law where there's a remedy at law it's not for this board to apply Equitable principles so it's not for this board to inquire at all whether there's harm to the town the question is under the law the way it is and the way this board has set up its rule of decision for cease and decis whether it issues or doesn't issue now similar to the tarus case you heard attorney Telson acknowledge that it is technically operating illegally that is precisely the same thing that attorney moan did in the Tavaris case and this board said attorney Mahan admitted that the uh turbines were operating uh unlocky I mean not the turbines the the uh the uh Contractor Yard or the landscape yard was operating unlawfully therefore the cease and assist is in order so attorney tson also said there are critical differences with the Taris case well the the critical difference I would say to this board is that in the tarus case the Building Commissioner was enforcing against a citizen of the town in this case the Building Commissioner is not enforcing against the town which he has repeatedly refused to do throughout the course of this these are identical cases to Tavaris Taris again had applied for a special per or a modification of the special permit and had taken an appeal from that he had a good faith belief that he was entitled to that special permit uh but for the fact that attorney moan uh admitted that it was technically operating illegally um this the course of this board's decisions have been if there's a good faith belief that uh the use is law then cease and desist is not appropriate this is not that case there's no special permit there's been one applied for but there's been no decision on that yet ceas this is is appropriate thank tson I will if you if you'd like to say anything a few minutes that way everybody's on the same footing I you don't have to if you I I don't think so I I I made the distinction on the Taris case I think you understood the distinction and that's all I thank you so how would you like to proceed we're nearing the end of our scheduled hearing which usually ends at 9:30 may I make a suggestion um the the case that was brought by Mr senny uh entitled Appeal on win one which is your file 69-51 wind one it it's true that Mr watt filed a case in which he raises both wind one and wind two um so I don't think it would be appropriate to close the the watt filing if you will but if there's no objection from the attorneys with regard to evidence submitted this evening on win one then I would ask that the board consider closing the hearing on and whether or not we deliberate after that is totally up to you but I could at least offer some jury instructions if we're going to think about it for a while or talk about it now so I I I wonder first if there would be an objection from anybody doesn't seem to be that way but that matter uh is we' we've done nothing but wind one and that matter is only about wind one so it it would give us an opportunity to talk about about this okay do I have a motion yes I'm happy to make that motion this is 68-1 15 I have it at 69 69 is that correct yeah with everybody y all attorneys agree at 6915 okay so so move that we close the hearing on case 69 so Mr foreman and Mr vanan all those in favor in the in the voting five regular members I apologize so wind two has other issues that are not it has the same issues to some extent but it also has ancillary issues that you're going to have to answer and we don't even need to bring those up tonight because it's 928 um as to this uh matter wind one I would urge the board to think about it in this way number one you clearly have the authority to issue a cease and desist if that's what you choose to do uh there's there's no doubt that you take on the powers of the Building Commissioner under chapter 48 section 14 and among his many Powers is the power to issue a cease and desist so the question is should you and in order to answer that um I you know you have to weigh the evidence that was before you Mr senny had a long PowerPoint and it was very thorough in terms of laying out his case um on the town side there's um Slimmer evidence with regard to the harm to the town in terms of balancing equities but I would refer you in Mr Watts filing uh dated July 29th he did attach judge Muse's uh preliminary injunction order and from Pages 3 to five the judge discusses the financial impact of the town it's in the record uh I don't think it's probably changed much although this is a slightly older document now uh but there is some financial information about the impact of the town and I won't summarize it I'll leave it to you to read it for yourselves so ultimately I I do think that this is a case um in which you have to look to the circumstances and decide whether to just issue no enforcement order issue a total cease and desist or do something in the middle now I remind you that in the middle already is Judge Muse's temporary U or his preliminary injunction and it does apply to wind too so this the it applies to wind one and wind two so there's that's that's already the the basis this is the provision from Hadad that I think is really governing here it says the true inquiry in each case is whether the building or structure is legally usable or modifiable and legally usable and is intended to be used for a Manor accessory use which is permitted by the the applicable ordinance or bylaw and it cites another case for that proposition so there's clearly an opportunity here to apply for a special permit whether or not you would Grant such special permit I won't predict but that's what the court has ordered the town to do and that application has been made for wind one not yet for wind two but we'll take up wind two on another night so I I do think that it's not an All or Nothing proposition simply because it's unlawful or simply because it's constitutes a nuisance by this board's prior decisions nuisance nuisance as a tort um often inspires very different remedies uh everything from um shutting it down to paying permanent servitudes for damages um if all of us from law school remember Boomer from the uh a New York case in which a cement plant uh with 325 workers is is not ordered shut down but instead ordered to pay damages but that's for a to do in a later or or a different Forum so I I would urge you to think about it in that way it what is the proper thing to do given the harm that has been demonstrated by the the appellants here this evening and the Damage that would Ur to the town if you were to issue a complete shutdown order at this point in time and it's you get the big money for this so it's your deliberation at this point well can I have a motion to go beyond 9:30 now that it's go I think we better say it's okay okay have a second okay so that was Mr foreman and Mr vanar all those in favor I'm sorry what time is that to go 10 10 10 so should we have some discussion sure okay Paul uh you know I I've listened to both sides um you know I think the town rhetorically speaking is in trouble here I I um I don't see a compelling argument from the town side I see a very compelling argument from the side of the abant who are grieved by the by this noise um and and the other effects um you know which you know I call balls and Strikes you know on a daily basis what I do and I I I just uh yeah I I I I um it it bothers me that uh this has gone on so long and um that there's really been no resolution a lot of new uh stuff has been introduced tonight that's very compelling and it Bears serious consideration and um uh you know if I would call call it uh one way or the other I think the compelling case um is on the side of uh Mr senny and Mr watt I I can't see it any other way and I think there's opportunity for some relief and changeing the operations of I think that's duable low wind conditions maybe that's part of it maybe there's times when it could run at night I think think you should be looked into and looked into quickly okay TJ we dealt with a lot of information tonight um hearing from both sides about the lack of an order to ceent assist and um also with the town's application of the special permit coming up and I'm just trying to weigh all that right now need more time to review to possibly okay John discussion um I I understand both both sides of this story and empathize with uh with with people that have to deal with an annoyance over a long period of time um I don't know if I'm if I'm quite at the at the point of moving in that direction though because the the balancing of the of the harm done to both sides is having I'm having a difficulty with that part of it okay to me it's pretty simple uh I don't think you know our mission as a zoning board is to uh in part at least to consider the the impacts of various uh development actions on the abund community and we have a process for that we issue a special permit uh where such mitigation might be requested in this case and I and I remember voting that uh it came before us before that the special permit should have been issued uh we did not have the super majority required but uh in the end the court affirmed that we were correct that there should have been a special permit there's not a special permit I don't believe we should sanction and at what is at this time not a legal action activity I think uh we should there's nothing that says that we won't eventually issue a special permit and that the town won't be able to resume operation under some set of conditions but in the meantime I believe that it's Our obligation to say you don't have a legal right to operate these things uh shut them down for now okay um I would I would lean toward actually the opposite end um I I think that we made our decision um in August on the basis of Hadad I don't think that there are any change circumstances since since that decision when we as a board decided that when one shall operate and until the special permit um is either granted or denied um that the the town be afforded that opportunity to apply for it um you know we relied on on council's advice at that time I I don't think anything has changed as far as circumstances perhaps more evidence or more information about some of the equities or you know the special permit considerations might be before us tonight um but I think our Focus tonight should be you know what is the law as far as letting people who who don't have you know a special permit proceed and I think that the law in my opinion is clear the SJC the appeals court has said that people when there is an available remedy that those applicants whether it's a town or any other land owner be afforded an opportunity to receive that relief so that's well again the cases of the tear Downs you know those are irrevocable so I understand you might want to delay on that but this is not yeah just to add uh to that I mean the these people have um appealed as persons AG grieved by this of the AG grieved by the decision of the building inspector evaluating all the information that was given tonight um the testimony from the abutters you know are they grieved um I you know I would say so I I would say so um standing I I realized that we um in July uh voted to uphold the decision of the building inspector but at the time um all this information um wasn't presented so in light of this new stuff I really do feel differently um because we hadn't really heard from the neighbors uh so much uh as we did tonight so um you know I think that these people are grieved by the decision of the building inspector just my thoughts the the person agreed uh standard is in chapter 48 section 17 and it's standing uh I I don't think correct me if I'm wrong I I don't think any of you uh would disagree with the proposition that they have standing and that their persons agrie for that purpose but the the the so I don't want to use that term loosely it really goes to whether or not they're eligible to participate in this appeal and subsequently in the court case and there's no doubt in my mind that they have standing so what I'm hearing is two votes Mr foreman and Mr Murphy to reverse the building inspector's Decision One vote that wants to uh I'm sorry two votes to go along with Mr SNY one vote to go along with M tilletson and it only takes two votes here to eliminate the possibility of a reversal the build the reversal of the building inspector's decision must carry by a force one vote question for attorney Browski so how important in the assessment of uh a applying a cease and desist order at this time is it to be considering what your Al the ultimate decision might be with respect to the special per you haven't heard the evidence yet that would be premature on your part so there's no requirement for example that we say well the special permit there's no chance it would be uh you know approved or well there's you know surely they're going to get a remedy through the special permit that's irrelevant you must make your decision on the special permit on the record of that hearing and nothing El all we're talking about right now is this is uh uh what might be a temporary cease and desist order until such time as that's resolved and again I come down to for more than five years these folks have been uh at least made a strong case that they're suffering under the operation of these wind turbin um we now have affirmation of the court that they uh don't have a permit to be there and to me a combination of those two things is sufficient for me to say okay let's shut them down until we uh can resolve the issue the special permit okay just so we'll engage um but the town when it IT received a building permit so whether or not it needed a special permit obviously obviously now we know in hindsight it did need a special permit but why shouldn't the board or the town be afforded an opportunity to apply for that special permit since it exended it will that that that our decision now doesn't preclude them from applying for a special permit and I'm sure they are going to they yes yeah so we will have a adequate opportunity to consider that at that time and if we can agree on a way to operate that's reasonable under the uh regulations of the old version apparently of 166 to 4166 uh then I wouldn't assume that that they would go back into operation but in the meantime um we're looking at a couple of months when they're not operating uh versus uh you know continued uh at least alleged Health impacts so I I just think the damage to the town of a couple of months of not having these things spinning can't be that scare we're talking win one wi one not these that thing so how would you all like to proceed TJ can you make a decision tonight you need to review additional information no well so I mean you're basically saying the principles of haded don't apply you made the distinction that it was a tear down I I think that it's different let's say you had uh if we if we had uh a business operating illegally I think we'd ask them to stop if they you know um until they got a special permit I think that's legitimate and and this is not a case where it's been happening for just a couple of months or it's just come to our attention this been going on for years when when was our uh when was the vote for for the where were we it was 3 to one yes I was much younger then when was that 12 it was a lot of years ago there was a different composition of the board I know that was it 12 11 or 12 were at so one opportunity would be if stop it now stop operation maybe they'll hurry the town up getting come up with a solution to some other part-time operation him up big possibly well it's also based on this board the special permit the time frame so yeah there's a little bit more involved than just Hing up the town we've certainly heard testimony that the town has not been very responsive some of the whether that's I think also Ernie TS said there was a lot more data there that need to be it's already there it wasn't highlighted presentation but you know we're not voting to shut them down forever right tonight so I think that's if you overturn the building commissioner's determination I don't believe you can give a time limit on your ceasing desist no but presumably if we're going to hear a case on a special permit right at that time I I just don't want it based on the fact that you're only think you're doing it for two or three months you don't know how long it's going to be right well if you were to issue a c and d Cy they could cure it by getting a a special permit and it would lift at that point but you don't that's essentially what you're saying is until such time as you get a special Department that's better or otherwise make it lawful that's what i' like to say I suppose you could make it lawful with a variance too but nobody talking about making that application okay yeah I yeah a lot of information was presented tonight that really um helped me understand it a little more and just changed my mind on the matter from from July uh but uh yeah it's uh it would bother me to allow this to continue to run um as an illegal structure I mean you know I deal with this stuff in my professional life issuing cease and assist orders for gravel operations or whatever it is anything that comes down the line and generally when you know when you're when you're when when something's unlawful generally it's it's a yeah it's a registered letter it's that's it I mean We complain from time to time that enforcement is an issue no special permit should be enforced TJ you seem to be the the unknown here think everyone else has that if he needs more time yeah we can we're well within our 100 days so well I me I was just trying to flush out everyone's opinion um to me it's a close call I mean the butters have been agreed for over five years now um the multiple lawsuit and this proceeding the special permit proceeding um i' I'd have to be in I'd have to be with the abuts on this I guess is what it really comes down to okay so if anybody would like to make a motion if everybody feels like they're ready are we ready so let's see what are we moving here we're moving uh to request a ceasing assistant order of returning the Building Commissioner is that corre you will return the Building Commissioner and um approve the appeal approve the appeal and that's just for 6950 correct so move so that is Mr foran is there a second second and Mr van Kieran all those in favor I I and I'm opposed so that is four to one motion carries okay okay so the second I guess when we deal with win two we need to discuss stes we have to but we're going to are on the docket for tonight do we need to vote to continue them continue them yes so You' be continu we still having public hearing you'd be continuing Mr Watts appeal because it contains uh reference to win two and no I I would assume that we would take up his wind one decision at another time but I can't see why you'd do anything differently and um 68 and 70 the other one is the other one is exclusively Mr s's other appeals exclusively on wi to okay so can I have a motion to continue I guess let's talk about a date okay because we don't have date agreed upon by all parties yet um what is the dates on the front of the file for the can't do the 15 the 100 days is um October 15 November 4th Academy I'm sorry the 100 days uhuh November 4th yeah right around there for both of them that was oh that was 6870 is November 6 and that we just deci so I well you want to do that on October 20th yeah I do want to do them on October 29th because well at least we'll be within the the 100 days yeah I mean I I think all attorneys are going to be here that night so we're still discussing it when when we look at wi two uh I should alert the board that there are some other issues that we will have to hear evidence on uh although the impacts of wind two I'm were covered in the slide or the PowerPoint presentation um there are two ancillary issues that you'll have to decide one is whether or not notice was received of the issuance of the building permit for win two at the time that it was issued and I believe it was issued in 2010 uh there have been a line of cases from 2008 that say if you either got notice or had a duty of inquiry to ask and didn't you're held chargeable with the 30-day appeal period for the building permit issuance I don't know anything about the extenuating facts or circumstances of that back in 2010 you're going to have to decide that because if they had to apply within 30 days and they didn't then it's gone and then the second aspect of that is if it's gone um I'm sorry if if they didn't have a duty to apply for the building permit within 30 days they have a six-year statute of limitations to seek zoning enforcement however we're in year five and there have been cases uh I believe Richardson has been supplied to you in which the court has found latches that there was a duty to make an earlier petition for enforcement and not let five years of Reliance and expense go on on the part of the town so I don't have any opinion about any of that because I haven't heard any facts yet you will have to hear some evidence about that but I alert you that's the nature of the evidentiary hearing for the remaining pieces of these two appeals on that night plus you have the special perit so Mark just suggested possibly putting it on October 29th along with the special permit application following I I think I'd be up for that personally because then we're within the um 100 days and I know I can both there for that don't put anything else on yeah that's for sure what time does that hearing start to right now at 6:30 I mean the board can vote right now to do the continuations um at an earlier time and then take them V to take them out of order because this is going to be a long evening if you don't start just a tad earlier I mean it's still going to be a long I know that some Council comes from Boston too and and North so how how can we do six fine with me I was going toest a little earlier but it might be hard for me to get there earlier than 5:30 okay 5:30 okay with all the attorneys and the board members I'm not sure I can get there at 5:30 no problem here six all right six then pen can't get here we need him we don't you still feel that way I guess we don't really we get John John was here I will have the 4 to one decision down here for your next meeting seems like you're meeting every day but I'll have it here for next Thursday so so I'll put that on the open meeting which I posted that agenda today so I'll revise it so 6 o'clock October 2 9 is everybody agreeable to that not 5:30 no Ken foran said he can't make it you can blame him okay so then can I have a motion to continue I guess 6815 and 705 to 10:29 at 6 o' okay okay is there second second okay so that's Mr van Karen and Mr hurry all those in favor hi so those are continued okay we've got an open meeting so we have some business items to handle so if you could exit quietly it would be appreci over at [Applause] least yeah no oh sure I got all my hand scratching on there are they are the official records yes oh great that's do minutes excuse me you could exit [Applause] quietly thank you September 10th 2015 minutes yeah TJ Ed andul are the ones who vote on the minutes did everybody have a chance to review somebody like to make a motion motion night everybody night thank you for good night thanks I second yeah so all those in favor I all four members are in favor that was unanimous okay moving on I haven't ad administrative request by the board I mean for the board by Elizabeth leadwell oh yeah if you remember her she was putting the sun room on and there was a discussion about the door the because she wanted to keep a door she didn't think she could open it up into the kitchen yes because she didn't think she could open it up the board uh conditioned a deed restriction she has since met with an architect [Applause] and they've discovered a way to remove the existing 4ot door so they want to remove the door and have a 4ot wide clear width opening so they're going to remove this door and this little portion over here will also be a half wall get more white into the room all right so if the board well that was what we originally wanted so right and she didn't think it could be done and she didn't want to go through the expense quite frankly but they don't want her father is a real estate attorney and didn't want to restrict a covenant on her property so they did come up with a way to do it and she's okay with it so if the board is a meable to this you will make a vote to lift the restrictive covenant and to approve this plan make a motion it okay second all right um so that was to approve this plan and to approve plan so that was dat September 14th 20 dated September 5th receive September 4 yeah revise 95 there go okay all those in favor I unanimous thank you very much that's all that I have the next the next one is the bylaw review update and it hasn't changed remember Brian Curry had said you wanted it kept on the agenda and Brian Curry said they not going to get to it until after the town meeting I believe sometime in the fall or after town meeting I have a I have a note on the bylaw change and I don't know if this is already on there but the Nuance provision that's in our zoning bylaw it is not so can you add that to the what about it under the bylaw I don't think that that should be a zoning board determination I don't think he usually is a zoning board determination well it's in the bylaws as that so if anybody wants to appeal the decision of the Building Commissioner on what they believe to be a nuisance You' got to go through the whole standing and everything else but it's always so you want that well that would be my that who would you suggest because it is the Building Commissioner and then we get the appeal I would have to let me look how it's done in other okay towns because I don't think it's usually a zoning Paul do you know if it's what are we actually referring to like 4110 there's a provision in our bylaw that lets you says no you shall be permitted which would can be offensive because of injurious or obnoxious noise vibration smoke gas fumes odors dust or other objectionable features a lot that's in a lot of the bylaws every town I've work in yeah because I've never come across in any other Town well like a like a it's usually tied to like a home occupation and then we have specific standards this is a standal law Standalone nuisance provision I've never seen it because we had you know appeals correct saying like for example the wind turbines are a nuisance so then we're considering whether or not what's a nuisance that's so subjective and it's and it's yeah and I think there's a a legal private standard and then we have this so yeah no I've never seen that as you say it's always connected to something like performance standards but not standard okay so maybe it could be add it should be moved something needs to be in there but it might might need to be moved to specific and I think it is yeah there's probably stuff in the home I certainly know in the home occupation there's plenty of right plenty of can't generate dust noise you know can't make coffee exactly so I guess that's all any correspondence board updates future agenda items just um October 17th the board Workshop I'm sorry I haven't got that sheet out to find out who's bringing what food that a that's a morning thing right it's a Saturday 9 to noon yeah I think so okay and bring in the French Baker oh yeah oh yeah okay sounds good all right so what good night good night that's a new way of adjourning for e