##VIDEO ID:NDa2-7483nE## e e e e e good evening welcome to the October 29th zoning board of appeals hearing um I'll just take a minute and read some introductory comments and then we will get started um first I'll introduce the board I'm Kimberly belan I'm the chair of the zoning board um to my far right is Ken Foreman he is the vice chairman to my immediate right is TJ hurry he's the clerk of the board to my left is Ed van curan he's a regular voting member and to Ed's left is Paul Murphy who's also a regular voting member dra Gyer is our recording secretary and she's at the table tonight um Siri budro is our zoning administrator and also present is special Town Council Mark barowski or excuse me special Council to the zoning board mark barowski the zoning board of appeals is charged with applying the zoning bylaws for the town and considering requests for special permits variances and appeals as provided in the bylaws which have been approved by town meeting and the Attorney General's office for the Commonwealth decisions are made through the public hearing process our goal is to hear testimony from the applicants and the public and allow full and fair discussion of the project prior to rendering a decision um all of these decision all of these hearings um that are on tonight are continuations so that they have already been opened and read into the record um the applicant will have 15 minutes to make a presentation this may be extended because I know last time we allowed some um extensions and I know that this is an important topic for everyone um the board will then question the applicant and public may be invited to comment tonight depending on our how we proceed here um public comments should be directed only at the project um people speaking should refrain from making personal or derogatory comments um but can include an opinion in favor or an opposition or may just be a question about the nature of the project that we can try and get answered for you uh the chair will limit discussion in the interest of time if comments become repetitive all members of the public wishing to speak should wait to be recognized by the chair should come to the podium and state your name for the record um we will then determine whether we can close the hearing whether we need more information and we'll proceed from there um at the outset can I just if anybody's recording this meeting I just would ask you to raise your hand and I will go through and request um your names for the record so I'll start with you okay is anyone else recording John Carlon okay and that is everyone who's going to be recording tonight okay thank you so to start we have um two appeals that last time had been opened 68- 15 and 70-15 um these both concern we've already addressed well one concerns win one we've already addressed win one um and tonight the presentation will be on Win two so these will be heard together but they're being decided separately as independent appeals so TJ can you just read um I guess the the appeals and then we'll invite I believe the applicant to the board all right we have application 6815 neilan Elizabeth Anderson 154 blacksmith shop Road as well as uh application 70-15 of gawa at all 154 black m road and I just also wanted to make a comment at the outset um the zoning board today alone received over a 100 pages from the attorneys um I know that I have a job and the majority of the board does I believe everybody has other things to do as well we're this is a volunteer position so to get that much information at the last minute it's contrary to board policy our policy is that it be submitted a week in advance um so I know that I've had some opportunity I think every right here has some has had some opportunity to review um the materials that have been submitted but certainly given the importance of these appeals um haven't really had time to sit with it and read it and consider it so um I believe we'll focus tonight on presentations we may not go into deliberations based on the late submissions so if you want to speak or whoever good evening Alexander wat the Anderson's uh point of order Madam chair and I understand the 15minute limitation and I'm prepared to uh restrict myself to that in fact I'd like to divide it just a brief 10-minute presentation now reserving five minutes for rebuttal that's I'm I'm sure if that's accept acceptable to the board which I'm sure sure thank you uh just very quickly on win one uh we don't need to go over that in detail I mean it was decided in the Elder appeal uh that decision is now binding the town having voluntarily dismissed its appeal to land court so I would just suggest that this court I mean this uh board would uh iterate that decision uh essentially the same now with respect to Wi two just uh factually speaking um I think the board is aware that win two is an identical size wind turbine to wind one uh same size it's in the same zoning District on the same parcel of land uh similarly situated and it should be uh treated uh identically with that of win one uh and the appeals court has determined that when one uh required a special permit similarly when two not having received a special permit uh should be uh viewed as unlawfully operating now and I won't go into the uh the legal discussion that's all contained in my prior brief to the board uh the the provisions of the local bylaws uh really I think tonight's uh um question is going to focus on the timeliness of the Anderson's appeal here and uh briefly with respect to that uh the question of whether the Andersons should have appealed the issuance of the building permit under uh Section 8 and 15 of General law 4A or whether they were entitled to as they have done to appeal within the six-year statute of limitation allowed under Section 7 now as I I have submitted an Affidavit of the Andersons uh with with the materials and the Andersons attest that they received no notice of the issuance of that building permit uh either by actual notice or by any other verbal or written notice uh that it had issued um I think it's important to remember that the wind one began turning for just a brief period of time on March 23rd 2010 the building permit for wind two had issued previously on March 18th uh 2010 and when one really didn't begin turning in Earnest uh until approximately April 5th 2010 uh the Andersons didn't know at any time uh during that period of time during April during the the 30 days that would have been required under Section 815 to appeal the issuance of that building permit so therefore I would uh urge you to find that they were not required to uh have applied under uh appeal the issuance of the building permit uh there's really two cases that you you're going to hear a lot about tonight I'm sure that's the Gallivan case and the the uh Connor case uh Gallivan is pretty easy case Gallivan uh dealt with a case in the um city of Welsley which by their local bylaws required actual notice to a Butters as well as published notice of the uh application for a building permit so the butter at issue had actually received notice of of that uh the Connor's case is a little bit different there was no published notice there's no uh a actual uh notice given of the application for a building permit but in that case the appellant or the uh the appealing land or neighbor uh had actually seen the building permit at the building department uh through arriving there at another time uh on a separate matter within the 30-day limit um and the Court held that that was uh sufficient to put them on notice so that they had a reasonable opportunity to appeal the building permit none of those situations are are present here with respect to the Anderson they had no notice of the issuance of the um building permit on the 18th and uh not thereafter During the 30day period so the section S course of action which the Andersons did use allows for the uh again Ask the request for an enforcement action and then appealed to this board in case of a denial there and that's a six-year statute of limitations again we're within the six years because the building permit issued on March 18th 2010 so that period would end in 2016 so the Anderson appeal is timely the burden is on the town to plead what is called latches latches is a defense to a failure to file an action an enforcement action uh within a reasonable time during that six-year period even though you were within the six-year period you could still be um forestalled the rule of law on that although the cases differ factually how that's applied uh is that there must be an unreasonable unjustified delay in bringing the action which works to the detriment of the landowner in other words that they've made substantial expenditures uh in Reliance on uh the failure of one to uh bring an enforcement action well under the facts of this case and it is a he heavily fact Laden inquiry that you're going to have to make here is that during the summer of 2010 the Andersons were uh directed towards their efforts towards uh win one which was causing them distress wi two was not erected at that point uh in fact it didn't go online until 200 12 2012 um so on August 25th 2010 the Anderson's had initiated the appeal process with respect to win one uh with respect to um whether it should have a cease and desist order uh the town was certainly on notice at that point uh that the issue of whether a special permit was required uh was actively uh at issue um as the board will recall uh although we technically succeeded with this board we failed to reach the requisite number of votes so um at that point in time 2011 this board had essentially ruled that special permit was not required and then that had to go to Superior Court all during this time uh the town was aware and yet they actively proceeded with the completion of uh wind two yes I think he's off yeah sorry people were just saying that they couldn't hear due to the the noise so sorry could he speak into the mic think the microphone's on if you want to speak up in case people can't hear you um he has to be directed toward this dire ction because people at home it is being recorded is this on for yet for the oh it's not for the room okay um so it's not just delay uh and I suggest to you that the uh Anderson's uh delay uh was reasonable under the circumstances they already had an appeal with respect to wind one that had not yet been resolved in the courts and when it was finally resolved in the courts when the Judgment finally came back from Superior Court uh on July I mean uh June I think it was June 8th they filed the this request for enforcement on the very same day so uh I don't think it was unreasonable there was no sense in duplicating litigation which everybody knew was going to apply equally to two as it was to win one uh just quickly as it's not just the delay but the town is also going to have to prove detriment and I would suggest to you that win two uh is stands on a substantially different footing uh as demonstrated in my papers uh I believe that the loan through the American Recovery and reinvestment act uh is is forgivable at this point point I don't think the town has pursued that with any Vigor but under the documents uh you can clearly see that they've met all the requirements for forgiveness of that loan um furthermore they've been generating income since 2012 uh which is essentially free money because they haven't actually put out any money for the wind turbines so I don't think there's any demonstrated uh detriment to the town here although they have the burden to carry I haven't reviewed their materials yet that's why I want to reserve my five minutes for rebuttal um I would suggest to you that whatever injury the town has suffered that was self-inflicted they knew since 2005 with the initial feasibility study which stated that the town was going to be required to get a special permit um that the issue of a special permit was in the air and yet they proceeded blindly with without that that's it thank you Madam chair members of the board my name is Christopher senny I represent In Action 70-15 before you which is an appeal Barry and Diane funfar and Linda okagawa I will be able to keep my remarks within the 15 minutes that Council had agreed should be allocated for these two appeals U I do have a binder that I'd like to pass out uh but I will direct you only to four pages within that binder so it should be relatively brief thank you thank you thank you before I do I I would just like to make two general points about this appeal this is three residents who have recently initiated an enforcement request asking the zoning enforcement officer to cease operation of wind 2 it was filed 5 days after the Supreme Judicial Court made the final decision which solidified our understanding that wind one was required to have received a special permit and I'd like to stress that not all neighbors are the same and not all neighbors know the same information uh at the same time uh I'm going to speak mostly tonight about Linda okagawa who lives at 821 West Falmouth Highway she is one of the three residents on whose behalf I filed the new uh enforcement request on June 8th of this year uh Linda did not know what other neighbors may have known once wind one began to operate and the question we're examining tonight is not what did people generally know and it's also not a question of what did they know about a turbine project at the wastewater treatment plant there's a specific question we have two two different sets of statutes all under our zoning statute one is a combination of section 84 and 15 and when you combine those three sections any order of a zoning administrator that's someone disagrees with that might be a stop work order it might be a cease and assist it might be a denied building permit or a granted permit can appeal it to your board and you have a quasi judicial role to fill in examining whether or not that order or decision was uh unlawful and that 15 section 15 says any appeal under 814 and 15 has to be done within 30 days of that order and that's why many of the orders that our zoning enforcement officer issues says at the bottom you can appeal this decision if you're unhappy with it within 30 days but we also have section seven which says any party can initiate a zoning enforcement request any time within 6 years after a building permit was issued or 10 years if a violation developed and there was no building permit uh so that's a longer period of time and the question that the courts have dealt with and your council is going to be able to advise you on this question is did the complainant know enough during the first 30 days after that in this case building permit was issued to have understood that it might have been issued illegally and initiate a uh an appeal of that to this board and what we know is that it's not enough to know generally that there's some kind of project going on it has to be specific and actually the case law that helps us the most is the case I lost in front of Judge rufo at the superior Superior Court in Barnstable on wind one and he talked about this issue timeliness and in the memo I submitted earlier uh actually uh last night to council and I I would hope that among the papers you've received a legal memorandum from me dated yesterday uh judge rufo wrote this about this very question timeliness the plaintiffs have established that under the circumstances this is not a case where the issuance of the wind one building per should have come to their attention within 30 days of June 30th 2009 there simply was no credible evidence presented at trial to suggest that the plaintiffs had actual or constructive notice of the issuance of the wind one building permit absent adequate notice affording the plaintiffs the opportunity to bring their challenge within section 15 the 30-day period this court May properly consider the plaintiff's claims under Section 7 so focusing on Linda okagawa I ask you to turn to tab one in the booklet I just handed out that is a timeline it's a onepage set of dates and events so the win two building permit was issued on March 18th 2010 that means that the period of time we have to examine in order to understand whether this is an 81415 matter where you had only 30 days or a seven matter where you have six years is from April March 18th to April 18th uh 30 days from the issuance of the building permit on March 23rd 2010 wind one was commissioned on April 6 2010 it began to operate consistently uh by the way jumping back to the top tab two is the building permit that is the building permit for wind two so then if we go further on May 5th the elders who are here tonight had a meeting with the assistant Town manager and Zoning enforcement officer and urged that wi two be stopped now here's the point I'm trying to make is that that's not Linda okagawa so the elders were troubled by wind one and called the town and Heather Harper and aad Yore were nice enough to go to their home and have a conversation about the distress from wind one but just because the elders knew about wind two they might not have known that a building permit had been issued but they knew that there was a wind two doesn't mean Linda okagawa knew that on May 28th the supplier the manufacturer of the turbine Vesta sent an email to the town's engineering consultant who's here tonight asking have you done a sound study for wi two on June 4th the zba and the planning board held a joint meeting to discuss the sound pressure problems from wind one on June 10th the town held held a meeting to discuss the scope of a sound study that would now be done now that we know wind one is causing distress on June 15th assistant Town manager wrote to Barry funfar saying the town had already implemented measures 39 times to reduce the negative impact of wind one on June 15th the town sent a survey now here's the first time we see Linda okagawa the town sent a survey to the neighbors including Linda okagawa asking about distress from wind one Linda completed the survey saying no problem this is the very first communication from the town to Linda so this is Linda and you will see later in tab three that you have an affidavit from Linda Okala attesting to this under Pains of penalties for purgery on June 29th Vesta sent an email to the town engineering consultant saying that we need town to sign off on potential sound pressure problems caused by the proposed wind 2 on June 30th the town engineering consultant sent an email to the assistant Town manager saying that the town should provide such a letter on July 1th the town's engineer drafted such a letter this is a letter exempting vestus from all responsibility for distress that might be caused by wind too in light of the known distress of wind one on August 3rd the town received a warning letter from its contractor passing along uh these concerns of vesus and on the same day uh the town had Jerry pamus write a letter back to vesus saying we understand the risks we understand the sound pressures uh we're we're we're taking responsibility and then finally getting back to Linda okagawa on on October sometime in October and Malcolm Donald is here and and Linda is here Malcolm knocked on Linda okawa's door and told her about wi Two showing her a map and indicating how close it would be to her property he also showed her a pamphlet he had prepared this is the first time Linda learned anything about a second turbine now your Council will tell you that if any single complainant cannot be charged with enough knowledge during that key 30-day period the appeal is timely and what I'm saying to you is that Linda okagawa had no problems with wind one she could see it from Route 28 she could even see it from her property through the trees if she looked in one particular direction she was not upset about the turbine she didn't know any of the other residents along blacksmith shop Road and she didn't know there was a second turbine plan now you're going to hear a lot of information tonight about how much information there was in the general public but if you go back to judge rufo judge rufo is saying it's not knowledge of a project it's knowledge that a building permit has been issued and a party a complaining party has six years to initiate an enforcement request and that's a decision of our legislature our legisl wrote section 7 and said you can create an enforcement effort anytime within 6 years from from the U issuance of the building permit but Gallivan and Connors and Richardson would say but not if you knew too much during the 30 days and I submit to you that Linda ekawa didn't my other clients are uh Barry and Diane funfar they were involved during this key 30-day period let's say in the last third of that 30 day period in voicing concern about wind one and your Council said to you at our last meeting let's let's not forget a duty to inquire I don't know whether a duty to inquire might have Arisen during those 30 days I have an affidavit from the funest like the one from Linda saying that I knew nothing about the building permit and that is true but with Linda okagawa certainly any duty to inquire wouldn't have Arisen until October uh many months after after the building permit had been issued uh so then you're down to the to the doctrine of latches and latches will only apply if someone sat on their rights to the detriment of uh the other party and here I'm not going to go into my latch's argument other than to say that in my legal memo I went carefully through everything that the town knew about and decided uh was okay with them enough enough that they would proceed with wi two even though the um manufacturer of the turbine was issuing a serious warning and asking them to sign off on responsibility and even though there were many meetings happening at the town to deal with the problems from wind one by that time the town had not purchased the turbine transported it erected it or tested it yes they had built the foundation it's true the town will tell you they built the foundation for win 2 they signed the contract January 15 2010 and by the time this 30-day period unfolded they were well through building the foundation I don't know how much of the total $5 million cost that might be but here they had a uh A supplier refusing to sign the supply contract until the town signed off which it finally did that was a big red flag and the town could have stopped win two uh at that point and saved the bulk of the money it cost to build win two now no one wants to abandon a foundation once it's in and this was a turbine paid for by the federal government through the stimulus package and I think the town was so determined to get this built that even though there were many many complaints about wind one and warnings about wi two uh they decided to proceed anyway in that case I believe and I wrote this in my memo had Linda okagawa commissioned an enforcement request in October of 2010 it would have been the least of the town's problems there's no doubt in my mind that the town would not have said and you may hear them say this tonight oh if only Linda had filed that in October of 2010 we would have halted the work on wi two I don't think that's the case and my legal memo expresses all of the things that were happening that convinced me that this wasn't a detriment the town was already involved as of August 25th 2010 in one claim that a special permit should have been procured it knew when two was similarly situated this is no surprise and what we did Linda and the funf is waited to see if this was a good legal claim and we filed this new request within the six-year statutory period once we knew it was a good legal claim now I have the affidavits I mentioned which I'd like to submit to the clerk and uh Diane and Barry funfar are not here tonight their daughter Christy is she has two statements she does not require a lot of time uh also Linda okagawa is here uh I'm not going to describe the distress that she experiences I'd like her to do that she knows that she has two minutes uh she won't take much of your time but I would since I have not gone into the distress I would hope that even though I represent Linda and christe's parents that you would allow them whenever there is public comment to describe the distress from wi two thank you very much El are you going to ask questions or you want the town to go forward well I guess that we can see what the board would like to do does everybody feel prepared to ask questions do you want more time to review the material materals i' like hear from okay so that's how we shall proceed good evening and thank you members of the board at the outset I would just like to say first of all Diane tilletson sorry representing the town of Falmouth uh at the outset I would like to say that even though the funfar um Miss funfar and uh Miss okagawa may be making remarks during the so-called public comment period that they are applicants they are not public members of the public as the board uh usually uh describes those members of the public so I believe that what I am going to present to you is a fairly significant departure in the description of both the law and the facts from what you heard from attorneys uh uh attorneys uh Watt and senny and I'd like to start out by saying that the standards that the cases and the statutes prescribe are objective standards they're not standards that are different depending on who you are and what information you choose to uh Avail yourself of or not so with that I'm going to start and I'm going to reserve a little bit at the end of my time because there are very there are two uh major portions of our presentation the first is whether the applicants for zoning enforcement here were on either constructive were on constructive notice we we don't contend that they had actual notice of the issuance of the building permit that's not something at issue but we believe they had constructive notice and secondly even if it could be argued that they did not have constructive notice whether they were guilty of latches in this case and finally whether even if they get by what are commonly referred to as the jurisdictional hurdles here whether the board in this case uh should Grant uh any relief on an equitable basis and and the one thing that I did agree with that Council stated was that wi two is a very different set of circumstances from win one on the Equitable relief uh front uh both uh Julian suso and the town manager and the assistant Town manager Heather Harper are going to speak very briefly towards the end of this slide presentation it's all part of the same PowerPoint so we can start with the first slide the first question for you to determine is whether the applicants for Relief were on constructive or inquiry notice such that the appeal of the building permit for wi should have been filed with the zba on or before April 17th 2010 and again I think that's been fairly well covered in terms of what that 30-day period is it's a very strict period in the um zoning statute what I would suggest is a little bit different from what you heard from uh both attorney senny and attorney watt is that under the Gallivan case which was a Massachusetts appeals court case decided in 2008 and granted the facts were different in that case the uh Gallivan uh plaintiffs had actual notice however the court went further than looking at the facts of this case and decided that if you have notice any notice whether it's actual or constructive during that 30-day appeal period you don't have a choice you can't sit back and wait uh until six years have expired or just before the end of the six-year expiration date and Avail yourself of the other statute of limitations if you have constructive notice you have to bring your claim within that 30-day period constructive notice is evidence sufficient and this is quote right out of one of the cases to impose a duty of inquiry on a party concerning a building permit's issuance AB budding property owners have a duty to inquire concerning potential development that impacts their property next Slide the town's plans to inqu acquire install operate wi two were well known in the community and the applicants were on a list of abutters who were given regular updates by the town's energy Committee of the town's plans concerning wind two I know that there's some contention oh we didn't get these letters we didn't open our mail it looked like junk mail they were sent regular notice by the W by the town's energy committee at a special town meeting on July 29th the town meeting voted to construct win two and appropriate $5 million for the design and construction the town energy committee announced several months later in September of 2009 at a public meeting that they were about to begin the construction phase for wi two next slide wi one there was was a public dedication ceremony on January 15 2010 that was widely the public was invited it was attended by officials by several neighbors the win two plans were discussed at that public dedication ceremony and it was announced and reported widely in the Cape Cod Times and other media that the contract for win two had been signed the day before these are dates to help the context building permit for wi two was issued on March 18th 2010 wind one first began operations first began spinning on March 23rd 2010 the town kept a log of the complaints it received from everyone everyone and anyone the very first complaint regarding wind one was received from Mr Anderson and it was logged in on March 30th 2010 a week after wind one began op began operating and two weeks after the permit for wind two had issued by March 30th still within the 30-day appeal period the the abutters and the applicants here were aware that a Construction contract had been awarded for win two that had been publicly announced they were aware that the town meeting had voted to appropriate funds to construct wi two and they knew wi two was coming they had already begun to complain about the impacts from wind one and they knew or reasonably could have known that no zba special permit had been sought or obtained for either wind one or wind two this letter important letter coming from the town's energy committee now it doesn't mention the building permit it was sent April 5th 2010 to every butter and included in the packet by the way is a list of every AB butter every person who received these Town energy committee mailings and it includes all the applicants for zoning relief here this letter went to all the abing neighbors to everybody within 900 ft of the property line and basically advised everyone that the Construction contract had been let that they were proceeding with construction plans to erect wind two and again this letter went to everybody still within the 30-day appeal period the information in the public domain on wind two and wind one and the and win one's actual operation was certainly sufficient to impose on the butters a duty to inquire and monitor whether the permits had issued a Butters could have easily determined that fact with a phone call with an email or a visit to town hall next Slide the cases essentially support the fact that this type of notice is constructive notice sufficient to raise a duty of inquiry so that these applicants should have picked up the phone should have gone down to town hall should have done what they did several years later in terms of appealing this permit this is a case that actually is a town of Falmouth case that you may re uh uh recognize Allison versus Hadad I think it's known locally more as the camp Vanella case was a l court case and that case held that a request for enforcement is untimely where a party fails to challenge a building permit promptly after a building is erected and visible to all now in this case um in our case the wind two certainly wasn't visible within that 30-day period but wind one was and the foundation for wi two had already started going up ab budding property owners are charged with the obligation to take notice of surrounding properties and potential impacts to their own property the very fact that the first turbine was called wind one and not Falmouth one and the fact that two turbines had been in the plan from almost the very Inception of the plans to put these turbines up should have put these folks on notice that wind two was coming sufficient to make that inquiry and again this was a a decision that affirmed the town of Falmouth uh zba decision your decision which dismissed the appeal on standing grounds next Gavin versus hos is another case uh that attorney senny uh was involved in where a Butters to a turbine in Kingston challenged the issuance of a building permit by means of a request for enforcement first made over three months after the building permit issued now in this case the judge didn't focus a whole lot of attention as to whether he was really discussing this in the context of constructive notice or latches but the court did dismiss the complaint finding that the abutters had adequate notice that the building permit would be issued and this was a situation such as the one that we have here there was enough notice in the public domain that the members of the public and these abuts certainly who lived close to the turbine had adequate notice that the building permit was coming and they should have been calling Town Hall essentially to find out when it was issued that's essentially what Gavin versus hos says they took no action to inform themselves of the permits issuance again even though all the information was necess necessary to determine the grand for appeal was available at Town Hall that's what the hos case says and that's exactly the situation we have here next slide even if you conclude that they somehow the abutters were not on constructive notice that the permit uh was issued within that 30-day period the doctrine of latches I suggest to you there is more than adequate evidence to find that they were guilty of unreasonable delay or negligence in pursuing a right or claim in a way that prejudices a party against whom relief is sought I.E the town and I know uh Mr uh watt made some comments about the town's contract on win two and I believe that Julian suso is going to address that the abutters first challenged the building permit for wind one in August uh 2010 they waited 5 years to challenge the building permit for wi 2 in July of 2015 why is that important the grounds for the challenge were exactly the same the the in 2010 um this board heard and the building uh commissioner was faced with a challenge as to whether or not a special permit was needed that is exactly the same argument that is made before you tonight uh that but the abutters waited five years to bring that identical challenge they're represented by the same Council Council knew the grounds for the challenge again even if you could argue that they didn't have constructive notice waiting five years after bringing the first challenge is unexcusable next slide this case excuse me D wolf versus aov another Lan court case where the plaintiff's claims were dismissed where the plaintiffs waited four years to raise objections to a completed building again you heard the uh wi two began operations in January of 2012 here that there is a delay of uh two and a half to three years between the time that the turbine was actually up and in people's face and began operations next slide please in June 2010 uh abutters observed technicians in the field setting up the equipment for win two this was in uh attorney Sen's submission in September 2010 The Building Commissioner denied request for enforcement on wind one again on exactly the same grounds as here October 2010 uh Mr Donald had conversation with Linda okagawa about win two and she says uh according to attorney senny submission that she began doing research on wi two in October of 2010 she was represented by attorney senny then there was no reason not to file a complaint if not within 30 days of the permit's issuance certainly by October of 2010 February 23rd 2012 wi two began operations after public notice it operated at full power for one month in order to gather feedback from the neighborhood and Heather Harper will address that in a moment as well there is a timeline there are actually two timelines that you have in the materials I submitted one was prepared by Frank Duffy uh Town Council and the second was prepared by the town's uh human resources manager in connection with the wi turbine options process and it lays out when each of these events took place next slide please again in this case Richardson versus chillmark this was actually my case uh and had gone on for quite a while in the town of uh chilmark the land Court Judge dismissed um the appeal in that case finding that where the plaintiff in that case had brought several other challenges to the same building project she had filed a Wetlands challenge a d challenge and several other challenges all of which were unsuccessful and then about five and a half years after the fact brought a zoning Challenge and claimed that she didn't know about the building permit her lawyer had filed all of these other challenges and the land Court Judge held that uh she was on constructive notice um in that case and should have brought the appeal within the 30-day period but when it went up to the appeals court the appeals court agreed that she had constructive notice but also noted that latches was an independent ground to dismiss the challenges to the building permit where the delay was unjustified unreasonable and prejudicial and resulted in improper claim splitting we also have a case in here of improper claims in this case and you have heard both attorney Watt and attorney senny say well we weren't going to bring a challenge to win two until we found out whether we won the case on win one they could have combined easily filed those appeals together and the court could have decided those cases together alleviating the necessity for this board to have to have to consider the win two matter separately and frankly potentially eliminating yet another case that would be litigated the court would find that improper they found it improper in Richardson versus chilar and again it's important to note in that regard that both uh Linda okagawa and the Andersons have the same attorney this is not a case where there was a lot of shuffling uh people were aware of the grounds for the appeal and just didn't bring it um I'd like to make one more comment just in response to one of attorneys Sen's comments whether or not the town would have done something different if the appeal had been filed is not really the issue the issue is that the abutters in this case sat on their rights neither Mr senny nor Mr watt know what the town might have done would have done if this second appeal had been lodged but at least it would have given the town the opportunity to respond to it in the same way that they had the opportunity to respond to and litigate the issue with respect to win one and I would respectfully suggest that whether or not there's any doubt in Chris sny's mind about whether the town would have done anything differently is really not the standard under these cases it's whether or not the town proceeded uh in good faith uh and the town certainly know I we heard a lot of um a lot of comments that the town was on notice because when one had been appealed the town was unnoticed that wind one had been appealed but they also could have reasonably believed that wind one wind two was not as much of an issue and in fact wind 2 did not receive nearly as many complaints as wind one throughout the process so the town looked at and saw wind two on a very different footing from wind one and again whether or not there's doubt about what the town might have done they didn't have the opportunity and anything that either Mr senny or Mr watt suggests to the contrary is pure speculation at this point the second question is whether or not there is a basis for the relief that they're seeking at this time the town was at all times whoops sorry that's okay is right no you can go back too actually yeah and whether the issuance of a cease and desist order is appropriate and this is the second leg of the analysis that you're going to be asked to make and again you made this analysis last time with respect to win one I would respectfully suggest that whether or not that particular issue uh whether or not the cease and desist was justified uh on win one win two stands on a different footing and I'd like to also take the opportunity at this time to address some not all of the misstatements that were made in Mr Sen's presentation on the 17th uh the town was not negligent they did not delay and they proceeded in at all times in good faith and I know that that was not from listening to the deliberations of this board after the hearing last time I know that that was not the board's conclusion but I do want to point out a few things I'm not going to focus on the sound analysis because we will have a sound expert coming to do part of the presentation on the special permit and I don't want to belabor that point now but there are some other fairly critical points that I'd like to mention the first the town was thorough careful and reasonable throughout the process the town and the town's energy committee proceeded with diligence and sought help from capable consultants and experts this wasn't something they were doing on just a whim town and Town's en energy committee consistently involved and informed the public from the outset of the process next the town proceeded without delay when there were complaints in hearing reviewing and responding to a butter complaints and I don't think you'll hear uh anything different from the abutters because I know that the town's energy committee the town's assistant manager were all over the complaints the town we heard a lot at the last hearing and again I need to put this in context there was a lot of discussion about oh we waited 5 years we delayed we delayed we delayed the town filed a special permit for wind one shortly after the rescript was entered by the superior court that basically said we had to do it when we were ordered to do it we did it next Slide the town had every uh every reasonable belief that that special permit was not necessary and I'll get to that in a moment the town policy again which has been attacked the goal was to harness wind energy for the benefit of the town to avoid long-term Reliance on fossil fuels and sustain the growing cost of M Municipal operations the project goal was overall environmental energy and economic sustainability next slide as early as January 27th 2005 the energy committee began to send regular Communications to all the abutters including the folks who are the complainants here keeping them AB breast of all the developments for both wind one and wind two Megan Amsler was diligent and mailed again you have a mailing list uh in your materials that that uh essentially has all the names of everyone that got these letters and that list includes the applicants for zoning relief here next Slide the town didn't skip the special permit process we heard that term used um adnasium during uh the last presentation the decision of the Building Commissioner determined that the turbine which supplies power to the town's wastewater treatment plan was a municipal purpose exempt from the special permit process under chapter 240 section 30b of the Falmouth zoning bylaw that decision was consistent with other decisions made by The Building Commissioner recognizing the exemption for other Municipal purposes even where a special permit would otherwise be required in a public use district for example the DPW garage and the radio tower at 4166 gford Street both of those would have required a special permit had the building in uh commissioner not determined them to be public uh public uses and I have in also in your materials is a one-page uh memo uh from Eladio Gore The Building Commissioner basically outlining the other um exemptions for municipal purpose that he's given that would have otherwise required a building permit so again this wasn't a slight of hand it wasn't something that the town was trying to avoid or skip it was a thoughtful decision based on a reasonable interpretation of the zoning bylaw by The Building Commissioner that was upheld by the way by the Superior Court the appeals court did reverse but at least a superior court judge found that interpretation reasonable next slide this is the letter that um or the memo that was prepared again uh and signed by Eladio Gore essentially providing the exemption go next the Kema study we've heard a lot about it we've been told oh the chema study said you had to apply for a special permit yes and no first of all the chema study just to be clear was not an acoustic study it was essentially a feasibility study it it was a report reviewed by the town engineer and mass C staff and developed in accordance with industry standards it included a turbin size range and this goes to another misrepresentation I would suggest in Mr Sen's prior PR presentation turbine size ranged from 660 kilowatt to 2.5 megawatts and the vestus 1.65 megawatt that was selected was well under that 2.5 the Kema study recommended private developer models a private developer model would have required a special permit under the town's bylaw there's no question about that so when the uh statement is made constantly that the Kema study said we had to get a special permit well they did but they were focused on a private development model not on the town own model that was ultimately selected because it allowed the town to receive environmental and other benefits from the project that otherwise would not have been available to the town next these next two slides I think are significant again uh to have listened to Mr Sen's presentation on the 17th of September one would have thought that this 1.65 megawatt turbine was wheeled in in the dark of night uh and somehow put up when everybody was expecting to see a much smaller 660 kilowatt or in that range turbine beginning March 26 2007 the letter from the energy committee goes again to all leab Butters basically says we're thinking something in the range of 1.5 5 megaw next slide April 22nd 2009 a year before the turbine goes up 1.65 megaw this is sent to all the butters uh of the turbine again the a Butters had plenty of notice as to the size of the turbine at that point next slide in terms of adverse weighing harms and again this gets um and I I know this is difficult because this is a very emotional uh very emotional um topic for a lot of people and although I uh do not question the sincerity of the applicants for zoning relief I believe that their impacts are vastly overstated there is no scientific evidence or data that links sound from wind turbine disease to any health adverse health impact uh uh Link Link sound from wind turbines I'm sorry to disease or any other adverse health impact just last week or on October 19th the Falmouth Board of Health sent a letter to this board I believe and also to the board of Selectmen saying that or urging you to review the effects of of wind turbines on peer based on peer-review scientific literature again we're going to have a sound expert we're also going to have a health expert during the special permit process but in a very recent peer reviewed epidemiological study and there haven't been a lot of those done the most comprehensive assessment to date of potential association between wi turbine noise and sleep the conclusion was the study found no evidence of an association between exposure to wind turbine noise and the prevalence of self-reported or measured health effects Beyond annoyance and that's important are we talking about a harm or are we talking about people being annoyed next Point study results do not support an association between outdoor wind turbine noise up to 46 DBA and an increase in the prevalence of disturbed sleep next um this 2015 study is consistent with a wind study impact uh the findings of our um of an independent panel uh that was prepared for D and the Mass Department of Public Health back in January of 2012 insufficient evidence that noise from wind turbines directly causes health problems again independent from the effect of annoyance available evidence shows that infrasound levels near wind turbines cannot impact the vestibular system there's no evidence for a set of health effects from exposure to wind turbines that can be characterized as wind turbine syndrome and Shadow flicker does not pose a risk of eliciting seizures okay next and again there's the issue comes down to whether there was any actual harm or impact on health or whether these people are annoyed and as a result of being so thoroughly annoyed are essentially almost creating their own harm there's no documented or objectively supported health impact a Butters they've continued to live in the proximity of the town and the notice turbines for 5 years there's no evidence of adverse impact on their prod property values no recording of sound that they claim to hear has ever been submitted to any board moreover there are the same model turbine two vestus uh v82 turbines at uh belong to mount wusk Community College one is 850 ft from a hospital Hall has that no complaints have been lodged Hall Massachusetts has a vesus 1. 8 megawatt turbine larger than ours nearest home is within 500 ft and there are more than 20 Homes located including a large apartment complex located within 1,000 ft The Gardener and Hall turbines operate 24 hours a day seven days a week the town was very responsive to the concerns of residents over two years ago the board of selectman authorized a financial settlement with the Andersons I was surprised to learn of this after listening to Mr Anderson at the last hearing who told us in um painful detail how he drove his wife around to get away from the sound of the turbines and how it was his only alternative there was a settlement that was presented to the Andersons through their attorney and the Andersons made a counterproposal asking for more the T agreed to those additional terms it went to the board of Selectmen settlement involved the purchase of the Anderson's home at its fair market value pre- wind one because they said that that would devalue the the uh property um it would be uh established by a panel of appraisers Board of Selectmen had agreed to sponsor an article at a town meeting and the proposal also included a monthly rental allowance for up to 12 months for interim housing and a moving expense allowance all of these proposals were put in writing to them the Andersons rejected their own counter proposal next slide please a cease and desist order on wi would be unnecessarily punitive given the town's efforts which you'll hear more about in one second to work with the neighborhood and the court uh and the court ordered curtailment of wi two the abutters have consistently ly stated that the sound from wind one and the notice turbines are dominant over wind two and the background and the background noise from the four-lane highway Route 28 uh between wind two and the closest a butter masks the sound of wind two between the hours of 7 a.m. and 700 p.m. which are the only hours that we can legally operate at the time I'm going to next slide yeah I'm want to turn uh this part of the presentation over to Julian but before I do I'd just like to make one more remark on the constructive notice latches in response to a lot of the um remarks made by Mr senny and the affidavit submitted by his clients I believe this was wrongly attributed to Thomas Jefferson but there is a saying uh that the price of democracy or the price of Liberty is eternal vigilance and I don't think that we in a Democratic Society can sit back and ignore the mail not pay attention to town meetings not make ourselves aware of what is in our surrounding environment and then complain when the results are not to our liking that is a classic latches um argument and I think the town has more than a established both uh constructive notice and latches and I'm going to turn it over to [Applause] Julian thank you attorney Tillson and I know you're more prepared I just want to know so that went 35 minutes and I think given the fact that last hearing Mr senny was afforded an ample amount of time to speak I thought it appropriate and I didn't want to cut you off but I just want to get the board sentiment of moving forward how how much more time you want to afford to the town or I think we have less than five minutes to go okay I would think the with your and I think we're still well under time believe that you probably are I just wanted to get the feel of the board and thank you very app be fa to both sides thank you thank you madam chairman members of the zoning board of appeals as town man Town manager Julian suso I do appreciate the opportunity to make a few brief remarks uh the uh PowerPoint slide in front of you you have a copy of a course it's it's a summary as you'll note of the estimated uh range of fiscal impacts for potential shutdown of both wind one and wi two it's based uh on an annualized including a six-month uh cessation I will not comment about it further I believe it's self-explanatory but I would like to uh read some excerpts from another document that you have that I prepared called a summary of Revenue uh and expenses you have that in your packet uh so I will read a few of those expert excerpts as I may if I may the wind wind turbines serve a clear Municipal purpose they provide electricity to run the wastewater treatment facility and they're connected to it behind the meter so that the plant uses electricity directly and most cost effectively without an intermediary electric company very important given the present operating configuration the wind turbines do not provide all electric power for the treatment plant and the town must purchase electricity from ever source during all times of turbin shut down or when there is insufficient wind the wind turbines May generate Excess power at certain uh very limited times this ex Excess power is routed through the plant's electric meter in a process known as net metering and sold to eversource eversource pays the town for this electricity these payments are deposited to an an account authorized by article 18 of the the November 9 2009 annual town meeting and they're used to offset other energy related expenses of the town in fiscal year 2014 these payments amounted to $386,900 and in FY 2015 just recently completed these payments amounted to $395,900 if the wind turbine cease operation this Revenue will be lost and must be replaced in the budget with with tax revenue wind one is currently not operating as you're aware and if it remains inoperative for a period of 6 months the Lost Revenue will be approximately $200,000 to $230,000 wind one was installed and commissioned in 2010 as you've heard uh it was at a cost of approximately $5.2 million the purchase and construction was financed by Three Financial transactions the town borrowed $4.9 million and issued municipal bonds in the same amount payable over a 20-year period in addition the town entered into two agreements to sell the renewable energy certificates or Rex uh the acronym by which they're known representing the electricity generated by wind one one agreement was dated May 17 2010 and is with a cape and Vineyard Electric Cooperative the other agreement was dated J July 29th 2009 and is with the Massachusetts Technology Park Corporation now now known as the mass Massachusetts clean energy center both of these agreements have expired and have been replaced by an amended and restated renewable energy certificates purchase agreement dated June 3rd 2015 between mass clean energy Technology Center and the town of Falmouth as previously noted the town borrowed 4.9 million and issued municipal bonds in the same amount payable over 20-year period two Bond transactions were involved $4 million and $992,000 uh there is attached to my statement in affidavit with Debt Service schedules for these loans both of these transactions were completed based on anticipated revenue from the sale of sale of electricity to eversource by the net metering process outlined above and from the revenue from the sale of the renewable energy certificates the town's payment for 2014 was 421,750multifamily .50 for 2015 it was $47,476 the town's payment for fy16 will be $47,700 the total payments over the 20-year period That's the bond period are $6.9 million if the wind turbines are shut down or fail to operate a sufficient number of hours daily the town will be required to make these payments ments with general tax revenue as there will be no income from the sale of electricity or renewable energy certificates to make these payments the debt due cannot be prepaid and must be paid in full over the 20-year Bond period the amended and restated renewable energy certificates purchase agreement is currently in Force Under the terms of this agreement the town agrees to sell the mass clean energy center all renewable certificates attributable to energy produced by wind one every year the mass C has made a lump sum payment to the town of 1,1 10,623 which has already been expended to finance the construction of wind one in the event of a default caused by shutdown of wind one the town must refund this amount to the mass clean energy center the Clean Energy Center will continue to pay the town for renewable energy certificates delivered according to a schedule of estimated production the agreement contains a schedule for that estimated production if the town fails to meet the estimated production it shall pay in each year a stipulated payment of $42 for each renewable energy certificate shortfall if the wind turbines are shut down the estimated payment for the last 6 months of fiscal year 2016 the current fiscal year is $65,000 and for fiscal year 2017 it's ulated payment for a complete and permanent shutdown would be $42 per wck time 48924 Rex for a total of $2,548 due the town will be required to make all these payments with General Revenue from taxpayers as there will be no income from the sale of electricity or Rex to make the payments nearly done with this brief summary when two was installed and commissioned in 2012 its financing differs significantly from the wind One financing wi two cost approximately $5 million to acquire and install it was financed from a by a loan Grant from the mass water pollution abatement trust otherwise known as the trust loan funds originated with the US United States under the uh uh American Recovery and reinvestment act of 2009 otherwise known as era to summarize the terms of that loan agreement and the project regulatory agreement the total loans of Po 4865 million were dispersed to the town to acquire and to install wi two the original interest rate is 0% the loan qualifies for full principal forgiveness under certain conditions namely that the town operate and maintain in in clear English wi two as an Energy Efficiency project by this it is clearly understood that win two must be continuously operated as a source of renewable energy if wi two ceases to operate as an ongoing source of renewable energy the loan forgiveness disappears and the town owes $4.8 65 million plus interest now at 2% when I learned that the operation of win two maybe might be jeopardized by the present and other litigation I inquired of the trust about the application of loan forgiveness under the circumstances of potential injunctive shutdown by a letter to me dated April 2nd 2013 the trust advised in clear English the town that if win two is used in a manner not consistent with Energy Efficiency project and I quote the trust will not be able to approve the request made by the town and will not be allows the town will not be allowed to utilize the era funds with principal forgiveness end quote clear English a copy of the letter has been transmitted uh to this board the town does not know and the trust will not reveal at what point it would consider an injunctive shutdown to be a default and result in an accelerated repayment what is clear is the town will be required to refund 4.86 5 million in a lump sum with general tax revenue and any other available cash the town cannot borrow to repay indebtedness as such borrowing is not permitted under Massachusetts General law only a future special Act of the legislature could authorize such a an unusual ual borrowing the town believes the wind turbines must continue to be operated for significant hours each day to meet this requirement and avoid repayment in the event of a shutdown of wind one the town will lose all the electricity generated by the wind turbine and will be required to appropriate approximately $60,000 each fiscal year from tax revenue this is beyond the dollars I've already spoken about to pay for the purchase of supplemental electricity for the wastewater treatment facility remember they were cited to power the uh energy needs of that plant if both wind turbines are shut down that cost will leap to $120,000 annually and I'll just go back to the slides for a moment uh as I noted closure of win two would violate federal regulations and the terms of the project regulatory agreement when to required uh of wi to required to operate as an Energy Efficiency project the mass d letter addressed to me dated April 2nd 20 2013 makes that clear I know earlier you heard a uh fanciful spin on that letter uh which involves somebody's interpretation but I know the members of this board can read the plain English in the letter just as I did and recognize what's clearly at stake here next slide please the town has consistently attempted to work out a reasonable accommodation that's been demonstrated we've offered a comprehensive and reasonable settlement to to Anderson and and furthermore accepted in writing the Anderson's counter offer which they subsequently walked away from that is wrong excuse me sir they're allowed to speak freely and you will have time to comment and response the facts are clear and available the engage the town is engaged in a comprehensive win turbine options process we've spoken about we'll have a few more comments on it uh in a few moments Madam chair members of the board thank you I just want to check in again with the board um how much longer does the town anticipate for its presentation about five minutes how is the board feeling would you like to hear it yes okay thank you madam chairman excuse me sir I'm I'm in charge I I'm going to allow her to speak the board has allowed time for the town to speak we've agreed to that thank you good evening Madam chairman and members of the board thank you for the opportunity to speak I'm Heather Harper I'm the assistant Town manager um throughout the last five years of this project I've worked under the direction of five different Boards of Selectmen and two Town managers um I've been asked to share some of the highlights of the town's thoughtful and deliberative response to the well-known and well documented concerns about our community's wind energy facilities the town's approach and response has been um good and a good faith effort uh at the first first um sign of complaint we immediately contacted the operator the operator sent uh on operations and maintenance staff including design Engineers who designed the vestus v82 they slept on site for at least two nights to determine what what their neighbors were experiencing there was an issue identified it was corrected and repaired the town also immediately engaged in a collaborative process with the neighbors to the wind turbines in fact I received a letter and kind words from the attorney who was engaged um within several weeks of the operation of wind one uh recognizing the Swift response of the town in taking action and response to concerns from our neighbors they participated in the scoping of that sound study and approved the scope of services prior to its issuance a tracking system was established so the town could learn more about the complaints the conditions the time the wind conditions and what neighbors were experiencing this monitoring was coordinated with the Board of Health you can find records on file with Communications to Dr Dale harkes uh and excuse me Dr harkes and uh the Board of Health um dating back several years as you know and you heard earlier this evening the Board of Health has routinely taken up and deliberated on the issue of health effects for the better part of five years the Board of Health have has been evaluating this issue and they sent you a letter uh two weeks a week ago um as of October 19th and they've drawn the conclusion that the Canadian study finding is appropriate and that there is no evidence of the health effects associated with wind tures next slide please there were many personal meetings with neighbors uh those meetings included the town manager myself The Building Commissioner board members Selectmen Board of Health members the town staff and the board of Selectmen and the Board of Health made a commitment to ongoing tracking and problem solving an electronic communication system was established and regular updates were provided to anyone willing interested in participating in that this is one of the updates issued and you can't see and here but you can in your book there's also a note and in the summer of 2010 some information about what was going on with wi two and that went as an electronic um summary to many many uh community members I want to talk a little bit about the wind turbines option process it was a very serious and genuine effort on behalf of the town of fouth and all involved the town reached out directly to Lawrence susin city planner and mediator with MIT um and founder of the consensus building Institute we sought and successfully earned external assistance to fund this effort there are 25 meetings held over eight months two two members of the board of Selectmen were present at every meeting as were the town managers this process was transparent all document requests were honored new studies were developed uh and most meetings were recorded and are still available for viewing on the wind turbine options process website as you may know the board of Selectmen voluntarily reduce the operations of both wind turbines to encourage our neighbors to participate in this consensus building process process while the town did not anticipate full consensus as a result of that process we had hoped to find some common [Applause] ground unfortunately that was not the result the position of our neighbors hardened the town was very grateful to have our Human Services director involved in the win turbine options process Karen cardaria was willing to serve as as one of the staff stakeholders we did not ask Town management we didn't ask regulatory officials we asked our Human Services director to to represent us in the win turbine option process as a Human Service professional uh Miss carder understood one basic element of consensus building and that was to try and find agreement on the facts toward that end she developed a six-year timeline of events and expanded and sustained that timeline throughout the process the timeline is in your binder and was referred to by attorney tilletson this uh timeline was routinely and repeatedly raised at win turbine option Pro meeting process meetings though never AC accepted discussion about when to routinely occurred during that process and all the complainants uh here this evening uh were well aware of that and and participants at the conclusion of the win turbines option process the board of Select again appropriately reached out to the community they desired to engage the broader town in the dialogue about how to resolve the concerns related to the town of felus wind energy facilities at the conclusion of that uh process the board determined that they would uh place a ballot question uh before the town's people and at the May 2013 Town election the voters overwhelmingly rejected a ballot question to authorized the town to begin a process of decommissioning and taking down the wind turbines 54% of the residents voting in Precinct six the location of the wind turbine voted against decommissioning of the turbines next slide please finally the board had the eight months and 25 meetings in which they participated in the win turbine option process and they also had the vote of the town the will of the Town those that we serve um and they then again uh took on an open caring and thoughtful process and a continued demonstrated willingness to find a compromise they announced a three-month long decisionmaking process and following its three month could I go back to the next side the previous slide please the next SL thank you I just want to share with you that you not intended to to read all of those but to know that those were the uh public deliberative um reports that were prepared for the board of Selectmen following the win option process following the town vote um those were were public they were publicly noticed the board of Selectmen instructed the community on what process it would take to make decisions about the operation of the wind turbines uh and they posted each and every one of those reports regularly on the town's website um the board explored um the options reviewed by the wind turbine option process they took a look at mitigation Alternatives they looked at ways that the turbines could generate Revenue to support mitigation Alternatives they considered the geographic location of complaints were the complaints from wind one from wind two or were they from the notice turbine that had been operating uh 365 days a year for several years during that process they also took a look at um the nature of the complaints the the duration uh the attributes of the uh wind what was going on in the area ultimately They concluded that there were no um mitigation Alternatives that were available to them given the hardened positions of the neighbors the town of Falmouth has acted in good faith for many years following that reporting process the board of Selectmen voted to operate the turbines from 5:00 a.m. to 900 p.m. both turbines um and that that was really their final operational vote this was following eight years of planning seven town meeting votes and the bard of Select has continued to support the operation of the wind turbines with modified operations for 5 years after a very thoughtful and deliberative decision-making process the wind resource in Falmouth and on Cape Cod in our region is valuable it's an asset that should be preserved for this generation and for all future Generations over time this community will change our tolerances will change what will not diminish is our demand for energy and our responsibility to protect the re eni environment and to reduce our Reliance on non-renewable resources we are pleased to have this opportunity to present this to the board uh the zoning board of appeals we recognize that this is a local issue we're glad to have this issue being addressed locally and we look forward to your uh discussion and deliberation thank you thank you thank you okay so I want to check in with the board as to how they would like to proceed because usually our usual process and obviously it's a little bit revised for these hearings um is usually we would ask questions then we invite for uh public comment I think my sentiment and and I'll share what I would like to do and I'd obviously like to hear from you um would be we've received a lot of information a great deal of information I certainly have questions but I think I'll have more questions of the attorneys once I review the information so I would be inclined to obviously I know um attorney senny and attorney watt have asked for several more minutes to speak then I'd be inclined to invite public comment and then um on on win two only and then at the next hearing asked questions but I I don't know how everybody else is feeling or if you're feeling you know I had a couple of questions based on Tony tillotson's presentation that uh just to help me clarify and understand what she was referring to because there there seemed to be two issues one was the 30-day appeal period and the other was beyond the 30-day appeal period and uh you know yeah would you like me to yes try to address that if that's okay yeah that that is okay yeah I think that's okay but I I also want to say I don't personally I don't want to get into substantive obviously clarification just it's just a question you know that this issue of constructive knowledge and were you contending that you should have had that knowledge during the 30-day appeal period yes yes I think the the 30-day appeal period is the one in the statute at those three sections of the St statute really Section 8 yeah I I understand that but and and what was the evidence for that she would have that knowledge during 30 days if there is evidence in in uh the environment around you what's going on around you put you on inquiry notice in other words the turbine when one being up the fact that the plans for wi two had been announced the Construction contract had been let and announced publicly and a letter was sent telling them essentially that wind two was coming the courts say that that is sufficient to put you on inquiry notice a duty to inquire in other words you just can't sit back I get I get the gist of your arguments sorry there was a lot of information presented during that 30-day appeal period there was a letter sent to the abutters correct is that CU there were many letters you cited most of them referenced one turbine going up there was uh the letter that I'm referring to is April 10th uh April 5th 2010 it's in the materials it was during the uh 30-day appeal period And while it does not say the building permit was issued it says we are proceeding with plans for wind two and is that in this it is I believe it's probably about 10 pages in I can find it precisely for you but it is and I think for about the first maybe seven eight nine slides I tried to outline the factors that I felt yeah I I got that okay okay for now for now yeah and and I certainly have a lot of questions and I'm sure everybody does um I'm just trying to see what the best way to proceed would be given the amount of information we now have to process and question and so would everybody be comfortable um do we have the April 5th letter are you um would everybody be comfortable proceeding how I yeah had outlined would that be yeah okay get out with it sir are you comfortable with that s the okay so so then I would invite attorney Watt and attorney Sunny understanding that we will have questions at the next hearing um and then we'll invite some public comment as well I think it's the nth P okay thank [Applause] you I'll try to keep it to five minutes thank you that letter April 5th says we also wanted to take this opportunity to let you know that at the November 2009 fall town meeting the town's people voted to install a second turbine at the wastewater treatment facility fouth was selected by the mass water pollution AB batement trust um something by state treasurer Tim Cahill to receive 4.9 million it says nothing about construction was imminent was anticipated at a particular time even assuming that my clients the Andersons receiv received this and there is no evidence that they received it there are bare allegations that the letter was mailed but similar allegations were made in the original Anderson appeal to Superior Court and judge rufo found specifically that there was no evidence that in fact they were mailed the burden is on the town to show that those were mailed um I really question the town's uh representation that they've engaged in the continued caring thoughtful process and I think Thomas Jefferson would be shocked at the way the town has behaved throughout this when it was determined that when one what required a special permit would not a continued caring thoughtful process also anticipate that the town should go ahead and seek a special permit for uh wi two they knew they were the same thing they owe a duty to their Town's people to uphold the bylaws of this town rather than seek some sort of legal loophole uh that absolves them of obligation you heard attorney tilletson say when we were ordered to do it we did it well that was the only reason that was the truest statement only when they are ordered by a higher authority to do something will they do it never did the town voluntarily seek to get a um special permit for wi two I really object to the town demonized ing my clients the Andersons the Andersons have lived here long before the wi projects were even put up um and for some reason now it's turned around on them that they continue to live here and somehow well that's their problem that they they should um just buck up and suffer judge rufo found uh specifically that the Andersons were grieved judge Muse in the injunction in the previous nuis or the pending nuisance case found that they were suffering ill effects and to suggest that the Andersons are not suffering effects is just disingenuous I'm really shocked that the town has chosen to disclose settlement discussions here in a public form it it it's hornbook law we learn that in law school we learn it in anything that settlement discuss questions are are privileged and that they are not to be used as evidence in any subject any judicial proceeding and and frankly I dispute the representations made by Council and I'm going to uh actually request copies of the signed offer agreements by the Selectmen that were made to my clients because to my knowledge no such signed offers were provided nor were any settlement discussions that were had nor were the full terms of those settlement discussions disclosed here tonight the town finally wants to uh impose upon the neighbors an obligation to read every newspaper to take part in every town meeting uh maybe that's an ideal that would be uh laudable but we're also a free country that we we have the freedom to live our lives as we wish and not have to necessarily embroil ourselves in public discussions it's concomitant upon the town to prove that the Andersons had notice and they have not done that thank you [Applause] I'll try to be just as brief uh attorney tell us had mentioned Gavin vas that's the Kingston turbine case that's a case that I participated in I can tell you what that case turned on during the 30 days all three turbines installed by Mar odonnell appeared they were set very quickly by day 18 of the 30 days all three were visible judge Foster felt this was a close call but he wrote a good decision against my clients saying if three turbines appeared within the 30 days you should have gone down to town hall and my clients accepted that decision and did not appeal it further wi two didn't appear for at least six months and I think even considerably longer so I don't think Council has Gavin versus H has quite right the abutters list there's not just one abutters list you have been favored with an abutters list showing everyone within 900 ft as you know typical zoning abutters lists are 300 feet from a property there are more than one AB Butter's list mentioned in the minutes of the energy committee uh meetings one list which we can tell from those meetings was used mentioned 33 recipients of those letters I can tell you Linda okagawa did not get the letter of April 5 200 10 and she appears on the list before you but I think the town is using very liberally a very large AB Butters list when in fact the energy committee didn't use that list on all of these mailings we don't know if they use that 900 ft distance list on any of the mailings and the fact is the town can't produce any evidence of sending any of these particular mailings out but you have now a signed affidavit it signed under oath saying that it wasn't until Malcolm Donald knocked on her door in October that she knew anything about a second wind turbine uh I agree with attorney watt I'm I'm shocked that settlement discussions were raised uh attorney Teleton said two turbin were part of the plan from the very start that's not true the Kema study that began this entire project which was done in 2005 is for a single turbine at the W wastewater treatment plant attorney tillon said Kima was not an acoustic study finally one of the attorneys for the town has admitted that because in all of the litigation the town's Council have taken the position that Kima in 2005 which had contour maps of two GE turbines not a vestus is the only acoustical study ever done before the decisions to build win one and win two were made the only acoustical treatment Acoustics is 2 and a half page of that 54 page Kema study it was a feasibility study the town never did an acoustical study for wind one and even when vestus asked them hey have you updated your acoustical study before choosing to put win two in there appear apparently was no answer to that email from from the town's engineer about whether they did or they didn't uh update the study there never was a study hmmh was a study it studied the sound pressures from wind one and the projected sound pressures from win two and it was ready in September of 2010 after all of the distress was reported and after the town sent a letter to Vesta saying we take full responsibility for win two attorney tilletson mentioned wield in in the dark we treat this size of these two turbines as being wheeled in in the dark there's a reason the town sent a mailing to the neighbors in 2004 and said it would be the size turbine of Hull and organized a field trip to Hall not just one but two to Hall one which is a 660 turbine and had the town built two 660 turbines there wouldn't be distress and in your booklet the last tab the booklet I presented to you tonight you can see the difference in a drawing between a 660 Hall one and the two turbines that were built none of the warrant articles the town likes to mention the seven or eight warrant articles on these projects none if you read the notice to the public mentions the size ter turbine so there was an affirmative reaching out to the neighbors and saying the turbine is going to be the size of Hall one and you can ask Kathy Elder who is here and Barry funfar they both went on that field trip to Hall one the day wind one appeared they were shocked at the size and that's the first time they ever knew the size turbine had changed uh creating their own distress vastly overstated I've been a zoning lawyer for 32 years I have represented people who were uh not in my backyard people I know what it looks like especially neighborhood groups if there's a new shopping center and a neighborhood is upset about it I get a few clients and there's a bell curve the client group grows they get more angry they protest the new shopping center they take a court appeal and then you come down the back side of the bell curve and the the uh clients fade off they're getting used to this new use in their neighborhood it's reconciling with the neighborhood okay and it drops off to a few and the matter ends Within two years I I have represented people who have been in that position I have never seen a moment of hesitation from this group it has just been this direction there's no bell curve here this group knows what it feels like to try to sleep near wind one and two and the town is trying to get permission to run them at night as well they're only running during the day or wind two is running during the day at this time but please believe me and we can compare pure science to peer science and we will in connection with the wind one special Perman application but please believe me they are not making this up they are not exaggerating it this is not a harm that they're creating this is something they feel I don't live there so I can't tell and none of us live there either but I have come to believe these clients and I have come to distinguish them from nimi clients who are just upset about a new use Shadow flicker doesn't cause epilepsy we know that the flicker isn't at a fast enough Pace to cause epilep but Linda okagawa and other people like Malcolm Donald get this strobing effect that's more than the 10 hours a year allowed in the FMA zoning bylaws I know that bylaw doesn't apply because it wasn't in existence at the time but it's a standard we can look at Linda presented a log that said it's 40 hours a year and that's significant she's not saying she gets epilepsy she's saying it's very distressing and the worst thing is the town has never mitigated Shadow Flicker and you know what it would take delaying the St of wi to an hour and a half 9 months of the year not all 12 but 9 months of the year if you delayed it from 7:00 a.m. to 9:30 it would be gone annoyance is not harm how long has this group had to face the the AC AC accusations that it's just annoyance there's something in between annoyance and harm you know what it is it's unreasonable interference with the right to use and enjoy your property there are sound pressures that we have captured that we will be presenting with Windows and Doors closed inside the Anderson home and inside the okagawa home that absolutely exactly match blade passage frequency and integer multiples of th of the blade passage frequency that you can pick up and you can show on a chart that energy is inside the home now we can disagree on whether that's capable of making someone feel a little bit motion sick in their own home and I don't know how to make that decision but I can tell you I believe my clients when they say there's a sense of disequilibrium in my home Elizabeth Anderson goes to the back bedroom because it's a little bit better there for her and so when I sent the acoustical engineers in with the low frequency microphones I said hey go into the back bedroom and see sure enough for some strange reason in that back bedroom the infrasonic frequencies that match the blade passage rate are lower so there is something here it's a very difficult science to dig into I don't uh end your board being in the position that you're in but I do resent some of the comments that have been made made tonight and I do want to ask that this record be kept open because I plan to write my rebuttal to these points and submit it thank you thank you okay I think that it makes sense to have some public comment tonight I we are keeping this hearing open we are going to be asking questions and we do still have the special permit application tonight um so you know time is of the essence as well we're approaching 8:00 so what what I would be inclined to do and hopefully the board agrees is that we hear public comment for about 10 to 15 minutes um don't go past I guess 8:05 um we can take a short break and then get into the special permit application our hearings wrap at 9:30 so that's why um I need to balance the two and and like I said the hearing's still open I will invite public comment at the next um hearing on wi two so if anybody would like to speak I would I'll be very brief and I'll hand you uh the clerk a few documents um this is related could you please just identify yourself for the record and Todd drummy blacksmith shop Road thank you um there is a lot of confusion about the mailing list we hear how all the neighbors within you know this very large distance received all of these mailings over the years I know I did not receive them until after wind one started and I believe this is the mailing list that was used after wind one started it's dated April [Applause] April 6 2010 I can't remember where I got this I believe it was during one of the court cases they 129 names on this and most of the neighbors are on here so after April after wind one started they used a big list in the Kema study and this is one page from it a butter survey was mailed to approximately 33 residential property owners AB budding the site in the energy committee minutes um I believe the town mentioned a uh letter that was mailed approximately January 27th concerning the weather balloon idea that was mailed to 33 people so at one point in time they were mailing to a much much smaller list and that's just the point I wanted to make thank you thank you thank you anybody else here good evening my name is Rebecca Moffett I live in East Falmouth in Precinct 3 and I'm speaking as a resident in Falmouth in November of 2013 there was a court case in Barnes and I went and it was a terrible rainy day and I sat in the back and Frank Duffy was in the front and the judge said is there an official from Falmouth here and Mr Duffy said Rebecca moffett's here and the judge looked at me and said I would like for you to go into the room with the negotiations with Mr Duffy and the Anderson's Neil and Betsy now that was all very new to me but I did as I was told and we went into a very small room it was Mr Duffy myself Mr watt Mr SNY Neil Anderson and Betsy Anderson and the purpose of this was to come to some kind of a negotiated meeting and decisions I really wasn't sure if I was supposed to speak I mean I was very surprised I was in that room so as the conversations continued from Mr Duffy Mr syny and Mr watt I got the gist of things and I put my hand up and I said am I allowed to speak they said certainly there was a lot of information about the turbines and and how uncomfortable the Anderson family Betsy and Neil were living in their home at some time during this it became incredibly emotional incredibly emotional and in that time Mr Anderson said in a voice of distress please help me please help me well I certainly thought about that as the meeting continued and it wasn't as if there was a timeline but as the two lawyers representing the family the Andersons had finished their case and Mr Duffy had finished our case I thought about those words please help me I'm now a selectman in Falmouth and I was a selectman that put together a a offer to help the Andersons financially it was very serious it was a large amount of money it was offered and it was refused that was very upsetting to me because I listened to those words please help us so when I heard from Mr SNY and from Mr watt that they were not aware of a Financial offer I was quite surprised and I believe in knowing that it was by pure circumstance that I went to that court hearing and the judge said is there an official from Falmouth here and I was told to go into the room and what I have said to you is what happened thank you thank you sir Malcolm Donald 124 amble Side Drive uh I too was at same court hearing when uh um selectman Moffett went uh the judge Christopher Muse said uh go down the hall there's an empty room I want you to come out with an agreement well I don't know it took an hour or whatever and out out they came back into the courtroom and uh just uh justice uh uh judge Muse said have you reached an agreement and they said we have your honor and then what was he said what is the agreement he said well it's and we said they uh the attorney said it's 12 hours on 12 hours off 7 to7 operation and he said good and he said we're going to come back in a in a month's time and see how this is going or some period of time a uh subsequent to that selectman Moffett championed 24hour operation of the wind turbine she championed it to the town meeting she championed it to the board of Selectmen and the board of Selectmen um uh uh talked about it and came up with the 18 hours on and six hours off now we went back to court and uh judge Muse wanted to know how the agreement was going well the agreement wasn't being uh implemented because the town you see was going eight well judge Muse was perturbed he said that's not good faith you didn't uh he said you came here made an agreement in my courtroom an agreement is as good as a decision now I will make a decision and judge Muse uh decided that the turbines would only operate 12 hours a day as the original uh agreement um uh um conveyed but he said additionally those turbines are not going to operate on Sunday and they're not going to operate on three holidays Christmas New Year's and Thanksgiving because of uh how the town didn't uphold their agreement in court he was very upset and I'd like to say that the T that the amount of uh lost Revenue because the town did not uh negoti did not hold up their end the bar bargain they they uh welched on their deal uh they went back on their word they've lost 177% of Revenue because of that action now second point I have a uh I have a uh a presentation that I'd like to um make to you it's only about 45 minutes um it's about uh how health impacts of wind turbines could I could I do could I present that so we limit public comment to two minutes um the applicants are afforded 15 minutes um unless the board welcomes more um additional time and then those uh represented by Council um council is you know the uh Andersons are represented by Council those people who are appealing are afforded time um public comment is limited to 2 minutes so I would okay well I guess my surise that it's the position of the board that that's what we would like to stick too absolutely okay okay I guess so I I guess I'm wondering all right so I'm wondering if if I can't uh present on uh on the the connection between wind turbine noise and health effects how can uh how can the town's attorney go on and on and on about that isn't that kind of irrelevant for what we're here for tonight Mr Donald I would I would submit that last time um the applicants on the cease and assist were afforded a substantial amount of time time and that this board was allowing the town a substantial amount of time to respond to that um In fairness you if you have a a slide presentation you can certainly submit that that to the board in hard copy and that is something that we will look at okay thank um thank you very much yes okay um uh also I'd like have a comment on  the wind turban options process that uh the assistant Town manager talked about uh I just like like to say that you know we could only include uh I was on that I was on that uh part of that deliberative body and we could only include the facts if if they were uh voted upon by the uh committee and so you know it was only popular information that actually got into the report so it had nothing to do with whether it was true or not it was just whether the the the group wanted to include that fact or not and then the last item I have is uh I'd like to speak to uh uh regarding um uh Tony Rogers who's a a uh professional engineer with d uh dnv Kea the people that did the initial initial feasibility study and he was he's part of the town's uh consultant and he said that um if uh if the town were to buy out homes uh he'd have to buy 20 to 40 homes and the cost of that um purchase would be somewhere between 8 million and $16 million thank you thank you I'll yeah one last comment for the night and then like I said um we will afford time and I know that a lot of the conversation has turned to the settlement negotiations you can certainly comment on it I know that the town commented on it but we're not here to to pass on what did or did not transpire um the Focus right now is whether wind two should continue running so correct thank you Neil Anderson blacksmith shop Road I'm not going to comment at all on the confidential court hearing that we had it's totally inappropriate it's totally inappropriate for the selectman mfet to talk about that uh she shouldn't have been able to continue uh now that it's been made public anybody who wants to know the details of that offer and our counter offer come see me uh regarding wind two not Building Commissioner alad Gore told me that any complaints that I filed to him any official complaints I filed to him he's not going to do anything about I probably would have by this time in the last month filed six or seven official complaints on wi two including today so uh wi two comes right across it's 1,000 ft away a th000 more feet away than wind one one but we can see it it comes right down the same Valley and it affects us the same way we're asking you to turn it off do the right thing it doesn't have a special permit thank you thank you I I have a question um is there a particular wind direction where you feel it's more uh most particular yes it prevailing winds Southwest Southwest Southwest thank you so we'll cease public comment for the evening because on this matter because like I said we're keeping it open and I certainly appreciate the people are here that people have comments to make but we do have the special permit application that we need to get to as well I would ask attorney continue this then to a date time specif yes and I thought we did we speak about was it November 19th or is that it hasn't been discussed yet those are there were a couple dates discussed and up to the board to agree to whatever dates the attorneys came up with I believe November 19th was discussed yeah and Pen you're available that day or you everybody I'm pretty sure I am just double check you were going to have to change something but I'll be here yeah I have to move something but I Thursday night all the board members is a Thursday night at what time would you like to deliver I can be here earlier they don't want to do it early you guys wouldn't do 5:30 6m I would do 5 I think I think we'll we'll say six okay to be sa 6 o'cl everyone of of 6815 we'll we'll vote to continue 685 and 70-15 to November 19 6m so can somebody please make a motion motion okay so that's and TJ seconded it so that is for 6815 and 7015 just to clarify just to clarify yes at 6 o' at 6 o' okay all right all those in favor I unanimous and we'll take a a brief resuce thank you