MA Appeals Court Finds Town was Required to Obtain Special Use Permit for Wind Turbine on Town Land

Landowners who lived between 1,300 and 3,200 feet from a wind turbine known as “Wind 1” that was installed on town land at its wastewater treatment facility (“WWTF”), alleged significant distress from sound pressures and noise from the operation and sought an enforcement action by the Town of Falmouth’s building commissioner asserting that the town was in violation of town’s zoning by-law by operating the wind turbine without a special permit. The building commissioner denied the landowners’ request, and they appealed. The zoning board of appeals affirmed. The Superior Court affirmed, and landowners appealed.

At trial, the landowners had argued that the building commissioner and the ZBA incorrectly interpreted the by-law to allow the issuance of a building permit for Wind 1 without a special permit, citing § 240–166 of the by-law which provides that a petitioner may apply for a special permit to allow construction of a windmill. The judge, however, deferred to the opinion of the building commissioner, affirmed by the ZBA, that the by-law “does not apply in the limited circumstance where the Town itself desires to construct and operate a windmill for municipal purposes in a district where all such purposes are permitted as of right.” The court stated that in reaching the decision that a special permit was not required, the building commissioner determined that Wind 1 is a “municipal purpose” that falls within the enumerated community service uses permitted as of right in § 240–30B of the by-law, which includes: “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.”

On appeal, the Court determined that as in other districts of the by-law, windmills are specifically designated in the public use district as an accessory use by special permit. Therefore it logically followed that windmills could not have been intended to fall within the more general municipal purpose as of right within § 240–30B of the by-law. Furthermore, § 240–18 of the by-law states that where an activity might be classified under more than one of the within uses, “the more specific classification shall govern; if equally specific, the more restrictive shall govern. Uses not classifiable under any category listed for the applicable district are prohibited, except that a use listed nowhere in Articles V through XIII may be allowed on special permit if the Board of Appeals determines that it closely resembles in its neighborhood impacts a use allowed or allowed on special permit in that district.” Furthermore, § 240–17 of the by-law states: “No building or structure shall be erected, altered or extended and no premises shall be used, except as provided in Articles V through XIII, the district use regulations.”

The Court noted the classification of windmills as a permitted municipal purpose failed to consider § 240–33G(5), which is part of a comprehensive scheme to include wind turbines in the by-law and control their placement and impact in the town. Courts are not to look at provisions of a by-law in isolation; they must read them contextually. Windmills were added as Art. XXXIV of the by-law by an amendment authorized by a vote of the town meeting on September 10, 1981. The public use district, identified as art. VII, was amended to include windmills as a special permit use in § 240–33G(5) of the by-law, and the ZBA is the permit-granting authority.

Because the by-law does not contain any exemption for the town from its provisions, it is apparent that the decisions of the ZBA and the Superior Court judge, which relied on an incorrect interpretation of the by-law, are not entitled to deference.

The landowners also asserted that the town failed to obey the use permit requirements in § 240–166D of the by-law which requires considerations of potential impacts on neighbors as well as safety in the operation of windmills, and it appears that many of the requirements are specific to wind turbines and are not found in local or Massachusetts building codes. The building commissioner testified that he issued a conventional use and occupancy permit and did not assert that such a permit indicated compliance with the requirements of § 240–166D. The Court held that the Town must also comply with these requirements.

Drummey v. Town of Falmouth, 2015 WL 790013 (MA App. 2/26/2015)

The opinion can be accessed at: http://caselaw.findlaw.com/ma-court-of-appeals/1693214.html