Massachusetts Appeals Court Overturns Wind Turbine Zoning Ruling

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In Drummey v. Town of Falmouth, the Massachusetts Appeals Court overturned a Superior Court ruling and held that the Town of Falmouth incorrectly failed to obtain a special use permit from the Falmouth zoning board of appeals in order to construct and install a wind turbine on town land. 87 Mass. App. Ct. 127 (2014).

Residents living near a Falmouth wind turbine installed in 2009 and known as “Wind 1” allegedly suffered significant distress from the resulting noise and sound pressure generated, and sought an enforcement action from the Falmouth building commissioner that the town was in violation of a Falmouth zoning by-law. Id. at 128. By-Law § 240-166 provided that a petitioner may apply for a “special permit” to allow the installation of a windmill, but the Town of Falmouth had not applied for a special permit prior to installing Wind 1. Id. The Falmouth building commissioner denied the neighbors’ request for an enforcement action on the grounds 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.” Id. The Falmouth zoning board of appeals subsequently affirmed the building commissioner’s ruling. Id.

Plaintiffs then brought various actions for relief in the Barnstable County Superior Court. Id. After consolidation and a bench trial, the Superior Court deferred to the opinion of the building commissioner that the Town itself did not need to obtain a special permit to construct a windmill for municipal purposes, and affirmed the decision of the Falmouth zoning board of appeals. Id.

On appeal, the Appeals Court noted that the town of Falmouth zoning by-laws specifically identified windmills as an accessory use by special permit, and did not contain any exemption for the town from its provisions. Id. at 129-30. The Court reasoned: “[t]herefore it logically follows that windmills could not have been intended to fall within the more general municipal purpose as of right,” provided by a different section of the by-laws. Id. at 129. The Court found that the decisions of the zoning board of appeals and the Superior Court relied on an incorrect interpretation of the by-laws and were unreasonable and arbitrary. Id. at 130. The Court thus reversed the Superior Court and held that the Town of Falmouth had to make an application for a special permit for the wind turbine. Id.

The Drummey ruling is yet another important reminder to local officials and building inspectors that the language of state and local laws, regulations, and ordinances must ultimately guide zoning determinations. Massachusetts courts will overturn decisions under local by-laws if those decisions unreasonably apply the language of the by-laws to benefit the municipality that enacted those by-laws.


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