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 Cooperatives 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 todays date has issued in favor of Plaintiffs. In accordance with that decision it is hereby
ADJUDGED and ORDERED in accordance with this courts 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 courts 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 Cooperatives 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 Boards decision upholding the decision of the Lanesborough Building Inspector denying Plaintiffs request for enforcement was in excess of the Boards 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.)
[Note 1] Nettie R. Hammond, Trustee has withdrawn from the case.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] Subsequent to this courts order, Plaintiffs pursued their administrative remedies and eventually timely filed case number 09 MISC 393464.