Wind Turbine Infrasound: an “Acoustic Trespasser”

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Despite its best efforts to bury the adverse health impacts of incessant turbine generated low-frequency noise and infrasound, as a result of lots of continuous complaints from neighbours, and the dedicated work of a few ethical acousticians out to help them, the wind industry has lately been called to account.

It’s taken time – the wind industry, its pet acoustic consultants and the bent planning authorities and EPAs that run cover for it, have all spent 30 years avoiding the evidence (that they knew about all along); setting up (and vigorously defending) noise ‘standards’ that deliberately exclude all reference to it; and, in the case of South Australia’s EPA making the wildest claim of all – that “modern wind farms” don’t produce infrasound at all:

Three Decades of Wind Industry Deception: A Chronology of a Global Conspiracy of Silence and Subterfuge

But, the trouble for the wind industry is that you can only cover up the facts for so long; pretty soon they leak out like a stinking ooze, surround the surreptitious; and leave them without a strategy to resist the consequences of their malodorous deeds.

In Australia, the lid was lifted by Steven Cooper’s groundbreaking study at Cape Bridgewater in Victoria (see our posts here and here); and work done by Professor Colin Hansen and his team from the Adelaide University at Waterloo in South Australia (see our post here).

In the US, Dr Paul Schomer, George Hessler, Rob Rand and Dr Bruce Walker were on the trail at Shirley, in Wisconsin back in 2012, with another effort to get to the truth out (available here).

In Falmouth, Massachusetts, Michael Bahtiarian and Allan Beaudry have recently pulled a similar feat; putting turbine generated infrasound in the spotlight.

Falmouth is plagued by 3 Vestas V82s, that have been driving neighbours nuts since March 2010. However, back in November 2013, a judge found sufficient evidence of “irreparable harm” to Neil and Betsy Andersen; that the noise generated amounted to “nuisance”; and slapped a preliminary injunction on the turbines’ hours of operation – preventing them from operating between 7pm to 7am, Monday through Saturday, all day on Sunday and certain public holidays (we’ve set out the Orders made below).

The daily turbine shut-downs (in the graphs below the shut-downs are designated as “WT Secured”) provided Michael Bahtiarian and Allan Beaudry with the perfect opportunity to prove that the infrasound surrounding and permeating the Andersen’s home was being generated by turbines (rather than wind in the trees; waves on the beach – or anything else on the wind industry’s bogus list of infrasound ‘scapegoats’). As Michael and Allan put it:

To put the conclusions more commonly, this study finds that the wind turbine(s) produce acoustic emissions which are “acoustically trespassing” into the Andersen home.

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Here’s their report on how to catch “acoustic trespassers” in the act.

Infrasound Measurements of Falmouth Wind Turbines
Wind #1 and Wind #2
Michael Bahtiarian and Allan Beaudry
27 February 2015
PDF of Full Report (including references and appendix)

EXECUTIVE SUMMARY

Noise Control Engineering, LLC (NCE) was retained by Senie & Associates P.C. to evaluate the acoustic impact at the home of Neil and Betsy Andersen at 211 Blacksmith Shop Road, East Falmouth, Massachusetts.

The goal of the evaluation was to determine if the three nearby wind turbines were detectable within the interior of the home. These wind turbines are all Vestas, model V82 at 1.65 megawatts. Two wind turbines are owned by the Town of Falmouth; known as “Wind #1” and “Wind #2”. The third turbine is privately owned by Notus Clean Energy and referred to as the “Notus” turbine. Wind #1 is the closest to the Andersen home at a nominal distance of 1,385 feet. The other two wind turbines are more than double that distance.

Soon after the first wind turbine was operational, complaints were filed by the Andersens and other neighbors. In the following years, evaluations of audible sound were performed by various organizations including NCE, consultants for the Town, consultants for Notus, and even the Massachusetts Department of Environmental Protection (MADEP). Various results were reported with some evaluations showing compliance and some showing non-compliance.

The study reported herein differed in a number of ways from previous evaluations performed by NCE and others. The major difference is that the primary measurements reported here is infrasound. Briefly, infrasound is sound pressure levels with frequency below 20 hertz which is generally considered an inaudible frequency range. Another difference is that measurements were taken both inside and outside the home. All previous tests were performed at exterior locations due to the fact that State regulations and local ordinance were only applicable at outdoor locations.

The methods used herein allowed for the collection of infrasonic sound pressure levels within the inside of the Andersen residence. Inspection of this data shows that there is a readily identifiable acoustic signature that is attributable to the Wind #1 Turbine, and to slightly lessor extent the Wind #2 turbine both inside and outside the Andersen home. These results are similar to results from other international researchers with references given in the report.

Based on our experience, NCE can unequivocally state that the infrasonic signature captured inside the Andersen residence with the wind turbines operational is 100% attributable to one or both of the Town’s Wind Turbines. To put the conclusions more commonly, this study finds that the wind turbine(s) produce acoustic emissions which are “acoustically trespassing” into the Andersen home.

INTRODUCTION

Noise Control Engineering, LLC (NCE) was retained by Senie & Associates P.C. of Westborough, Massachusetts to evaluate the acoustic impact at the home of Neil and Betsy Andersen at 211 Blacksmith Shop Road, Falmouth, Massachusetts. The goal of the evaluation was to determine if the sound from the nearby wind turbines is detectable within the interior of the home. This evaluation was conducted by measuring infrasound.

BACKGROUND

In 2010 the Town of Falmouth erected the first of two Vestas V82, 1.65 megawatt wind turbines, known as “Wind #1” and in 2012 the second turbine known as “Wind #2” was installed. Also in 2010, Notus Clean Energy erected the same Vestas V82 wind turbine known as the “Notus” wind turbine. Appendix A provides a copy of the equipment data sheet for information only. Figure 1 shows the locations of the three wind turbines in relation to the Andersen Home at 211 Blacksmith Shop Road.

As shown in Figure 1, Wind #1 is the closest to the residence with a distance of 1,385 feet. Wind #2 is 2,600 feet and Notus is 3,900 feet from the residence.

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Soon after the first wind turbine was operational, complaints were filed by the Andersens and other neighbors. In the following three years, evaluations of audible sound (20 to 20,000 hertz) were performed by many different organizations. NCE conducted some of the first sound measurements and reported these results to the Town of Falmouth during a meeting with the Board of Selectman (reference 1). NCE identified a characteristic time domain pattern known as “Amplitude Modulation” which demonstrated excess to the Town of Falmouth 40 dB(A) wind turbine sound ordinance (reference 2).

Following this work a series of evaluations were performed by another consultant, Harris Miller Miller & Hanson (HMMH) under contract to the Town’s engineering firm that supervised the installation of the wind turbines.

The purpose of this evaluation was to compare acoustic performance to the Massachusetts Department of Environmental Protection (MADEP) noise regulation (reference 3).

The wind turbines were found to be somewhat in compliance in both assessment reports which evaluated the data using two different approaches, (references 4, 5). However, the results showed that 4 dB to 15 dB increases in broadband sound over the background sound occurred depending on the measurement location (reference 4, 5).

Another consulting firm, Epsilon Associates, Inc. evaluated the Notus wind turbine and reported results in reference 6. This study evaluated the wind turbine sound with respect to the Falmouth Special Permit conditions, reference 7.

The special permit conditions required no more than a 6 dB increase in A-weighted sound pressure level, no pure tones and no more than 6 dB increase in infrasound. The Town of Falmouth Zoning Board of Appeals applied a 6 dB allowance over background noise for Notus and in connection with one other privately owned turbine. In 2013 the Falmouth Town Meeting adopted the 6 dB limitation as a Town-wide zoning provision applicable to all wind turbines. The Epsilon report found that the wind turbine was compliant for all three conditions. However, the infrasound condition was found to have an increase of as much as 5.7 dB.

Lastly, in 2012, the MADEP conducted their own set of measurements using only MADEP staff from the Lakeville office. Attended measurements were performed on multiple days during both the nighttime (reference 8) and daytime (reference 9). The nighttime report found that Wind #1 exceeded the 10 dB regulation while the daytime report found no excess to the 10 dB regulation.

In summation, the purpose of this section is to indicate the variety of acoustical evaluations that were performed of the Falmouth turbines (Wind #1, Wind #2 and Notus). Three different acoustical consulting groups conducted surveys for three different clients (Town of Falmouth, Notus Clean Energy, and residence groups) and compared results to three different sets of requirements (Falmouth Wind Turbine ordinance, Notus, special permit, and MADEP regulations). Within all these evaluations, various degrees of compliance and non-compliance were declared.

TEST OVERVIEW

This evaluation differs in a number of ways from previous tests performed by NCE and others as noted in Section 2. The major difference is that the primary measurements performed herein are “infrasound”. Briefly, infrasound is sound pressure levels with frequency below 20 hertz which is generally considered an inaudible frequency range. Another difference to previous studies is that measurements were taken both inside and outside the home. All previous tests described in Section 2 were performed at exterior locations due to the fact that State regulations and the local ordinance were only applicable at outdoor locations.

As noted in Section 2, the Falmouth Wind Turbines were found to be out of compliance with MADEP regulations. To be out of compliance with MADEP noise regulations requires that the source of noise (the Wind Turbines) have an A-weighted sound pressure (SPL) level that is 10 decibels above the background A-weighted SPL. This condition was usually found to occur in the late evening and overnight, not because the wind turbine sound increased, but mostly because the background sound decreased during the night. Because of this situation, the court ordered (reference 10) that both Wind #1 and Wind #2 be shut down during the hours of 7pm to 7am. As such, the infrasound measurements were performed from the hours of 5pm to 8pm to allow for easy comparison of the measured infrasound with and without the Wind #1 and Wind #2 operating.

INSTRUMENTATION

Infrasonic SPL was measured using a Bruel & Kjaer infrasonic microphone, model 4964. The frequency response is useable within ±1 dB accuracy from 0.04 to 8,000 Hz. The system was field calibrated by a Larson Davis model CAL200 calibrator at 94 dB (relative to 20 micro-Pa) at 1,000 Hz. The microphone was covered with a standard wind screen and mounted on a tripod at a nominal height of 5 feet above the ground for all measurements.

Data acquisition was performed using a National Instruments, model 9234 4-channel data acquisition module. The software used is based on the National Instruments Sound & Vibration Toolkit. The system is configured to collect narrowband sound spectrum measurements using the Fast Fourier Transform (FFT) signal processing algorithm. The FFT settings were slightly differently for each of the four visits as the test methods were refined. The typical settings were 20,480 lines, 0.05 hertz resolution, 10 averages (200 seconds of sampling, 3.3 minutes), and a Hanning window.

All acoustic instrumentation was laboratory calibrated to NIST standards by an accredited laboratory within the past 12 months. Calibration certificates will be provided upon request.

RESULTS

Infrasonic measurements were performed during 4 visits to the Andersen residence between July 2014 and February 2015. Table 1 provides a summary for each visit including date, time of day, and wind conditions.

With the exception of the initial visit in July 2014, each visit occurred during the nightly shutdown of the Wind #1 and Wind #2 at 7:00pm. This allowed for a direct comparison of turbine operation and ambient conditions within a 1 hour period.

In general, for data presented herein, operational measurements were taken between 6:30pm and 7:00pm while ambient measurements were taken from 7:00pm to 7:30pm, immediately following the shutdown of the turbines. As the July 2014 site visit occurred earlier in the afternoon, ambient measurements were not taken.

For the November, December, and February visits, asynchronous infrasonic measurements were taken both within the interior of the Andersen residence and right outside the home. Indoor measurements were taken within the living room while outdoor measurements were taken on the front lawn.

Figures 2-5 present the indoor infrasonic sound pressure levels measured from 0 to 10 Hz for each visit. [for a clearer view of any of the graphs below, click on them, they’ll open in a new window and you can magnify them from there]

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The graphs for the latter three visits also include the measured outdoor operational and indoor ambient infrasonic sound pressure levels. In each figure, regular discernable tones can be identified to varying degrees between 0.7 and 5 Hz. It was determined that the lowest of these tones, occurring at 0.72 Hz, coincides with the blade pass frequency (BPF) of the Vestas V82 turbine at full rotation speed (as given in the Vestas data sheet, Appendix A).

The blade pass frequency is seen in all rotating machinery with blades including fans and propellers and is a function of the machinery rotation speed in revolutions per minute (rpm) and the number of blades. The BPF in hertz is calculated using the following formula:

For the 3-bladed Vestas V82 turbine rotating at 14.4 rpm, the BPF is:

In addition to the blade pass frequency, rotating bladed machinery produces harmonics of the BPF which occur at integer multiples of the BPF. Table 2 shows the turbine blade pass frequency (1x BPF) and the first seven harmonics (2x – 8x BPF). Each of the frequencies shown in Table 2 was identified during at least one visit and many were found during all operational measurements.

Of note in Figures 3-5, while these tones are clearly identified in the operational indoor measurements, they are completely absent from the ambient indoor measurements following the shutdown of the turbines.

Clear identification of these tones is less consistent in the outdoor
measurements due to higher overall broadband infrasonic noise, likely due to wind which is not found for measurements taken indoors.

Examination of the data with the two Town wind turbines shut down shows no indication of any residual infrasound inside the home. This would be the case if the Notus Wind turbine had any impact at the Andersen residence. It should be noted, that the differences between the infrasonic measurements with the wind turbines secured and with the Wind #1 and Wind #2 operating are much greater than 6 dB.

Figure 6 is a compilation of the measured indoor infrasound from the four visits.

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This graph shows that the tones associated with the BPF and its harmonics occur at consistent frequencies over the span of the four visits. Further, with this figure, the substantial variations in amplitude between the visits can be more easily seen and explanations for this variation can be theorized.

Note that the highest measured levels for these tones were taken during the July visit during a moderate (17 mph) downwind condition while the lowest levels were taken during the December measurements during a low (8 mph) downwind condition.

While substantially lower in absolute amplitude, the December measurements have a similar peak-to-trough difference (10+ dB) from the tones to the frequencies between the tones suggesting, even within the house, the wind controls the ambient broadband infrasonic sound level.

Finally, measurements performed in November show both high broadband levels and lower peak-to-trough differences suggesting high wind speed and/or an upwind wind direction partially obscure the clearly identifiable wind turbine infrasonic signature. Historically, when the wind turbine sound is particularly bothersome, Mrs. Andersen has reportedly sought refuge in the dining room which is located in the back of the home. NCE understands that at times she has used this room as a second “bedroom”. NCE tested this room
and found a lower level of infrasound in the 4 to 7 Hertz range as shown in Figure 7. NCE does not have any explanation why this room has lower infrasound only at these frequencies, but her actions are consistent with these test results.

CONCLUSIONS

The methods used herein allowed for the collection of infrasonic sound pressure levels within the inside of the Andersen residence. As shown in Figure 6, there is a readily identifiable acoustic signature that can be definitively attributable to Wind #1 and possibly Wind #2 located outside the Andersen home.

To NCE’s knowledge, this is the first time such measurements have been performed and reported with respect to the Falmouth wind turbines. However, this is not the first time such measurements have been performed, and other researchers have collected low frequency infrasonic acoustic signatures at other wind turbine sites in Wisconsin and Australia (references 11, 12). As reported in these other studies, the same blade passage rate infrasound and harmonic shown inside the Andersen home have been identified.

Given NCE’s signature analysis and the dramatic change in this acoustic signature when the wind turbine(s) are shut down, NCE can unequivocally state that the infrasonic signature captured inside the Andersen residence is 100% attributable to either one or both of the Town of Falmouth Wind Turbines. To put the conclusions more commonly, this study finds that the wind turbine(s) produce acoustic emissions which are “acoustically trespassing” into the Andersen home.
Noise Control Engineering

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For the Andersens’ (and Falmouth’s other victims), the NCE report makes the task of excluding the “acoustic trespasser” that’s been invading their lives and homes a whole lot easier.  STT expects them to head back to Court to get the preliminary injunction made permanent, on the strength of it.

As to the preliminary injunction, this is what the Honorable Justice Muse found.

COMMONWEALTH OF MASSACHUSETTS
BARNSTABLE, ss SUPERIOR COURT
CIVIL ACTION NO. BACV2013-00281

TOWN OF FALMOUTH
vs.
TOWN OF FALMOUTH ZONING BOARD OF APPEALS & others

MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION FOR PRELIMINARY INJUNCTION

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. 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.

ORDER

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