Words and their meanings have powers that can impact our very well- being. Judge Cornelius J. Moriarty II, of the Justice of the Superior Court ordered the cessation of the operations of the wind turbines in Falmouth, Massachusetts. In giving his judgement he discusses findings and reasons while interpreting and applying the meanings of the words injurious and nuisance.
“Despite the Town’s insistence that Barry Funfar is hypersensitive to sound, it is clear that he is no lone voice crying in the wilderness. Other residents of the neighbouring area have registered similar complaints which was the very reason the Town commissioned the HMMH study in the first place.”
The Falmouth Enterprise August 11, 2017
A neighbor of the town’s turbines e-mailed us last week to say that we have been misleading the public by stating in recent stories that Judge Moriarty ruled that the turbines were a nuisance to the Funfar property. A nuisance, he wrote, is generally thought of as a neighbor mowing the lawn on a Sunday morning, whereas Judge Moriarty defined nuisance not only as an inconvenience but also a danger. He attached a copy of the judge’s decision for our reference.
In fact, Judge Moriarty went into a good deal of detail in a five-page discussion of his findings and decision.
First, he pointed out that the Zoning Board of Appeals’ decision that the turbines constituted a nuisance could not be overturned, as the board would have had to have been unreasonable or on legally untenable grounds. The appeals board found that the turbines were a nuisance to the Funfars’ property because, based on a DEP sound study, they directly affected the health and well-being of the Funfars. “The decision here was hardly arbitraray and capricious,” Judge Moriarty wrote.
But the issue here, of course, is the definition of nuisance. Judge Moriarty pointed out that nuisance is difficult to define and, as much testimony as there was about sound levels, none of it applies to the definition because there are no numerical standards. “The issue is,” he wrote, “whether, on the facts found, the operation of the wind turbines was offensive because of injurious or obnoxious noise or vibration, a nuisance in violation of the by-law.”
He pointed out that, while the town argued that Mr. Funfar was hypersensitive to sound, “it is clear that he is no lone voice crying in the wilderness. Other residents of the neighboring area have registered similar complaints…”
The judge discussed the definition of “injurious,” at some length and concluded that “the physical effects of the turbine-generated sound upon Mr. Funfar have been certainly harmful and have tended to injure him.”
There should be no mistake among the residents of Falmouth; when the appeals board and Judge Moriarty called the town turbines a “nuisance,” they did not mean it in the way of ants at a picnic or a dog barking in the night.
Judgement Town of Falmouth vs Falmouth Zoning Board of Appeals et al
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