##VIDEO ID:NgY_3Kgb3pQ## [Music] [Music] [Music] the [Music] [Applause] [Music] good evening everybody Welcome to the oh jeez what day is it November the 18th sorry 19 oh I made it full through a full day of work not knowing the date that's probably not good um welcome to the November 19th zoning board of appeals hearing um I'm just going to go through and introduce the board to my left on from your view is the vice chairman of the board Ken Foreman to my left is TJ hurry he is the clerk of the board to TJ's left is Ed van Kieran he's a voting member of the board and to Ed's left is Paul Murphy who's also a voting member of the board sir budro is our zoning administrator Mark babowski is here he is special counsel to the zoning Board of appeal on these matters and R Gyer is our recording secretary the zoning board of appeals is charged with applying the zoning bylaws for the town and considering requests for special permits variances and appeals as provided in the bylaws which have been approved by town meeting and the Attorney General's office for the Commonwealth decisions are made through the public hearing process which will'll all be participating in tonight our goal is to hear testimony from the applicants and the public and allow full and fair discussion to the project prior to rendering a decision the three matters that are on tonight have already been open to the public we've already had some testimony and we're going to be um I believe trying to wrap up at least two of those and continue on with the town's special permit application public comments um should be directed only at the the project and only at the application that's before us so obviously we have two different matters here and if you're going to be making public comments you should be directing the specific applications that are before the board um and we're going to since there's so many people here be very strict with our two-minute um rule so if you have comment to give um from the public please adhere to the two minutes Rule and if not I'll be reminding you gently so with that um think we're going to be taking the appeals first I believe so I would need okay I would like to move then that we take uh uh 6815 the 154 blacksmith shop Road appeal of wind turban one and two out of order and the other R both please uh and also seven followed by 70-15 Okala also 154 blacksmith Road Chop Road wind two appeal is there a second that second okay so that was Ken and TJ all those in favor I I yeah great so so the modify procedure I believe is attorney tilletson are you speaking first no I think what we agreed I apologize um attorney s and attorney okay and then their and then their clients would okay and I don't want to speak out turn but I think that's what we discussed um would each be given two minutes if they chose and then I would speak in you what El to the public okay thank you thank you for the explanation too attorney W thank you Alexander watt for Neil and Elizabeth Anderson probably won't even use my five minutes I think you've probably heard everything before uh just a couple of things again on wind one I think your Elder a prior Elder appeal controls in that and I believe that you should to Simply Echo that and issue a ceasing assist order with respect to win one on the win two uh aspect of the appeal excuse me if I can just stop you to if anybody's recording this meeting um I just need them to identify themselves prior to okay so I have two so sirn Carlon cross and could you just provide your address for the record 8 Church Street okay thank you and I believe I saw another hand okay thank you and attorney W I'll return it to you and I had some hands in the air so if you could speak up as well that would be great thank you thank you um okay so again with uh with respect to Wi two now the town in their memorandum of 1111 does concede there was no actual notice to the Anderson of the issuance of the building permit so the question uh at least with respect to the 30 day period is whether the Andersons were on a duty of inquiry now the town is also uh stressed in its memorandum that wind two and wind one are distinctly uh separate projects so it suggest to you that simply the fact that the Andersons knew when one was up in no way uh places any duty of inquiry with respect to Wi two um uh again just briefly with respect to this uh idea that when two was generally well known that there had been um uh notice through public hearings or through town meeting votes or through announcements of contracts is all well and good but the town in order to show that they had a duty of inquiry as a result of their notices have to show that The Andersons actually had had those notices U there's nothing to show that uh the Andersons had that notice and I believe in their affidavit they indicated that there was no uh no notice so that's with respect to the 30day rule now the main thrust of the town's argument here really Falls on what is called latches and latches is an equitable remedy I'm sure your Council would uh tell you that it it is what is called an equitable remedy and what it is is an unjustified unreasonable delay working to the detriment of the landowner now I don't think any of the cases really are going to be helpful to you in this area all those cases dealt with uh a single project a single uh permit or a single uh entity this is distinctly different wi one and wi two are identical in terms of their zoning posture when one has been determined to require a special permit when two likewise would require a special permit under the zoning bylaw um in August of 2010 wind one was the only turbine that was up and operating and the Andersons began their appeal process at that time by filing a request for enforcement with the town Building Commissioner so the town had knowledge at that time that there was a what I don't know how they viewed it but it was a significant challenge as was borne out ultimately by the appeals court that determined that a special permit was required irrespective of that the town voluntarily decided to proceed with its plans for wi to its Investments its building and any harm that the town suffered was self-inflicted uh if one wants Equity one seeks Equity one must do equity and I would suggest to you that uh there's no showing here that the town has um acted equitably um just one last thing uh and I don't want to get into the disclosure of uh confidential discussions too much now but the town indicates that uh the town was using that not to prove the truth of the matter but to impeach the Andersons as to whether they were really suffering harm whether they uh really were suffering harm because really wouldn't they have moved away if they uh if they were suffering harm well the Andersons have lived at that property for 25 years they built it uh there was no wind turbine at the time there and to Simply suggest that well if you were bothered by it you should move away just seems disingenuous and that's really all I have to say I'll answer questions later thank you I don't know if Neil wants to speak now attorney Sun good evening members of the board Madam chair my name is Christopher senny and on this matter I represent only three elou residents Barry and Diane funfar who are out of town but their daughter chrisy is here and hopes to speak during uh the period of time when our clients are given two minutes and Linda okagawa uh who is here this evening and would also like to address the board uh I'd also like to just talk about the documents in front of you for a second uh you have several documents that are that have a bearing on the okagawa uh appeal I call it the okagawa appeal but it's okagawa and funfar making a fresh enforcement request uh after the Supreme Judicial Court ruled that it wouldn't Grant further pellet review of the appeals court decision uh what you have in front of you is a a presentation by the town of fouth which you obtained the last time we met October 29th uh I have U written a legal memorandum dated October 28th the day before the the last time we met attorney tilletson for the town has provided a memo dated November 13th and the original application or appeal from the action of AO uh is also in in the file uh what I haven't put into this file yet is the PowerPoint presentation I made on September 17th to this board in connection with win one and I would like the record to reflect that I'd like to incorporate that into this record so the June 8th request to AO Gore reads the appeals court decision applies equally to win two and in that document it states no building or structure shall be erected and no premises shall be used except as provided in the district use regulations now win two is a structure that was erected not in conformance with the district use regulations because as we now know it required a special permit um Mr Gore responded by saying I'm not going to act because no court has made a decision with regard to win two we had a court decision with regard to win one but not two and in the appeal where I brought an appeal of Mr Gore's decision to your board I wrote wind one and wind two are part of a single wind energy program the town launched at its wastewater treatment facility the town should seek one special permit or two as part of one special permit application now the reason I raised this is that I think there's a little bit of lack of clarity as to whether or not the drummy case actually already covers wind to uh wind one existed at the time that that enforcement action was brought and it went through the court system and it took 4 and 1/2 years and we learned that yes wind one should have uh received special permit when I filed a new enforcement action for wi 2 once I knew that was the law I wasn't entirely sure it was needed I wasn't sure if it didn't come under the umbrella of the drummy case already and when I received this binder from the town I was very interested with Tab four now if you look at the table of content you'll see that Tab four is identified as win two approval and permit not one but win two so if I go to Tab four the first thing I see is the special Act of the massachus Massachusetts legislature that gave the town permission uh to go into the uh utility business and in the uh first sentence it reads the town of fouth May design and install wind energy facilities plural at its Waste Water treatment facility at blackm shop Road I'm not sure that that General license from the legislature controls local zoning but it's interesting that the the permission needed from the state covered more than one turbine but if you turn two pages further you come to what is undoubtedly the key document in this entire Cas that is a memo that was prepared by Brian Curry and delivered to Eladio Gore on May 13 2008 at six days after Mr WEA had prepared the special permit application for win one and what the town planner is saying in this memo is if you agree that no special permit is needed s please sign this memo which he did on May 13 2008 now keep in mind we're in the section on permits for win two but this memo the Brian Curry memo was for win one and it's very interesting to note that the town did not go back to alad gore The Building Commissioner and asked for a new interpretation of the zoning bylaws so the first party in this room that treated win 2 as being kind of co-joined with win one under a single umbrella is the town of fman it could have gone back to ladore and said hey by the way for win two we would like you to give us a determination letter and it didn't do so so if the town has treated wind two as being under the umbrella of wind one it is quite possible and again you may have to get guidance on this point from your Council that wind two is already under under an obligation to uh to have received a special permit so now we get to these two boxes that we're confronted with one is the the 30-day appeal period the key time frame is March 18th to April 18th 2010 the building permit was issued and I have pointed strongly to Linda okagawa it's important to remember that Linda lives closer to either turbine than any other resident in town and Linda gave an affidavit the original was delivered uh when we met last and in her affidavit she says I didn't know anything about wi 2 uh until Malcolm Donald knocked on my door in October of 2010 that's well past the 30 days so I think in terms of that box we really don't have a case where there was actual constructive knowledge of the building permit sufficient to trigger the requirement to take action the town as mentioned uh it was in the general domain but the courts have ruled pretty uh clearly that it can't just be general information about a project it has to be knowledge that there was a building permit issued and you need to investigate that within that first 30 days so really as attorney watt said we come to latches latches says that even if you're within the six years and as you know our zoning Statute in my opinion is a little bit broken we've got 8+ 14 plus 15 15 that gives you 30 days and you got section seven that gives you 6 years and I think our courts have struggled with this if you knew about the building permit you got only 30 days to appeal if you didn't you've got six years and that this confuses the judges and they don't know how to deal with it and they've taken this Equitable remedy that has existed in our legal system since before we were a country the doctrine of latches and brought it in to try to help fix what's probably a broken zoning system and there are four elements first of all you should know it's an affirmative defense so even though we're within the six years the town is grabbing onto latches and saying we can defend ourselves against this claim that that we're untimely uh but it's their burden of proof so if there are factual questions that you don't know the answer to and you're not sure whether the doctrine of latches should bar this enforcement action it it has to be determined in our favor if if you're balancing things because the burden is on the town it's a question of fact and it gets resolved on a case-by Case basis and this is a very unusual set of facts so I think you have to decide should Linda okagawa and Barry and Diane funfar have brought an appeal as soon as they did know about wind to or did they have the luxury of waiting uh and bringing that enforcement action after they knew it was a good cause of action I mean they were looking at the appeals court first the trial court and they lost the case they went to the appeals court and it was uh it was successful and then it went up to the SJC so there was a reason to wait we thought we were under the umbrella of wind one anyway but in addition to that we thought we were keeping our eye on the six-year statutory time frame and we brought this enforcement action within that period uh 5 days after the SJC rule but then you get down to the real the two issues that are the nuts and bolts one is the reasonableness of the delay was it reasonable or not to delay in bringing the wind 2 enforcement action and the detriment to the town by the time Linda okagawa learned about wi 2 October of 2010 the Construction contract for its erection was already signed that was done back in January January 15th of 2010 the August 3rd letter from the town to Vesta saying yes we take full responsibility for the sighting of wind 2 was already sent and the town was well aware of the distress and the request that was being processed with regard to win one the lawsuits about whether or not a special permit was needed so I'll end by going all the way to 1910 sometimes in the cases we look at you find verbiage that goes very far back and it sometimes provides the best uh words that we can chew on and reflect on as you try to decide this very difficult question uh keeping in mind those four points so this is a case that is in the binder provided by the town it's the case of the wolf versus apovian but I'm not going to close by reading that case within it there's a quote from the case of Stewart versus finlin Supreme Court of Massachusetts if there has been un reasonable delay in asserting claims or if knowing his rights a party does not seasonably Avail himself of means at hand for their enforcement by suffers his adversary to incur expense or enter into obligations or otherwise change his position or in any way by inaction lulls suspicion of his demands to the harm of the other or if there has been actual or passive acquiescence in the performance of the ACT complained of then Equity will ordinarily refuse her aid for the establishment of an admitted right especially if an injunction is asked it would be contrary to equity and good conscience to enforce such rights when a defendant has been led to suppose by the word or actions of the plaintiff that there was no objection to his operations so there was objection it was objection to wind one identically situated with wind two there wasn't acquiescence we weren't within the 30 days and I don't think we lulled the town in into anything I don't think they changed any of their decision making I don't think they entered into a contract that they wouldn't have had they known that we felt that wi two should be included with wind one so I think this antique language helps us and it's in the binder before you you have these four things to consider and I won't I wouldn't call this a close call but I would call this a very interesting legal question and please don't shy away from being the court you this is a quasi judicial exercise here you are the court of first instance and it's Case by case and you need to make a decision about whether or not you feel we put the town in a bad position by waiting until the court system had let us know this was a good cause of action thank [Applause] you attorney do you want your well I guess attorney tilletson are you going to go first is that or was it the I apologize the client's next okay thank question and board question we finish up side and then turn to the okay so attorney Sunny if there's a couple public comment like I said we'll restrict it to two minutes per [Applause] person I'm Linda okaga U 821 West B highway I'm 1225 ft from uh wind to my home is since February 16th 2012 when wind 2 began operation I've experienced the following daytime symptoms in the presence of the operating turbines uh headaches ear pain pressure and popping balance problems debilitating fatigue mental confusion lack of focus and productivity body tension stress dizziness queasiness and heightened sensitivity to flashing light I'm affected both outside of my property and inside my distress is greatest while inside with the windows closed when I'm away from home or the turbines are off my symptoms generally lessen over a period of time I'm often compelled to leave my home for relief from a turbine Refugee perhaps you remember Veterans Day last week in short here's how my day went November 11th 2015 7:40 a.m. rain loud roaring outside 8:00 and on dizzy and shaky off balance walking queasy at that point it was a North Wind 22 mph with gusts at 35 10:00 still roaring outside very audible inside 1:00 been hiding out in the basement all all day bad headache and dizzy when go upstairs packing to go out 1:0 or so when two went off don't know why but I'm so thankful as I haven't been able to accomplish a thing today 115 back on again and roaring like a plane darn it have to go out to stabilize myself at that point it was 24 miles north 24 and uh gust of 37 at 4:30 outside I felt better and returned home um I was floating around fam trying to find a place to rest uh then it was Northeast uh at 18 Gus 31 I had to stay in the basement and it was still loud so I'm determined to protect my good health thus I have to go away from home as attorney senny has documented there has not been a comprehensive investigation with respect to the operation of win 2 the special permit process promotes due diligence in the detailed evidence and prudent informed and independent judgment are applied to ensure there are no adverse effects an adverse effect that is particularly disturbing to my husband and me is intense and prolonged Shadow flicker causing headache dizziness confusion and visual discomfort these are the effects on us and visitors when the strobing in circles are our yard and enters our house this year it has just begun in mid October like other years it will likely continue until the end of February so it will be all the way to 2016 the Falmouth planning board spent months and months educating themselves about wind turbines before creating the town's wind wind energy bylaw unless you are fully informed about the daytime effects of wind two and understand the impacts of what is likely to occur in the coming months high winds 4 and 1 half months of strobing flicker the need to stay indoors with the doors and windows shut these are all factors that aggravate the distress of those living too close to Industrial siiz turbines if you don't know understand this you can't fairly judge the impact of the building commissioner's denial of enforcement before proper studies and Analysis I and I hate to interrupt you because I know I I just want to be consistent with everybody and I've already indulged you a little bit if you if a short paragraph and I do apologize but it is a short parag thank you before proper studies and Analysis are done and discussed in a public process what evidence do you have that it is prudent to run win two that you can judge if there are adverse effects on the neighborhood since you don't have enough relevant information until the special permit process is completed then um excuse me the actual oh no wa you should not run the turbines until the special permit process is finally done please turn off r two now thank you thank you okay to the CL great thank you christe fun 50 old Dock Road um I'm reading this for my father Barry funfar 27 Ridge viw Drive quote this neighbor of the fouth wastewater treatment plant has been involved since March of 2004 in the town's move into windpower in hindsight it is to me a case of the town's lack of due diligence failure to investigate the r risks involved not following and even breaking the town's own bylaws deceit of a bait and switch nature that is building two 1.6 megawatt turbines rather than the proposed 660 kilow machine and worst of all allowing the fracture of this community to continue this amounts to a huge case of Fraud and deceit even town meeting was not told the potential negatives nor the size of the wind turbines at any of the three town meetings they were asked to support the project at after all of the above mistakes the only problem now is that they Selectmen will not admit that any mistakes were made they continue to push a second class of citizenship in Falmouth by denying full rights and freedom to neighbors of their failed project these wind turbines were wrongly cited for their size they are simply too close to a population of FMA citizens no wrangling over finances can correct this problem please cease the operations of falmouth's wind two turbine just as you have that of wind one these two wind turbines are equally intrusive and detrimental to my family my home and myself thank you for listening Barry funfar end quote um I was wondering if it was okay to say a few words of my own words um my dad was treated for PTSD resulting from 19 months as a Marine in Vietnam he survived 127 missions as a Huey helicopter dor Gunner my parents Residence at 27 Ridge View Drive has been my dad's safe Zone since 1979 when we moved into that house that my dad not only designed but built every part of himself he then created a created a massive Woodland Garden which truly became part of his therapy for the PTSD combined with working with the VA where he received and still receives individual and group therapy for anyone who knows my dad or had the pleasure years back of walking through the paths he had throughout his Gardens knows that this was a therapeutic passion of his 27 rid viw Drive actually used to be one of the stops of the West Falmouth garden tour today though one would barely be able to locate these paths since the start up of the turbines my dad's success at managing his PTSD has slipped backwards he not only hears them he feels them he has been unable to work outside in his yard at his own home the effects on his m Al and physical health are so extreme that he has to frequently leave his home of 36 years and this is why they're not here tonight because yet again my parents because yet again they have needed to temporarily escape the turbines traveling is great but usually one nice thing about traveling is the home sweet home feeling you get when you return my parents no longer have that with the turbine severely invading their health their lives and their well-being they certainly never expected to spend their retirement time or retirement savings on fighting to be able to remain in their home and to regain that safe Zone that they work so hard to build my dad very recently shared with me that after his returning home from Vietnam Feeling unwelcomed by society that a large contingent of fmer Citizen has brought back these same feelings for him please shut down wind too thank you thank you is there anyone else okay is it just is it just is Anderson May the right to possibly comment a little bit later well we're going to be so this is what's happening we there will be public comment for the special permit application later um but right now since we did have public comment on the appeals last time we are trying to limit it so we can move this kind of keep moving so if you want to speak to the appeals I believe you spoke last time but you're welcome to again um they have to go now yeah well yes I think that's the it's only 2 minutes whether it's now or later yes because we're because I'm going to a we're going to ask questions then attorney tillotson's going to have an opportunity just to keep it orderly thank you mat are we is it everybody sorry and again I apologize but are are you asking for comment from all members of the public at this point just those who want to speak on the appeals correct I guess I would defer I I know Council spoke and I know you work out your own thing and then so I want to make sure I'm I I thought it was going to be just clients first litigants first and then you would and then me and then members of the public to the thank you no that's I wrote down notes earlier I just that's helpful thank you so but we will be asking questions I think it makes sense to ask question questions of attorneys wat and sunny now unless anybody else disagrees that way it's sequential unless you I was thinking that uh attorney tson might clarify some of the at least I'll have her perspective you have a question perfect so we'll do it that way thank you thank you thank you uh very much members of the board Madame chairman and members of the public Diane tilletson representing the town of Felman um with everything going on in the world and everything going on in all of your lives I'm sure I would be remiss if I didn't start this presentation the way I meant to end my presentation the last time I was before you which is to say thank you uh to each of you on behalf of the bo uh town of fman I know that you've spent an incredible number of hours of pouring over the voluminous materials that we have submitted to you sometimes uh at the last minute and untimely uh and I think all Council apologize for doing that um but it this is a very difficult case it involves the interaction of law science medicine and a whole lot of emotion and I know it's not it is not your typical zoning setback case and I just want to say again on behalf of the tal that we really appreciate the time and effort uh that you're putting into to this I have just a few comments on the enforcement I'd like to ask first of all that you continue to examine very critically the evidence and the testimony before you um ask what the sources of the testimony are what the qualifications are are those who have speaking those who are speaking whether there's any possible bias from any one that you're hearing from another point I'd like to make is that this is a public project the town of Falmouth is the applicant in the special permit case and is the respondent here and the town of Falmouth is somewhat different from your usual cases because in addition to being the applicant before you they are also representing the people of the town of Falmouth and unlike the typical case where you have a developer or a land owner who might be coming to you for zoning relief or being challenged uh with respect to a uh pending enforcement order in the in this case there are a whole lot of members of the public who do not want to see wind to shut down some of whom are neighbors to the wind two project and some of whom live as close as the applicants for zoning relief in this case and I think you have letters from A lot of people in your file and I would encourage you to read those letters and emails I know uh sir has been um uh providing us with copies of all the letters that come in and again I would just encourage you to read those and to consider the fact that this is a a project that was um put up for the public uh good I'd ALS o like to focus now a little bit on the presentations that you heard from attorney Watt and attorney senny wind two is different from wind one in several critical respects and I'm not going to repeat the presentation I made last time I'm not going to go through the case law I I trust that you have it in front of you but I would like to make a few comments first off is that wi to was part of a public process there were votes taken townwide um that uh resulted in Le leaving wind tur uh wind two running even after all the issues with win one were known were well known with respect to win two the only turbine that was ordered shut down by a court was wind one or I'm sorry the only turbine uh for which the court determined that a special permit was required was wind one and there's a reason for that but wind one again was at the time the applicants for zoning relief here sought zoning relief for the very first time from The Building Commissioner wind one was already up it was operating it had been operating for several months and the town had accepted the turbine so at that point it would not it it doesn't uh it shouldn't seem at all surprising that the town being confronted with uh a zoning enforcement request asking them to ask to seek a special permit that their Town Council Building Commissioner and planning director had already told them that they didn't need would just continue to allow wind one to operate and allow the court to make that decision which is exactly what happened the town respects the decision of the appeals court and as a result of that decision is before you here uh tonight and last time with respect to wind one but there is no judicial determination with respect to wind to part of the reason for that is soundly in the lap of the applicants for zoning relief because they didn't come to you and seek zoning relief with respect to Wi two you heard uh from Chris senny and Linda okagawa Linda okagawa says in in the very same affidavit that she filed with this board that she didn't have a particular problem with wind two wind one excuse me wind one and wind two affect different people differently and Linda okagawa said she didn't have a particular problem with wind one but she also o says in that same affidavit that she learned about wi two in the summer of 2010 when Malcolm Donald knocked on her door the fact that these folks sat on their rights for five years is a classic example of latches and the convoluted analysis that my fellow Council have attempted to present Shifting the burden to the town and saying well the town had constructive notice that they needed a special permit because we appealed on what one they should have known has no basis in the law and I cited an example you if you are going to complain about a particular building a particular structure a particular project you cannot sit on your rights and wait for 5 years and wait and see essentially whether your litigation on a similar project or or even an identical project is uh determined to have Merit by a court of competent jurisdiction it would have been very easy for these folks to join their appeal at both before this board we could have you would have done this five years ago before the superior court and before the appeals court again latches it it's a classic case of latches the other critical distinction uh between wind one and wind two in addition to the fact that there was no adjudication a very public process there is no question that these abutters knew about wind two well before the uh the case at hand I'd like you to also look at the alleged harm uh suffered by the fun fars the OA okagawa and Anderson with respect to Mr and I frankly do not understand why he also is appealing win too most of the impacts to him are on win one win one has been shut down and for the record the town does not disagree that this board's decision with respect to the cease and desist for wind one should control that piece of that Anderson case we're not coming to you and saying we want you to change your mind on win one at this point we are um committed to going through the special permit process and to attempting to uh convince you that a special permit is warranted a properly conditioned special permit is warranted uh for for win one um I'd like to look at the funf fars and mizokawa for a moment again I don't believe that and Mr Anderson is particularly affected or AG grieved by wi uh with respect to uh Miss okagawa she brought a nuisance complaint before this board uh with respect to win two which this board uh determined did not make a finding of nuisance in her case she appealed that finding to the Superior Court as a result of that the court entered the preliminary injunction that the town is currently abiding by and will continue to to abide by with respect to wind two it is the there was no timely zoning appeal taken uh with respect to the building permit on wi two I would therefore respectfully urge you to leave that nuisance case in the court the the this board did find nuisance uh in the funf farm matter and of course the town appealed that and that is also pending in the superior court and that is also the subject of uh the preliminary injunctive relief that has been granted I listen to um Miss okagawa testify this evening and I listen to her one other time I've seen her answers to interrogatories in the nuisance case and I want to be respectful when these people come before you to testify but as a lawyer I have to tell you that we're somewhat H hamstrung uh in presenting before zoning board of appeals because we don't have a very powerful uh tool of cross-examination I can't stand before you and subject Linda okagawa to that what I can do uh and I have copies of um a report by uh a noted Medical Professional that I'm going to provide to you he will be speaking to you it's Dr Robert mccy on the special permit case but I'm going to provide you with copies of his report this evening and I just I it's it's pretty dense stuff um frankly but I do want to call your attention to just um three or four pages of that the first page is three pages in it's e 1110 and it's the table at the top medical and this is consistent it's not just Dr mccy medical um studies that have been done on sound and noise in general clearly State and this is not anything that's close or fuzzy the threshold for pain ear pain hearing pain is above 120 DB for sound pressure there is no question that these turbines are not uh any and I have not given you that yet so I'm going to just handed out I didn't want to distract you by giving you yet one other report and there's only three pages in this actually I'll hand it out now I'll need one second for that but I I I'll hand that out in a minute so it's the third page in and then it's just Pages 125 and 126 and again we're going to present a lot of this during the special permit and I present it now only by way of reputation of or or something to think about with respect to miss okawa's testimony there is no medical evidence to support that the symptoms which she reports which I believe are really are real symptoms are connected to the wind turbine there is also a very real psychological phenomenon which is known as the nobo effect which Dr mccy will discuss in detail when he comes but again I just wanted to call your attention to just a couple of pages in this report which I will also submit and have discussed in Greater detail during the special permit application the last and very briefly I just want to say with respect to the flicker flicker is something that is very individualized what the science has told us is that in order to experience Shadow flicker from a wind turbine the turbine has to be between you and in this case because all of these turbines would be east of these properties have to be between you and where the sun rises and it's only possible to get Shadow flicker which is the same thing that you see as you're riding down a shady Street on a in a car or in a bicycle sometimes and you see the sun kind of flickering in and out of that same phenomenon but it's only possible at certain times of the morning in this case and for very limited time periods and obviously on sunny days because the sun has to be behind the turbine the effect can be easily mitigated and again it it also has to do with the way a particular home is cited if your home is sighted so that the your windows are facing East and you happen to be looking looking out those windows you're going to see Shadow flipper but through a a mechanism of even as simple as providing Shades it's for a very limited time period it doesn't exist for hours and hours it's a matter of minutes in the morning if it's a sunny morning and the town is committed to addressing the shadow flicker issues on an individual basis where they occur and we have offered to meet with people experiencing Shadow Flicker and to provide that uh mitigation and relief and we will continue to do so um and I just want to make that point uh very clear that is all I have I would respectfully ask the board to deny based on the very strong I believe legal position that we have on latches with respect to Wi two I would earnestly ask the board to deny uh the request um on wi to uh for a cease and assist and I'm happy to answer any questions or sit down and let and let you ask questions of anybody else okay thank you let's see how does everybody feel without questions would you like to I certainly have a lot maybe we ask questions of attorney sunny and Watt first and then we go to the town if that works for everybody than sir I was looking at you but I guess the whole board questions do you have any preference what order we take them okay so we'll say attorney watt you spoke first so we'll give you an opportunity if anybody has questions for you Paul yeah um just a quick question because I'm not a lawyer is latches when you knowingly sit on your rights L latches am I phrasing that correctly latches when you when you knowingly um when you know that there's some sort of an issue there and you watch your neighbor continue it must be right well I'm not sure uh knowingly is a is an element of it the courts have described it as an unjustified unreasonable um delay in bringing your rights um there certainly would be some uh knowledge requirement to be shown that um at some point you knew you knew of the project so that's that's not disputed that at some point the Andersons knew of it certainly it was up at some point certainly by 2012 great thank you no I don't have any questions right now TJ sure Ken um I guess my my big question revolves around the relevance of the SJC decision to the win two case the requirement for an appeal the requirement for a special permit pertained to wind one is it have any relevance in your view to this wi two well it certainly does I mean these are identically sized uh turbines they are identically situated in the same zoning District the town's argument all along was that uh the wind turbines constituted a municipal use uh as a right uh that argument was rejected by the appeals court um and the appeals court held that all wind her lines are controlled by section 166 which requires a special permit so just as a factual matter uh they they are the same and wi two did not receive a special permit so that's why I say they are identically situated so you believe from a legal perspective it has some uh it binds on wind to well I think I think the town would conceive that absent of the question about whether this is a a timely appeal or not that in fact the the the the facts of both turbines are the same and and would would have the same um uh requirements under the zoning bylaw as when wi one and wi two okay that's it okay in the Anderson's affidavit that you submitted you said that they knew of win one as of March 23rd 2010 correct when did they know of wi to um you know I don't know possibly The Following fall i' I'd have to ask Neil but um that's okay so you're saying Following fall they knew about when to I really don't want to speak for my clients but it may have been a falling fall after the uh enforcement action had already been begun on when one well wasn't that the point I guess of all of this when they had knowledge right whether they had when they had actual knowledge or constructive knowledge as to win two This concerns win two and so that's omitted from the affidavit right it's it's not provided in there correct okay so but we'll say The Following fall even though you don't want to speak but around that time you um I also believe it's in the affidavits and that they were meeting with the town from between March and in August regarding operation of wind one correct do you know if they had any Communications with the town about wind two at that time not to my knowledge they didn't everything was geared towards wind one were you involved at that time I was not I was not uh involved until oh I think probably the beginning of August so okay but were you meeting with the town then once you were retained no I did not okay um okay and the building permit was received in I'm sure I have it somewhere March 2010 is that accurate or was it April March 201 18 March 18th and then it was constructed the next year is that correct I don't know it it began operation in 2012 I don't know when it physically was went up in the air when when the boom okay I think during the last hearing you had said that the and and correct me if I'm wrong I might have misheard you that the burden at this stage was that the on the town to show that you had receive notice does that sound accurate or am I misc characterizing it um well to show to show the town has conceded that there is no shown actual knowledge uh the courts then step in and show whether you have a duty of inquiry during that 30-day period uh to inquire now all the Andersons knew was that when one was up that was with within that 30-day period um how that uh imputes a duty of inquiry with respect to win two I I think is is Slim if not none unless unless the uh Town says that you have a duty to go down and look at the uh building permit when you know that the structure is already up there's nothing additional to be to be necessarily learned in that case when you see a structure of it why why do you need to go down to the town to look at that permit well I guess I guess my question with respect to this is is say we believe the town okay they they show that you didn't have actual or they didn't show there was no actual or construction knowledge correct but you could still have standing right at this stage if you show if you make a showing that the section 7 despite that not despite the fact you didn't have knowledge within the 30 days that once you gain knowledge and I'm I'm reading out of the Connor being Nino case an enforcement request may still be pursued under Section 7 if the AG grieved party so that would be you can establish that you did not have adequate notice correct okay so you think that you've met that burden at this stage to sustain your standing well I I'm I'm not sure the B there's two different things here there's a standing issue which uh incidentally I don't know if the town is now raising a grieved party status uh whether one is grieved is a different is a different issue entirely as to uh versus whether you are in correct statute of limitations uh the statute of limitations goes to your jurisdiction to here and appeal um 30 days is the appeal period if you have actual knowledge or knowledge sufficient to put you on a duty of inquir if you're past that period if the town doesn't show that there was actual knowledge or there was a notice sufficient to put you on a duty of inquiry you then enter into the six-year period and the only argument there is whether you uh rested on your rights on once you have knowledge but okay so that's that's leads me to that's the latches are right so so your client's knew you said it fall 2010 so it's 5 years ago um so they brought this appeal a little less than 5 years later it's correct correct so I I just I think that there's some recent case law and I guess this would speak to the latch's argument I'm reading from Allison the actually it's the zoning board of appeals um it was a 2014 Justice Long decision and he says persons who lack adequate notice of a zoning violation and sufficient time to challenge it within 30 days which is what we're saying here of issuance of the building permit may not sit back for the remainder for for the remainder of chapter 48 section 7 six-year period once they have such adequate notice either actual or constructive they must act promptly so I guess my question to you is how has how have the Andersons acted promptly with respect to win two I presume in that case that uh judge long uh cited latches as as the operating finality long settled expectations about he does I believe he does go on to sweep about lates but I could be wronged it and I I would understand that to be a land court case which is which is not not u a case of uh precedential value on this court uh that would be the appeals court and the Supreme Judicial Court and uh the Supreme Judicial Court have solely spoken in terms of latches whether something is unjustified unreasonable and it work detri and just because I'm I have a lot of questions to ask you I just how has your client acted promply with respect to Wi two well the issue again because of the identical nature of wind one and wind two wind one was already in litigation now if my clients uh if you say that my clients have to bring another case on an identical basis um I'm not sure that's reasonable when the identical issue is raised in a pending court case they don't have the funds necessary to uh run all the litigation the town has virtually unlimited funds to to fight this litigation so okay that's that's really that's really the N okay and I will I guess just close up um my questions as to this what what is your client how is your client harmed by win two versus wi one so win one shut down is it the same harms is it the same degree of harm by win two is it the exact same symptoms what is the harm and why do they have standing as to when to [Applause] well this goes to a point of order that I was going to raise too um Mr Anderson uh did not speak specifically with respect to wind two but I believe you spoke with respect to wind one and wind two originally um it seems like the town has now raised I don't see it anywhere in the papers here to that um possibly the Andersons are not agreed parties maybe they're not affected by it so I think he should be given an opportunity to speak to the board as to how he is affected by wi to okay and we'll open it up um for the public but I get I'm asking you why does your client have standing because he is still affected by wind too in the absence of win want which the Win w has been shut down they are still affected by the noise it's still in direct line um wi two to win one to the Anderson's home um there's still peculiarities about how the sound travels there there's a Swale uh in the topography there which seems to direct everything down towards the Anderson's home did your clients make any complaints to the building department about wi two or were they all directed at win one um certainly they did win win one and win two uh they made several nuisance complaints uh one of which is now pending in Superior Court and in which judge Muse found uh the Andersons uh aggrieved uh affected by to win to as to both win as to both as to both so he didn't distinguish he didn't distinguish no he didn't no he didn't okay all right that's all I have let me see TJ do you have any questions I think some of I got clarify for me okay everybody else is all set attorney if I can just add one more thing in response to one your questions about latches um latches it is as attorney senny said it's an affirmative defense it's not uh something that we have the burden of proof on it's the burden of proof is on on the town to show that we acted unreasonably and I would suggest that uh the Andersons did not act reasonably under all the circumstances nor has the town shown any uh detriment okay thank you thank you attorney Sunny has questions Ken hold on oh okay Paul uh no no questions thanks okay Ed no this time TJ another minute and can you need a second well I guess I'd asked the same question regarding the relevance of the SJC case in your view um to the to win to if we set aside the question of timeliness or latches um I can tell you through that two doctrines the doctrine of collateral stopple and the doctrine of race judicata our court system would not make these parties relitigate whether when one or when two need a special permit that issue has been decided by our court system and there is no practical difference between the two so we're here tonight because we have questions about timeliness and latches but I if if the unhappy party after this board takes a vote gets to court and makes a claim that wi two doesn't need a special permit the other part is going to move for summary judgment and the Court's going to look at the SJC and the appeals court case and say that's already been decided and we and we we tend in the law not to make parties relitigate issues that have been fully litigated okay you're on second TJ all right um now I'm looking through your uh October 28th letter to the board uh in terms of when to with M henwa what was the town's legal requirement for notice uh concerning the building permit of 22 what was the town's requirement wait the legal requirement for notification there is none there is none actually one of the cases cited frequently in this discussion I'm not sure if it's Connor or Gallivan but in a footnote the court said you know towns could avoid this problem if anytime people applied for building permit you were required to publish notice in the newspaper and that would solve the problem uh but the town was under no obligation to give notice that a building permit had been applied for or issue they could have there's nothing to keep a land owner from doing that in fact I have advised clients at times to do so to avoid the 30-day versus 6 years but uh there's no obligation to give n some of my questions for you attorney saying might be duplicative of what I was asking attorney um but you said and I think this is what Ken was speaking to you said that wi 2 is under the same umbrella as wi one but wi to affects different people than one one isn't that true including Linda okagawa is that corre so in 2010 that's when miss miss okagawa became aware is that that's cor okay so October 2010 yes okay that was the first time she knew about this why wasn't an enforcement request saw once Mrs OA knew about when to it's a good question it's a fair question so in October of 2010 she learned about wi 2 and saw a map that showed that it would be pretty close to her home she put her name on a list that the town had of people interested in the turbine project and so then she did begin to receive notice and she began to attend meetings now she still didn't know in 2010 and 2011 that wi two would cause her adverse impacts but the question could be extended in February of 2012 which is several years ago she knew about the illegality claim as to wind one and she knew the wind two was adversely affecting her so why didn't she uh initiate an enforcement request and bring the case here and then on to court perhaps to be joined with the one that was already in progress I began to represent Lind okagawa in late 2013 I think a statement was made uh several weeks ago that i' I've represented her all along like I have some of the other clients more impacted by win one but I began to represent her in late 2013 uh in connection with her nuisance appeal from this board and I could have at that time when I became her lawyer said to her hey you know you're impacted by wind two and it's possible that the drummy case only affects wind one and maybe we should file an enforcement request and take it up through the system that might be my fault it is certainly the case that when I got involved or even at some point after the wind to began to operate an enforcement request could have been brought and that could be that could be my fault and it certainly could have been done however you were talking about the decision from Judge long and where we are on what may become a new rule but it's not the rule and that is that if you don't fit within the 30 days you don't just get six years you should get 30 days from when you learn of it and legal Scholars like Mark bosski and other leading attorneys in land use and even judge long as he worked his way through that case are edging their way toward a new rule which is that it's 30 days from the issue of of the building permit when you know about it in time and it's 30 days from when you know about the problem if you learn about it later but you don't necessarily get six years that is not the rule today it's it hasn't been recodified our statutes read the way we've described them the judges aren't changing the way those statutes read They're beginning the process this is what the common law does they're beginning the process of thinking that our system doesn't work it's not fair to people if you can wait now this is a very unusual case so the rule is 30 days or 6 years and what the lawyers and judges have done is leaned on the doctrine of latches to try to make it more fair and that's all we have we do not have a new rule we have the doctrine of latches and that's the one that says that you're only going to be prevented if you fall between 30 days and 6 years if it was to the detriment of the other party and I don't think it was I think the town of fouth was Full Speed Ahead on wind two I don't think they were going to uh adjust any contracts they entered into or do anything differently and so I don't think they meet the the doct of bl's test uh I do recognize that my client who did not know she certainly is not within the 30 days and the fun farest also did not know about when too within the 30 days uh could have done this sooner but we don't have the rule that judge long is sort of writing about in our statutes yet we may get there but at this point it is the doct doctrine of latches that we deal with and I don't think the town was in a worse position also as I already articulated I'm not sure drummy doesn't already bring about this result keep in mind that let's say we're at year 11 tonight so we we're out because we're not with we're not within the six year the fact that we're at year 11 doesn't make wind too legal what happens when you don't meet that section s time frame is that the illegal structure or use is unassailable but it's not made legal so today win two is not legal because of the doctrine of race judicata and collateral estop we know that our court system feels that this kind of turbine in this location needed a special permit the town could apply for a special permit for wi too and when we got the final word from the SGC I expected that the town would do that because the the principles apply equally as well to win too but the town isn't doing that what they're doing in this proceeding is telling the town and the public we are not planning to apply for a special permit for wi two even though the law requires it and they could do it they could just simply file an application and they should you shouldn't decide for us because of what they should do you should decide for us if you feel that the doctrine of latches is not does not prevent this this uh enforcement thank you attorney Sunny anybody else have any followup toras I forgot to ask you last time I didn't know bu and I okay thank you and I think we'll go to attorney tillet and and see if anybody has any questions I I first of all want to hand uh the board the article that I referenced the three pages from again you're going to hear a lot more about this in the special permit process but since I alluded to it I want to include it in the record I think I provided it by email ear but um oh no I hav thanks thank you thank you thank you and let's see if anybody has questions for you Paul I don't thank you okay Ed no TJ kind of what I was going off of before so the town the town's notification to the abutters was completely voluntary the town notified the abutters not and I will I will be very clear about this In fairness to um uh Mr send and Mr watt the town sent out no notice that said we just we just granted a building permit there was not any such notice there was repeated communication relative to the plans for wi two the vote for win two was taken at a town meeting held townwide and then communicated to a Butters in the immediate immediate area people within 900 ft and that list may have changed over the years because of course people sell their properties and move but the general information about wind two was communicated fairly consistently uh through the process in addition to that certainly um at the time that Malcolm Donald first spoke to Linda okagawa and I think this is even in her affidavit he mentioned in the early summer of 2010 that when two was on the horizon was coming and again so she had did have notice and again I think this is a fairly I will agree that the question of whether there was constructive notice within the 30 days is a very close question I think the question of latches is not close because the one point I would disagree on with Mr senny is that it's not 30 days or six years it's 30 days or within a reasonable time after you find out about the issue of the permit or could have found out and again it was a fairly simple matter they knew that the project was going up and again the the turbine didn't start operating until 2012 Winter 2012 but throughout that fall they were closing the roads delivering and I indicated this in our in my most recent submission delivering the blades all of this involved a lot of public notice required public notice by the public works folks in order to get the uh turbine materials to the site and I'd just like to take issue also with the one point that uh it it's all well and good for Mr senny to say that he doesn't believe that the town would have done anything differently but recall that there were people that and certainly Linda okagawa had notice about wind too as did the funf fars as did Anderson before wind 2 was erected and operating and if D and we would have had to advise all our funding sources of the uh permit uh that the permit was being challenged the building permit was being challenged had D and the funding sources known about the an appeal they very well might have said we're not funding this we're not going to uh Grant you the funds to erect wind two until you straighten out this appeal so I think there is an impact and I think to suggest otherwise is simply disingenuous and I'd just like to um answer at least my perspective on Mr Foreman's question I I think that had there been a an appeal of wi two pending at the same time as wind one as the wind one appeal uh Mr C is absolutely correct though outcome in Wind one would have controlled the fact that there wasn't is the really the critical issue the fact that there there was the delay for five and a half years to bring that appeal and I think the context of zoning enforcement is important to keep in mind it's all about timing it's all about making a timely appeal to the board I mean as you know the statute of limitations for for appealing a building uh permit is 30 days an appeal from a decision of this board or the planning board is 20 days and the reason for that is because there is a a very uh uh very consistent statutory policy throughout chapter 4A that um timeliness is important and people can't sit on their rights because it prejudices projects that are in construction being financed and for that reason alone we would uh respectfully ask that you um decline the enforcement request on one to oh I I think I'll have some questions and I know sorry you're all set te uh just quick follow-up question to the the notifications to the 900 ft what is the significance of it was and well first of all the um given the location of this particular project the wastewater treatment plant it was the the determination was made the ordinary um notification to a Butters that's required for example when this board holds a public hearing is a Butters and a Butters to a Butters within 300 ft under the statute and there was a determination made to uh widen that Circle of notice to 900 ft I I it was it was made by the uh Town's energy Comm Ken um Can a lot of dates and times to keep straight here and so if you can help me with a few of them that unfortunately I can't keep uh in my head when one started operation when uh March 18th or I'm in March of uh March 25th I think of 2010 approximately a week after the building permit for wi two had been issued had been issued started operation right wi two started construction or it depends on how you defined let's say finished finished started operating yeah in uh February of 2012 was up by the end of 2011 so if you were an a butter and you had no issue with wind one and you might have anticipated that win two would be equally inoffensive you might not act would that be reasonable that's conceivable until um February of 2012 right although there was a lot of discussion about when to and and and there were people that objected to it and that may be but I mean at least Mrs okagawa is I didn't have a problem with win one so maybe she didn't expect to have a problem with wind two if at that time it started then it would be reasonable that you might have sought some remedy it that's correct it would have been reasonable to seek a remedy though after February or March of 2012 because there were already complaints at that time and I think I provided oh last time a log of when the complaint started coming in for wi two and it was pretty quickly after the um turbine started operating in 2012 and she first brought this in 2015 2015 now if you weren't sure what I mean she knew that she knew there was pending litigation regarding wind one would it be reasonable to want to see what the outcome of that is is to before pursuing further action why or why not I would suggest that no it it would not be reasonable and the reason is again at least at as of the time that she was represented by Council which we now know was sometime in 2013 I believe is what Mr Sunny just said least as of that date she had counsel and as a zoning as a land use lawyer as a zoning lawyer it is incumbent on you to I think explain to your client that if there is a project of concern to that person you should bring an appeal of that particular decision whether and and frankly and you know I don't want to get into a lot of procedural stuff but there are certainly ways the appeal could have been brought it could have been brought first before this board depending on what this board would have done in 2013 an appeal likely would have been taken by one party or another at that point either party whoever is bringing it could ask the court there's a case that's pending could say to the court there's a case that's pending on this very same issue the town one was successful in the superior court it's up on appeal it's in front of the appeals court we'd like you your honor to stay this until we get a decision so you don't have to spend a lot of money litigating it that's a very common procedural thing that lawyers do and it would have been been very possible to do and it would been likely that the court would have said you're right the legal issue not the impact to the particular abutters because I do have an issue with Mr Anderson in that regard but the legal issue is uh the same the the question of whether or not a special permit is re ired so we're not going to require you to spend a lot of money litigating this we will wait to see what the appeal s does with it it could have been done and certainly uh Mr senny and what would be the motivation for not doing that I honestly don't know because as a cautious lawyer who understands land use law I would I would I would think that you would bring it number one to this board's attention you would flag the issue for the town so that they know that win two is also being appealed because that's the other thing they knew about the legal issue for sure but by and large the complaints around wi two were and continue to be much less than the complaints that were that that began to come in Fairly uh soon after wind W and and the most vifer of those complainers Mr Anderson really didn't complain a lot about wi two okay those are my questions okay I just have a few questions the billing permit was received in 2010 when did construction begin I believe that construction and again it depends on how you define construction I don't think the uh the turbine actually went up until and I'm looking at Jerry uh the fall of 2011 is that correct Jerry yes around October was the building permit timely exercised or was were there any extensions to that that's a good question I believe it was timely exercised I believe that they were um there were a lot of things that needed to be done uh permit and funding wise again the building per per MIT was obtained they needed the building permit in order to put particular the grants and the funding in place and the lead time although this turbine was already constructed so but the lead time on getting all of that in place is fairly extensive I know that you're suggesting the six-month building permit and I don't know that it was extended but certainly no one raised that in this case okay but or Frank ly with respect to wind one and with wind one it was a lot longer time period between when the building permit was issued and when when one was actually constructed okay what is the harm to the town I I know attorney SNY and want say well there's no harm to the town from from us waiting this long so how is the to town harmed I I'm sorry how was the town harmed by the fact that the appeal wasn't until this year Well I again looking trying to look back 4 and A2 years to make a determination as to what the town might have done had they known of a pending appeal is difficult because of course you know attorney sen speculating that there they wouldn't have done anything differently and I can't stand here and tell you you know absolutely that they would have but what I would suggest is that because when wind two was in a very different place at that time first of all remember again at the time the first request for enforcement for wind one was made the turbine had been up and operating for several months at the time the first request for enforcement could have been made for wi two wi two wasn't up yet the funding sources while somewhat committed had not been finalized and the town may have taken a second look at it but more importantly the funding sources may have said you have to get this straightened out so it is very likely that there would have been some additional hitting of the pause button then can I tell you for sure that that would have happened absolutely not the one thing that would have happened though is that we would not be here tonight discussing this issue because the appeals would have likely been Consolidated both before this board before the superior court and before the appeals court had even a remotely timely uh application been made and the courts would have Consolidated those cases and I think that by not doing it the town to some extent was lulled into believing that the issues with win two were far less than the issues with wind one and they you know they knew obviously that the wind uh the wind opponents the same litigants we have on both of these cases were represented by Council very able Council and yet no when to appeal was taken and I would submit that the town was prejudiced in in many ways least of you know and again the Selectmen uh this is a very public process it could have turned out very differently had that appeal been taken okay last question and it's probably the million dollar question if we if we if we buy into this and and I understand this you know that they have there are certain time requirements so if we say we agree with you does does the town apply for a special permit for wi to I was going to answer this question as part of the opening of my or at least attempt to answer it uh as part of my opening on the wi two special permit I don't disagree with certain of the things that attorney sing and what have said in that this is these turbines are obviously related projects at the moment the town has only applied special permit for wind one because that is what the court has told us we need to do however what we hope to convince this order is that the permit on wind one can be appropriately conditioned so as to protect any harm real harm to the abutters and that those conditions will include conditions on the operation of wi two and I think that although a separate special permit on wind 2 has not been applied for you will hear beginning tonight from uh Chris M our sound our Acoustics expert he has analyzed the impacts from wi two and we do know what those impacts are and we are willing to accept conditions reasonable conditions on the operation of wind two as part of the special permit for wind one and if it makes sense procedurally at some point down the line to amend our application to do that we would do it but again I think that it can be um I think that you can impose conditions on win 2's operation as part of the win one special okay okay thank you attorne toski do you have any questions no I'm mindful of the fact though that you are going to now turn to the audience and I just want to say to the board that comments from non-party should be limited to one of three things if there are any further comments yet to come I know Mr Anderson is waiting out there and he certainly should be allowed in his 2 minutes everybody else can only offer one of three things here either the parties knew or should have known within the 30 days somebody they told me that they knew of the permit and they rested on on their rights they deliberately waited and thus it is or it is not latches and then lastly balancing of the equities the equities go to Mr Sen's clients Mr watt's clients and to the town so everybody else's comments on that are largely speculative and so and there will be an abundant chance to make those comments during the special permit proceeding yes yeah so with that said Mr MCM thank you mat mnea 13 Vineyard Street uh in East Falmouth um did you know that uh just at the Labor Day the building permit for win three issued probably not uh and I I hope not uh but after all I don't know because there been a lot of construction activity at the waste water treatment plant Miss tilletson would have you believe that because of wind one was named wind one rather than Falmouth one uh the butter should have expected there to be a wind two and would therefore put on constructive notice um she also said that uh because once the uh Foundation or the pad was poured uh that was constructive notice but unless anyone has actually gone down and inspected the wastewater treatment plant uh on a daily basis given all of the truck and construction activity that's been going on since that plant was built uh in the80s uh you would not have known necessarily that wind 2 was being built in fact later miss Tillson said that uh you wouldn't have known uh that wind 2 was constructed because it couldn't be seen uh within the 30-day period so if we buypass all of that and we get to the fact that there was no contention that was actual notice and I'll come back to that uh was there any constructive notice not basically until in my view the turbine was actually erected and that might have been an important time uh so no duty to inquire because there was no real constructive notice up until uh that point so I've got this wonderful uh matter about latches uh and as you read through all the case law uh you can distinguish the case law you don't have to be an attorney to do that but attorneys uh certainly make it sound a little bit more interesting let's take a latch's case and put it into layman's terms you own a house and there's a vacant lot next door to you and all of a sudden you come home one day and there's a foundation that's poured do you wait and you think perhaps that the foundation might be too CL close to the lot line not that your new neighbors might be be too noisy but that it might be a zoning violation uh do you wait until that entire house is built it's after the 30 days and therefore remember the two balancing factors of latches and that's unreasonable delay and Prejudice to a party if you wait till the house is completely constructed and there's a question of whether or not that person has to cut take the house down that was Prejudice to that party now you've heard that the issue could be loss of Revenue Etc that's use after the fact I don't want to speculate what the town might have done differently remember that there wasn't real constructive notice until the turbine was erected so where's the Prejudice now the question about whether or not there should have been a delay waiting for the court decision attorney sen and Watt have said uh we wanted to wait till after the court decision now the town says that shouldn't happen yet look at the decision by The Building Commissioner In This Very appeal the Building Commissioner says I'm not going to act on this until a decision by a court of competent jurisdiction it shouldn't work one way for the town and not the other not the same way for the applicants remember that no matter how you look at the case law the courts are trying to come to an equitable result now if none of that's persuasive at all I hope the next part is latches cannot be used to say I have I had a right or I had a requirement to notify actually provide notice to a Butters but I raise latches as an excuse later on chapter 27 of the code of fouth requires the board of selectman to hold a hearing on all public projects that are constructed on Town land they're required to hold a hearing now the town in the past has somewhat confused the difference between hearing and public meeting it's a hearing you're used to hearings interestingly enough chapter 207 of the to fouth requires the very same notice that you require as a zoning board of appeals if that hearing and notice had taken place there would have been actual notice to the okaga ETC that there was going to be win two we wouldn't have to be worried about constructive notice I don't think it's Equitable for the town now to raise latches when they had an affirmative duty to provide actual notice and failed thank you Mr MC anyone else Mr Anderson do you want the opportunity to speak or you satisfi I know that you had said earlier you might speak anyone else yeah good please if you're speaking a term of equity if you're excuse me sir if you're going to be speaking you need to state your name provide your address and we'll get your question answered thank you I'm John tutor I'm a retired family doctor I live in Precinct 8 161 KES Circle I want to ask the question whether I have standing because I don't know what he meant by the word equities who the third category that we could testify about what I would like to testify about is the letter you got from the Board of Health about the changes in definition of medicalal I believe that was with the special permit application and so you will have an opportunity to speak as to that later anyone else short two minutes since I've been going over that and my name is Katherine Elder and I'm represented by attorney SNY I live at 161 blacksmith shop Road um it occurred to me throughout this discussion that um I might actually or my husband and I might actually want to bring the issue of special permit of when to forward now because For the First Time Ever uh I realized with wind one off all the time that wi two has an effect on me and I've never been able to distinguish that before because it's never been running without wind one on for any period of time that was noticeable to me so I'm making the point that uh it wasn't until recently when wind one was off that I could disting distinguish between wi two and win one effects so I'm still within my sixe statutory situation there with uh bringing the issue forward uh and and I would ask couldn't I do that at this point now that I realize that uh it isn't part of what is being required for wind one I mean I just assume that if win one has to have a permit so does win two are you my question is am I outside am my right to bring that now I think that's something that you could ask your attorney we're not here to answer legal questions we're here to receive your questions and your comments well I think it's reasonable to understand that uh I thought whatever was going to happen with wind one would be applied to Wi two and uh I just think it's disingenuous that they should be treated differently they're both on the same parcel the yep the the town of fouth has applied for win one for a special permit that's what this board is considering we're also considering the appeals at this time that's all that's before us M right right i' just like to say and my final comment is that if you don't uh order a cease and desist of wi two I I don't know is the town is going to file a permit for wi two and I think that needs to happen thank you anyone else a couple minutes sir again just a couple of minutes hi thank you uh I'm Ron swag I live at aay Road and in Precinct one and I was just wondering I heard this even I'm generally often surprised by what I hear but I just heard this evening from attorney uh watt that uh that as far as wind one is concerned that it reverts back to the uh 69- 15 uh Elder at all uh case before you and but I didn't hear him say that on September 17th when that was brought up about the August 20th decision about cease and desist on win one uh which basically voted four to Zero by the by your board not to not to take up the the SE to deny The Season's assist request at that time so I'm wondering now if WEA uh to the weather wind wind one and wind two would be uh would be under this cons consideration that's that's one factor because we're we've had two Decisions by your board one uh denying this decent deist and one supporting it so I'm just trying to figure out that's up to you to figure out that that factor which where we stand because it's been going back and forth and we're in a new place now the second thing I'd like to talk about is the proponent for 615 um we've heard from uh uh attorney that um in 2013 there was a uh uh an offer made to the proponent and that offer was was not accepted by the proponent but a counter offer was made to the town of Falmouth and the town of Falmouth accepted that counter offer and um and I I just want to I I don't want to necessarily go down that road again we've been there as as attorney barowski said testimony now for this two minutes should be whether you knew whether the yeah knew or should have known whether latches applies or as to the equities I I just don't think that that's that's probative to anyone here it's it's not going to help the situation so testimony as to those things and it's already been nearly 2 minutes so I would just limit caution you know thank you okay I I appreciate that I'm just uh trying to understand why the uh why why um 6815 was even filed when the town made an offer to settle the the situation because Mr Anderson has a right to file 6815 that's the answer sir right no no it's fine you can file it exactly but in in um in uh April of 2013 uh he commented that he would he's would be happy to move if but no one would buy his house so I'm just trying to say that that is that is a factor do couple just couple and again just to what we've had this limited too please because everybody will have a chance to speak to the special permit so the issue is the appeal Richard ladimer Precinct one I am a lawyer but I do not practice land use law but I do understand the principle of lates um we uh initially told by Council for the uh applicants here that it's either 30 days or 6 years under the principle of latches I think Miss Tillson corrected that um very clearly that 6 years is an outside limit the standard is a reasonable time up to six years so the question here is on the question of Lis whether there has been a reasonable action by these applicants um after con after having reasonable notice now as M tillon has pointed out the authorization for construction of when two was voted on at town meeting well before uh any construction even began uh these people are complaining that they can hear or feel inm couldn't they hear the noise of the excavators the concrete trucks going on after having actual notice that this project was going to go forward I suggest their failure to take any earlier action under the principle of latches uh precludes them because they lacked due diligence in protecting their rights due diligence would have told me having known that the town has authorized the construction such a major construction and then living that close that I can hear infrasound I I'm hearing the the the trucks I'm hearing the the heavy equipment and I don't go and look I'd say this this application should be denied on the principle of latches thank you Mr ladimir I have a question for you you don't live near these wind turbines do you excuse me you don't live near the wind turbines you're not affected by them are we going to no I'm asking you a question sir I'm allowed to ask I thought we were limited to Lates I I'll talk about that I'm just sir I am asking the questions now you're there you're standing there I have a question for you you said that if you were in their position I didn't say if I was no you said if you were there you would if you think that if you heard the noises the construction equipment I'm saying I'm not here get into an argument sir yes or no you live near the thank you that's all sir well no I I that is all there is a police officer outside that is all thank you Mr Anderson thank you Neil Anderson PL sh road so I'll take a breath okay um I wasn't going to repeat this because I did say it specifically last meeting that yes wind two does affect me not as much as wind one the same topography and the same prevaling winds bring the same low frequency sound right through the valley right to our house regarding complaints I also said this last time I gave up filing formal complaints on the wind turbines as a matter of fact on any thing I can't make a complaint about anything now cuz I'm the complainer but uh Mr Gore informed me directly that he's not going to do anything with my complaints why bother uh regarding the settlement I submitted to this board um one piece of paper which is all I'll say so uh thank you thank you I think this probably a good place to end so I think we've received all public comment testimony and we should have a motion to close so that we can take no more public comment andbody has a motion to that effect motion to close Okay second okay so that was Paul and Ed and that is as to both I just want to make sure both application 6815 and 7015 yes yes okay um so all those in favor I I unanimous and I believe we're going to be deliberating this app I remind the board that the decision is Du at the town clerk's office on December 23rd we'll deliberate between now and then thank you so we'll take a short break before the special perm [Music] for [Music]