Zoning Board of Appeals Decisions

Zoning Board of Appeals Decisions for: 12-17-2013
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FALMOUTH ZONING BOARD OF APPEALS

FINDINGS AND DECISION


Appeal No: 69-13
Appellants: BARRY FUNFAR and DIANE FUNFAR of West Falmouth, MA

Subject Property: 154 Blacksmith Shop Road, East Falmouth, MA
Assessor’s Map: Map 23, Section 03, Parcel 014, Lot 012

Date of Hearing: September 12, 2013 and December 5, 2013

Summary: Appeal Affirmed, Overturning Building Commissioner’s
Determination

Zoning: Public Use


PROCEDURAL HISTORY

1. On July 2, 2013, Barry and Diane Funfar, 27 Ridgeview Drive, West Falmouth Massachusetts (hereinafter Appellant), filed an appeal with the Town Clerk pursuant to Section 240-204 of the Code of Falmouth and MGL Chapter 40A, Section 8 requesting the Zoning Board of Appeals of Falmouth (Board), to overturn the Building Commissioner’s determination denying enforcement regarding nuisance and detrimental health issues created by Wind I and Wind II, Town wind turbines, located at 154 Blacksmith Shop Road, East Falmouth, Massachusetts. The property [154 Blacksmith Shop Road, is owned by the Town of Falmouth] is zoned Public Use.

2. A duly advertised public hearing was opened on September 12, 2013 and continued to December 5, 2013. The Appellant signed two waivers: 1) to extend the 65 day opening of a public hearing to September 19, 2013 – signed July 9, 2013; and 2) a waiver to extend the 100 day public hearing process for an appeal to December 18, 2013 – signed September 16, 2013.

3. Board Members sitting: Chairman Matthew McNamara, Vice Chairman Kenneth Foreman, Clerk Scott Zylinski and Member David Haddad [member Johnson was absent from first hearing and Associate Mark Cool recused himself from the hearing]

4. The public hearing was closed on December 5, 2013, wherein a decision was rendered by the Board to affirm the appeal thereby overturning the Building Commissioner’s determination.

5. The Board received information and documents from the Appellant that were submitted to the file prior and during the public hearing and said file is located in the office of the Board of Appeals at Town Hall.

On September 5, 2013, the Appellant submitted a box that had a substantial amount of information regarding his Appeal. The info contained eight (8) separate packets:
- Packet 1 entitled ZBA Filing Documents
- Packet 2 entitled “Health”, Letters/Medical Providers
- Packet 3 entitled “Noise/Nuisance”, Resources = WT Noise
- Packet 4 entitled “Complaint Letters”, To Town Hall and State Representatives
- Packet 5 entitled “Letters to Others”, Speaking of My Complaints
- Packet 6 entitled “My Letters to newspaper Editors”, concerning WT Problems
- Packet 7 entitled “Property Devaluation”, info
- Packet 8 entitled “Letters/Notifications”, From the Town


Hearing(s):

September 12, 2013 –

Chairman McNamara informed those present that the Appeal is a matter of a private nuisance; not a public nuisance and is specific to the impact on the Funfar’s [residents] of 27 Ridgeview Drive from Town owned wind turbines. He stated that this is not a forum or Town Meeting for wind energy or wind turbines pro or con; and all comments should be directly related to the Funfar residence.

Barry Funfar, Appellant stated they [he and his wife Diane] are appealing the denial of their nuisance claim submitted to the Building Commissioner on March 11, 2013. He said they purchased their property in 1978 after coming from North Dakota and that they have lived in Falmouth for 34 years. Mr. Funfar explained that they had an environment that they considered healthy and enjoyable before the wind turbines interrupted their peace. He said he was an avid gardener on their property until the day Wind I started operating; some of the noise from the wind turbines is audible while the very low frequencies can’t be heard – they are felt. He spoke on amplitude modulation and frequencies and said he doesn’t care about sound and noise studies as three out of the five measurements taken were below the average threshold. He said he can feel the low frequencies as fluttering or quivering in his body. He feels that a person is ten times more tolerant to traffic noise than wind turbine noise and that both audible and inaudible pressure waves because him distress, high blood pressure and migraines. He said he has strained sensations, nausea and great discomfort; this is also an involuntary disruption and is a major life altering effect. He gave an analogy with cars with windows open at 35 mph. Mr. Funfar stated that his ‘safe zone’ now does not include his property/home – they have lost the enjoyment of their home which includes four (4) decks that they do not use anymore. He said all home improvements have been put on hold. He spoke on how their lifestyle has changed from being outside every day to being inside at his desk due to the wind turbines – “it is maddening”. He explained that the difficulties in life have been amplified and he feels his life has been shortened due to the agitation from the turbines; and that all relationships have been effected.

Mr. Funfar said that he has submitted his medical history to the Board which includes medications he has been prescribed. He said he also submitted a copy of his 512 page testimony outlining his complaints to the Massachusetts expert panel on wind turbines; he has submitted correspondence to every appropriate entity; and he submitted many letters to the Zoning Board of Appeals as well. He explained he and his wife have attended many meetings at both state and local levels in addition to many phone calls. He referred to the varying decisions of the Board of Selectmen regarding the operation of the turbines and as a result he is torn back and forth – “will they or won’t they operate.” He said it is not simple annoyance; it is a roller coaster of emotional disturbance. Mr. Funfar said they expect that there will be a significant financial and emotional loss if they have to sell their property and that losing his spirit for his gardens is the biggest loss of all. He said he and his wife have lived the ‘before’ and ‘after’ of the placement of the wind turbines. He briefly mentioned his suicidal thoughts, and stated that there has been one attempt in this Town already.

Diane Funfar said that the wind turbine noise was immediately disturbing to her husband, explaining Barry worked outside any chance he got. She said as his exposure to the turbines increased he could not tolerate it and became depressed. She explained he [Barry] was diagnosed with PTSD (Post Traumatic Syndrome Disorder) in 2003 and that she has witnessed his decline, his anxiety, his depression, heart palpitations, etc. She said his [Barry’s] doctor increased his medication and told him not to live near a wind turbine. Mrs. Funfar stated that it is very distressing to think that they may have to move from their home of many years. She further stated that she has had an eye irritation and has had to stop wearing contact lenses; they [Funfar’s] travelled to Southeast Asia for six week and her eyes cleared up until their return to their home and the same eye irritation repeated itself.

Board Questions:

Member Haddad asked how many complaints Mr. Funfar has filed with the Building Commissioner.

Mr. Funfar said he submitted two complaints to Mr. Gore; the one he submitted on March 11, 2013 was responded to on June 7, 2013 [basis of this Appeal].

Member Haddad asked Mr. Funfar if he had submitted any studies to Mr. Gore.

Mr. Funfar said he hadn’t submitted anything to Mr. Gore

Member Haddad asked about the study that showed noise exceedances from a test at Mr. Funfar’s residence.

Mr. Funfar explained that the highest level was 11.5 above ambient from the DEP study, but when they averaged the numbers, it showed below the threshold.

Member Haddad asked about a financial hardship.

Mr. Funfar said that he wants to move but his wife does not and that he would not be able to build or buy a similar residence based on what they could sell this residence for. He explained how they had the Town Assessor come to the property to assess and how there was confusion regarding a finished third floor. A realtor gave appraisal of $429,000.00. He said their home burned down in 1999 and they rebuilt the home with a third floor that he feels increased the value of the home. He said he anticipates great financial loss if they were to sell their home. It comes down to money vs. health – money meaning what the Town makes on wind turbine.

Member Haddad asked when shadow flicker occurs on their property.

Mrs. Funfar stated that shadow flicker only occurs certain times of the year – in the fall; when they get it is bad, but it does not occur often.

Member Zylinski asked Mr. Funfar when he was diagnosed with PTSD.

Mr. Funfar stated 2003.

Member Zylinski asked Mr. Funfar if he has any other triggers of PTSD that are not associated with the complaint before the Board.

Mr. Funfar explained an experience at a Home Depot Store that made him abruptly exit the building when a back-up beeper went off. He further stated that barking dogs can irritate him as well, but he doesn’t hear dogs barking twelve hours a day [wind turbines operate 12 hours – 7am to 7pm].

Member Zylinski commented that discussion of suicide puts pressure on the Board.

Mr. Funfar stated it is a real issue and should be discussed.

Chairman McNamara commented that he has not read all information submitted, approximately 32 lbs. of paperwork consisting of all complaints, medical records, letters, etc. He asked Mr. Funfar if there are certain pieces of information specific to his property that Board should focus their attention on.

Mrs. Funfar stated that Barry Funfar’s diagnosis of PTSD in 2003 is important because when diagnoses medication was given and he was a different person than he had been and was happy again – his symptoms disappeared. Since the wind turbines he has been greatly agitated, ill and his health slid backwards.

Mr. Funfar said that his letters to State and Town officials are important to read.

Chairman McNamara asked if the letters from doctors from the VA were documenting impact of wind turbines on your health

Mr. Funfar said that one is from a medical doctor and two or three are from psychiatrist or psychologist. He said the trigger issues are there.

Chairman McNamara commented that Mr. Funfar mentioned heart problems and asked if any documentation from a cardiologist stated effect of wind turbine on your health condition.

Mr. Funfar said that the letters do not mention wind turbines – they mention CAD.

Chairman McNamara asked Mrs. Funfar if there is documentation from a doctor regarding her eye irritation.

Mrs. Funfar stated no, that Doctors are baffled, but the condition is relieved when away from home.

Chairman McNamara asked Mr. Funfar, based on his [Funfar’s] comment that he cannot enjoy the outside of his home, if he had effects inside the home.

Mr. Funfar stated he does not but that he feels he is prisoner in his home. He further stated that he now has to use a Cpap machine due to sleep apnea and he uses a white noise machine.

Chairman McNamara comment on Mr. Funfar’s comments of suicidal thoughts and asked if he has thought of suicide.

Mr. Funfar stated that he has.

Chairman McNamara asked about the DEP study and if it was specific to his property and if he had a copy.

Mr. Funfar said some measurements were taken from his property, and he doesn’t have a copy of the study.

Chairman McNamara commented on the financial hardship of the property being appraised by a realtor of $429,000.00 and asked if the appraisal was based on comparables in the neighborhood.

Mr. Funfar said they did not take the realtor and appraisal that far.

Chairman McNamara asked if there was an actual appraisal done.

Mr. Funfar said he had an appraisal early in 2012 for about $800,000.00 for a refinance. He said he will submit the appraisal.

Comments in Opposition to Appeal:

Eladio Gore, Building Commissioner said his determination of no violation under 240-110 was based on anecdotal information from Mr. Funfar. Mr. Gore said on his second complaint from Mr. Funfar a doctor’s letter from July of 2010 was submitted but that the letter did not directly state the symptoms were caused by the turbines, although it did say his condition may have been exacerbated by the wind turbine(s). He said the DEP study did not show an exceedance of DEP regulations. Mr. Gore said he is not disputing symptoms Mr. Funfar is experiencing, but his position is to look at information and bylaw language to make a determination. He said he visited the site but whether he himself is affected is irrelevant.

Board Questions of Mr. Gore:

Member Foreman asked if conclusion was based on the DEP study and what of the bylaw.

Mr. Gore stated that the bylaw does not give any direction.

Chairman McNamara asked for a copy of the DEP study used and a copy of the 2010 letter from a doctor that Mr. Gore received.

Mr. Gore stated he would submit those copies.

(Note: Attorney Duffy submitted requested DEP study with his comments at hearing.)

Comments in Opposition to Appeal Cont’d:

Town Counsel Frank Duffy spoke on behalf of the Town and Mr. Gore stating that the Town of Falmouth is the owner of Wind I and Wind II. He submitted a copy of his comments and a copy of the DEP study requested by the Board. Mr. Duffy said that he reviewed the Building Commissioner’s determination and found it to be appropriate. He said this Appeal is a limited Appeal to 27 Ridgeview Drive and Appellant cited Section 240-110 of the Code of Falmouth. Attorney Duffy explained that the Appellants are charged with the burden of proof – not just statements. He said terms of ‘injurious’ and ‘obnoxious’ are subjective; the evidence must be relevant and competent; and the Board should not treat anecdotal testimony of friends and neighbors as expert testimony. He said no violation was found in the DEP regulations when DEP study was conducted. Attorney Duffy noted that the fact that the Appellant filed a complaint is not evidence of a violation or nuisance and is not proof of any kind. He suggested that the operation of the wind turbines is an appropriate use for the 314 acre town owned parcel that is zoned Public Use.

Attorney Duffy reviewed the standard for a private nuisance stating it is when a property owner (the Town) creates, permits or maintains a condition on its property that causes ‘substantial’ and ‘unreasonable’ interference with the use and enjoyment of the property of another – he noted ‘Asiala v. City of Fitchburg’, 24 Mass. App. Ct. 13,17 (1987).

Attorney Duffy then cited ‘Kasper v. HP Hood, Inc.’ 291 Mass. 24 (1935) and quoted court language in the case “…. That a noise is disagreeable and disturbing to ordinary people is not enough. It must be unreasonable under all the circumstances and the character of the locality is a circumstance of great importance”. He then pointed out that Mr. Funfar has a pre-existing condition – PTSD – which should not be considered under standard conditions – it is a measurement by an ordinary person not a person with pre-existing condition such as PTSD. He said a nuisance must be a nuisance under all circumstances; Mr. Funfar said that he does not hear the noise inside the house, only outside the house. The condition that the Funfars are complaining about is not taking pace all of the time – the wind turbines run 12 hours during the day [7am to 7pm]. He noted that the use of the land for wind turbines, 314 acres was a legitimate public function and has been expressly authorized by two Special Acts of the Legislative, seven Town Meeting votes and a previous court case ruling was that the permits to construct Wind I and Wind II were valid. Attorney Duffy cited HUB Theatres, Inc. v. Massachusetts Port Authority 370 Mass. 153 (1976).

Attorney Duffy spoke on the DEP study conducted in November of 2012 noting that a violation is 10 dba above ambient noise; there were no violations found [page 9 study at 27 Ridgeview Drive – Funfar property] as the result of the sampling indicated the combined operation of Wind I and Wind II did not exceed the noise levels. He explained that the Town of Falmouth bylaw does not have specific thresholds for noise. Further, he stated that DEP has not amended their regulations so the Board should follow the current regulations; the standard of 6 dba above ambient adopted by the ZBA and the Town is inappropriate and unreasonable as the Town turbines were constructed in 2009 and 2011. He noted that testimony by Mr. Funfar was that shadow flicker was not constant and therefore not appropriate evidence to support the Appeal. Attorney Duffy urged the Board to deny the Appeal. He concluded saying that the Funfars should be denied relief as the wind turbines are publicly owned and operated through legislative approval and therefore the Town is not subject to the usual rules of nuisance.

Public Comment in Opposition to Appeal:

Gerald Potamis, Wastewater Superintendent, stated opposition and asked the Board to review other property sales in the area as he believes one on Ambleside Drive sold for above assessed value.

Chairman McNamara stated under Section 240-110 of the Code of Falmouth, the Board does consider property values.

Public Comment in Support of Appeal:

Malcolm Donald, 124 Ambleside Drive, in support of Appeal stated that he lives in the neighborhood and he can’t remember a time in the last three years that the wind turbine nuisance hasn’t been spoken by Mr. Funfar.

Sue Hobart, 476 Blacksmith Shop Road, in support of Appeal stated there are no better judges of what a nuisance is than the Appellants. She said the Funfars have spent a lot of time on the road and away from their home and Mr. Funfars PTSD was controlled prior to the wind turbines.

Robert Laird, Blacksmith Shop Road, in support of Appeal suggested using correct assessed property values.

Todd Drummey, 360 Blacksmith Shop Road, in support of Appeal.


Board Discussion:

Member Foreman said he would like more time to review the information submitted to the file. Member Haddad and Zylinski agreed.

Chairman McNamara said he would like to see any medical correspondence that directly relates to the wind turbines and the appraisal documentation discussed herein.

Motion made by Member Haddad to continue the hearing to December 5, 2013 at 6:00 PM. Member seconded by Foreman. Motion carried 4 – 0.

Board voted 4 – 0 to continue the hearing to December 5, 2013 at 6:00 PM.



December 5, 2013: Continuation of #69-13 – Funfar Appeal of Building Commissioner


Members sitting: Chairman Matthew McNamara, Vice Chair Kenneth Foreman, Clerk Scott Zylinski and Member David Haddad

Barry Funfar and Diane Funfar, Appellants, were present and introduced their representative
Attorney Brian Schwartz.

Barry Funfar submitted an appraisal for 27 Ridgeview Drive [residence] dated 12/05/2013 from Clancy Appraisal Company of Falmouth, MA. He reiterated issues that he stated previously (reading from a statement that he submitted to the file this night). He asked the Board how one is supposed to address a nuisance; how does one document torment? He said he has written hundreds of complaint letters to editors, town and state officials [all submitted to file] and attended conferences and seminars; and he has submitted his complete medical record with 5 letters from his medical professionals. He spoke about letters from his physicians, specifically Dr. Carol Ryan who had told him in 2010 that with PTSD he would never tolerate the effects of the wind turbines in his back yard. He spoke of his loss of enjoyment, depression and devaluation of his property that he may not be able to sell and buy a comparable home. He reviewed the $714,000.00 2012 appraisal of his home vs. the December 2013 appraisal just submitted and asked the Board to note the 20% value reduction given due to the Town wind turbines. He said he is now gardening in the Dominican Republic – his new safe zone. Mr. Funfar stated he has submitted sufficient evidence proving beyond a reasonable doubt that the town turbines are a nuisance to the on their property.

Diane Funfar spoke and said their lives were peaceful, health and happy before the wind turbines and that Barry’s PTSD was in check for seven years prior to the turbines. She said the turbines have been a major disruption to the livability and enjoyment of their home and property – it has been catastrophic. She said Barry tried to avoid the turbines by staying away from their home during 7 – 7 operation of them; and when in the home, despite no audible sound – he could detect their operation by the pressure and quivering in his chest. Their life has been totally affected by the wind turbines.

Attorney Brian Schwartz present on behalf of the Funfars spoke on issues relative to the wind turbines that are 1500 to 1600 feet from the Funfar home and how Mr. Funfar has experienced a severe decline in health with headaches, nausea and anxiety and worsening of his PTSD conditions; he is no longer able to enjoy his garden. He cited Section 240-110 of the Code of Falmouth and said the main nuisance is low frequency sound pressures – not noise; the present daytime operation of the wind turbines creates a nuisance. Attorney Schwartz stated that the ‘ordinary person’ standard to which Attorney Duffy referred to in the Hood case was an objective test meant to exclude claims from hyper-sensitive individuals whose complaints are not representative of their neighbors. He stated that dozens of the Funfar’s neighbors have complained of a similar disturbance of their health and comfort from the wind turbines. Attorney Schwartz referred the Board to Stevens v. Rockport Granite Co., 216 Mass. 486, 489 (1914) where the Court found “the number of people concerned by the noise and the magnitude of the industry complained of are both elements entitled to consideration.”

Attorney Schwartz further commented that the wind turbines are not an essential government function – the wastewater facility operated for years prior to the wind turbine being constructed. On the issue of legislative authorization of the wind turbines he quoted from the October 10, 2013 ruling from Judge Christopher Muse in ‘Town v. Town of Falmouth ZBA et. al.’ “While this court takes judicial notice of the special act, it also notes that unlike the statute in HUB Theatres, Inc. the special act did not explicitly deem the Town’s actions related thereto “to be the performance of an essential government function” … even those activities that have been legislatively sanctioned as an essential government function are only granted immunity that “is subject to the qualification that the business must be carried on without negligence or unnecessary disturbance of the rights of others” …thus, the governmental license defense is clearly not applicable.”

Comments in opposition to Appeal:

Attorney Frank Duffy, present on behalf of the Town, said he addressed issues at the September 12, 2013 hearing. He said loudness is not the issue, but low frequency and sound waves are. He referred back to the DEP study that showed 2 readings: one at 4.0 above ambient noise and one at 4.2 above ambient noise – the readings are below the DEP standards. Attorney Duffy said that low frequency due to amplitude modulation has no supporting information so is not relevant. The healthcare letter submitted states wind turbines increase Mr. Funfars’ issues. Attorney Duffy said affects must be measured against an average person of ordinary sensibilities. He cited the ‘Kasper v. HP Hood’ – “…..It must be reasonable under all the circumstances….”. The Funfar residence is located near the Town owned property zoned Public Use that allows wind turbines as a matter of right. He said Mr. Funfar stated that he does not experience the affects all the time – primarily when he is outside. There has been no violation of the 10 db threshold.

Board Questions:

Chairman McNamara asked Attorney Duffy if Wind I and Wind II are necessary to operation of the Wastewater plant.

Attorney Duffy stated they produce electricity for the facility ad generate revenue for other Town electric bills.

Chairman McNamara commented to Attorney Duffy that at the 9/12/2013 hearing Mr. Duffy stated “ordinary person – not someone with pre-existing conditions”.

Attorney Duffy cited Section 240-110 of the Code of Falmouth and case law [Kasper v. HP Hood] and said otherwise you have nuisance cases everywhere with people having different sensibilities. He said he is not diminishing PTSD – it is what case law considered.

Member Foreman asked how siting of turbines was determined.

Attorney Duffy said he has heard it was done by study based on wind, elevation of land, land availability and the Wastewater plant is the biggest electrical use facility in Town.

Member Zylinski asked Attorney Duffy what his definition of ‘objectionable features’ was [Section 240-110].

Attorney Duffy answered somewhat of a nuisance. He said Section 240-110 is vague – hence the need for case law.

Member Haddad said that Diane Funfar stated she had eye irritation and you [Barry] stated your issues; you have an accessory apartment on the property, has there been any complaints from the tenant of the apartment.

Barry Funfar said there is a single male in the apartment who hears the turbines but has not verbalized any effect from the wind turbines. Mr. Funfar stated that the effects are primarily outside and he feels he should not have to be locked up in his home – you may not hear it but that he feels it when they are operating.

Member Haddad addressed Mr. Funfar stating that the medical letter states you say you are affected, it does not say wind turbine is the cause.

Barry Funfar said he explains issues and symptoms to the doctor and is evaluated.

Member Foreman asked Mr. Funfar who appraised property in 2012 and dates of sale of comps; and asked what comps are on the appraisal submitted this night.

Mr. Funfar said the comps in 2012 were not properties in Craggy Ridge – they were non-affected homes. He said the property at 64 Ridgeview is pending; 114 Ambleside Dr. is not within same distance of turbine as his property. He noted that 64 Ridgeview was lowered $200,000.00 and is being sold as distressed.

Member Foreman asked Mr. Funfar if he hears road noise.

Mr. Funfar stated he does, he likes road noise and that it does not have some component of impact as the wind turbines do.

Member Foreman asked if curtailment of wind turbine operations have helped.

Mr. Funfar said he could dance when they are off; when they are on he can’t even take trash out.

Member Zylinski asked Mr. Funfar when he first suffered from PTSD and if he has suicidal thoughts.

Mr. Funfar explained PTSD started within a few months and he said he did not want to go to Veteran’s. He had to go to psychiatrist in 2003 due to suicidal thoughts which led to the diagnosis of PTSD with counseling and medication. Counseling and medication helped and he was back to normal until wind turbines.

Member Zylinski asked Mr. Funfar about his comments at last hearing regarding suicidal thoughts and asked if he spoke with doctors about them.

Mr. Funfar said he mentioned them to the doctors but keep reserved and cautious as he doesn’t want them to keep him at facility.

Member Zylinski asked Mr. Funfar what his definition of ‘objectionable feature’ is.

Mr. Funfar stated even vision of turbine is objectionable; noise, panic attacks and depression.

Chairman McNamara asked Mr. Funfar what the claim is exactly. He read from Attorney Schwartzs’ letter.

Mr. Funfar replied everything they have talked about, submitted information about.

Attorney Schwartz said appeal is not limited – it is everything discussed.

Chairman McNamara said Mr. Funfar stated “...there are new problems beyond PTSD…” and asked what they are.

Mr. Funfar stated palpitations, quivering and nausea.

Chairman McNamara asked if the residence is used for anything else – like a home occupation that is sensitive to sound.

Mr. Funfar stated just residence.

Chairman McNamara reviewed with Mr. Funfar his medical appointments and how many years he has been seen by physicians, including Mr. Funfar’s medical doctor, licensed independent clinical social worker and psychiatric clinical nurse specialist.

Chairman McNamara reviewed the 2012 appraisal of $714,000.00 and asked if there weren’t any unusual conditions in 2012 as the appraisal states.

Mr. Funfar stated he didn’t know why appraisal says no unusual conditions; he said his daughter handled the appraisal while he was away and that the three comparables in the appraisal are not affected by the wind turbines.

Chairman McNamara said new appraisal of 12/5/2013 does have wind turbines as unusual condition with considerate decrease in value.

Mr. Funfar stated yes – a deduction of 20% value due to turbines.

Member Foreman asked about current trend in property values as economic changes from 2008 to present was a trend.

Attorney Schwartz said the nuisance exists without determining property value.

Member Foreman asked if average values changed elsewhere in Town.

Mr. Funfar stated that a report says the decline in value is 28% within ˝ mile of the turbines – Friends of Falmouth Wind will show a different study.

Zoning Administrator Budrow asked who the study was done by.

Mr. Funfar said Mike McCann, the study came out in November and was done across the country.

Public Comment in support of Appeal:

Katherine Elder of Blacksmith Shop Road spoke in support and stated that Attorney Duffy said nuisance has to be continuous and she feels nuisance does not have to be continuous.

Neil Andersen, 211 Blacksmith Shop Road spoke in support of Appeal and said road noise vs. wind turbine noise is totally different. He spoke on what a nuisance and an objectionable feature is, and said it is not fair to judge what is objectionable to Funfars as it is all subjective and Board members have probably not been at property long enough to determine what is offensive and obnoxious. Mr. Andersen stated he has gotten to know Mr. Funfar over the past three years and knows how greatly affected he is from the wind turbines.

Annie Hart-Cool of Fire Tower Road spoke on property values.

Robert Laird of Blacksmith Shop Road spoke in support of Appeal and said nuisance does not have to be continuous as stated in case law.

Malcolm Donald of 124 Ambleside Drive spoke in support of Appeal and questioned what study Attorney Duffy spoke of in the siting of the wind turbines.

Board Discussion:

Member Zylinski said that during course of tonight’s hearing he has changed his opinion of Mr. Gore and Attorney Duffy’s statements as he has been critical of them and stated he will be voting tonight just on Mr. Funfars’ effects and he believes Mr. Funfar has been effected.

Member Foreman said he agrees Mr. Funfar is effected and is sensitive to the wind turbines. He questioned if a person without sensitivities would be effected – he said it is subjective. He said real estate values are a part of Section 240-110 of the Code of Falmouth and that that is not subjective; the history of the assessed value shows him that there is real impact and therefore a nuisance.

Member Haddad said Mr. Funfar said he is effected from other issues not just the wind turbines; PTSD is pre-existing and is acerbated by the wind turbines. The tenant in the accessory apartment on the property is not effected. Mrs. Funfar has eye irritation. He said the appraisals are contradictory from 2012 to 2013 by over $300,000.00 – do the banks have leverage? Suggested a third appraisal appropriate. In 2008 assessed at $738,000.00 and 2012 at $714,000.00 (wind turbines existed) and in 2013 $425,000.00.

Chairman McNamara stated in answer to Mr. Andersen’s claim that Board makes its judgment based on site visits; the Board reviews substantial information submitted to the file and hears testimony that they [Board] take into consideration. He said the Board does not need to be medical professionals; purpose of bylaw is to protect health and safety of citizens.

Chairman McNamara reviewed the 2012 DEP sound study, that showed impact sound of 11.5 above ambient at the property; he reviewed letters/medical records in the file from doctors, social workers, clinical nurse and counsellors that state Mr. Funfar’s overall wellbeing and health have been compromised by the wind turbines. Chairman McNamara said the bylaw does not say to ‘exclude pre-existing conditions’; and case law referred to by the Town stated noise only, not ‘objectionable features’ or anything else. In this case we have inaudible noise and sound pressures. If the by-law precluded residents with a pre-existing medical condition from filing a nuisance claim, more than 50% of the Town’s residents would be prevented. The purpose of the zoning by-law is to protect the health, welfare and safety of inhabitants and should therefore be inclusive, not exclusive. Regarding the appraisals of the property, the latest appraisal states that the wind turbine decreases the value of the property by 20%.

Board discussed issues at length.

Member Haddad made a motion to grant the appeal, overturning the Building Commissioner’s determination that a nuisance does not exist 27 Ridgeview Road. Member Zylinski seconded the motion.


FINDINGS

Based on information and documents submitted to the file, site visits, testimony of parties involved and public comment the Board finds that the:

1) Appellants’’ [Funfars’] property is located at 27 Ridgeview Drive, West Falmouth;
2) The Appellants appealed the determination of the Building Commissioner [Eladio Gore] that denied relief of zoning enforcement regarding a nuisance to the Appellants and their property enjoyment by the wind turbines located at 154 Blacksmith Shop Road, East Falmouth, MA;
3) 27 Ridgeview Drive, West Falmouth is in a Residential B zoned district;
4) Mr. and Mrs. Funfar’s use of their property is limited to normal residential purposes;
5) The Appeal filed by the Funfars is a claim of a “private nuisance” and not a “public nuisance” and is therefore relative only to 27 Ridgeview Drive, West Falmouth, Massachusetts and parties relative thereto;
6) The Building Commissioner, in denying relief, relied on the Department of Environmental Protection (DEP) noise policy that states that noise more than 10 dba above ambient is excessive and stated that the DEP report issued November 29, 2012q showed no violations of that policy;
7) The DEP study in May 2012 did show that the 27 Ridgeview Drive site would have exhibited an impact sound of 11.5 dba over ambient on March 15, 2012 and is proof that the potential not only to exceed the DEP Regulations exists but also to exceed the 6dba over ambient standard established by the Board in 2008 and further established by the Town in 2013;
8) That infrasound was not measured and may not be capable of measurement at the time of the complaint;
9) The comments made by the Town that the residents living near or abutting Public Use Districts should anticipate some annoyances or disturbances from noise and activity conducted on Public Use zoned property, in this case the Town Wastewater Facility, is not sufficient rationale to support the Town’s position that the wind turbines do not constitute a nuisance. The Board further finds that the operation of the wind turbines at the Town’s Wastewater Treatment Facility is a new use within the past three (3) years and that the Appellants have lived at 27 Ridgeview Drive for more than three (3) decades. The Board further finds that the operation of the wind turbines is not an essential governmental function and that the Town is not exempt from causing a nuisance or injury to the residents of Falmouth through action or activity that the Town conducts or operates in a Public Use District and therefore is not exempt from nuisance standards determined by the Board in interpreting the Town Code;
10) The Town bylaw – Section 240-110 “Nuisances” considers a use destructive of property values to be a nuisance;
11) The Appraisal dated December 5, 2013 of the Funfar property located at 27 Ridgeview Drive shows 20% decrease in value attributed to the wind turbines, making the appraisal of the property 72% of the Town’s assessment, and a financial hardship to the Funfar’s and shows a substantial loss in value of said property;
12) The testimony from Mr. and Mrs. Funfar regarding the substantial physical and psychological injuries that has been imposed upon them by the Town through the operation of the wind turbines to be credible, particularly in light of the numerous complaints they filed with various departments of the Town and other governmental officials over a multi-year period prior to this Appeal;
13) Mr. Funfar has stated that his injuries from the operation of the Town owned wind turbines have included palpitations, quivering and nausea, increased anxiety and emotional disturbance and have caused him to think of suicide;
14) Medical reports and letters submitted by healthcare professionals that treat Mr. Funfar, support the distress caused by the wind turbines and the decline of Mr. Funfars’ health [letters submitted by Clinical Psychologist Christy Capone dated July 2, 2010; Carol Ryan, M.D. dated 8/28/13; letter from Judson Lisiecka, LICSW dated 8/29/13; letter from Catherine A Viens, PCNS of Department of Veterans Affairs PTSD Clinic dated September 20, 2013];
15) Mrs. Funfar has attributed eye problems to the operation of the Town owned wind turbines;
16) The Town by-law – Section 240-13 “Definitions” and Section 240-110 “Nuisances”, does not preclude anyone with a pre-existing health condition from filing a complaint, nor does it prohibit a determination of a nuisance by the Board as to such individuals;
17) The Town bylaw – Section 240-13 “Definitions” and Section 240-110 “Nuisances”, does not define what is a ‘nuisance’, but it does have a subjective performance standard that states: ‘No use shall be permitted which would be offensive because of injurious or obnoxious noise, vibration, smoke, gas, fumes, odors, dust or other objectionable features, or be hazardous to the community on account of fire or explosion or any other cause. No permit shall be granted for any use which would prove injurious to the safety or welfare of the neighborhood into which it proposes to go, and destructive of property values, because of any excessive nuisance qualities.’;
18) The Board has reviewed the case law submitted by the parties for guidance with the meaning of the term nuisance in particular as the term applies to a ‘private nuisance’ and the applicability of pre-existing health conditions to claims of nuisance; and
19) In its collective judgment, when weighing all of the evidence a nuisance has been as described by the Falmouth bylaws in Section 240-110 by virtue of offensive and injurious noise including low frequency noise and other objectionable features including pressure waves caused by operation of the wind turbines and that the combinations of these conditions negatively impact the Appellants’ ability to use and enjoy their home and property as intended by the zoning district in which they reside and further causing a decline in value of the property located at 27 Ridgeview Drive, West Falmouth, Massachusetts. The Board further finds that the Appellants had exhausted all avenues of assistance to eliminate the nuisance that limits the use of their property.

DECISION

Therefore, the Board affirms the Appeal by Barry and Diane Funfar that the Town wind turbines located at 154 Blacksmith Shop Road in East Falmouth are a nuisance to the property located at 27 Ridgeview Drive in West Falmouth that directly and negatively effects the health and wellbeing of Barry and Diane Funfar, owners and residents at said property; and that said wind turbines have decidedly decreased the value of the Funfars’ property. Furthermore, the Board directs the Building Commissioner to take whatever steps are necessary to eliminate the nuisance created by Wind I and Wind II on property located at 27 Ridgeview Drive, West Falmouth, Massachusetts.





Appeal Decision by Falmouth Zoning Board of Appeals continued:


Appeal Number: 69-13

Page Number: 15 of 15



Appellant(s): Barry Funfar and Diane Funfar of West Falmouth, MA

Subject Address: 154 Blacksmith Shop Road, East Falmouth, MA
Owned by the Town of Falmouth, Site of Wind I and Wind II
Subject of this Appeal


Action: The Board of Appeals, by the Chairman’s signature below, represents that the Board voted as follows for the above referenced Comprehensive Permit.

Vote: Board voted 4 – 0 to Affirm the Appeal and Overturn the Building Commissioner’s Determination to deny enforcement regarding nuisance and detrimental health issues created by Wind I and Wind II, Town turbines; and to direct the Building Commissioner to take whatever steps necessary to eliminate the nuisance created by Wind I and Wind II at 27 Ridgeview Drive, West Falmouth, Massachusetts.





________________________________________ __________________________________
Matthew J. McNamara Date filed with Town Clerk








Notes:
#69-13 Funfar Appeal of Bldg Commissioners Determination from Wind Turbines posted to web 12/18/13 mm