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13-P-1498 Appeals Court
TODD DRUMMEY & others1 vs. TOWN OF FALMOUTH & others.2
No. 13-P-1498.
Barnstable. September 5, 2014. - February 26, 2015.
Present: Cypher, Grasso, & Fecteau, JJ.3
Zoning, By-law, Special permit, Governmental use, Permitted use.
Municipal Corporations, By-laws and ordinances.
Civil actions commenced in the Superior Court Department on
March 21, 2011.
After consolidation, the cases were heard by Robert C.
Rufo, J.
Christopher G. Senie for the plaintiffs.
Frank K. Duffy, Jr., Town Counsel, for the defendants.
1
Mark Cool, Brian Elder, Barry Funfar, Lawrence
Worthington, Robert Laird, Neil Andersen, and Elizabeth
Andersen.
2
The building commissioner of Falmouth and the zoning board
of appeals of Falmouth.
3
Justice Grasso participated in the deliberation on this
case prior to his retirement.
2
CYPHER, J. We are asked to decide in this case whether the
town of Falmouth (town) was required to obtain a special permit
from the zoning board of appeals of Falmouth (ZBA) for the
installation of a wind turbine on town land. We conclude that,
under the town's zoning by-law (by-law), a special permit was
required.
Background. The plaintiffs are Falmouth residents who live
between 1,300 and 3,200 feet from a wind turbine known as "Wind
1,"4 installed in 2009 on town land at its wastewater treatment
facility (WWTF). Alleging significant distress from sound
pressures and noise from the operation of Wind 1, Neil Andersen
and Elizabeth Andersen (collectively, the Andersen plaintiffs),
on August 25, 2010, sought an enforcement action by the town's
building commissioner asserting that the town was in violation
of the by-law by operating Wind 1 without a special permit. The
building commissioner denied their request in a letter dated
September 24, 2010, and the Andersen plaintiffs appealed to the
ZBA, which affirmed the building commissioner in a decision
dated March 3, 2011. Separate actions for relief under G. L.
c. 40A, § 17, were filed in the Superior Court by the Andersen
4
Wind 1, first operational in 2010, is a Vestas V-82, 1.65
megawatt wind turbine installed by the town on a 314.6-acre
parcel in a public use zoning district. The WWTF uses a portion
of the electricity generated by Wind 1, and the excess is sold
to the utility company NStar's (now known as Eversource)
electric grid.
3
plaintiffs and by the remaining plaintiffs. After consolidation
of the cases below, and a bench trial, a judge on June 18, 2013,
ordered that judgments enter affirming the decision of the ZBA.5
Discussion. At trial, the plaintiffs argued that the
building commissioner and the ZBA incorrectly interpreted the
by-law to allow the issuance of a building permit for Wind 1
without a special permit, citing § 240-166 of the by-law which
provides that a petitioner may apply for a special permit to
allow construction of a windmill.6 The judge, however, deferred
to the opinion of the building commissioner, affirmed by the
ZBA, that the by-law "does not apply in the limited circumstance
where the Town itself desires to construct and operate a
windmill for municipal purposes in a district where all such
purposes are permitted as of right."
Interpretation of the town's by-law raises a question of
law. Goldlust v. Board of Appeals of N. Andover, 27 Mass. App.
Ct. 1183, 1184 (1989). We "review the judge's determinations of
law, including interpretations of zoning bylaws, de novo."
Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley,
5
Although the record below indicates that consolidation
occurred, judgment entered in each of the two separate actions
for relief.
6
The by-law uses the term windmills throughout, defined in
§ 240-13 as "[a]ny device which converts wind energy to
mechanical or electrical energy." The parties agree that the
wind turbine Wind 1 is a windmill, and we use the terms
interchangeably.
4
461 Mass. 469, 475 (2012). The judge and the ZBA affirmed the
building commissioner's decision without modification; therefore
we examine that decision to determine whether the building
commissioner's interpretation of the by-law was correct.7
In reaching his decision that a special permit was not
required, the building commissioner determined that Wind 1 is a
"municipal purpose[]" that falls within the enumerated community
service uses permitted as of right in § 240-30B of the by-law,
which includes: "All municipal purposes, including the
administration of government, parks, playgrounds, recreation
buildings, Town forests, watershed, water towers and reservoirs,
beaches, fire and police stations and armories." We think that
this interpretation of the by-law to include Wind 1 as a
permitted community service use was error.
As in other districts of the by-law, windmills are
specifically designated in the public use district as an
accessory use by special permit. Therefore it logically follows
that windmills could not have been intended to fall within the
more general municipal purpose as of right within § 240-30B of
the by-law. See Miles-Matthias v. Zoning Bd. of Appeals of
7
The judge noted that the ZBA "by default" concluded that
Wind 1 was a use permitted as of right. In the ZBA decision,
three members voted to reverse the decision of the building
commissioner, with one member opposed. Because four votes of
the five-member ZBA are required to reverse the decision, see
G. L. c. 40A, § 15, the decision of the building commissioner
stood.
5
Seekonk, 84 Mass. App. Ct. 778, 789 (2014) (canon of
construction "inclusio unius est exclusio alterius" provides
that "statutory expression of one thing is an implied exclusion
of other things omitted from the statute"), quoting from
Harborview Residents' Comm., Inc. v. Quincy Hous. Authy., 368
Mass. 425, 432 (1975). Furthermore, § 240-18 of the by-law
states that where an activity might be classified under more
than one of the within uses, "the more specific classification
shall govern; if equally specific, the more restrictive shall
govern. Uses not classifiable under any category listed for the
applicable district are prohibited, except that a use listed
nowhere in Articles V through XIII may be allowed on special
permit if the Board of Appeals determines that it closely
resembles in its neighborhood impacts a use allowed or allowed
on special permit in that district." Furthermore, § 240-17 of
the by-law states: "No building or structure shall be erected,
altered or extended and no premises shall be used, except as
provided in Articles V through XIII, [the] district use
regulations."
The judge noted in upholding the building commissioner that
the list of municipal purposes in § 240-30B of the by-law was
illustrative and not limiting. While that is an accurate
characterization of the list, it does not adequately consider
the weight that must be given a specific by-law provision that
6
has been drafted to take into account the public welfare. The
classification of windmills as a permitted municipal purpose
fails to consider § 240-33G(5), which is part of a comprehensive
scheme to include wind turbines in the by-law and control their
placement and impact in the town. We are not to look at
provisions of a by-law in isolation; we must read them
contextually. Livoli v. Zoning Bd. of Appeals of Southborough,
42 Mass. App. Ct. 921, 922 (1997). Windmills were added as art.
XXXIV of the by-law by an amendment authorized by a vote of the
town meeting on September 10, 1981.8 The public use district,
identified as art. VII, was amended to include windmills as a
special permit use in § 240-33G(5) of the by-law, and the ZBA is
the permit-granting authority.
Because the by-law does not contain any exemption for the
town from its provisions, contrast Sinn v. Selectmen of Acton,
357 Mass 606, 608 (1970), it is apparent that the decisions of
the ZBA and the Superior Court judge, which relied on an
incorrect interpretations of the by-law, are not entitled to
deference. See Mauri v. Zoning Bd. of Appeals of Newton, 83
Mass. App. Ct. 336, 342 (2013), and cases cited. And we
conclude that those decisions are based on "a legally untenable
8
The warrant submitted at the town meeting stated that art.
XXXIV would "[c]reate . . . sections [in the by-law] which will
generally allow windmills throughout the Town, by special permit
from the Board of Appeals." These sections appear in the by-law
at § 240-166A-E.
7
ground, [are] unreasonable, . . . [and are] arbitrary."
MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 639
(1970).
The plaintiffs also assert that the town failed to obey the
use permit requirements in § 240-166D of the by-law. The
requirements of § 240-166D, quoted in the margin,9 pertain to
considerations of potential impacts on neighbors as well as
safety in the operation of windmills, and it appears that many
of the requirements are specific to wind turbines and are not
found in local or Massachusetts building codes. The building
commissioner testified that he issued a conventional use and
occupancy permit and did not assert that such a permit indicated
compliance with the requirements of § 240-166D. Compliance with
9
"All windmills shall require a use permit to be in
operation. No use permit shall be issued before an inspection
and certification of compliance is accomplished by a registered
professional engineer with a mechanical or structural
background, nor before a determination by the Building
Commissioner that all the conditions of this chapter and any
special permit have been met. All windmills shall require a
biennial inspection by a registered professional engineer with a
mechanical or structural background, and any windmill which
fails to undergo such an inspection shall be deemed to be in
violation of this chapter and the special permit. The Building
Commissioner shall require immediate corrective action on any
noted deficiency. Failure to comply shall be deemed to be a
violation of this chapter and the special permit."
8
those requirements must be made in the course of an application
for a special permit.10
Conclusion. For the reasons given, we vacate the June 18,
2013, judgments of the Superior Court.11 The matter is remanded
to the Superior Court, where new judgments shall enter
consistent with this opinion.
So ordered.
10
We decline to consider the request of the plaintiffs to
order the town to cease the operation of Wind 1 until a special
permit is issued. Article XXXVII, §§ 240-179 and 240-180, of
the by-law assign such enforcement actions to the building
commissioner in the first instance.
11
See note 5, supra.