QUESTION: Is it 'balanced' if the siting of wind energy installations should potentially compromise the wellness of neighboring residents and their right to enjoy their private property?
HEALTH
The Falmouth “... Board of Health ... has concluded that wind turbines cause sleep deprivation and associated problems.” (minutes 3/4/2013 -http://www.falmouthmass.us/meeting.php?depkey=health&number=5441) The FBoH forwarded two letters to the Mass DPH & DEP asking for urgent and immediate interim guidance regarding the complaint effects (Mar 12, 2012 & Mar 14, 2012). After the May 24, 2012 public record testimonials http://www.cbuilding.org/sites/cbi.drupalconnect.com/files, the FBoH forwarded a June 11, 2012 letter to Mass DPH requesting assistance in coordinating an epidemiological study.
The Mass DPH reply -http://www.falmouthmass.us/health/dph%20(s%20condon)to%20boh%20wind%20turbines%208-28-12.pdf with respect to interim mitigation measures for the two town owned turbines, the agency pawned the noise problem off to the Mass DEP and pointed toward the recommendations made by the Wind Turbine / Health Impact report (which by the way, is still allegedly being reviewed - 1 1/2 years later).
MONEY
The obstacle to conducting field research in these communities with wind turbine siting problems is best explained by the FBoH minutes of Aug 20, 2012 http://www.falmouthmass.us/meeting.php?depkey=health&number=4991 - “... Ms. Condon (Associate Commissioner Deputy, Bureau Environmental Health) emphasized FUNDING CONSTRAINTS faced by the state.”
Cuts to Mass DPH environmental health and laboratory services have had direct impacts on the department’s ability to provide technical assistance to local boards of health (the Mass DPH budget has been cut by $92 million (16 percent) in FY10).
According to a FBoH statement at it’s Jan 28, 2013 meeting, the DPH was initially willing to help with a survey designed to quantify complaints about Falmouth’s three industrial wind turbines. Yet three months later, the agency’s response was considerably different when the agency wrote and told the FBoH to completely remove the DPH from any and all activities involved with Falmouth’s wind turbine problem. And according to FBoH minutes (http://www.falmouthmass.us/meeting.php?depkey=health&number=5359) the DPH further stated in their letter to FBoH “the DPH ... wondered what the Board of Health was going to do with the information collected and questioned the purpose of data collection when the Board of Health had information from a complaint log and a public hearing.” The agency seemingly infers that enough local data and local information had been gathered to make a local determination.
THE LAW
Recently the Barnstable Superior Court (Judge Rufo) rendered its’ decision regarding whether the construction and operation of Wind 1 (in Falmouth) required the scrutiny of a “special permitting process.”
Rufo’s comments, leading to his interpretation of the actual merits of the case, “The plantiff (Falmouth residents) must establish by direct facts and not by speculative personal opinion that his injury is special and different from the concerns of the community at large.” The operation of Wind 1 was argued to create noise which interferes with activities such as sleeping, and noise is listed as an adverse impact pursuant both to Sect. 240-1 (one purpose of the Bylaw is “to conserve health”) and Sect 240-166 (whether a windmill will create “adverse impacts on the neighborhood”).
Accordingly, Judge Rufo found for the Anderson’s (and others). They were (are) aggrieved on these merits and this is very likely the reason the Falmouth Zoning Board of Appeals upheld the Anderson’s recent nuisance appeal.
Even with this finding, Rufo felt it reasonable not to require special permitting for a capital municipal project, on public use districted land, when the public good is to be served (Rufo is apparently not aware that with the current mitigation protocol - 12 hours on/off - the project operates at a $140k deficit).
The zoning issue was the only contention in the suit, and NOT whether neighbors were being adversely effected. Yet Rufo admits that neighbors are being adversely impacted, but is still willing to grant a “waiver” of the process designed to prevent this from occurring.
I’m certain his decision allows room for appeal.
CONCLUSION
The desire for renewable wind energy is not at all in question. I believe “everyone” can agree on that. The ‘balance’ between public good and individual property rights is the concerning issue.
Typically, the balance between the two, in the context of municipal capital development, has been struck by the eminent domain process. And typically, eminent domain takings are conduct before the project begins.
Yet before the eminent domain process begins, whether the industrial wind turbines are operating or merely planned, a regulatory protection guideline must be establish to identify which properties are likely to be violated, and in turn taken for the public good.
It’s clear that creditable regulatory guidance does not exist. Nor is it likely to be established any time soon since “there is no money” to conduct the research. Yet, there exists enough state money to fund the acceleration of potential more incorrectly sited industrial wind turbines.
The “cart before the horse” syndrome if ever there was one!
