MISC 07-351155

April 7, 2010


Scheier, C.J.



In these actions, Plaintiffs challenge the construction of an access road (Road) in the Town of Lanesborough by Berkshire Wind Cooperative Corporation (Cooperative). [Note 2] As built, the Road provides access over private property in Lanesborough to the Cooperative’s proposed wind power project in the contiguous town of Hancock (Wind Facility). A special permit was issued by the Lanesborough Zoning Board of Appeals (Board) in June of 2004, approving improvement and use of an existing jeep trail, with certain conditions, as access to the Wind Facility. [Note 3] By order dated August 5, 2008, this court dismissed the portion of Plaintiffs’ case that challenged the 2004 grant of the special permit because the appeal was not commenced timely under G. L. c. 40A, § 17. Subsequently, by order dated September 12, 2008, this court dismissed the portion of Plaintiffs’ case that asserted the Road was built in a location different than the one authorized by the special permit because Plaintiffs had failed to exhaust their administrative remedies with respect to that count. Thereafter, Plaintiffs initiated an enforcement request and otherwise pursued their administrative remedies. Having exhausted them, on February 13, 2009, Plaintiffs filed case number 09 MISC 393464, to challenge the location and manner in which the Road had been constructed. The second case was consolidated with the first (07 MISC 351155) for the purposes of scheduling and trial.

A three-day trial was held on August 11, 12, and 13, 2009. At trial this court heard the expert testimony of James M. Scalise, II, professional engineer and President of SK Design Group, whose testimony was proffered by Plaintiffs, and Darrin Harris, professional engineer and division manager with Hill Engineering, testifying for the Cooperative. Also testifying for the Cooperative were Richard Haupt, Building Inspector for the Town of Lanesborough, Daniel M. Nitzsche, an environmental scientist, and William Shepardson, an energy consultant for Berkshire Wind Power, LLC. Eighty-five exhibits, some with multiple parts, were entered in evidence. Included among the exhibits are one videotape and deposition transcripts of Plaintiff Joern Schmey, Joe William Conner, and William Shepardson, who had also testified at trial.

On August 28, 2009, following the conclusion of a three-day trial, Plaintiffs submitted a request for injunctive relief for the first time, seeking an order enjoining the Cooperative from using the Road to construct the Wind Facility, pending a decision on the merits in these actions. This motion was opposed by the Cooperative through a written opposition filed on September 11, 2009. Plaintiffs asserted that the Cooperative’s “accelerated construction efforts” commenced in July of 2009, just before trial, despite little activity during the three years between September 2006, when the Road construction was completed, and July 2009. Plaintiffs’ assertion was consistent with the affidavit of Edward S. Kaczenski, Jr., Director of Generation Services of the Massachusetts Municipal Electric Company (MMWEC), submitted by the Cooperative. According to Mr. Kaczenski, in April 2009, MMWEC was informed by General Electric, the turbine supplier, “the cost of purchasing the turbines for delivery in 2009 would be much less than the cost of purchasing them in 2009 for delivery in 2010. MMWEC estimated this represented a 5% cost savings for the Cooperative.” This court granted Plaintiffs’ motion for injunctive relief on October 8, 2009, as it appeared that the Cooperative determined to take advantage of the cost savings by accelerating its construction schedule in such manner that the construction of the Wind Facility would likely be complete before the cases were decided on the merits.

All parties submitted post-trial briefs on October 2, 2009. Based on all the evidence and reasonable inferences drawn therefrom this court finds the following material facts:

1. On May 4, 2004, the Cooperative’s predecessor-in-interest, Berkshire Wind Power Corporation, LLC (Berkshire), together with Phyllis Tucker, an individual owning property over which the jeep trail traverses, applied for a special permit from the Board to construct the Road over the largely abandoned jeep trail to access the ridgeline of Brodie Mountain in Hancock. The application was filed pursuant to Section IV.4.b of the Lanesborough Zoning By-Laws (By-Laws) which requires a special permit for the extension, alteration, or change of a pre-existing non-conforming use.

2. The Road, both as proposed and as constructed, runs from Brodie Mountain Road in Lanesborough, through several residentially zoned properties in Lanesborough up to the ridgeline of Brodie Mountain in the Town of Hancock. According to Berkshire’s application for a special permit, the Road would be used to construct, service, and maintain the Wind Facility in Hancock.

3. On June 28, 2004, following a duly-noticed public hearing, the Board voted to approve Berkshire’s application for a special permit. Notice of the Board’s grant was filed with the Town Clerk on June 29, 2004 (Special Permit).

4. Section V-B7 of the By-Laws states:

A Special Permit shall lapse in one (1) year, which shall not include such time required to pursue [sic] to await the determination of an appeal as allowed by Section [1]7, [sic] Chapter 40A of the General Laws, if a substantial use or construction has not begun under the permit by that date, except for good cause (emphasis added).

5. In order to avoid lapse of the Special Permit, Berkshire was required to commence “substantial use or construction” authorized by the Special Permit by June 29, 2005.

6. Actual construction of the Road by Berkshire did not begin until May 16, 2006, and was completed shortly thereafter.

7. Between June 29, 2004, and June 29, 2005, Berkshire, and others associated with Berkshire used the then-existing jeep trail as access by foot and all-terrain vehicles for various agents and governmental employees who visited the Wind Facility during that year. At Berkshire’s request, the jeep trail was used by engineers who prepared “cut and fill” calculations necessary for estimating the costs of modifications to the jeep trail, an environmental consultant who performed wetland delineation work at the Wind Facility, and various representatives from environmental agencies, prospective contractors, developers, and equipment suppliers.

8. No modification or alteration to the jeep trail was necessary or performed by Berkshire to provide access for any of these people or purposes.

9. On one occasion, over two days in November 2004, the jeep trail was used to deliver bundles of size 4 and size 5 rebar [Note 4] to the proposed turbine sites. The rebar was delivered by all-terrain vehicles and no modification to the jeep trail was necessary to deliver the rebar. Shortly after this delivery of rebar, Berkshire wrote to the Building Inspector for the Town of Hancock to inform him that work had begun in accordance with the building permit. The rebar necessary to construct the turbines is size 10 rebar, although smaller size rebar might have a place in the general construction scheme. The size 10 rebar could not be delivered to the Wind facility in all-terrain vehicles over the jeep trail.

10. Also during the year following the grant of the Special Permit, in preparation for the construction of the Wind Facility, Berkshire selected a contractor and ordered necessary equipment, as it continued to make plans off site to proceed with its Wind Facility.

11. None of the activities undertaken by Berkshire or the Cooperative prior to May 16, 2009, required any modification of the existing jeep trail in order to provide access to the Wind Facility site by foot or all-terrain vehicles, and the jeep trail remained in the condition in which it had been for many years.

12. Berkshire had regularly been using the jeep trail since 2000, to reach Brodie Mountain and the Wind Facility site by foot and all-terrain vehicles. The Special Permit was sought in order to construct a road that could support and accommodate the large trucks and equipment that had to get from Brodie Mountain Road to the Wind Facility site in order to deliver the turbines and for the Wind Facility to be constructed, serviced, and maintained.

13. In the late summer of 2006, after the Road had been completed, Plaintiff Silverleaf Resorts, Inc. learned that Berkshire may have begun construction of the Road after the Special Permit had lapsed.

14. Silverleaf filed an enforcement request with the Lanesborough Building Inspector on February 12, 2007, which was denied on March 5, 2007. Silverleaf appealed the Building Inspector’s decision to the Board on March 27, 2007, and the Board upheld the Building Inspector on June 25, 2007.

15. On July 12, 2007, Plaintiffs appealed the Board’s action to this court. [Note 5]

16. Plaintiff Joern Schmey is entitled to presumptive standing in these actions. [Note 6]

* * * * * *

In case 07 MISC 351155 (Lapse Case) Plaintiffs assert that Berkshire did not engage in substantial use or construction of the Road within the one-year period following issuance of the Special Permit, as specifically required by the By-Laws. As a result, Plaintiffs assert that the Special Permit is void and the Cooperative should be permanently enjoined from using the Road to construct, service, or maintain the Wind Facility. In case 09 MISC 393464 (As-Built Case), Plaintiffs assert that the Road as constructed does not comply with the conditions set forth in the Special Permit. Specifically, Plaintiffs argue that the Road does not comply with the required width, grade, or location required by the Special Permit and contend consequently, that the Cooperative should be permanently enjoined from using the Road.

The Cooperative asserts the equitable defense of laches and contends that Plaintiffs are barred from asserting their claims in these actions, or any challenge to the Road authorized by the Special Permit. In the alternative, the Cooperative argues that while construction of the Road was not begun within one year after the issuance of the Special Permit, Berkshire and the Cooperative engaged in many other activities during that one-year period and those actions were sufficient to prevent lapse of the Special Permit. The Cooperative further argues that the Road, as built, complies with the terms of the Special Permit in all aspects, including grade, location, and width.

As the initiating complainants to the underlying enforcement actions, Plaintiffs have the burden of establishing that the Cooperative has constructed the Road in violation of the Special Permit. Morels v. Oak Bluffs Board of Appeals, 62 Mass. App. Ct. 53 , 57 (2004) (citing Brotherhood of Alpha Upsilon, Inc. v. Zoning Bd. of Appeals of Bridgewater, 15 Mass. App. Ct. 991 , 992 (1983)). Specifically, Plaintiffs must show that either the Special Permit lapsed before the Cooperative commenced substantial use or construction, or that the Road as built does not comply with the terms of the Special Permit. In accordance with the requirements of G. L. c. 40A, § 17, this court has conducted a trial de novo and made independent findings of fact without limiting itself to evidence introduced at the public hearing before the Board or affording evidentiary weight to the Board’s findings of fact. Guiragossian v. Board of Appeals of Watertown, 21 Mass. App. Ct. 111 , 114 (1985). This court may only disturb the Board’s decision if it is “based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.” MacGibbon v. Board of Appeals of Duxbury, 369 Mass. 512 , 515-16 (1976); Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 558-59 (1954).

The Lapse Case

G. L. c. 40A, § 9 authorizes cities and towns to prescribe the lapse period for special permits, so long as it does not exceed two years. Specifically, Section 9 provides:

Zoning ordinances or by-laws shall provide that a special permit granted under this section shall lapse within a specified period of time, not more than two years, . . . from the grant thereof, if a substantial use thereof has not sooner commenced . . . or, in the case of permit for construction, if construction has not begun by such date . . . .

G. L. c. 40A, § 9 (emphasis added).

In Lanesborough, the By-Laws specifically prescribe a one-year lapse period and incorporate the Section 9 requirement that during that one-year period the permit holder must commence “substantial use” or commence “construction” “in the case of [a] permit for construction.” Therefore, in order to avoid lapse of the Special Permit, Berkshire must have commenced substantial use or construction pursuant to the Special Permit by June 29, 2005. The Special Permit at issue was one that specifically authorized construction of the Road, as the jeep trail was wholly inadequate in grade, construction, width, and location to provide access for the type of equipment and trucks necessary to construct, service, and maintain the Wind Facility. Therefore, in this circumstance, “substantial use” and “construction” are largely one in the same for the purpose of determining whether the Special Permit lapsed.

Interpreting G. L. c. 40A, § 9, Massachusetts courts have been reluctant to hold that a permit holder had commenced substantial use or construction unless actual construction had begun, where, as here, the special permit in question authorized construction work. This is so even where the evidence established considerable planning work incident to proceeding with construction. See Alexander v. Bldg. Inspector of Provincetown, 350 Mass. 370 , 374-75 (1966) (stating that a commitment of time, effort, and money was preparation only and did not constitute commencement of construction sufficient to prevent application of new zoning bylaws to the previously issued permit). The courts’ holdings remain the same even in cases where the permit holder has begun physical site preparation. See Smith v. Bd. of Appeals of Brookline, 366 Mass. 197 , 199-200 (1974) (holding that excavation alone did not constitute commencement of construction); Murphy v. Bd. of Selectmen of Manchester, 1 Mass. App. Ct. 407 (1973) (holding that excavation and leveling work did not constitute commencement of construction).

Generally, anything short of actual construction work has been considered mere preparation rather than “substantial use or construction.” See Lobisser Bldg. Corp. v. Planning Bd. of Bellingham, 454 Mass. 123 (2009) (stating that commencement of actual construction of the first phase of a phased condominium within the applicable time period prevents lapse of a special permit). In the instant case, it is undisputed by the Cooperative that actual construction of the Road did not begin until almost two years after the Special Permit issued. Therefore, consistent with the cases cited above, the work that Berkshire performed in the year following June 29, 2004 was more akin to mere planning and preparation rather than the commencement of construction and not sufficient to avoid lapse of the Special Permit on that basis. The Cooperative asserts that despite the fact there was no construction commenced, use of the existing jeep trail to access the site of the Wind Facility was sufficient to prevent lapse of the Special Permit. The Cooperative bases this assertion on the fact that the Special Permit was granted for both construction of the Road and to use the Road as access to the Wind Facility. Since the existing jeep trail had previously been used to access a General Electric radar facility, the Cooperative contends that before it would have been permitted to use the jeep trail to access the Wind Facility it was required to obtain a special permit to alter a pre-existing, non-conforming use. Citing Lobisser, the Cooperative argues that mere use of the unimproved jeep trail was sufficient to prevent lapse. This court disagrees with the Cooperative’s reliance on Lobisser for this point.

Everything done by or on behalf of Berkshire during that year in connection with its planning and analysis of the Wind Facility could have been done without the issuance of the Special Permit and without construction of the Road authorized thereby. Berkshire could simply have continued to use the existing jeep trail, over which it had obtained an easement from the fee owner, to gain access to the Wind Facility for planning and design purposes. However, the equipment and vehicles necessary to construct the Wind Facility could not be transported over and along the jeep trial without significant changes and improvements, including paving and a change in road grade, width, and location. It was these significant changes that required the Special Permit. Therefore, under the unusual circumstances presented by this case, substantial use and construction are, in essence, identical. Consequently, Berkshire was required to commence construction of the Road within one year of the date of issuance of the Special Permit. See McDermott v. Board of Appeals of Melrose, 59 Mass. App. Ct. 457 (2003) (holding that only commencement of the particular type of use authorized by the special permit will prevent its lapse). Berkshire had available to it the ability to seek an extension of the Special Permit from the Board when it became clear that Berkshire was not going to commence construction within the one-year lapse period, but it did not seek such approval.

Therefore, for the reasons set forth herein this court holds that Berkshire did not commence substantial use or construction under the Special Permit within one year from the date of issuance as required by the By-Laws. Consequently, the Special Permit lapsed on June 29, 2005 and is void. See McDermott v. Board of Appeals of Melrose, 59 Mass. App. Ct. 457 , 457 (2003).

Nonetheless, the Cooperative argues that Plaintiffs should be barred from asserting their claims due to the equitable defense of laches. For the reasons set for herein, this court disagrees. “The equitable defense of laches will [only] bar a party from asserting a claim if the party so unreasonably delayed in bringing the claim that it caused some injury or prejudice to the defendant.” Polaroid Corp. v. Travelers Indem. Co., 414 Mass. 747 , 759-60 (1993). The Cooperative contends that because Plaintiffs had constructive notice of Berkshire’s application for the Special Permit as early as the June 2004 hearing, the filing of this action in 2007 was an unreasonable delay. However, this argument ignores the fact that these actions are for enforcement of the By-Laws, rather than an appeal of the grant of the Special Permit. Consequently, prior to the filing of these actions, there has to have been an alleged zoning violation for Plaintiffs to challenge.

Actual construction on the Road did not begin until May 2006, and Plaintiffs did not discover until late summer 2006 the Special Permit had lapsed prior to the commencement of construction of the Road. Therefore, the crucial inquiry for this court is whether the approximately six months it took Plaintiffs to file an enforcement request with the Building Inspector is unreasonable delay sufficient to bar Plaintiffs’ claim under the doctrine of laches. This court finds that it is not. Indeed, the case law to which the Cooperative points supports this court’s conclusion. See Myers v. Salin, 13 Mass. App. Ct. 127 , 139-40 (1982) (defense of laches available where plaintiffs knew construction had commenced, but delayed for two years before challenging the construction). The Cooperative also points to Hirsch v. Messina, Land Court Case No. 155354 (1988), for the proposition that a laches defense is appropriate where a plaintiff, with full knowledge of the defendant’s construction activities, waited until construction had begun before bringing an enforcement request. However, the instant case is distinguishable. Here, the court has found credible the testimony that Plaintiffs were not aware that the Cooperative’s construction of the Road may have been completed pursuant to a lapsed Special Permit until the late summer of 2006. The instant action is not a case of Plaintiffs deliberately delaying an enforcement action until the completion of construction. Rather, Plaintiffs were unaware of any possible action until after the Road had been completed and asserted their rights within a reasonable time thereafter.

Even if this court were to find that six months was an unreasonable delay, see, e. g., Chiuccariello v. Building Commissioner of Boston, 29 Mass. App. Ct. 482 , 487 (1991), the Cooperative did not establish at trial that the delay worked to disadvantage the Cooperative within that crucial six month period. Colony of Wellfleet, Inc. v. Harris, 71 Mass. App. Ct. 522 , 529 (2008). Accordingly, judgment will issue in the Lapse Case in favor of Plaintiffs.

The As-Built Case

Although the issues raised in the As-Built Case are rendered moot by this court’s Judgment in the Lapse Case, the issues in both cases were fully tried, and the two cases retain their independent status and were consolidated for scheduling and trial only. [Note 7]

In this action, Plaintiffs allege that the Road was not built in compliance with the express conditions of the Special Permit. Specifically, Plaintiffs assert that the Road is not located over the existing jeep trail, that in many locations the grade of the Road exceeds the 14% grade limit set forth in the Special Permit, and that in most places the width of the Road exceeds the sixteen- foot maximum required under the Special Permit. The Cooperative contends that the Road as-built complies with both the letter and the spirit of the Special Permit, despite deviations from the Special Permit conditions.

The Special Permit placed several conditions on the Road including a maximum road grade of 14%, that the Road be located largely over the existing jeep trail, and that the width not exceed sixteen feet, allowing for bump-outs ten feet in width. The evidence at trial established that the Road has an average grade of 14.9%, was not precisely located over the existing jeep trail, and has an average width of twenty-six feet. The Board’s main concern regarding road grade was safety in transporting heavy equipment up to the ridgeline of Brodie Mountain. The testimony at trial established that the Road as-built was constructed with that objective in mind and that any lower road grade would have been difficult, if not impossible, to achieve. Similarly, the location of the Road deviates in places from the existing jeep trail. In determining whether the location varies impermissibly from the Special Permit, this court must determine on what design information the Board based its decision. The evidence includes Berkshire’s application and the Board’s files. It appears that Berkshire did not provide the Board with any plans showing the exact location of the Road when applying for the Special Permit. As a result, the Board issued the Special Permit based on inexact schematic plans. This court finds that the requirement that the Road be located largely over the existing jeep trail was broad and general, and not meant as a rigid condition. The evidence at trial further established that had the Road been located precisely on the footprint of the jeep trail, a road grade of 14%, or even 14.9%, would have been impossible to achieve. Based on the evidence, this court finds that given the average road grade of 14.9% coupled with the general location of the Road in and over the path of the existing jeep trail at points, and deviating at other points, the Board was within its reasonable discretion to find that Plaintiff has not violated the Special Permit conditions regarding grade and location.

However, this court also finds that at an average width of twenty-six feet along its length, the width of the Road impermissibly exceeds both the letter and the spirit of the Special Permit width requirement. The Special Permit was conditioned upon the Road having a maximum width of sixteen feet, with ten foot bump-outs placed along the Road to allow vehicles to pass one another when necessary. The Cooperative’s expert testified that the average width of twenty-six feet does not offend the Special Permit condition because it is comprised of the sixteen-foot road width and the ten-foot bump-outs. He conceded that the Road width exceeds sixteen feet for approximately 68% of the Road length. [Note 8] This court need not, and does not, accept the expert’s definition of bump-out or his conclusion that the as-built Road complies with the condition regarding bump-outs. To adopt his interpretation would be to ignore the established definition of a bump-out and ignore as well the common sense understanding of the concept. Plaintiffs’ expert testified that the term bump-out means “a widened area so that a vehicle could pull off the traveled way and allow two vehicles to pass on a one way road . . . The bump-out should clearly be a defined increase in width. . . . [T]hey’re defined areas of relatively short length, that would be ten feet wide. . . it would be easy to see a turn-out or a bump-out along a roadway.” In his view, the Road, as built, was effectively a two lane road, with no bump-outs. Had the Board intended to allow such a road, it could have so stated, and given the condition regarding road width and the bump-outs, the Road as constructed does not comply with the Special Permit. Therefore, this court finds and rules that, with respect to the width of the Road, the Road as built violates the Special Permit.

Inasmuch as the judgment of today’s date in the Lapse Case (07 MISC 351155) renders moot the issues in the As-Built Case, it is this court’s view that no judgment in the latter case should issue at this time. In the event that either or both parties desire that this court enter a judgment in the As-Built Case, the parties have until April 30, 2010 to so advise the court, in writing, with a form of proposed judgment.

Karyn F. Scheier

Chief Justice

Dated: April 7, 2010


[Note 1] Nettie R. Hammond, Trustee has withdrawn from the case.

[Note 2] The Cooperative is a successor defendant to Berkshire Wind Power, LLC. In June of 2008, the Cooperative acquired all the assets of Berkshire Wind Power, LLC, and entered this case on July 28, 2008.

[Note 3] The Wind Facility did not require any special permitting, as the Town of Hancock has not adopted any zoning by-laws. Therefore, the Wind Facility required and received only a building permit.

[Note 4] Exemplars of which were introduced in evidence.

[Note 5] Case No. 07 MISC 351155. Some of the subsidiary facts established at trial related to the enforcement action at issue in Case No. 09 MISC 393464, have not been specifically delineated in the Fact Section above. See the analysis section for a discussion of facts relative to 09 MISC 393464.

[Note 6] This court notes that the Cooperative chose not to challenge any of the Plaintiffs’ standing , and so stipulated.

[Note 7] In the event this court’s Judgment in the Lapse Case is reversed on appeal, the parties will be entitled to this court’s findings as established by the de novo trial in the As-Built Case, as those findings would bind future Board action, if any.

[Note 8] According to Mr. Harris’ testimony, the road varied in width between sixteen and fifty-six feet.