Massachusetts Superior Court finds windmill to power wastewater facility was permitted as of right after finding plaintiff had standing 

The Town of Falmouth, Massachussetts (“Town”) constructed a windmill known as Wind I, at the Town’s Waste Water Treatment Facility (“WWTF”). The Town’s Building Commissioner, Eladio Gore, was responsible for issuing building permits and enforcing the Bylaw. According to the Bylaw § 240-30, uses as of right include “all municipal purposes, including the administration of government, parks, playgrounds, recreation buildings, Town forests, watershed, water towers and reservoirs, beaches, fire and police stations and armories.” Special permits are required for accessory uses, defined under § 240-13 as “use[s] of land or building on the same lot with, and customarily incidental but secondary to, a permitted use except that if more than 30% of the floor area or 50% of the lot area is occupied by such use, it shall no longer be considered ‘accessory.’” The construction and operation of a windmill is among the uses for which a special permit is required. Adverse impacts on the neighborhood, including noise, must be considered by the special permit granting authority, here the Town’s Zoning Board of Appeals (“ZBA”). Gore determined that a special permit was not required by the Bylaw and issued the building permit for Wind I as a use as of right. Gore also found that Wind I was not an accessory use at the WWTF, and the area covered by Wind I was less than 50% of the lot area and less than 30% of the floor area.

Plaintiffs were a group of residents of the Town who all lived within 3,200 feet of Wind I. They claimed that the noise produced from Wind I interfered with their sleep and caused them various physical symptoms such as headaches, dizziness, and nausea. No evidence was produced that demonstrated that Plaintiffs had reasonable notice of the issuance of Wind I’s building permit. One of the Plaintiffs filed a letter with Gore requesting that he take enforcement action, which Gore denied to do. As a result, Plaintiffs appealed the permit issuance with the ZBA within two weeks of Gore’s written denial.

The court first addressed whether it had proper jurisdiction. Specifically, it determined whether Plaintiffs had standing and whether they had filed a timely appeal. In order to have standing, Plaintiffs needed to demonstrate aggrieved person status by suffering a “legally cognizable injury to a right or interest that the Zoning Act is intended to protect, either explicitly or implicitly.” The court found that Plaintiffs had established that the noise and distractions created by Wind I adversely affected their physical and emotional well-being. Since two purposes of the Bylaw are to “conserve health” and avoid “adverse impacts on the neighborhood,” the court here held that Plaintiffs had demonstrated aggrieved person status and thus had standing.

With regard to the appeal’s timeliness, the court cited to §§ 8 and 15 of the Zoning Act, which require an appeal to be filed with the ZBA “within thirty days from the date of the order or decision to be challenged.” If the appellant was given “adequate notice” of the issuance of the permit to be appealed, then the time to appeal is limited to this thirty-day period. If, however, the appellant did not have adequate notice, then he or she may pursue an appeal under §7 of the Zoning Act. This section “authorizes the Building Commissioner to enforce the local zoning bylaw in response to a written request for enforcement.” If the Commissioner declines to enforce the law, he must notify the requesting party in writing within two weeks of the request. The requesting party may then appeal the Commissioner’s decision within thirty days of the written response.

The Town in this case asserted that the court lacked jurisdiction because Plaintiffs failed to appeal the permit issuance within 30 days. Plaintiffs argued that since they did not receive adequate notice of the permit issuance, they were entitled to pursue an appeal under §7, which they did timely. The issue presented was thus whether Plaintiffs received adequate notice of the issuance of the Wind I permit. The court stated that notice may be either actual or constructive, but there is “no bright line rule defining adequate notice.” As such, it evaluated the particular circumstances in the case presented. The court found that Plaintiffs did not receive actual notice of the permit from the Town since they did not receive any written notice, nor did the Town announce it in a local newspaper. The court acknowledged that it could be argued that Plaintiffs had constructive notice since they knew about the permit application and attended some Town meetings regarding the permit. However, since the application process was drawn out over a period of three to four years, the court concluded that Plaintiffs demonstrated a lack of constructive notice. It was understandable for Plaintiffs not to have kept up with the permit issuance after such a long period of time. As a result, Plaintiffs timely appealed the permit and the court had proper jurisdiction.

The court then discussed the merits of the appeal. Plaintiffs alleged that the Bylaw required the Town to obtain a special permit to construct Wind I. According to § 240-166 of the Bylaw, the ZBA is required to consider several criteria when deciding whether to grant a special permit for a windmill, including both the positive and negative effects it may have on the neighborhood and any “injurious or obnoxious noise[s]” it may create. Because the language of the provision applies to “any petitioner” and does not exempt municipalities, Plaintiffs argued that the Town was required to obtain a permit and consider the applicable criteria. With regard to § 240-30, the provision that discusses uses as of right, Plaintiffs argued that because it provides a list of specific uses as of right, the provision was meant to be interpreted narrowly. Gore, however, determined that the use of Wind I was indeed permitted as of right and thus did not require a special permit.

According to the court, § 240-30 specifically states that it applies to “all municipal purposes,” which could reasonably include windmills. The provision is not meant to be restricted to the listed uses since they are preceded by the broad phrase “all municipal purposes.” The court further found that Gore was correct in determining that the “operation of a wind turbine to power the Town’s wastewater treatment facility and provide excess electricity at a discounted rate to offset Town energy expenses is a municipal purpose.” Thus, the use of Wind I as a municipal purpose was permitted as of right under § 240-30 of the Bylaw.

Plaintiffs also argued that even if Wind I was permitted under § 240-30, the right is trumped by § 240-18. § 240-18 provides that when more than one Bylaw provision is applicable to a particular use, the more specific or restrictive provision will govern. Plaintiffs argued that here, § 240-166 is more restrictive because it applies to “all windmills constructed anywhere in the Town,” and thus should have superseded the § 240-30 as of right provision. Plaintiffs understood the windmill as a use with a specifically applicable provision—namely, § 240-166. Gore, on the other hand, interpreted this provision to be inapplicable to the Town, since the municipal purpose made the windmill a use as of right. Ultimately, the court found both the Town’s interpretation and Plaintiffs’ interpretation to be reasonable. Both interpretations being equally reasonable, the court deferred to the Town’s interpretation of its own laws and affirmed its determination in this respect.

Finally, the court evaluated Plaintiffs’ contention that even if § 240-166 is inapplicable, the Town was required to obtain a special permit for accessory use under § 240-33G(5). The court held that the windmill’s municipal purpose made it a use as of right regardless of whether it was primary or accessory. Even so, the court agreed that the use of Wind I was not an accessory use. According to the definition of “accessory use” under § 240-13, an accessory use is “dependent on or pertains to the principal use of the land.” Here, the court acknowledged that Wind I and the WWTF bear a relationship to one another. However, Wind I is not dependent upon the WWTF because it would still continue to operate if the WWTF shut down. Thus, Gore was correct in finding Wind I not to be an accessory use. Furthermore, the Bylaw requires an accessory use to be “customarily” (commonly or habitually) incidental to a permitted use, taking into consideration the size of the lot, the nature of the use, the structure of the area, etc. The court determined that since a windmill is not commonly or habitually associated with a wastewater treatment plant, it was reasonable for Gore to find it not to be an accessory use in this respect.

Drummey v. Town of Falmouth Zoning Board of Appeals, 2013 WL 3205142 (Mass. Sup. Ct. 6/18/2013)