Proposed Findings of Fact in Support of Denial of the Application 62-15

The Board finds the following enumerated facts, from evidence and testimony it considers
credible which was either: (1) not controverted; or (2) weightier and/or more convincing than
any evidence and testimony to the contrary. The findings are divided into subject categories.
The Primary Standard to Be Applied
1. The Board finds that the central standard it must apply to the Wind 1 special permit
application reads as follows (from Section 240-166 of the Zoning By-laws):
The Board of Appeals shall ensure, through the use of appropriate engineering
data, that there shall be no adverse impacts on the neighborhood, in terms of
television interference, ice throw, prop throw, noise, etc. There shall be a
rebuttable presumption that noise from the windmill in excess of 40 dba, as
measured at the property line, shall be excessive.
Impacts on the Neighbors
2. The Board finds credible the verbal testimony of residents who complain of distress from
the operation of Wind 1.
3. The Board finds credible past survey materials submitted into the record indicating how
many neighbors experience distress from Wind 1. The testimony from Kathryn Elder
reads in part:
Surveys conducted by the neighbors, the Falmouth Board of Health and the
WTOP all indicate that a significant number of families (41, 47 and 65)
experience negative impacts from turbine operations.
4. The Board also notes a recent petition with 96 signatures of residents living in close
proximity to Wind 1 oppose the Wind 1 special permit application due to the adverse
impacts caused by the turbine.
5. The Board finds that written testimony from attending physicians, and other medical
professionals, submitted on behalf of several abutters indicates medical and emotional
harm to patients has occurred due to the adverse impacts produced by Wind 1.

6. The Board finds that the Town has not satisfied the main standard; it has not provided all
applicable engineering evidence but has selectively presented only noise study data from
2010. Further there exists credible and appropriate data that demonstrate that Wind 1
does in fact impose adverse impacts on a significant number of nearby residents and this
evidence was provided to the record via personal and professional testimony, expert
acoustical noise measurements and professional property value appraisals.
Noise Standards
The 40dB(A) Limit
7. The Board finds that noise levels produced by Wind 1 exceed the requirements of 240166 noise from a windmill in excess of 40 dB(A), as measured at the property line,
shall be excessive.
a. The record includes modelled average noise levels shown in HMMH Figure 16
that exceed 40 dB(A) at site LT-1 at wind speeds above 11 m/s at hub height
(2010.)
b. Actual measurements reported in the MADEP Nighttime Report (May 2012)
Table 2 demonstrates that noise exceeds 40 dB(A) at multiple sites outside the
property line of the WWTP.
c. Measurements reported in the MADEP Daytime Report (November 2012) Table 2
demonstrates that noise exceeds 40 dB(A) at multiple sites outside the property
line of the WWTP.
d. Measurements reported by certified acoustical engineer Michael Bahtiarian in
slide #15, 17, 18 demonstrates that noise exceeds 40 dB(A) at multiple sites
outside the property line of the WWTP1.

The Board finds that there are occasions when the background noise level recorded by MADEP
exceeds the 40 dB(A) limit. The Board recognizes that the Canadian Province of Ontario has a
similar 40 dB(A) limit for wind turbine noise. Section 2.4 of the Ontario Technical Guide to
Renewable Energy Approvals provides an exception when ambient noise is greater than 40
dB(A). If ambient is greater than 40 dB(A), then the limit it raised to the level of the ambient

The 10dB(A) Standard (State)

8. The Board finds that Table 2 of the MADEP Nighttime Report (May 2012) indicates
noise levels produced by Wind 1 (alone; Wind 2 was not yet operational) exceeded the
MADEP state standard of 10 dB(A) (which is a doubling of noise) above ambient at Site
LT-1 at all wind speeds and on all nights tested.
The 6dB(A) Standard (Town of Falmouth)
9. The Board finds that both the Zoning Board and the Town have consistently applied a 6
dB(A) above ambient limit to wind turbine sound pressures as reasonable permit criteria,
to wit:
a. Notice Clean Energy Special Permit (a condition of SP approval)
b. Scanlon Turbine Special Permit (a condition of SP approval)
c. In deciding the Appeal of Neil and Betsy Andersen (nuisance found)
d. In deciding the Appeal of Barry and Diane Funfar (nuisance found)
e. In 2013 Falmouth Town Meeting replaced the prior version of the Windmill
Zoning By-law (240-166) with a new version which incorporates the ZBAs 6
dB(A) standard.
10. The Board found the report entered into the record entitled: DNV Review of the
Falmouth Wind 1 and Wind 2 Mitigation Report dated March 15, 2012 to be credible
and informative. The DNV Study reviewed the work of the engineering firm known as
Harris, Miller, Miller and Hanson (HMMH) dated September 2010 entitled: Falmouth
Wind Turbine Noise Study and found that that use of the 6 dB(A) limit is appropriate
and recognizes the unique character of wind turbine sound pressures as discussed on page
15 of the DNV report.

noise plus zero. The Board finds this exception reasonable, and notes that when ambient levels
measured by MADEP were greater than 40 dB(A), impact noise from Wind 1 was greater than
zero. Therefore exceedance of the limit still occurs as shown in Table 2 of the MADEP reports.

11. The Board finds that the HMMH Study reported noise levels above 40 dB(A) at property
line and an average nighttime noise level (Leq) of 8 dB(A) above background for a single
operating turbine. Modelled results for both Wind 1 and Wind 2 operating concurrently
indicate noise levels in excess of 6 dB(A) for 8 of the 11 sites analyzed (page 32).
12. The Board finds that the Town 6 dB(A) above ambient noise standard is more restrictive
than the state 10 dB(A) above ambient standard. Section 240-2 of the zoning by-laws
states, Where this chapter imposes a greater restriction the provisions of this
chapter shall control. Therefore, the 6 dB(A) above ambient limit shall control. The
record shows that multiple exceedances of the 6 dB(A) limit have occurred.
13. The Board finds that noise levels produced by Wind 1 exceed the Town 6 dBA above
ambient standard at multiple locations, under multiple weather conditions, during the day
and night as shown in Table 2 of the MADEP Nighttime study, Table 2 of the MADEP
Daytime study, and in slides 15, 17, and 18 of the Noise Control Engineering (NCE)
presentation.
14. The Board finds that Wind 1 consistently increases ambient levels by more than 6 dB(A)
which prevents the granting of the requested special permit.
Injurious or obnoxious noise
15. The Board finds that the DNV 2012 Study included a serious treatment of the
International Electrotechnical Commission (IEC) standard 61400-11 Annex A tests.
These tests are included in IEC guidelines for turbine noise measurements and are
referred to on page 22 of the DNV Study as follows:
It is unclear to DNV at this point what the source of the major complaints of
some Falmouth residents is infrasound (1-20Hz, inaudible), low-frequency
noise (LFN, 20-100 Hz, marginally audible), broadband noise or amplitude
modulation (AM) and Impulsivity (IP). These four wind turbine noise
characteristics are often present in wind turbine noise emissions.Without these
Annex A test results, governmental bodies do not have a basis on which to
determine realistic and appropriate noise ordinances. If it is suspected that any of

these Annex A noise characteristics are the source of complaints in Falmouth,

DNV can pursue measurements to further understand noise emissions from the
Falmouth turbines.
16. The Board finds that the Town did not undertake any measurements of the infrasound,
low frequency sound pressures, amplitude modulation, or impulsivity discussed in Annex
A to the IEC standard and urged by their consultants at DNV.
17. The Board finds that some of the Annex A tests recommended by the Towns consultant
DNV were performed by a board certified member of the institute of noise control
engineering (Mike Bahtarian, NCE) who was hired by the neighbors to perform an
acoustical analysis of Amplitude Modulation and infrasound.
18. The Board finds that the Town has based its presentation of the Wind 1 special permit
application entirely on the 2010 HMMH Study to the exclusion of MADEP actual
measurements and Annex A testing performed by the neighbors acoustical engineer.
20. The Board finds that the firm NCE reported the presence of Amplitude Modulation
(AM), which it describes as the repetitive beat or thump occurring at blade rotation
frequency or approximately 1.2 seconds. NCE also concluded that the total noise of
Wind 1 regularly violates the 40 dB(A) Town Bylaw, the 6 dB(A) town limit, as well as
the state limit of 10 db(A) above background.
21. The Board finds that measurements provided by NCE demonstrate how the noise from
Wind 1 is amplitude modulated. Plots provided to the record by Mr. Bahtarian show
measured noise levels from Wind 1 which varied by as much as 10 dBA and arrived at
pulsating intervals of approximately 1.2 seconds at site LT-1. Sec. 240-110 of the zoning
by-laws states, No permit shall be permitted which would be offensive because of
injurious or obnoxious noise,or other objectionable features Testimony provided
by neighbors confirms that the repetitive amplitude modulation of the noise from Wind 1
is obnoxious and highly objectionable. Testimony also confirmed that the higher the wind
speed, the more obnoxious the noise became for residents.

22. The Board finds that the applicant did not provide any evidence of time series noise data
or an analysis of potential impulsivity for the record.
23. The Board finds that noise measurements provided by NCE provide evidence that the
noise from Wind 1 contains significant levels of infrasonic noise. Infrasound pressure
with harmonic peaks at multiples of the blade passage frequency were measured both
outside and inside the homes of two neighboring houses (Andersen and Ohkagawa
residences.) Section 240-110 states, No use shall be permitted which would be offensive
because of injurious or obnoxious noise,or other objectionable features Testimony
was provided by neighbors affirming that the repetitive infrasonic noise pulses from
Wind 1 are sensed as rhythmic beating in their chests and heads, and is injurious,
obnoxious and highly objectionable.
24. The Board was provided with a peer review of the NCE report by Richard James of
Ecoustics Solutions dated March 25, 2015 commissioned by the neighbors and submitted
to the record and find this to be a credible peer review. Mr. James corroborates that the
methodology used by NCE was correct and that results displayed a similar infrasonic
signature as studies of wind turbine infrasound noise emissions conducted elsewhere.
25. The Board further finds that the tools exist to also measure for the specific pressures
discussed in Annex A to the IEC 16400-11 standard (infrasound; low-frequency noise;
amplitude modulation; and Impulsivity), but that the applicant had not taken advantage of
such tools (measurement methods for these unique pressures prescribed in Annex A).
26. The Board finds the submission by the neighbors (entitled Upside Down Thinking,)
which includes excerpts of Mr. Guldbergs VT testimony to be weighty and credible.
Mr. Guldberg asserts reasoning which this Board finds appropriate:
a. Analysis of lower frequency sound pressures is essential;
b. It is important to look at un-weighted sound power levels at the lower frequencies,
even down to the level of 12.5Hz;
c. A proper low-frequency analysis would present 1/3-ocatve band sound power
data down to 12.5 Hz to include some portion of the infrasound spectrum

(frequencies below 20 Hz) where sound is not directly heard but often sensed by
people as a rhythmic pressure oscillation (page 5 of VT testimony).
27. The Board finds that criteria used by Mr. Guldberg in his analysis of the HMMH study
which supported the VT project (and in the record) are completely ignored by Mr.
Gulberg and the applicant for the Wind 1 special permit. Therefore a full or complete
analysis of Wind 1 noise impacts was not provided by Mr. Gulberg or the applicant.
The Massachusetts Department of Environmental Protection (MADEP)
28. The Board finds that at the State level, noise pollution falls under the jurisdiction of
MADEP.
29. The Board finds that the MADEP understands well how to measure sound pressures from
wind turbines with its variable, modulated and impulsive character. The director of
MADEP, Mr. Johnson, prescribed the method of taking background plus sound source
and then background and subtracting the results to appreciate how much the source is
increasing ambient noise. It is clear that background plus source is to capture
instantaneous readings or Lmax (not averaged over a period of time), and that the
maximum levels so ascertained are to be compared to the L90 background (background
level exceeded 90% of the time).
30. The Board finds that the Towns acoustical consultants, Peter Guldberg of Tech
Environmental Inc. and Christopher Menge of HMMH, both took the position that
MADEP incorrectly measured sound pressures from Wind 1 after MADEP concluded
there were exceedances of the state standard of 10 dB(A) above ambient.
31. The Board finds that acoustical experts from the MADEP conducted a Nighttime Study,
and a Daytime Study, of sound pressures from Wind 1 at the request of the Falmouth
Board of Selectmen as evidenced by the letters submitted to record between the Falmouth
Board of Selectmen and the MADEP.
32. The Board finds that the Selectmen and its consultants understood the details of the
measurement method as provided in a letter dated June 30, 2011 submitted to the record
from regional director David Johnson of the Southeast MA Department of Environmental

Protection Agency to Selectmen prior to Towns request that MADEP make such
measurements on behalf of the Town.
33. The Board finds that the Nighttime Study conducted by the MADEP demonstrated that
11 of the 12 field measurements exceeded 6 dB(A) above background and 4 of 12
exceeded 10 dB(A) above background. Further that relative to the Towns 40 dB(A)
limit, 7 of 12 field measurements demonstrated turbine sound pressures greater than 40
dB(A).
34. The Board finds that the Daytime Study performed by MADEP at the request of the
Falmouth Selectmen demonstrated exceedances above the 6 dB(A) limit above
background even when background levels were already elevated due to highway and
other traffic noise.
Property Values
35. 240-110 Nuisances reads in part, No permit shall be granted for any use which would
provedestructive of property values
36. The Board finds that real estate appraisals for individual houses in the vicinity of Wind 1
show an average diminution of value of greater than 15% due to the proximity of Wind 1.
37. The Board finds that written testimony from Clancy Appraisals, Inc. shows a diminution
in value of 12%-13% in the Craggy Ridge Association area due to proximity of the wind
turbines.
38. The Board finds that a previous determination of nuisance was partially due to
destruction of property values (Funfar #69-13 Findings 10 & 11)
a. 10) The Town bylaw Section 240-110 Nuisances considers a use destructive
of property values to be a nuisance:
b. 11) The Appraisal dated December 5, 2013 of the Funfar property located at 27
Ridgeview Drive shows a 20% decrease in value attributed to the wind turbines,
making the appraisal of the property 72% of the Towns assessment, and a

financial hardship to the Funfars and shows a substantial loss in vale of said
property;
39. The Board finds that the Town of Falmouth Board of Assessors granted a 17% real estate
tax abatement on 4/15/2014 regarding the Funfar property.
40. The Board finds that written statements from several local real estate professionals
indicate a reduction in property values due to the wind turbines.
Height
41. The Board finds that Wind I has a tower height of two hundred sixty-two (262) feet, a
rotor diameter of two hundred sixty-nine (269) feet and an overall height to the topmost
blade extension of three hundred ninety-seven (397) feet. Section 240-216(I) of the
Falmouth Zoning Bylaw requires compliance with all applicable sections of the zoning
bylaws. The Board finds that Wind I does not comply with the provisions of Section
240-70 which governs the height of all structures, whether principal or accessory in
nature and, further, finds that Wind I is not entitled to the exception set forth in Section
240-70(b) which only allows an exception for purposes set forth in Section 24030B. The Massachusetts Appeals Court has previously ruled that Wind I is not a
municipal purpose as set forth in Section 240-30B.
42. The Board finds that 2 previous special permits granted for windmills pursuant to Section
240-166, where the height exceeded the provisions of Section 240-70, were in the Light
Industrial B zone which has a specific provision for waiver of the provisions of Section
240-70. There is no such analogous provision for waiver for windmills in the Public Use
District. Accordingly, this Board finds that it may not waive the provisions of Section
240-70 nor has the Town requested such a waiver or variance.
43. 240-17 Compliance is required. The Board finds that Section 240-17 of the zoning bylaws reads: No building or structure shall be erected, altered or extended and no
premises shall be used, except as provided in Articles V through XIII, district use
regulations. The Board finds that the sections Article V XIII includes the Nuisance
section of the by-laws; Section 110. The Board finds that it cannot grant a special permit
in this case, since it has twice ruled that Wind 1 is a nuisance, and since the applicant had

not demonstrated any effort to seriously constrain or restrict operations to make the
operation of Wind 1 not a nuisance.
44. 240-18 Classification of uses. The Board finds that Section 240-18 of the zoning bylaws reads: Where an activity might be classified under more than one of the following
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.
45. The above can be thought of as the tie-break provision. This comes into play in this
case because Section 240-216 on Special Permits contains a balancing provision, which
reads in part:
In addition to any specific requirements elsewhere in this chapter, or where no
specific restrictions are made applicable to a use allowed by special permit, the
special permit granting authority shall grant a special permit only upon its written
determination that the proposed use will not have adverse effects which
overbalance its beneficial effects on either the neighborhood or the Town, in view
of the particular characteristics of the site.
46. The Board finds that the underlined sentence above makes it clear that the balancing test
to be applied to special permit applications in general (the proposed use will not have
adverse effects which overbalance its beneficial effects) is subordinate to specific
restrictions applicable to a special permit use. In this case, the Windmill section of
the zoning by-law (240-166) DOES contain a specific restriction it requires a showing
through engineering data that the accessory turbines allowed will have NO ADVERSE
IMPACTS on neighbors ensured by a 40 dB A limit and accessory nature of the intended
use. The Board therefore finds that the general balancing test of Section 240-216 does
not apply (by virtue of the specificity of 240-166, and the tie-break provisions of Section
240-18.)

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47. Further, the Board finds that to the extent the general special permit provisions of Section
240-216 apply, the applicant has not shown that the site is adequate or suitable to this
proposed use, as required.
Accessory Use
48. The neighbors submitted to the Board a document entitled A Deliberate Shift Away
from Accessory Use, which has informed the following further findings by the Board:
a. Some of the neighbors were led to believe that a smaller turbine was to be
installed at the WWTF (questionnaire, field trips to see Hull 1);
b.

The Towns Energy Committee made a deliberate decision to install a larger

turbine than one calculated to match the load (meet the electricity needs of the
WWTF) and shifted to a commercial turbine program. This decision occurred
when it looked like the Green Communities Act would be adopted by the
Massachusetts Legislature making net metering possible (i.e. the Town could
generate revenue by selling excess electricity to the grid at the same rates as it
purchases electricity and by selling Renewable Energy Certificates on the open
market.)

c. Wind 1 and Wind 2 combined, if not constrained, would generate about 4.5 times
the amount of electricity used at the WWTF;
d. Wind 1 is not accessory-sized.
e. The Town ignored serious warning in making its siting decisions on Wind 1 and
Wind 2.
f. The Vestas V-82 generates higher sound power than the published 103.8 dB(A)
level provided by the manufacturer (about 7 decibels higher), but the HMMH
Study was based on the published level;
49. The Board finds that Wind 2 operating under the Judge Muse temporary injunction
generates more than the amount of electricity needed for the WWTF therefore any level
of generation from Wind 1 cannot be considered accessory.

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 240-216 Considerations
50. The Board finds that Wind 1 is not sufficiently set back from residences. No plan or
strategy has been analyzed or provided which would ensure that noise limits are not
exceeded at the property lines or that would adequately prevent nuisance conditions in
this location.
51. The Board finds before it two credible examples of a distance setback formula based on
maximum sound pressure level; one is the standard in place for the province of Ontario
Canada and submitted to the record, and the other formula included in the updated
literature review on health impacts of wind turbine sound pressures presented at the
hearing by the Towns expert Dr. Richard McCunney.

52. Dr. McCunneys 2014 updated literature review included the following setback chart:

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53. The Board finds that Wind 1 has a total sound power of roughly 110dB(A) as expressed
by its manufacturer in written documents presented to the Board.
54. The Board finds that an appropriate setback based on the McCunney et. al. chart (and
applying the true sound power level of the Vestas V-82 stall regulated turbines) would be
roughly 900 meters, more than double the distance specified by the applicant.
55. The Board found credible the following application of the McCunney et. al setback
formula, and notes the large number of homes within the Ontario minimum setback of
550 meters, and the much larger number of homes shown within the 900 meters needed
to satisfy the McCunney et. Al. formula:

35. The Board finds that a setback of 400 meters (distance away from closest home at 211
Blacksmith Shop Rd.) is inadequate according to the Ontario and the McCunney et. al
criteria setback requirements of a minimum of 550 and 900 meters respectively.

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36. While not applicable because the Development of Regional Impact threshold is not
triggered, the Board finds the Cape Cod Commissions presumptive acoustical setback of
10 times rotor diameter a distance of 2,690 feet, or about 820 meters (shown on the above
picture) to be informative.
37. The Board finds that almost all complaints have been lodged by residents living inside
the 10 times rotor diameter safe-setback guideline put forward by the Cape Cod
Commission of 820 meters.
Impact on neighborhood visual character, including views and vistas;
38. The board finds through the neighbors testimony and engineering data in the record that
shadow flicker has been an unmitigated problem since Wind began operation. Comments
in the record from real estate professionals have indicated that views of the turbines have
a negative effect on property values.
Non-Compliance with Standards
39. The Board finds that the application fails to meet any of the following applicable
standards:

40 dB(A) limit at the property line (240-166)

6dB(A) above ambient (the Falmouth Standard)

No adverse impacts on neighbors (240-166)

No nuisance (240-216 I and 240-110)

40. The Board finds that the conclusion it reached in its decision in the Andersen nuisance
appeal (under Section 110 of the zoning by-laws) remains applicable and prevents the
issuance of a special permit:
The Board does find through testimony given at the hearing and through site
visits by the Board members that in its collective judgment. a nuisance does
exist . by virtue of excessive and obnoxious noise likened to the repetitive
takeoff of jet planes and other objectionable features including pressure waves
caused by the operation of the wind turbines and that the combinations of these

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conditions negatively impact the Appellants ability to use and enjoy his home
and property.
41. The Board finds that Performance Standards according to Article XXIII are not met by
the applicant; 240-70, 240-110, 240-166 and 240-216 are all violated by the granting of a
special permit for Wind 1.

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