SILVERLEAF RESORTS, INC., NETTIE R. HAMMOND, TRUSTEE of the HAMMOND FAMILY NOMINEE TRUST, and JOERN SCHMEY [Note 1] v. ZONING BOARD OF APPEALS for the TOWN OF LANESBOROUGH, RONALD W. TINKHAM, ROBERT SAMPSON, ROBERT D. MOSSMAN, GORDON ZACKS, and BERKSHIRE WIND COOPERATIVE CORPORATION

In this action, 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] Plaintiffs assert in this action that the Road was constructed pursuant to a lapsed special permit.

A decision of today’s date has issued in favor of Plaintiffs. In accordance with that decision it is hereby

ADJUDGED and ORDERED in accordance with this court’s order dated August 5, 2008, Count I of the Amended Complaint hereby is DISMISSED as untimely; it is further

ADJUDGED and ORDERED in accordance with this court’s order dated September 12, 2008, Count III of the Amended Complaint is DISMISSED for failure of Plaintiffs to exhaust administrative remedies; [Note 4] it is further

ADJUDGED and ORDERED that the Cooperative’s predecessor, Berkshire, failed to commence substantial use or construction of the Road pursuant to the provisions of the Town of Lanesborough Zoning By-Laws within one year of its issuance and therefore the special permit lapsed; it is further

ADJUDGED and ORDERED that the Board’s decision upholding the decision of the Lanesborough Building Inspector denying Plaintiffs’ request for enforcement was in excess of the Board’s authority and is therefore annulled; and it is further

ADJUDGED and ORDERED that the Cooperative, and all persons acting for, on behalf of, or in concert with it, including its agents, servants, employees, attorneys, members, contractors, and designees be and hereby are permanently restrained and enjoined from using the Road for any purpose related to or in connection with the construction of the Wind Facility including, but not limited to: (a) transporting wind turbines or wind turbine parts, components, or equipment; (b) transporting construction personnel, equipment, materials, and/or supplies; and (c) gaining access to the Wind Facility to perform any building, excavation, clearing, blasting, or any other construction activity.

By the Court (Scheier, C.J.)