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“[Neil] Andersen said he wants the town to shut the turbine off until a mitigation plan is created. ‘I’m just hoping someone will please turn it off until it gets figured out,’ he said. ‘That thing is dangerous. If it doesn’t get stopped we’ll be forced to move. Our house is uninhabitable.’”

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—Aaron Gouveia, Cape Cod Times (12/3/10)

FALMOUTH — Residents who live near the municipal wind turbine on Blacksmith Shop Road said they simply want the town to follow its own rules.

The question posed to the town Zoning Board of Appeals Thursday night was whether the 1.65-megawatt turbine, erected nearly a year ago and dubbed Wind I, required a special permit before it was built. Town officials claim a special permit was not necessary because the turbine is a municipal use, but neighbors think the town exempted itself from its own bylaws.

Controversy began before Thursday night’s meeting even started when Matthew McNamara, the zoning board chairman, was asked by Frank Duffy, the town’s attorney, to recuse himself.

Duffy said McNamara has been quoted in the media as saying the town was “wrong” to have ignored its own bylaws in this case. He said the comment tainted McNamara’s impartiality.

McNamara recused himself without further discussion.

The hearing began with Alexander Watt, the attorney representing Neil and Elizabeth Andersen of Blacksmith Shop Road, offering evidence that the town bypassed its own zoning laws.

Watt cited a section of the town’s zoning code specifically related to wind turbines that calls for project applicants to obtain a special permit before any windmill is built.

“Wind I is clearly a windmill and windmills clearly require a special permit,” Watt said. “The town did not obtain a special permit and is therefore in violation.”

But Eladio Gore, the town building and zoning commissioner who determined a special permit was unnecessary for Wind I, did not cite that section of the zoning code in his decision. Instead, he cited another section that allows towns to build structures such as water towers, police stations and parks “by right” if the project serves a municipal purpose.

“It states ‘all’ municipal purposes,” Gore said during Thursday night’s meeting. “And we determined (the wind turbine) is a municipal purpose that is owned and operated by the town and used to power the wastewater treatment facility.”

Duffy agreed with Gore and also criticized the Andersens for not filing a timely appeal.

The building permit was issued on June 30, 2009, and an appeal should have been filed within 30 days, Duffy said, adding the Andersens didn’t appeal until 14 months after the building permit was issued.

But Neil Andersen, as well as a half dozen other residents who spoke at Thursday night’s meeting, said they were never notified by the town after the building permit was issued.

Christopher Senie, who represents the Andersens and 16 other residents who live near Wind I, said the issue of proper notice dovetails with having to acquire the special permit.

He produced a 2005 town-sanctioned wind turbine feasibility study that said a special use permit is required for the construction of a turbine in Falmouth. He said the study gave the affected residents the expectation that there would be a special permit process during which their concerns would be heard.

Senie said a special permit process conducted now could be concluded in a week and could give neighbors an opportunity to seek safeguards.

Andersen said he wants the town to shut the turbine off until a mitigation plan is created. “I’m just hoping someone will please turn it off until it gets figured out,” he said. “That thing is dangerous. If it doesn’t get stopped we’ll be forced to move. Our house is uninhabitable.”

After nearly three hours of heated discussion, the zoning board voted to continue the hearing until Jan. 20.