Town agrees to reduce operating hours of turbines; Issue far from over as final settlement still must be reached 

Falmouth’s wind turbines will return to their 12-hour operation following an agreement reached between neighbors and town officials in Barnstable Superior Court yesterday.

The agreement is tied to Neil P. and Elizabeth Andersen’s claim that the town’s wind turbines constitute a nuisance, which was affirmed by the Falmouth Zoning Board of Appeals in May. The town has since contested that appeals board decision in superior court with initial proceedings held in September and an ensuing one held last month.

Prior to yesterday’s hearing, Falmouth selectmen had decided in a 3-2 vote to increase the operation of the turbines from their 7 AM to 7 PM model to one in which the machines would be operating from 5 AM to 9 PM as a way to generate enough revenue to cover the town’s expenses.

But that changed yesterday when Barnstable Superior Court Judge Christopher J. Muse directed both parties to engage in discussions to determine if there was any agreement on a temporary plan of operation of the turbines while the two sides work toward a final settlement.

Town counsel Frank K. Duffy Jr. and selectman Rebecca Moffitt, representing the town, came to an agreement with the Andersens’ attorney, J. Alexander Watt of Barnstable, and Christopher Senie of Westboro, who is representing several neighbors as parties in the case.

As part of the agreement, the town will also direct building commissioner Eladio R. Gore to devise a plan to eliminate the nuisance. The first step in that plan will be to begin acoustic testing in a variety of conditions, with one turbine running and both running at various times.

J. Malcolm Donald of Blacksmith Shop Road, a vocal opponent of the turbines who attended yesterday’s hearing, lauded the temporary agreement. “I think it was earth shattering that the parties finally, after more than three years of disagreement, actually sat down and talked,” he said. “I think it is kind of a stroke of genius of the judge. This is economical judicial action.”

While progress has been made toward a final resolution, Mr. Senie said nothing has truly been settled. “There really isn’t any agreement that has been reached. There’s been a consensus that we should take a look at a possible global settlement of [four] different pieces of litigation. We have a long road to travel to get there,” he said.

Those four lawsuits, he said, include yesterday’s as well as two separate nuisance claims against the town, one brought forward by the Andersens and another by his clients, who live near the wind turbines. The fourth lawsuit is an appeal of Barnstable Superior Court Judge Robert C. Rufo’s decision in June that Mr. Gore did not need a special permit from the appeals board to erect Wind 1, which became operational in March 2010.

In order to reach a final settlement, Mr. Duffy wrote in an email this morning that the neighbors will have to submit a list of proposed actions to the town that they believe will end all outstanding zoning and nuisance claims. That list will be discussed by selectmen once Town Meeting concludes next week.

Both parties will report on the status of negotiations to Judge Muse by Thursday, November 21.

“We are still at the very beginning stages,” Mr. Senie said. “Judge Muse did a great job to begin to shape a global settlement,” he said. “The town agreed to go back to the 12hour operational period from 7 AM to 7 PM and we appreciate that very much as an interim measure. We’re glad to have that while we have real discussions about a final and formal settlement.”

Whether an agreement can be reached, he was unsure, although he was pleased to see the direction negotiations are heading in. “I think we arrived at a new moment yesterday,” he said. “It is positive and constructive. I don’t know if it will prevail. We have an awful lot of people who have to agree on an awful lot of items. I’m not sure what will happen, but everyone is sincere about this.”