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Zoning Bulletin April 10, 2015 1 Volume 9 ( Issue 7 <br />Uses—Neighboring property <br />owners allege town violated <br />bylaws by installing wind turbine <br />without special permit <br />Town maintains wind turbine is a "municipal <br />purpose" allowed as of right <br />Citation: Drummey v. Town of Falmouth, 25 N.E.3d 907 (Mass. Ct. <br />App. 2015) <br />MASSACHUSETTS (02/26/15)—This case addressed the issue of <br />whether a town -operated windmill on town land constituted a "municipal <br />purpose" such that it fell within the enumerated community services <br />permitted as of right under the town by-law. <br />The Background/Facts: In 2009, the Town of Falmouth (the "Town") <br />installed a wind turbine known as "Wind 1" on town land at its wastewater <br />treatment facility. Town residents who lived within 3,200 feet of Wind 1 <br />(the "Neighbors") alleged significant distress from sound pressures and <br />noise related to the operation of Wind 1. The Neighbors asked the Town's <br />building commissioner to find that the Town was in violation of the <br />Town's zoning by-law in its operation of Wind 1 without a special permit. <br />Under the Town's zoning by-law, in all zoning districts, including public <br />use districts, windmills were classified as an accessory use by special <br />permit. <br />The building commissioner determined that Wind 1 was a "municipal <br />purpose[ ]" that fell within the enumerated community service uses <br />permitted as of right under the zoning by-law. The building commissioner <br />therefore denied the Neighbors' request for an enforcement action. <br />The Neighbors appealed to the Town's zoning board of appeals <br />("ZBA"), which affirmed the building commissioner. <br />The Neighbors again appealed and the superior court affirmed the deci- <br />sion of the ZBA. The court found that the special permit requirement of <br />the by-law did "not apply in the limited circumstance where the Town <br />itself desire[d] to construct and operate a windmill for municipal purposes <br />in a district where all such [municipal] purposes [were] permitted as of <br />right." <br />The Neighbors again appealed. <br />DECISION: Judgment of superior court reversed. <br />Agreeing with the Neighbors, the Appeals Court of Massachusetts held <br />that the Town, under its zoning by-law, was required to obtain a special <br />permit from the ZBA for the installation of the wind turbine on town land. <br />© 2016 Thomson Reuters 5 <br />