Falmouth, Mass. Judge Muse Decision to Shut Down Wind Turbines Causing Irreparable Harm


By order of the court, preliminary injunction shall issue until further order of the court.

1. The Town of Falmouth, its Selectmen, agents and persons acting in concert shall be restrained from operating the Wind Turbines located at the Waste Water Treatment Facility except during the hours of 7am to 7pm, every day of the week except Sunday. This schedule shall commence on November 22, 2013. Additionally, the same parties shall be restrained from operating said turbines in any fashion on the following limited dates: November 27, 2013; December 25, 2013; and January 1, 2014.





On November 7, 2013, the court held a hearing on the Andersen’s motion for a preliminary injunction to partially or completely shut down the operation of two wind turbines owned by the Town of Falmouth. At that hearing, with representatives of all parties present, their counsel engaged in negotiations to resolve the issue by agreement. After a suspension of hearing experienced counsel indicated to the court that the Town would “immediately” restrict turbine operation to the hours in place at the time of the ZBA’s finding of a nuisance, 7am to 7pm, and start the proposed mitigation efforts described in Building Commissioner Eladio Gore’s affidavit.

Selectwoman Moffitt and counsel indicated that these terms were not only appropriate, but that they were going to recommend a global settlement on the issue. In the face of this promise to the court, the Town has refused to reduce the turbine operation hours from sixteen per day to the promised twelve. Therefore, the Town’s actions, (or inactions), this court to employ its discretion in ruling upon the Andersens’ motion; the court’s conclusions and order are as follows.

In determining whether a preliminary injunction should be granted, the court engages in a balancing test. See Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 617 (1980). The Supreme Judicial Court set forth the prevailing standard as follows:

“[W]hen asked to grant a preliminary injunction, the judge initially evaluates in combination the moving party’s claim of injury and chance of success on the merits. If the judge is convinced that failure to issue the injunction would subject the moving party to a substantial risk of irreparable harm, the judge must then balance this risk against any similar risk of irreparable harm which granting the injunction would create for the opposing party . . . . Only where the balance between these risks cuts in favor of the moving party may a preliminary injunction properly issue.”

GTE Products Corp. v. Stewart, 414 Mass. 721, 722-723 (1993) (quoting Packaging Indus. Group, 380 Mass. at 617); see also LeClair v. Town of Norwell, 430 Mass. 328, 331 (1999) and Boston Police Patrolmen’s Assn. v. Police Dept. of Boston, 446 Mass. 46, 49-50 (2006) (“When a private party seeks a preliminary injunction, the moving party is required to show that an irreparable injury would occur without immediate injunctive relief.”).

As previously articulated in this court’s Interim Order of Decision, the Andersens have a substantial likelihood of success on the merits of their position that the ZBA’s decision that both turbines created a nuisance prohibited by Code of Falmouth §240-110 at the property in question, and its direction that the “Building Commissioner take all necessary steps to eliminate the nuisance caused by the operation of the wind turbines”, was based on a legally reasonable ground that was sufficiently supported by facts contained within the record. See MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 639 (1970) (a ZBA decision “cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.”) The Town of Falmouth, by and through its ZBA, has spoken, and found that the turbines create a nuisance at the Andersen’s residence. This court shall not undercut that finding where it has made an initial determination that the ZBA’s decision was legally tenable. Thus, the court now undertakes the task of examining the parties’ claims of irreparable harm and balancing the risks of granting or failing to grant the requested injunction.

The Andersens have submitted affidavits and medical records supporting their claim that the nuisance produced by the turbines has resulted in substantial and continuous insomnia, headaches, psychological disturbances, dental injuries, and other forms of malaise. The court finds the Andersens’ claims that they did not experience such symptoms prior to the construction and operation of the turbines, and that each day of operation produces further injury, to be credible. Taking this evidence of irreparable harm in conjunction with the moving parties’ substantial likelihood on the merits of their claim to uphold the ZBA’s finding of an ongoing nuisance created by daily 7am to 7pm turbine operation, the court finds there is a substantial risk that the Andersens will suffer irreparable physical and psychological harm if the injunction is not granted. See Packaging Indus. Group, 380 Mass. at 617.3

This risk therefore must be balanced against any similar risk of irreparable harm granting the injunction would create for the Town. Id. The court notes that the ZBA’s decision ordered the Building Commissioner to “eliminate the nuisance”, but did not specify how he was to accomplish that objective. The court credits and adopts in its entirety Building Commissioner Gore’s detailed recommendation of a plan to investigate the sound and pressure generated by the turbines and identify mitigating measures to eliminate the nuisance. Ultimately, measures such as sound-proofing or plantings may prove to be sufficient to eliminate the nuisance without eliminating the operation of the turbines themselves. However, the investigatory and mitigation process outlined by the Commissioner will necessarily take time, likely several months, while the Andersens continue to experience irreparable physical harm from turbines that are now operating sixteen hours per day, a further 33% increase over the operating schedule in place at the time the ZBA ordered that the nuisance be eliminated. Thus, the court must consider further injunctive relief that would have meaningful effect in the immediate future, in the absence of mitigation measures that may ultimately prove successful.

The court considered both the affidavit of Town Manager Julian Suso and Hearing Exhibits 2 and 3, which detail the terms of the various financing agreements the Town undertook to construct the turbines and the opinions of related state and federal agencies. The court concludes that there is a strong risk that a complete turbine shut down could trigger at least two irreparable failures of the long-term financing used by the Town to construct the turbines (i.e. a default on the terms of an approximately five million dollar loan/grant from the Massachusetts Water Pollution Abatement Trust, and a repayment with interest of an approximately one million dollar prepayment by the Clean Energy Center for Renewable Energy Certificates expected to be delivered in fiscal year 2015). Thus, a total shut down poses a substantial risk of irreparable financial harm that threatens the very existence of the municipality’s complex funding structure for the turbines. See Hull Municipal Lighting Plant v. Massachusetts Municipal Wholesale Electric Co., 399 Mass. 640, 643-644 (1987). While the Andersens’ have demonstrated both physical injury and a substantial likelihood of success on the merits, the quantum of irreparable harm that is strongly at risk if the turbine funding agreements permanently fail outweighs the former in the balancing of harms analysis of a total shut down. See Packaging Indus. Group, 380 Mass. at 617.

However, a more than cursory review of the financial documents provided by the Town does not indicate that there is any provision requiring 24/7 operation, nor any other specific operational schedule.6 7 8 9 The Town did not provide detailed information specifying the financial impact of any partial shut-down schedules; nothing in the pleadings directs the court to specific irreparable harm by operational hour reduction. In their pleadings and at the hearing, the parties indicated that the turbines’ operational hours had been reduced in the past for a significant period of months, supporting the inference that such action, by and of itself, would not constitute a default on any of the financing agreements submitted to the court. Additionally, Building Commissioner Gore’s affidavit stated that he would change turbine operational hours if necessary to eliminate the nuisance. Thus, an order by the court reducing turbine operational hours would simply achieve what the Selectmen, ZBA, and Building Commissioner have done or would do, but in a consistent fashion so that the injured parties can plan their lives accordingly, and thereby experience a reduction in harm from the nuisance.

Therefore, the court must exercise its discretion to determine what reduction in operating schedule most appropriately balances the risk of irreparable harm between the parties. The ZBA heard evidence and made its finding that the wind turbines were a nuisance at the Andersens’ property during an extended period in which the turbines were only operated twelve hours per day. The clear import of the ZBA’s decision is that the turbines were a nuisance when operating on this schedule. Certainly, the Selectmen’s subsequent vote and action to increase the turbines’ operations to sixteen hours per day, in the absence of any other remedial actions by the Town, is wholy antithetical to the ZBA’s order to eliminate the nuisance. It also stands to reason that if a nuisance existed on a 7am to 7pm schedule, elimination of that nuisance, in the absence of long- term measures such as plantings or sound-proofing, would require a further reduction below twelve hours per day.

The court next considers the relative injurious impact of the turbines during their daily operation. The nature of use and enjoyment of one’s home is personal to each homeowner, but as a general proposition, there are certain periods of each day that are ordinarily devoted to activities outside of the home. On weekdays, the hours of 7am to 7pm are typically devoted to out-of-home activities including employment, commuting, and errands. Similarly, the same hours on Saturdays are customarily filled up with out-of-home chores, recreation, social events, etc. These periods are generally considered to be a reasonable amount of time for a person to spend outside his or her home without significant negative impact, and are the hours in which the background environmental noise is higher. In contrast, Sundays are typically a secular day of rest spent in the privacy of one’s home, the interference with which poses a substantial burden on the homeowner.

Thus, a turbine schedule of 7am to 7pm, Monday through Saturday, would provide seventy-two operational hours per week and provide substantial mitigation of the proven (at this point) harm, with no irreparable harm to the Town. While the Town may suffer some financial penalties for reduced REC production and a decrease in expected revenue generation, the risk of major default on various financing agreements or damage to the equipment from prolonged shut down is likely avoided. While the Andersens may still be unable to enjoy the nuisance-free use of their home during customary hours of out-of-home activity, they will experience sufficient periods of time to sleep and relax in their home, with a commensurate increase in the use and enjoyment of their impacted property.

However, the court also recognizes the Andersens’ desire to use and enjoy their home during the impending holiday season. Therefore in these circumstances only, as reasonably requested and not otherwise unduly burdensome to the Town, the above-detailed turbine schedule shall be altered to cease any operation during the following days: November 27, 2013 (Thanksgiving); December 25, 2013 (Christmas Day); January 1, 2014 (New Year’s Day).

Thus, after hearing and review of the parties’ submissions, employing the “balancing” test enunciated in Packaging Indus. Group, and considering the Andersens’ likelihood of success on the merits, the risk of irreparable harm to the Andersens and the potential for irreparable harm to be suffered by the Town if an injunction is issued, this Court concludes that the scales tip in favor of the Andersens regarding the specific injunctive relief set out herein. See 380 Mass. at 617. For the above stated reasons, the defendants’ Motion for Preliminary Injunction is respectfully ALLOWED.


By order of the court, preliminary injunction shall issue until further order of the court.

1. The Town of Falmouth, its Selectmen, agents and persons acting in concert shall be restrained from operating the Wind Turbines located at the Waste Water Treatment Facility except during the hours of 7am to 7pm, every day of the week except Sunday. This schedule shall commence on November 22, 2013. Additionally, the same parties shall be restrained from operating said turbines in any fashion on the following limited dates: November 27, 2013; December 25, 2013; and January 1, 2014.

2. The mitigation plan proposed in Building Commissioner Gore’s affidavit shall be implemented forthwith.

3. The Defendant Abutters shall be allowed to submit to the Building Commissioner written proposals for sound and pressure mitigation.

4. The parties shall submit a written status update on mitigation efforts seventy-five days from this Order.

Christopher J. Muse
Justice of the Superior Court
Dated: November 21, 2013

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