Wind News Update: Falmouth Says Enough—But at a High Price!

By Lisa Linowes -- July 20, 2017

“It may be a decade or more before Falmouth can heal from the divisive battle that raged since 2009. Paying off the $14 million will be a constant reminder. It is unlikely that the residents, the locals, will be quick to trust local and state officials who put ideology and self-serving monetary gain ahead of the health and welfare of others. In that respect, Falmouth is like every other wind project battle we’ve followed.”

After seven years of public hearings, nuisance complaints, state-funded facilitations, dueling noise experts, and several fatal court rulings costing hundreds of thousands, the Town of Falmouth has finally decided to abandon its defense of the town’s two Vestas V82 (1.65 megawatt) turbines.

The last straw came on June 19, 2017, when Massachusetts Superior Court Judge Cornelius J. Moriarty II upheld the Zoning Board of Adjustment’s 2013 decision that found the turbines—known as Wind 1 and Wind 2—caused a nuisance to nearby properties by “directly and negatively” affecting the health and well-being of Barry and Diane Funfar. The two 397-foot tall towers sit just 1600-feet and 1560-feet respectively from the Funfar residence.

While many have followed the story of Falmouth, and the anguish the Funfars and others endured living so close to the turbines, few may be aware of the aggressive role the State played in pushing the project on unsuspecting citizens, and the enormous cost of taking it down.

Background

The turbines were first contracted in November 2005 by the Massachusetts Technology Collaborative (MTC), the quasi-public agency who, back then, was tasked with encouraging renewable energy technologies in the state. MTC forked over $5.28 million in ratepayer money[1] for the turbines and set about its initial plan to construct a wind energy facility within the Town of Orleans’ watershed.

Blinded by the idea of getting the turbines installed, the MTC board and staff, failed to fully assess the issues when building in sensitive watershed areas. By time they took delivery of the turbines in September 2006, site planning had delayed construction and MTC eventually postponed the Orleans plan indefinitely.

The agency’s next targets were nearby Mattapoisett, Mass., and neighboring Fairhaven, Mass. But public opposition to the giant structures over environmental concerns and proximity to residential areas stymied the effort.

By 2008 MTC looked to cut its losses by unloading the turbines at the original purchase price—less the 2-year Vestas service warranty, which had expired. Despite a shortage of 1.5+ MW-scale turbines nationwide, there were no immediate takers in Massachusetts. Delays in selling meant warehousing the turbines in Houston, at storage fees as high as $3,000 a month.

The Town of Falmouth stepped up shortly thereafter, and through a combination of general obligation bonds, grants and advanced payments from the State for renewable energy credits (“RECs”), acquired Wind 1 which was placed in operation by March 2010. Noise complaints poured in immediately and by time Wind 2 was erected in December 2011 (paid for entirely with federal stimulus money[2]), the Town had curtailed Wind 1 and permitted Wind 2 to run on a trial basis to determine public reaction.

Noise Complaints and Actions

The turbines were sold to Falmouth with the State’s assurance they would have no impact on neighboring properties and would only prove profitable for the community. But those living within a half-mile of the turbines were severely impacted, and public debate over what to do was becoming increasingly divisive.

Falmouth officials and state employees worked to mitigate the noise concerns, but by January 2013, the Selectboard threw its support behind removing the turbines and reached out to the State to understand the cost of doing so. The MassCEC[3](now in charge of the project) waited until April before issuing a memo, in which it rigidly asserted that it would not forgive the town’s financial commitments should the turbines cease operation. The Massachusetts Water Pollution Abatement Trust wrote separately that a federal statute governing the $5 million grant for Wind 2 mandated the money be repaid. Accordingly, the total cost of decommissioning was estimated at $14 million including expenses, debt, and state/federal contractual clawbacks.

Then Selectboard chair, Kevin Murphy, expressed his frustration to voters in saying, “The state is hell-bent in not having a failure with regard to wind energy. There is nothing wrong with clean energy in this state, but this particular project in this particular place is wrong.”

Despite the harm to fellow residents, Falmouth voters were unwilling to support borrowing the millions needed for decommissioning. But their ‘no’ vote only delayed the inevitable. At around the same time, Falmouth’s ZBA ruled the turbines a nuisance and directed the Building Commissioner to take all steps necessary to eliminate the problem. This action was met with the Selectboard’s decision to appeal and the fight continued until Judge Moriarty’s recent decision.

Eventually, the MassCEC Board authorized forgiving some of the town’s financial commitments, in particular the $1.8 million in pre-paid REC payments, but only if the turbines were stopped under a court order. If the Town acted on its own, there would be no forgiveness. But this action was not without complaints. In meeting minutes from March 26, 2014, board member Martin Aikens indicated “this is what you get when a few people in the town wreak havoc and that he is very frustrated that it only takes a small percentage to take it all away.”

Meanwhile, remedial actions taken to lessen the noise impacts involved curtailing the turbines during certain hours of the day. By the time Judge Moriarty’s ruling was issued, Wind 1 was shut down 24/7[4] and Wind 2 operated only six days a week, twelve hours a day, when the wind was blowing over 6 miles per hour.

Neighbors More Credible

Those harmed by the Falmouth project never gave up and in the end the court found their arguments more credible.

Rather than getting buried in competing opinions over whether the turbines exceeded permitted noise levels, the judge insisted that “nuisance is not defined in the zoning bylaw by any numerical standard.” The standard, he wrote, “is what ordinary people, acting reasonably, have a right to demand in the way of health and comfort under all the circumstances.” When the town tried to dismiss Barry Funfar as “hypersensitive to sound,” the judge reminded Falmouth that Mr. Funfar was “not a lone voice crying in the wilderness” and that others suffered the same situation.

Moving On

There are numerous other aspects of the Falmouth debate that we can’t cover in detail that will remain fresh in the minds of many for years to come. Paying off the $14 million will be a constant reminder. It is unlikely that the residents, the locals, will be quick to trust local and state officials who put ideology and self-serving monetary gain ahead of the health and welfare of others. In that respect, Falmouth is like every other wind project battle we’ve followed.

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[1] The MTC and MassCEC are largely funded through systems benefits charges collected through each electricity customer’s monthly bill.

[2]  Section 1605 of the American Recovery and Reinvestment Act of 2009 (ARRA) included a “buy America” provision which should have disqualified Danish-made Vestas turbines. Falmouth and MTC were able to obtain a waiver from the provision after GE, the only American turbine manufacturer, refused to site turbines so close to occupied structures, roads, property lines and public access areas. Lucky for MTC, Vestas did not care where its turbines were located.

It was only after noise complaints relating to Wind 1 were filed did Vestas react by withholding construction of Wind 2 until town officials confirmed that Falmouth would be “fully responsible for the site selection of the turbine” and would bear all responsibility for addressing any mitigation needs of the neighbors.

[3] After legislation enacted in July 2008 (The Green Communities Act, S.B. 2768), the Massachusetts Clean Energy Center (MassCEC) was formed and became the administrator of the Renewable Energy Trust Fund. Previously, the Trust Fund was administered by Massachusetts Technology Collaborative (MTC).

[4] The decision to shut down Wind 1 was tied to a court order and subsequent ZBA order over the failure of the town to secure the proper permits as defined under Falmouth’s zoning regulations.