GPH COHASSET LLC, GGNSC COHASSET LLC, CHARLES DALE, JULIE DALE, WILLIAM DRISCOLL, DARREN DONOVAN, CARRIE DONOVAN, and STEPHEN SHOEMAKER vs. THE TRUSTEES OF RESERVATIONS, CONSERVATION WIND LP, and ALFRED S. MOORE, JR., STUART W. IVIMEY, JEAN HEALEY DIPPOLD, CHARLES A. SAMUELSON, and CLARK H. BREWER, as they are members of the TOWN OF COHASSET PLANNING BOARD

On March 25, 2011, Plaintiffs GPH Cohasset, LLC and GGNSC Cohasset LLC (the “Golden Living”), Charles Dale (“Dale”), Julie Dale, William Driscoll (“Driscoll”), Darren Donovan and Carrie Donovan, and Stephen Shoemaker (“Shoemaker,” and together with Dale and Driscoll, the “Individual Plaintiffs”) filed an unverified Complaint pursuant to G.L. c. 40A, § 17, appealing the grant by Defendant Town of Cohasset Planning Board (the “Planning Board”) of (1) a special permit (the “Special Permit”) and (2) site plan approval (“Site Plan Approval”), both granted to Defendant Conservation Wind LP to construct and operate (the “Project”) a Vestas 90 model, 1.8 megawatt wind turbine (the “Approved Turbine”) on property (“Locus”) owned by Defendant Trustees of Reservations (the “Trustees”). [Note 1] A case management conference was held on May 17, 2011. On June 1, 2011, Conservation Wind LP and the Trustees filed a Motion to Substitute Conservation Wind Partners LP [Note 2] (“Partners,” and together with the Trustees and the Planning Board, “Defendants”) in place of Conservation Wind LP, together with their Answer. By Order dated November 28, 2011, this court ALLOWED the Motion to Substitute. A pre-trial conference was held on April 30, 2012. On June 26, 2012, this court ALLOWED Defendants’ Motion in Limine to exclude Plaintiffs’ Expert Testimony and the Planning Board’s Motion in Limine to exclude other witnesses.

A site view and the first day of trial at the Hingham District Court was held on August 20, 2012. The second, third and fourth days of trial were held at the Land Court in Boston on August 21, 22 and 23. All parties filed their Post-Trial Briefs on October 31, 2012, and at that time the matter went under advisement. Testimony at trial for Plaintiffs was given by John Modzelewski (Town’s engineering consultant), Steven Shoemaker (Plaintiff), Charles Dale (Plaintiff), William Driscoll (Plaintiff) and Christopher Menge (noise consultant). Testimony at trial for Defendants was given by James Younger (Director of Structural Resources for the Trustees), Dennis Loria (project manager for the Trustees), Steven Sloan (principal of the Trustees), and Nancy Harris (attorney). There were thirty-nine exhibits submitted into evidence, some in multiple counterparts.

Based on the sworn pleadings, the evidence submitted at trial, and the reasonable inferences drawn therefrom, I find the following material facts:

1. Locus consists of two large parcels of land, which together comprise 314 acres within two adjacent reservations commonly known as the Whitney and Thayer Woods (“WTW”) and Turkey Hill Reservation (“Turkey Hill,” and together, the “Reservations”). Locus is shown on Locus Plan, recorded with the Norfolk County Registry of Deeds (the “Norfolk Registry”) at Plan Book 603, Page 95. Locus is also shown on Preliminary Site Plan attached to the Application (as defined, infra). [Note 3] Locus is located within a residential zoning district. James Younger (“Younger”), Director of Structural Resources for the Trustees, testified that the Trustees will lease the portion of Locus containing the Approved Turbine to Partners.

2. The Trustees took title to a 308 acre portion of Locus within WTW (the “WTW Parcel”) by deed dated March 29, 1933, and recorded with the Norfolk Registry at Book 1642, Page 444. The Approved Turbine will be sited on the WTW Parcel. The Trustees took title to a 6.6 acre portion of Locus (the “Nike Parcel”), by deed dated October 29, 1965, and recorded with the Plymouth County Registry of Deeds (the “Plymouth Registry”) at Book 3255, Page 37, and by deed dated February 17, 1999, and recorded with the Plymouth Registry at Book 13328, Page 567. [Note 4] [Note 5] A portion of the Nike Parcel had formerly been utilized by the United States army as a Nike missile/radar development site. An old cinder block building (the “Nike Structure”) is located on the Nike Parcel, which was used in conjunction with missile/radar development.

3. The towns of Cohasset and Hingham are owners of a majority of the land within Turkey Hill (minus the portion of the Nike Parcel that is located within Turkey Hill). [Note 6] Both Cohasset and Hingham granted a conservation restriction to the Trustees, which limits the use of the land in Turkey Hill that is owned by Cohasset and Hingham (the “Municipal Restrictions”). The stated purpose of the Municipal Restrictions is “to assure that the Premises will be retained in perpetuity in their natural, scenic, and open condition and to prevent any use of the Premises that will significantly impair or interfere with the conservation value of the Premises.” The Municipal Restrictions contain several “Prohibited Uses” including, but not limited to, constructing any permanent structure, cutting or removing trees, and any surface use other than agricultural, farming, or recreational purposes. The Municipal Restrictions each contain an Appendix A that particularly describes the burdened land owned by the respective towns. Neither Appendix A lists Locus. After extensive cross-examination, Nancy Harris (Harris), the Trustees’ expert title examiner, did not waver from her position that the Municipal Restrictions do not burden any land within Locus.

4. A Land Use and Management Plan (the “Land Use Plan”) was appended as Exhibit B to each of the Municipal Restrictions. The signatories to the Land Use Plan, among others, were the Selectmen of the Town of Hingham, the Selectmen of the Town of Cohasset, and the Trustees. Pursuant to the Land Use Plan, “the Towns of Hingham and Cohasset name the [Trustees] as their agent to manage, maintain and operate Turkey Hill.” [Note 7] Harris testified that the Land Use Plan is not a restriction upon the use of Locus. The Land Use Plan does not describe what it refers to as “Turkey Hill” with any sort of particularity. [Note 8] Section 1 of the Land Use Plan states in relevant part: The property has been acquired for conservation and passive recreation purposes only. The land is protected against conversion for other purposes or disposition by two legal documents: (1) the Self Help Program Project Agreement, and (2) two permanent conservation restrictions, one from each town, held by the [Trustees].

Section 4 of the Land Use Plan states:

Turkey Hill is being managed to preserve its scenic, historic, and conservation features for passive recreational purposes including hiking, birding, photography, scenic viewing and picknicking. The property will be maintained by the [Trustees] in conjunction with its adjacent Whitney and Thayer Woods Reservation to facilitate linkage with state and locally owned conservation lands adjacent and nearby. It will be open to all members of the visiting public subject to appropriate regulations designed to preserve the area’s beauty and quiet rural character.

Section 5.I.A.4. relating to the use of the Nike Parcel states in relevant part:

[It] is recommended that [Nike Structure] be cleaned and stabilized for possible future use as an interpretive pavilion. It is envisioned that the structure would be used for display space and would be without water and heat....[T]he utilization of this structure as an interpretive pavilion will only be considered if it is economically feasible...

5. Locus and the residue of WTW and Turkey Hill are currently open to the public and used for passive recreational purposes. There is a dwelling (the “Cottage”) located on the WTW Parcel and within 1,082 feet from the site location for the Approved Turbine. A superintendent employed by the Trustees, his wife, and two minor children live at the Cottage.

6. The Trustees were created pursuant to Chapter 352 of the acts of 1891 (“Chapter 352”). Chapter 352 states in relevant part that the Trustees were established,

[F]or the purpose of acquiring, holding, arranging, maintaining, and opening to the public, under suitable regulations, beautiful and historic tracts of land within this Commonwealth; with the powers and privileges and subject to the duties set forth in chapter one hundred and fifteen of the Public Statutes [Note 9] and in such other general laws as now are or hereafter may be in force relating to such corporation.

7. In accordance with the procedures set forth in G.L. c. 180, § 7 and by a vote of two-thirds of its members legally qualified to vote, the Trustees amended their Articles of Organization and filed a Restated Articles of Organization with the Secretary of the Commonwealth in August, 2008 (the “Articles”). The purpose of the Trustees as set forth in Article II of the Articles is stated as such:

The Trustees of Reservations shall have as its purpose acquiring, holding, arranging, maintaining and opening to the public, under suitable regulations, beautiful, historic, and ecologically significant places and tracts of land primarily within this Commonwealth; acquiring, holding, maintaining and enforcing such conservation and preservation restrictions, easements and other interests in land, water areas and structures as it deems appropriate and in the public interest; and educating the public with regard to natural and historic resources and their conservation and stewardship, all in the manner and to the extent permitted by law, with the powers and privileges and subject to the duties set forth in Chapter 180 and in such other general laws as now or hereafter may be in force relating to such corporations...

Article IV of the Articles states:

Said corporation shall have all the powers specified in [G.L. c. 156B, § 9] except Paragraph (m) thereof, the powers specified in Section 9A of said Chapter and any other powers existing under Chapter 352 of the Acts of 1891 or now or hereafter permitted to a corporation organized under Chapter 180. Without limitation, such powers shall include the power to hold real property or any interest therein outside the commonwealth.

8. G.L. c. 180, § 6, states that any corporation organized under G.L. c. 180 or its predecessor statutes, shall have “in furtherance of its corporate purpose all of the [powers] specified in [G.L. c. 156B, § 9] except those provided in paragraph (m).” Among other powers specified in G.L. c. 156B, § 9, a corporation may “purchase, receive...lease or otherwise acquire, own, hold, improve, employ, use and otherwise deal in and with, real or personal property...” Another such power is “to sell, convey, lease, exchange, transfer or otherwise dispose of, or mortgage, pledge, encumber or create a security interest in, all or any of its property, or any interest therein...” G.L. c. 156, § 9A, states that “to the extent authorized by its articles of organization, a corporation may be a partner in any business enterprise which said corporation would have power to conduct by itself.” The Mirick Letter (defined, supra, note 4) concluded that “the [Articles] allow The Trustees to engage in any activity that could be undertaken by a Massachusetts business corporation...including becoming a partner in a business enterprise as provided in G.L. c. 156B, § 9A.”

9. In 2007, the Trustees adopted a strategic plan (the “Strategic Plan”) relative to their entire operation within the Commonwealth. One goal of the Strategic Plan was to reduce the carbon footprint of the Trustees to zero.

10. Golden Living is located at 1 Chief Justice Cushing Highway, Cohasset, MA (“Golden Living Property”). Golden Living Property abuts Locus. The Approved Turbine will be constructed approximately 984 feet (0.19 miles) from Golden Living Property. There is an operating nursing home facility located on the Golden Living Property.

11. Dale resides at 40 Turkey Hill Lane, Hingham (the “Dale Property”). The distance from the Dale Property to Locus is 3,040 feet (0.58 miles). Dale Property does not abut Locus.

12. Driscoll resides at 4 Pheasant Run, Hingham (the “Driscoll Property”). The distance from the Driscoll Property to Locus is 2,675 feet (0.51 miles). Driscoll Property abuts WTW but does not abut Locus.

13. Shoemaker resides at 275 East Street, Hingham (the “Shoemaker Property”). The distance from the Shoemaker Property to Locus is 2,200 feet (0.42 miles). Shoemaker Property does not abut Locus.

14. Prior to applying for a special permit and site plan approval, the Trustees engaged Applied Science Associates (“ASA”) to conduct a feasibility study (the “Feasibility Study”) to evaluate economics, environmental impacts, and other externalities relating to the Project, including noise and shadow flicker. The Feasibility Study incorporated a sound study (the “Sound Study”), which was conducted from July 30, 2010 through August 4, 2010, and which evaluated noise impact for a Vestas 100 model wind turbine. [Note 10] Assuming wind speeds of seven meters/second at hub height, the Vestas 100 model would produce a noise level at the closest neighboring property (Golden Living Property) of eight dBA above the ambient noise level of thirty-four dBA. [Note 11] [Note 12] The Sound Study tested noise levels at other sites and concluded noise will be seven dBA above ambient at 164 Turkey Hill Lane, Hingham; two dBA above ambient at 108 Turkey Hill Lane, Hingham; and one dBA above ambient at both 8 Pheasant Hill Road, Hingham, and 14 Elizabeth Lane, Hingham. [Note 13]

15. On October 27, 2010, Menge issued a memorandum (the “October Sound Memo”) amending the noise impacts at the various locales based on implementation of the smaller, less noisy Vestas model 90 turbine (i.e. the Approved Turbine) rather than a Vestas model 100 turbine. Assuming wind speeds of seven meters/second at hub height, the Vestas 90 model would produce a noise level at the closest neighboring property (Golden Living Property) of no more than six dBA above ambient. The October Sound Memo also amended its finding at the other aforementioned test sites as follows: five dBA above ambient at 164 Turkey Hill Lane; two dBA above ambient at 108 Turkey Hill Lane; and one dBA above ambient at both 8 Pheasant Hill Road and 14 Elizabeth Lane.

16. In response to comments and concerns relating to a “ground factor” raised by Mr. James Barnes, a noise consultant for the Town, Menge issued a second memorandum, dated December 14, 2010 (the “December Sound Memo”), which incorporated a change in the “ground factor” to both the Sound Study and subsequent October Sound Memo. [Note 14] Ground factor is measured on a scale from 0-1, with 0 being very hard ground (resulting in more noise) and 1 being normal sound absorbing ground. As a result of the change in ground factor from .7 to .5, HMMH concluded that the noise calculations for the Vestas 90 model Turbine with a ground factor of .5 were exactly the same as the noise calculations for the Vestas 100 model Turbine with a ground factor of .7. Therefore, HMMH adjusted the sound calculations in the December Sound Memo to reflect the exact calculations in the Sound Study (see Fact 13). [Note 15]

17. Pursuant to 310 CMR 7.10, the Massachusetts Department of Environmental Protection (“MassDEP”) requires a noise source to mitigate its impact if the noise level at a sensitive receptor’s location is more than 10 dBA above ambient. Section 19.4.2.3 of the Bylaw requires that the Approved Turbine comply with Massachusetts noise regulations (310 CMR 7.10) and that “[a]n analysis prepared by a qualified engineer shall be presented to demonstrate compliance...and shall be consistent with [MassDEP] guidance for noise measurement.”

18. The Feasibility Study evaluated the shadow flicker impact at various adjacent locations caused by the operation of a prospective wind turbine on Locus. The Feasibility Study states, “[t]ypically there are no numerical limits associated with shadow flicker however the general rule of thumb is to try to limit exposure to non participating abutters to less than 30 hours total throughout the year.” Initially, the Feasibility Study evaluated the shadow flicker impact assuming the operation of a Vestas 100 model turbine. Assuming a 100 model turbine, the Feasibility Study concluded that the maximum shadow flicker could be as high as ninety-nine hours per year at the Golden Living Property and 60.5 hours per year at the Cottage. The maximum shadow flicker assumes that skies are 100% clear during all daylight hours, that the turbine will be oriented to cast the largest possible shadow, that the turbine will be operated 100% of the time, and that there will be no attenuation of shadows caused by large trees or other large structures. The Feasibility Study suggested a “corrective factor” of 55% (the “Corrective Factor”) to be applied to all maximum shadow flicker calculations. The Corrective Factor was based on statistical data indicating that skies are clear at Locus during daylight hours 55% of the year and cloudy 45% of the year. Although this calculation was suggested, it was not incorporated into the final numerical conclusions of maximum shadow flicker.

19. The Planning Board’s consultant, Emergent, conducted its own shadow flicker study (the “Emergent Report”), which also analyzed the impact of shadow flicker caused by a Vestas 100 model turbine. The Emergent Report concluded “that the methodology [i.e. modeling input and assumptions] used by ASA in their analysis of the potential shadow impact from the proposed wind turbine on the Turkey Hill site is within the acceptable bounds of industry-accepted practices. Furthermore, Emergent’s independent analysis verifies ASA’s findings [of maximum shadow flicker values].” [Note 16] The Emergent Report stated, “it is important to stress that the [shadow flicker] values are conservative, as they do not take into account cloud cover, vegetation and structures, direction of the wind, and the time the turbines are operational.” The Emergent Report, however, made no comment regarding the Corrective Factor to reflect actual siting or cloudiness conditions.

20. After the Trustees amended their plans to incorporate operation of a Vestas 90 model turbine, ASA updated its conclusions relating to shadow flicker (the “Shadow Update”). The Shadow Update stated that “the site of the turbine has also been moved accordingly, to take advantage of the reduced height and available siting.” With the 90 model turbine and an updated siting configuration, the Shadow Update concluded that maximum shadow flicker would be fifty-five hours per year at the Golden Living building and forty-five hours per year at the Cottage. The Shadow Update calculations were also maximum figures and did not take into account the Corrective Factor. [Note 17] The Shadow Update also states: “[t]he site of the turbine has also been moved accordingly, to take advantage of the reduced height and available siting.” The Shadow Update continues:

The Golden Living retirement facility is surrounded by large trees and its anticipated that the vegetation will block the shadow impacts. The caretaker’s cottage area is cleared, however, but this lot is leased to TTOR and it is anticipated that they could mitigate any unwanted impacts through planting/relocating of trees or operational controls.

21. Section 19.4.2.4 of the Bylaw states “[w]ind turbines shall be sited in a manner that does not result in significant shadowing or flicker impacts. Applicant must demonstrate that this effect does not have significant adverse impact on adjacent uses through siting.” There are no express federal, state, or local regulations governing maximum shadow flicker impact on nearby property.

22. On October 28, 2010, Conservation Wind LP filed a combined application for a special permit and site plan approval (the “Application”) under sections 19 and 12.6 of the Bylaw to construct a wind turbine on Locus. The named applicant was Conservation Wind LP (the “Applicant”) and the Trustees were named as the “property owner.” Conservation Wind LP never existed as a legal entity. Partners, however, is a for-profit limited partnership whose general partner is TTOR Sustainable Energy Corp. James Younger (“Younger”), Director of Structural Resources for the Trustees, is the President of TTOR Sustainable Energy Corp. Younger testified that Partners was formed as a for-profit entity to be the applicant in order to take advantage of tax incentive financing to construct the Approved Turbine. Younger also testified that TTOR Sustainable Development Corporation will be the general party of Partners. As stated, supra, Younger testified that the Trustees will lease a small portion of Locus to Partners to construct the Approved Turbine.

23. Prior to filing the Application, the Trustees or their representatives met “informally” with the Planning Board during the Planning Board’s regularly scheduled meetings on September 1, 2010 and October 20, 2010 (the “Informal Meetings”). The meeting agendas and the minutes for the Informal Meetings reflect that the Trustees appeared before the Planning Board to discuss the Project.

24. The Planning Board held public hearings on the Project on November 16, 2010, December 8, 2010, and December 15, 2010, at which time the evidentiary aspect of the public hearing was closed. The Planning Board deliberated on the Application on February 9, 2011 and on February 23, 2011. On February 23, 2011, the Planning Board voted unanimously 5-0 to approve the Project with certain conditions. On March 10, 2011, the Planning Board issued a Notice of Decision together with its decision to grant (1) the Special Permit and (2) Site Plan Approval for the Project (the “Approval Decision”). The Approval Decision was filed with the Town Clerk of March 10, 2011.

25. The Approved Turbine will be located on an elevated hill on the WTW Parcel. As it is measured from ground level to the hub or nacelle, the Approved Turbine will stand at 260 feet. Each turbine blade is 150 feet long. Measured from the ground to the highest point of its blade, the Approved Turbine will stand at 410 feet. The Approved Turbine will have a 447 foot front-yard setback, 420 foot side-yard setback, and 443 foot rear-yard setback.

26. Section 19.3.3.2(b) of the Bylaw states: “In order to ensure public safety and to protect the interest of the neighboring property owners, the minimum distance from the base of any wind turbine tower to any property line in a residential district, shall be equal to the total height of the turbine to the highest point.” [Note 18]

27. Section 19.3.3.1 of the Bylaw states:

Wind turbines shall have a maximum height of 350-feet, as measured from the Pre-Construction Grade to the highest point reached by the nacelle. The SPGA may allow this height to be exceeded as part of the special permit process if the project proponent can demonstrate that the additional height is needed and that the additional benefits of the higher tower outweigh any adverse impacts.

28. The Approval Decision contained numerous conditions (the “Conditions”). Condition 9 relating to noise stated:

At the expense of the Applicant, the Applicant shall cause a post-construction Sound Analysis and Continuous Monitoring Program to be designed and executed by a qualified noise consultant to confirm the project’s compliance with the MA DEP noise regulations and to compare with predicted sound levels. Scope and methodology...including without limitation timing and extent of measurements, shall be approved by the Board prior to issuance of a building permit. Initially, a minimum of 4 selected sites shall be continuously monitored for sound levels. The sites shall include [the Golden Living Property]...[ and the Cottage]... For the first year of operation of the wind turbine quarterly reports and recommendations shall be submitted by the Applicant to the Board for review... Failure to correct the sound levels to permitted levels within a reasonable period of time shall result in a shutdown of the wind turbine until the problem is resolved to the Board’s satisfaction.

29. Condition 10 of the Approval Decision, relating to shadow flicker stated: No sensitive receptor [Note 19] (initially including without limitation [the Golden Living Property] property line nearest to the wind turbine, [the Cottage]...shall be subject to excessive flicker, which is defined for purposes of this decision as: a) more than 30 minutes of flicker per day or b) more than 30 hours of flicker per year. At the expense of the Applicant, the Applicant shall cause an on-going post-construction flicker monitoring program and analysis to be designed and carried out by a qualified consultant to ensure that no sensitive receptor shall be subject to a) more than 30 minutes of flicker per day or b) more than 30 hours of flicker per year. If either condition is exceeded turbine shall be shut down as required to limit flicker exposure to the above conditions...

30. Condition 11 relating to safety states:

The Applicant shall erect a temporary barrier from November 15th to March 15th inclusive in each year the wind turbine is operated to discourage walking near the wind turbine during conditions conducive to blade icing. The barrier shall be placed a radial distance of 410 ft from the wind turbine base. Notwithstanding the above condition, barriers need not be erected in areas around the wind turbine made inaccessible due to heavy vegetation, or water bodies. Permanent caution signage shall be placed at 100 ft intervals along the entire 410 ft radius perimeter regardless of accessibility or presence of the barrier.

31. Condition 12 relating to ice buildup states:

The Applicant shall provide the wind turbine with an automatic means of sensing ice build up on its blades and shutting down once ice buildup is detected. The Applicant shall report this type of shutdown immediately to the Building Inspector. After shutdown, startup shall take place only after visual inspection of the blades by qualified project personnel in conjunction with the Building Inspector.

32. Condition 24 relating to a power purchase agreement states:

Prior to the issuance of a building permit to construct the wind turbine, the Applicant shall meet with the Town for purposes of negotiating in good faith with the Town to sell the Town at a discounted rate as much power as the Town would like to purchase.

33. Condition 4 relating to public safety states:

The Applicant shall provide copies of the Project plans to the Town of Cohasset Fire and Police Departments (“Public Safety Departments”). Upon request, the Applicant shall provide wind facility and site safety training and safety equipment to local emergency responders and shall cooperate in developing an emergency response plan. Reasonable initial and ongoing costs associated with said training and necessary safety equipment shall be borne by the applicant.

34. Condition 18 relating to fire safety states, “[t]he wind turbine shall include an automatic fire suppression system.”

35. Several photographs within the Feasibility Study indicate that the Approved Turbine will be visible from either the homes or the immediate surrounding neighborhoods of Golden Living and all of the Individual Plaintiffs. [Note 20]

36. Section 19.4.1.1. of the Bylaw, entitled “Visual Impact” states: The proponent shall demonstrate through project siting and proposed mitigation that the wind turbine minimizes any impact on the visual character of surrounding neighborhoods and the community; this may include, without limitation, information regarding site selection, turbine design, buffering, lighting and cable layout.

37. Two cell towers, a water tower, and other structures currently exist on Turkey Hill and within the immediate vicinity of Locus. The Nike Parcel (which contains the Nike Structure) had also been previously developed as a missile testing site. The Trustees have limited the necessary clearing of Locus to approximately ten acres to accommodate improvements to the access road and the area around the Approved Turbine. The paved access road to the Approved Turbine will utilize in part an existing access road to the cell towers, which will result in less fragmentation of WTW and Turkey Hill. Younger testified that Locus was a good location for the Approved Turbine because the area within the vicinity of Locus was already “disturbed” by such structures and paving.

38. Section 19.4.2.1 of the Bylaw, entitled “Land Clearing/Open Space/Rare Species” states:

Wind turbines shall be designed to minimize land clearing and fragmentation of open space areas and shall avoid permanently protected open space when feasible. Wind turbines should be sited to make use of previously developed areas when possible. Wind turbines facilities shall also be located in a manner that does not have significant negative impacts on rare species in the vicinity (particularly avian species, bats, etc.) as may be applicable [by] law.

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The Trustees challenge the standing of all Plaintiffs to bring this action. Plaintiffs cite several arguments in favor of annulling the Approval Decision. First, Plaintiffs argue that the Approval Decision must be annulled because the Planning Board did not make any findings. Next, Plaintiffs argue that the Trustees do not have site control over Locus. Plaintiffs then allege that the Approval Decision did not adequately consider harms that will be caused by the Approved Turbine; specifically noise, shadow flicker, and fragmentation and exhaustion of natural resources. Plaintiffs also contend that the Planning Board imposed illegal conditions on its approval of the Project. Finally, Plaintiffs contend that they were not afforded due process, alleging that Driscoll was not provided requisite notice of Planning Board Meetings and that the Trustees and the Planning Board engaged in impermissible ex parte communications. Defendants contest all of these arguments and state that the Approval Decision was not arbitrary and capricious. I shall address each issue in turn.

I. Standing

Under G.L. c. 40A, § 17, only a “person aggrieved” has standing to challenge the Approval Decision. A “person aggrieved” is one who “suffers some infringement of his legal rights.” Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996). Of particular importance, the right or interest asserted by a plaintiff claiming aggrievement must be one that the applicable law is intended to protect. See Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 120 (2011). The plaintiff must establish that his injury is of a type that the pertinent zoning provisions are intended to protect against, and is special and different from the concerns of the rest of the community. Standerwick v. Andover Zoning Board of Appeals, 447 Mass. 20 , 33; Barvenik v. Alderman of Newton, 33 Mass. App. Ct. 129 , 132 (1992). “Where a municipality’s zoning bylaw specifically provides that the zoning board of appeals should take into consideration the visual impact of a proposed structure, this ‘defined protected interest may impart standing to a person whose impaired interest falls within that definition.’” Kenner v. Zoning Bd. of Appeals, 459 Mass. 115 , 120121 (2011), quoting Martin v. Corporation of the Presiding Bishop of the Church of Jesus Christ of LatterDay Saints, 434 Mass. 141 , 146147 (2001). The aggrievement caused by loss of view must be more than “de minimis.” See Kenner, supra, at 123.

All persons who qualify as “parties in interest” under G.L. c. 40A, § 11, are entitled to a presumption of standing as an aggrieved party. See Marinelli v. Board of Appeals of Stoughton, 440 Mass. 255 , 257 (2003). [Note 21] “Once the abutter’s standing is challenged and evidence is offered to support the challenge, the presumption recedes and the burden of proof shifts to the abutter, who must come forward with specific facts to support his assertion of status as an aggrieved person.” Rattner v. Planning Bd. of West Tisbury, 45 Mass. App. Ct. 8 , 10 (1998), citing Riley v. Janco Cent., Inc., 38 Mass. App. Ct. 984 , 985 (1995). Abutters “must put forth credible evidence to substantiate claims of injury to their legal rights.” Marashlian, supra, at 723.

Quantitatively, the evidence must provide specific factual support for each of the claims of particularized injury the plaintiff has made. Qualitatively, the evidence must be of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board's action. Conjecture, personal opinion, and hypothesis are therefore insufficient. Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 441 (2005) (internal citations omitted)

A. Protected Harms:

The Bylaw intends to protect harms of visual impact, noise, and shadow flicker that are caused by a wind energy facility. Section 19.4.1.1 of the Bylaw states: “[t]he proponent shall demonstrate through project siting and proposed mitigation that the wind turbine minimizes any impact on the visual character of surrounding neighborhoods and the community...” Section 19.4.2.3 of the Bylaw states, “[t]he wind turbine and associated equipment shall conform with Massachusetts noise regulations.” Section 19.4.2.4 of the Bylaw states, “[w]ind turbines shall be sited in a manner that does not result in significant shadowing or flicker impacts. Applicant must demonstrate that this effect does not have significant adverse impact on adjacent uses through siting.” It is quite clear that as it relates to wind turbines, visual character, noise, and shadow flicker are potential harms that are protected by the Bylaw. Therefore, all three potential harms can be a basis for standing.

B. Standing of Golden Living:

As an abutter, Golden Living is entitled to a presumption of standing. Golden Living states that the Trustees have failed to proffer any evidence to rebut the presumption of standing and even if the presumption has been challenged, Golden Living states that it suffers individualized, particularized harms of noise, shadow flicker, and an offensive view. The Trustees claim they have rebutted the presumption of standing and that Golden Living cannot meet its burden to prove that it is aggrieved by the Approval Decision.

It is undisputed that the Approved Turbine will cause shadow flicker on the Golden Living Property. The Shadow Update, propounded and relied upon by the Trustees, clearly indicates that the Golden Living Property will be subject to a maximum of fifty-five hours per year of shadow flicker. As discussed, infra, thirty hours per years is a maximum target threshold for shadow flicker exposure. Fifty-five hours per year is obviously in excess of this target threshold and by any objective standard cannot be considered “de minimis.” Based on the shadow flicker issue alone, I find that Golden Living has standing to challenge the Approval Decision. [Note 22]

C. Standing of the Individual Plaintiffs:

The Individual Plaintiffs allege harms of noise and shadow flicker, and negatively impacted view. Driscoll alleges that he is entitled to a presumption of standing, but the Trustees argue otherwise. Driscoll Property abuts WTW, but it does not abut Locus and it is located approximately .51 miles from Locus. Although Locus is within WTW, it is a separate and distinct lot within WTW. As such, I find that Driscoll is not entitled to a presumption of standing pursuant to G.L. c. 40A, § 11. Dale and Shoemaker do not contend that they are entitled to a presumption of standing.

Notwithstanding the foregoing, all of the Individual Plaintiffs can establish that they are persons aggrieved within the purview of G.L. c. 40A, § 17. As it relates to views, this court has determined that views and visual character of neighborhoods are protected by the Bylaw. The Bylaw explicitly protects the impact of a wind turbine on the “visual character” of a neighborhood (see, supra, section I.A.). All of the Individual Plaintiffs live within one mile of WTW and Turkey Hill, which consist primarily of open space, wooded areas, and a natural landscape. Several photographs in evidence prove that the Approved Turbine will be visible from the respective homes and immediate neighborhoods of the Individual Plaintiffs. This court is convinced that the addition of a 410 foot wind turbine will dramatically impact the views, landscape, and skyline currently enjoyed from the Individual Plaintiffs’ homes and their neighborhoods, which are adjacent to WTW and Turkey Hill. Based on the foregoing, I find that the Individual Plaintiffs have standing to challenge the Approval Decision. [Note 23]

II. Validity of the Approval Decision

A. Standard of Review

i. Special Permit

In an appeal of a special permit pursuant to G.L. c. 40A, § 17, a court is required to hear the case de novo, make factual findings, and determine the legal validity of the board’s decision based on those findings. Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 489 (1999). A decision to grant a special permit “cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.” Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 486 (1999), quoting MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970). After legal issues are decided, a court must grant deference to the Planning Board. See ACW Realty Mgmt, Inc., 40 Mass. App. Ct. 242 , 246. “[I]t is the board's evaluation of the seriousness of the problem, not the judge’s, which is controlling.” Subaru of New England, Inc. v. Bd. of Appeals of Canton, 8 Mass. App. Ct. 483 , 488 (1979). To be upheld, though, a board’s decision must be supported by a “rational view of the facts.” Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 74-75 (2003).

ii. Site Plan Approval:

“Y. D. Dugout, Inc. v. Board of Appeals of Canton, 357 Mass. 25 (1970), makes clear (at 31), that [site plan approval] imposes ‘regulation of a use rather than its prohibition.’” Prudential Ins. Co. v. Board of Appeals, 23 Mass. App. Ct. 278 , 282283 (1986). Thus, a judge is not required, as he would have been if a special permit had been in issue, simply to ascertain whether there was “sufficient basis to warrant [the board’s] decision.” Id., citing Humble Oil & Ref. Co. v. Board of Appeals of Amherst, 360 Mass. 604 , 606 (1971). A judge’s analysis is also not “confined by the principle that ‘[i]t is the board’s evaluation of the seriousness of the problem, not the judge’s, which is controlling.’” Id., citing Copley v. Board of Appeals of Canton, 1 Mass. App. Ct. 821 (1973).

B. Adequacy of Findings of the Board [Note 24]

Plaintiffs argue that the Approval Decision is legally untenable because the Planning Board did not make sufficient findings required by sections 19.4 (special permit criteria for a wind turbine) and 12.4 (general special permit criteria) of the Bylaw . The Trustees argue that the Conditions and the language in the Approval Decision constitute sufficient findings as a matter of law. Section 19.4 of the Bylaw states, “[t]he SPGA may grant a Special Permit only if it finds that the proposal complies with the provision of this bylaw and is consistent with the applicable criteria for granting Special Permits.” Section 12.4.1 of the Bylaw governing special permits states, “...[a] special permit shall not be granted by the special permit granting authority unless and until...the special permit granting authority has made written findings certifying compliance with the specific provisions of this bylaw....” Section XII of the Approval Decision, entitled Findings, makes no express findings of fact. Section XII recites sections 19.4, 12.4 and 12.6 (relating to site plan approval) of the Bylaw nearly verbatim. After reciting each relevant section of the Bylaw, the Approval Decision states (three times total, once for each aforementioned section of the Bylaw): “The Board has considered all of the above referenced criteria and finds that the proposed wind turbine and associated site improvements, as conditions in this Decision, satisfy this criteria.”

Citing to G.L. c. 40A, § 9, however, it has been held that “the detailed conditions imposed by the zoning board do double duty as findings that the special permit applied for might be exercised in harmony with the general purpose and intent of the zoning bylaw.” Tebo v. Bd. of Appeals of Shrewsbury, 22 Mass. App. Ct. 618 , 621 (1986). Moreover, “[t]he reviewing court need not remand for particularized reasons ‘if a rational basis for the denial exists which is supported by the record.’” Skydell v. Tobin, 81 Mass. App. Ct. 1113 (2012), citing Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 356 (2001). “So long as ‘any reason on which the board can fairly be said to have relied has a basis in the trial judge’s findings and is within the standards of the zoning bylaw and The Zoning Enabling Act, the board’s action must be sustained regardless of other reasons which the board may have advanced.’” Id, citing S. Volpe & Co. v. Board of Appeals of Wareham, 4 Mass. App. Ct. 357 , 360 (1976). On the other hand, courts have annulled special permits where the decision granting the relief merely parrots the statutory requirements without expounding on the reasoning. See e.g. Josephs v. Board of Appeals of Brookline, 362 Mass. 290 , 298 (1972); Warren v. Zoning Bd. of Appeals of Amherst, 383 Mass. 1 , 10 (1981).

The multitude of conditions in the Approval Decision are evidence that the Planning Board did not give cursory attention to the Project. Section 19.4 of the Bylaw indicates that the Planning Board (as special permit granting authority) shall consider the following criteria: General (relating to compliance with applicable state/federal/local laws); Visual Impact; Color; Lighting and Signage; Storm Water; Noise; and Shadowing/Flicker. There is a condition within the Approval Decision that relates to each and every special permit criteria as articulated in Section 19.4 of the Bylaw. Condition 1 requires, inter alia, that the Project comply with all state, local, and federal laws. Condition 6 requires that the Approved Turbine be painted white or near white. Condition 7 states that the Approved Turbine shall be lighted as required by the Federal Aviation Administration. The Conditions continue in this regard relating to noise (Condition 9), shadow/flicker (Condition 10), and visual impact (Condition 21). It appears that instead of making specific findings, the Board conditioned its approval on the Trustees complying with numerous conditions to ensure compliance with the Bylaw and G.L. c. 40A.

The Planning Board clearly considered a plethora of information prior to granting the Special Permit and Site Plan Approval. Instead of making formal findings relative to, e.g. noise and shadow flicker, when such information is based only on modeling rather than actual data on the ground, the Planning Board is requiring the Trustees to continuously monitor these issues. Even without “formal findings” the Planning Board did not simply mimic the language of G.L. c. 40A, § 17, without expounding on its reasoning. As discussed, infra, the information presented to the Planning Board and the resulting Conditions to the Approval Decision indicate that there exists a rational basis for issuing the Approval Decision. See Davis, supra, at 356; Tebo, supra, at 621. Based on the foregoing, I find that the Approval Decision contains sufficient findings as a matter of law.

C. Site Control:

Plaintiffs argue that the Trustees do not have sufficient site control for the Project. More specifically, Plaintiffs argue that (1) the Applicant for the Special Permit and Site Plan Approval never existed, (2) the Trustees lack corporate authority to conduct the Project on Locus, and (3) Locus is burdened by conservation restrictions that prohibit the Project. The Trustees dispute each of these arguments and claim that they have demonstrated site control to both the Planning Board and this court. Section 19.3.2 of the Bylaw states: “[t]he applicant shall submit with the application documentation of the applicant’s legal right to install and use the proposed facility at the subject property. Documentation should also include proof of control over the setback areas.”

1. The Applicant:

The Approval Decision states that Conservation Wind, LP is the applicant and that the Trustees are the property owners. Younger testified that the applicant and eventual holder of the Special Permit and Site Plan Approval needed to be a for-profit business entity in order to take advantage of tax incentive financing. The evidence is clear, as Plaintiffs point out, that Conservation Wind, LP never existed and therefore the Special Permit and Site Plan Approval were granted to a non-existent entity. The Planning Board amended the Approval Decision on May 5, 2011, after it had already been filed with the Town Clerk on March 10, 2011. The basis of this amendment was to substitute Partners for Conservation Wind LP as the “applicant.” [Note 25] The Planning Board made no substantive changes to the Approval Decision and the proper party is named on the modification to the Approval Decision. On November 28, 2011, this court allowed a Motion to Substitute to reflect the amended Approval Decision.

After realizing its error, the Planning Board and the Trustees amended the Approval Decision and substituted the proper party in this action. Plaintiffs have suffered no harm from the amendment to the Approval Decision. This court will not allow such a procedural error to stand in the way of the merits of this case. Based on the foregoing, I find that the procedural error relating to the corporate existence of the Applicant is insufficient grounds to invalidate the Approval Decision. [Note 26]

2. Corporate Authority of the Trustees:

Relying on Chapter 352, Plaintiffs argue that the Trustees were created by the Legislature for a specific and limited purpose: to acquire and hold land that is to be held open to the public. As such, Plaintiffs contend that the Trustees lack the corporate authority to engage in the business of real estate development and energy production. Indeed, Chapter 352 states that the Trustees were established to acquire and hold open to the public beautiful and historic land within the Commonwealth. Chapter 352 also states that the Trustees shall have the “powers and privileges and subject to the duties set forth in chapter one hundred and fifteen of the Public Statutes and in such other general laws as now are or hereafter may be in force relating to such corporations.” As stated, supra, chapter one hundred and fifteen of the Public Statutes was the predecessor statute to G.L. c. 180, which governs corporations for charitable and other purposes. Therefore, the Trustees have all powers and privileges set forth in G.L. c. 180.

G.L. c. 180, § 6 provides that any corporation organized under G.L. c. 180 or its predecessor statutes shall have “in furtherance of its corporate purpose all of the [powers] specified in [G.L. c. 156B, § 9] except those provided in paragraph (m).” Article IV of the Articles also states that the Trustees “shall have all of the powers specified in [G.L. c. 156B, § 9]. The powers articulated in G.L. c. 156B, § 9, include the power to purchase, lease, hold and otherwise deal in real estate [Note 27]; to do business in any jurisdiction within the United States [Note 28]; and to exercise all powers necessary or convenient to effect any or all of the purposes for which the corporation is formed. [Note 29] The Trustees contend that pursuant to Article IV of the Articles and G.L. c. 156B, § 9, they may engage in any business activity that could be undertaken by a Massachusetts business corporation. The Trustees rely on the Mirick Letter in support of this position.

The Trustees have the power to amend their charter and their stated purpose, by a 2/3 vote of all those members entitled to vote. See G.L. c. 180, § 7. Such an amendment occurred in 2008 when the Trustees adopted the Articles. [Note 30] A charitable corporation may amend its articles of organization to add other purposes, so long as the new purposes are not inconsistent with the purposes initially set forth in its charter or enabling act. See Attorney General v. Hahnemann Hospital, 397 Mass. 820 , 833-835 (1986). Article II of the Articles gives the Trustees the authority to acquire, hold, and maintain interests in land and structures as they determine to be appropriate and in the public interest, and to educate the public with regard to natural and historic resources and their conservation and stewardship. These broadened corporate purposes are very much consistent with the Trustees’ original purpose as stated in Chapter 352, i.e. to hold and keep open land for the benefit of the public. The Articles give the Trustees additional discretion to hold land and structures, “as it deems appropriate” in the public interest. Other than simply holding land for conservation purposes, the Articles also give the Trustees the authority to conserve other natural resources and to educate the public in that regard.

It would appear that the Trustees determined that the Approved Turbine is within the public interest. The Strategic Plan is evidence that the Approved Turbine is for the public benefit. One of the Trustees’ goals as set forth in the Strategic Plan is to reduce its carbon footprint and eventually offset its entire carbon output by producing clean energy through wind production. The general nature of the testimony of Younger and Loria also indicates that they believe that the Approved Turbine will benefit the public. The Mirick Letter indicated that the Approved Turbine may be a showcase or a learning site for those interested in renewable energy production. Moreover, pursuant to Condition 24 to the Approval Decision, the Trustees and Partners will enter into a power purchase agreement on very favorable terms with Cohasset. This agreement will benefit each and every citizen of Cohasset. The Trustees’ determination that the Approved Turbine is within the public interest is not arbitrary or unreasonable.

This court also points out that Partners, a for-profit limited partnership, not the Trustees, is the holder of the Special Permit and Site Plan Approval. According to Younger, the Trustees will lease a portion of Locus to Partners to construct the Approved Turbine. [Note 31] As stated, supra, G.L. c. 156B, § 9 gives the Trustees the authority to lease land. I find that the Trustees have the corporate authority to lease land to Partners to construct the Approved Turbine because, in the Trustees’ discretion, they determined that the Approved Turbine will be in the public interest - consistent with the purpose of the Trustees as set forth in the Articles.

3. Title and Encumbrances to Locus:

The parties stipulated that the Approved Turbine will be constructed on 314 acres of land owned by the Trustees. Plaintiffs allege that the Municipal Restrictions and the Land Use Plan prohibit the construction of a wind turbine on Locus. More specifically, Plaintiffs argue that the Nike Parcel is encumbered by the Municipal Restrictions and/or the Land Use Plan. The Trustees argue that no portion of Locus is bound by these encumbrances.

In 1997 Cohasset took title to approximately twenty acres of land and Hingham took title to approximately thirty acres of land, which together comprise fifty out of the approximate fifty-five acres of Turkey Hill. A portion of the Nike Parcel owned by the Trustees comprises the residue of Turkey Hill. Cohasset and Hingham granted to the Trustees certain conservation restrictions, i.e. the Municipal Restrictions, which burden prospective development on the portions of Turkey Hill owned by the respective municipalities. The Municipal Restrictions each contain an Appendix A that specifically describes the burdened land owned by the respective towns. Even after extensive cross-examination, Harris credibly testified and did not waver in her opinion that Appendix A to the respective Municipal Restrictions did not include any portion of Locus within its description, nor could it, since Cohasset and Hingham do not own any part of Locus. It is clear to this court that the Municipal Restrictions burden those portions of Turkey Hill owned by Cohasset and Hingham, but not the Nike Parcel that is a portion of Locus.

Exhibit B to each of the Municipal Restrictions was the Land Use Plan relating to the “cooperative efforts” of Cohasset, Hingham, each town’s respective land trust, the Massachusetts Division of Conservation Services, and the Trustees (as agent for the two municipalities). [Note 32] Plaintiffs’ argument regarding the Land Use Plan causing the Nike Parcel to be burdened is two fold: (1) the Trustees were a partner in a legal partnership (i.e. the Municipal Restrictions and the Land Use Plan), which took title to Turkey Hill, thus the Nike Parcel is bound by the Municipal Restrictions, and (2) the Land Use Plan itself constitutes a restriction over the Nike Parcel.

First, Plaintiffs’ argument that a partnership acquired all title to Turkey Hill is without merit. Plaintiffs’ brief does not expound on the elements of a partnership and they make no legal argument that the Trustees are in a partnership that holds legal title to Turkey Hill. The Trustees took title to the Nike Parcel in a separate deed from the deeds of Turkey Hill into Cohasset and Hingham. The Municipal Restrictions and the Land Use Plan do not constitute a partnership agreement. Based on the foregoing, Plaintiffs’ argument relating to partnership ownership of Turkey Hill is without merit.

Second, the Land Use Plan is a management Plan between Cohasset, Hingham, and the Trustees (as agent/property manager). The Land Use Plan merely sets forth how the Trustees should manage the land owned by Cohasset and Hingham. The Land Use Plan does not set forth any restrictions that specifically encumber or limit the uses to which the Nike Parcel may be put. The Land Use Plan was an appendix to the Municipal Restrictions, thus it relates only to the land particularly described in appendices to the Municipal Restrictions. As stated, supra, neither the Nike Parcel nor any other portion of Locus are described in either Appendix A to the respective Municipal Restrictions. Contrasting the Land Use Plan with the express covenants and restrictions set forth in the Municipal Restrictions is further evidence that the Land Use Plan does not impose restrictive covenants over the Nike Parcel. The only language in the Land Use Plan relating to the Nike Parcel states that “it is recommended that [the Nike Structure] be cleaned and stabilized for possible future use...It is envisioned that the structure would be used for display space...” This language does not impose any affirmative burden or otherwise restrict the use of the Nike Parcel. The Land Use Plan is simply aspirational in nature as it contemplates uses to which the Nike Parcel may be put in the future. As such, I find that Locus is not burdened by any conservation or other land use restrictions.

For all of the foregoing reasons, I find that the Trustees have site control over Locus.

D. Noise:

Plaintiffs allege that the Project does not comply with the MassDEP and Bylaw requirements relating to maximum noise thresholds. The MassDEP policy, which is also embodied in section 19.4.2.3 of the Bylaw, specifies that a noise source will violate MassDEP’s noise regulation (310 CMR 7.10) if the source increases the broadband sound level by more than 10 dBA above ambient. Each and every one of the various sound studies concluded that the noise impact at the closest noise receptor, the Golden Living Property, would be less than 10 dBA over ambient. [Note 33] The December Sound Memo, which contained the final calculations, concluded that the Golden Living Property would experience an increase over ambient of 8 dBA. Plaintiffs challenge the accuracy and the credibility of the Sound Study, the October Sound Memo, the December Sound Memo, and generally the work done in the past by HMMH and Menge.

First, Plaintiffs allege that Menge used different wind speeds to measure ambient in the Sound Study, the October Sound Memo, and the December Memo, and as a result, the ultimate conclusion was manipulated. Ambient sound levels are higher with a higher wind speed. [Note 34] The Sound Study (conducted in August 2010) calculations measured ambient sound level with winds of five meters per second (at a height of ten meters) and winds of seven meters per second (at hub height, i.e. 260 feet or approximately 79.25 meters). Neither party gave any evidence as to why ambient sound level was measured at two different heights. Nonetheless, the calculations were exactly the same and only one sound level was recorded for both heights and wind speeds. Both the October Sound Memo and the December Sound Memo measured ambient sound levels assuming wind speeds of seven meters per second at hub height - one of the same wind speeds and height levels used to measure ambient in the initial Sound Study. As such, Plaintiffs argument that Menge utilized different wind speed assumptions to manipulate his final output is disingenuous.

Plaintiffs also argue that the noise calculations are not credible because (1) ambient sound levels were measured in August 2010 during a time of heightened insect noise activity and (2) Menge failed to use a conservative ground factor input. In a rough draft letter to Modzelewski (the Planning Board’s engineering consultant), Barnes, the Planning Board’s noise consultant, expressed concern relative to both the timing of the ambient measurement and the ground factor. According to Barnes, it would be more in line with industry trends to utilize a harder ground factor. In response to Barnes’ concerns, Menge utilized a ground factor of .5 (representing harder ground) rather than .7 to measure potential noise impact. These calculations were reflected in the December Sound Memo and no calculations within that memo exceeded the ten dBA threshold. With respect to the timing of the ambient sound measurement, Menge credibly testified on cross-examination that the time of day and time of year do not have a great effect on ambient sound level measurements. In this regard, Menge explained harder ground and higher wind speeds in the winter months can result in an increased ambient sound level (as can insect activity and leaves blowing on trees, obviously characteristics of late summer).

Next, Plaintiffs point out that a wind turbine in Falmouth was recently shut down by DEP for noise related reasons. Prior to the shutdown by DEP, Menge and HMMH conducted a sound study in that matter and determined that the turbine in Falmouth complied with DEP requirements. Plaintiffs rely on the DEP shutdown of the Falmouth turbine to conclude that Menge must have erred in the sound studies conducted for the Project. As this court noted at trial, the sound studies in the Falmouth project are completely irrelevant to the case at bar and have no bearing on whether Menge erred in this particular case.

Finally, Condition 9 of the Approval Decision requires that the Trustees conduct post-construction sound studies to confirm that the noise impact at any sound receptor is less than ten dBA over ambient. If the noise impacts are greater than ten dBA over ambient, then the Approved Turbine must be shut down. Therefore, the Approval Decision contains a mechanism to ensure compliance with DEP and Bylaw noise standards. As such, I find that the Project complies with the noise requirements set forth by DEP and recognized in the Bylaw.

E. Shadow Flicker:

Plaintiffs claim that the Planning Board failed to adequately consider the impact of shadow flicker on Golden Living and the Cottage. In this regard, Plaintiffs allege that the shadow flicker caused by the Approved Turbine will be in excess of industry standards at nearby residential locations. Section 19.4.2.4 of the Bylaw states “[w]ind turbines shall be sited in a manner that does not result in significant shadowing or flicker impacts. Applicant must demonstrate that this effect does not have significant adverse impact on adjacent uses through siting.” Plaintiffs allege that the Approved Turbine will cause excessive shadow flicker and that, pursuant to the Bylaw, the only means of mitigating shadow flicker is through siting of the Approved Turbine (rather than conditions of approval to the Special Permit or Site Plan Approval).

There are no specific federal, state, or local regulations governing a maximum acceptable threshold of shadow flicker. The evidence at trial indicates, however, that it is a generally accepted practice within the industrial wind turbine industry to subject an abutting property or structure to no more than thirty hours per year of shadow flicker. For instance, section 3.2.1.3 of the Feasibility Study states, “[t]ypically there are no numerical limits associated with shadow flicker however the general rule of thumb is to try to limit exposure to non participating abutters to less than 30 hours total throughout the year.” Figure 1 to the Shadow Update depicts a land area affected by “adjusted” 30 hour shadow flicker exposure. Both Younger and Loria testified that thirty hours per year of shadow flicker is a generally accepted maximum threshold. In their brief, Plaintiffs note that maximum shadow flicker exposure of thirty hours per year is an “industry standard.” The Town has also adopted this standard and incorporated it into the Approval Decision. Condition 10 imposes a limit of thirty hours per year (or thirty minutes per day) of shadow flicker on any Sensitive Receptors, and upon reaching said threshold, the Approved Turbine must be shut down.

The Feasibility Study calculated shadow flicker assuming a Vestas 100 model Turbine. The Planning Board’s consultant, Emergent, conducted its own shadow flicker study (analyzing a Vestas 100 model) in which it determined that the modeling inputs utilized by ASA were well within acceptable industry standards. Emergent also concluded and verified ASA’s final output calculations for shadow flicker impact at nearby Sensitive Receptors caused by the 100 model turbine. After determining that a Vestas 90 model turbine would be used, ASA recalculated its shadow flicker calculations and such findings were recorded and presented to the Planning Board as the Shadow Update. It does not appear that Emergent conducted a peer review study for a 90 model turbine. As stated in the Emergent Report, however, the methodology used by ASA was within the acceptable bounds of industry standards. The software and methodology utilized by ASA to measure the impact of the 90 model appear to be identical to those used to analyze the 100 model.

The evidence indicates that the Approved Turbine has the potential to cause shadow flicker at Sensitive Receptors in excess of the thirty hour per year target threshold. The shadow flicker calculations in the Shadow Update for the Cottage and the Golden Living Property are forty-five hours per year and fifty-five hours per year, respectively. These calculations are maximum and conservative figures, as noted in the Feasibility Study, the Shadow Update, and the Emergent Report. These figures assumed 100% clear skies, maximum angulation of the turbine, and no attenuation of shadows from trees and structures. Although there is no hard data in this regard before the court, it is certainly probable that when considering the Corrective Factor, shadow flicker exposure at Sensitive Receptors will be less than these maximum calculations.

Turning to the issue of mitigation, Plaintiffs argue pursuant to section 19.2.4 of the Bylaw that the only shadow flicker mitigation tactic that the Planning Board could consider was the siting of the Approved Turbine. Plaintiffs allege that there is no evidence in the trial record of siting the Approved Turbine to minimize shadow flicker. To the contrary, several trial exhibits indicate that siting of the Approved Turbine was taken into account to mitigate shadow flicker. It must again be noted that none of the shadow flicker calculations account for any vegetation that can block shadows. The Feasibility Study recognized that “th[e] conservative [shadow flicker] calculation therefore needs to be corrected to reflect site characteristics.” (emphasis supplied). Considering the change from the 100 model to the 90 model turbine, the Shadow Update states: “[t]he site of the turbine has also been moved accordingly, to take advantage of the reduced height and available siting.” The Shadow Update continues:

The Golden Living retirement facility is surrounded by large trees and its anticipated that the vegetation will block the shadow impacts. The caretaker’s cottage area is cleared, however, but this lot is leased to TTOR and it is anticipated that they could mitigate any unwanted impacts through planting/relocating of trees or operational controls.

Although the Approval Decision may not make explicit findings relative to siting, the Feasibility Study and the Shadow Update indicate that the Trustees and the Planning Board took the prospective site of the Approved Turbine and neighboring facilities into consideration when analyzing potential shadow flicker harms. The site for the Approved Turbine was moved in an effort to reduce the effects of shadow flicker. With respect to the Cottage, ASA concluded that the Trustees could make future mitigation efforts to protect the Cottage site from shadow flicker because that site is under the control of the Trustees. Therefore, I find that the Planning Board adequately considered the siting of the Approved Turbine in an effort to mitigate shadow flicker.

Indeed it is true that the Bylaw states that shadow flicker must be mitigated by the siting of a proposed turbine; however, this court disagrees with Plaintiffs’ argument that siting is the only means of mitigating the impacts of shadow flicker. Plaintiffs are concerned that excessive shadow flicker will be harmful to them, but they argue that the only means for mitigating shadow flicker is through siting even if other mitigation tactics are feasible. There is no hard and fast rule governing maximum exposure to shadow flicker. In the interest of both equity and practicality, this court shall not impose any hard and fast rule that shadow flicker can only be mitigated by siting. Mitigating factors were not part of the court’s or the Planning Board’s final analysis, notwithstanding the fact that the Shadow Study and the Shadow Update concluded that such factors were quite significant. This court shall defer to the discretion of the Planning Board with respect to its consideration of shadow flicker mitigation. See e.g. ACW Realty Mgmt. Inc., supra, at 246.

Plaintiffs’ narrow view towards shadow flicker mitigation is inherently inconsistent with Plaintiffs’ concerns relating to shadow flicker. It is clear that Condition 10 of the Approval Decision results in further mitigation of potential shadow flicker harms. Implicitly recognizing the thirty hours per year threshold, Condition 10 requires post-construction monitoring to ensure that shadow flicker at a Sensitive Receptor does not exceed (a) more than thirty minutes per day or (b) more than thirty hours per year. If these thresholds are exceeded, then pursuant to Condition 10 the turbine “shall be shut down as required to limit flicker exposure to the above conditions.” Condition 10 is the most effective means for controlling and limiting shadow flicker to absolutely ensure that no Sensitive Receptor (including Golden Living Property and all of the Individual Plaintiffs’ properties) will be exposed to more than thirty hours per year of shadow flicker. As such, I find that the Planning Board did not act arbitrarily as it relates to the impact of shadow flicker. [Note 35]

F. Fragmentation of Land:

Plaintiffs argue that the Planning Board exceeded its authority in granting the Special Permit and Site Plan Approval because it failed to consider the effect of fragmentation of WTW and Turkey Hill as a result of the Approved Turbine. The Trustees contend that the Planning Board adequately considered the issue of fragmentation and that such fragmentation will be minimal. Section 19.4.2.1 of the Bylaw states:

Wind turbines shall be designed to minimize land clearing and fragmentation of open space areas and shall avoid permanently protected open space when feasible. Wind turbines should be sited to make use of previously developed areas wherever possible. Wind turbines facilities shall also be located in a manner that does not have significant negative impacts on rare species in the vicinity (particularly avian species, bats, etc.) as may be applicable law [sic].

The Trustees point out that the Bylaw requires a site design to “minimize” clearing and fragmentation, but the Bylaw does not prohibit land fragmentation. Younger testified that Locus was a good location for the Approved Turbine because the area within the vicinity of Locus was already “disturbed.” For example, cell towers, a water tower, and other structures exist on nearby Turkey Hill and within the immediate vicinity of Locus. Moreover, a portion of Locus had been previously developed as a missile testing site. Plaintiffs allege, however, that the Trustees are converting an undisturbed 314 acre parcel into a 1.8 megawatt power plant. Plaintiffs’ allegations in this regard are unfounded.

As Younger described in his testimony, there are existing “disturbances” of the wooded and grassy nature of the WTW, e.g. cell tower, water tower, and prior development. The paved access road to the Approved Turbine will utilize in part the existing access road to the cell tower, which will result in less fragmentation of WTW and Turkey Hill. The Trustees have limited the necessary clearing of Locus to approximately ten acres to accommodate improvements to the access road and the area around the base of the Approved Turbine. The fact that Locus consists of 314 acres is primarily to satisfy the setback requirements of the Bylaw (see infra). All 314 acres of Locus are not being converted to a power plant as Plaintiffs suggest. This land will still be open to the public for recreational enjoyment. As contemplated in the Bylaw, at least portions of Locus have been previously developed, e.g. a portion of the Nike Parcel as a former Nike missile site.

The Bylaw is suggestive in nature as it seeks to protect open space “when feasible” and to utilize developed land “wherever possible.” The Planning Board considered the Feasibility Study and several updates thereto as a basis for granting the Special Permit and Site Plan Approval. The Feasibility Study indicates that Locus has already been fragmented by several structures and a paved access road. It is clear that the Planning Board was aware of the fragmented nature of land in the vicinity of Locus. It is undisputed that the Approved Turbine will cause some fragmentation of WTW and Turkey Hill; however, some fragmentation is not prohibited by the Bylaw. The Trustees demonstrated that they chose Locus in order to minimize fragmentation because other land within and in the vicinity of WTW and Turkey Hill has already been disturbed. Based on the foregoing, I find that the Planning Board did not abuse its discretion relative to Section 19.2.4 of the Bylaw as it relates to fragmentation. [Note 36]

G. Safety:

Plaintiffs claim that the Trustees cannot prove that the Approved Turbine will function safely with respect to the risks of (1) ice throw, (2) blade throw/failure, (3) collapse, and (4) fire. Plaintiffs argue that the site does not have adequate access to water to control a fire. Plaintiffs also argue that because the Trustees never introduced the operating manual for the Approved Turbine, this court and the Planning Board could not adequately analyze safety issues relative to the Approved Turbine.

The Bylaw does not contain any specific sections that explicitly relate to the safety concerns articulated, supra. Section 19.3.3.2(b) states: “[i]n order to ensure public safety and to protect the interest of the neighboring property owners, the minimum distance from the base of any wind turbine tower to any property line in a residential district, shall be equal to the total height of the turbine to the highest point.” Section 19.3.3.1 of the Bylaw states:

Wind turbines shall have a maximum height of 350-feet, as measured from the Pre-Construction Grade to the highest point reached by the nacelle. The SPGA may allow this height to be exceeded as part of the special permit process if the project proponent can demonstrate that the additional height is needed and that the additional benefits of the higher tower outweigh any adverse impacts.

The Bylaw therefore contains height and set-back restrictions to mitigate at least some of the potential safety concerns articulated by Plaintiffs. In their own brief, Plaintiffs note that the “height of the Approved Turbine measured from ground level to the top of the hub or “nacelle” will be 260 feet.” As such, for the purposes of measuring maximum height, it is clear that the Approved Turbine complies with section 19.3.3.1 of the Bylaw. For setback purposes, the height of a turbine is measured from the base of the turbine, i.e. ground level, to the height of the turbine at its highest point (rather than from the hub or nacelle). Each turbine blade is 150 feet long, thus the highest point of the turbine will be 410 feet from ground level (260 feet to the hub plus 150 feet blade length). The Approved Turbine will have a 447 foot front-yard setback, 420 foot side-yard setback, and 443 foot rear-yard setback. As such, all setbacks comply with the Bylaw. [Note 37]

Plaintiffs’ legitimate concern regarding fire prevention and suppression was not ignored by the Planning Board. The record contains correspondence between Loria, project manager for the Trustees, and Captain Mark H. Trask (“Trask”) of the Cohasset Fire Department. Trask was concerned about access, emergency services, training, automatic suppression systems, and transmission lines. Loria responded to all of Trask’s concerns and his concerns were addressed by at least two conditions in the Approval Decision. Condition 4 to the Approval Decision requires the Applicant to provide and bear the costs of training and safety equipment relating to safety issues caused by the Approved Turbine to local emergency responders. Condition 18 requires that the Approved Turbine have an automatic fire suppression system. Based on the foregoing, the Planning Board and the Town undoubtedly took into consideration Plaintiffs’ concerns relating to fire.

Several conditions of the Approval Decision address ice throw safety concerns. Condition 11 requires the Trustees to erect a barrier during winter months, to be placed a radial distance of 410 feet from the wind turbine base, to discourage walking near the Approved Turbine when ice is most likely to accumulate on the blades. Condition 11 also requires permanent ice throw warning signs on and around the barrier. Condition 12 requires that the Approved Turbine have an automatic means of sensing ice build up on its blades and to automatically shut down once build up is detected. Based on the foregoing, it is clear that the Planning Board considered the safety concern of ice throw. All of the evidence at trial indicates that the board did not act arbitrarily with respect to safety concerns caused by the Approved Turbine. This court shall therefore defer to the discretion of the Planning Board. As such, I find that the Planning Board did not act arbitrarily as it relates to safety concerns caused by the Project. [Note 38]

H. Illegal Condition:

Plaintiffs argue that Condition 24 is an illegal condition that effectively “purchased the Planning Board’s approval.” Condition 24 states in full: Prior to the issuance of a building permit to construct the wind turbine, the applicant shall meet with the Town for purposes of negotiating in good faith with the Town to sell the Town at a discounted rate as much power as the Town would like to purchase.

Plaintiffs allege that Town counsel advised the Planning Board that there was no legal authority to impose a condition requiring the Trustees to sell the Town the power generated by the Approved Turbine. Plaintiffs also contend that ex parte discussions and negotiations relative to the Conditions were held outside of a public meeting and lead to the illegal condition. The Trustees argue that there is no legal precedent holding such a condition to be invalid and, even if such a condition were too onerous, it would be too onerous on the Trustees, not Plaintiffs. According to the Trustees, therefore, Plaintiffs do not have standing to challenge Condition 24.

As discussed, supra, the Trustees have sufficiently responded to all Plaintiffs’ challenges to the Approval Decision. At each turn, the Trustees have presented evidence that they have site control and that (with the Conditions) they have complied with all requirements of the Bylaw relating to noise, shadow flicker, fragmentation, and safety. Notwithstanding the foregoing, Plaintiffs contend that the only reason the Planning Board granted the Special Permit and Site Plan Approval was so that the Town could reap a profit from the Approved Turbine. Plaintiffs cite Dolan v. Tigard, 512 U.S. 374 (1994), essentially arguing that Condition 24 is an unauthorized taking of the Trustee’s property (energy generated by the Approved Turbine) because there is no “rough proportionality” between the impact of the Approved Turbine and Condition 24. Plaintiffs also cite Middlesex & Boston Street Railway Company v. Bd. of Alderman of Newton, 371 Mass. 849 (1977), which held that under the predecessor statute to G.L. c. 40A, a special permit granting authority cannot impose a condition requiring an applicant to lease five out of fifty-four multi-family housing units to a municipal housing agency at less than fifty percent of the units’ market value. See id. The SJC determined that the board could not rely on the broad consideration of general public welfare to justify its exaction.

In the above cited cases, the applicant rather than an abutter challenged the conditions to the respective permits. In the case at bar, it appears that the Trustees did not object to the imposition of Condition 24 and they do not challenge Condition 24 before this court. Through Condition 24, the Town may have exacted a benefit from the Trustees, but more importantly, Plaintiffs are in no way harmed by Condition 24. See Durand v. IDC Bellingham, LLC, 440 Mass. 45 , 55 n. 18 (abutters have no standing to assert a Fifth Amendment takings claim); see also id. (Spina, J. dissenting) (opining that abutters have no standing and are not harmed by alleged contract zoning between developer and municipality). [Note 39] Based on the foregoing, I find that the Planning Board did not abuse its discretion by issuing Condition 24 to the Approval Decision.

I. Notice to Driscoll:

Plaintiffs allege that Driscoll is a “party in interest” (as codified in G.L. c. 40A, § 11) who is entitled to notice of all Planning Board hearings relative to Locus. As stated, supra, in discussing the issue of standing, this court has determined that Driscoll is not a party in interest and therefore is not entitled to notice of all Planning Board hearings relating to Locus. Moreover, even if Driscoll were entitled to notice, he had actual notice of at least the Planning Board meetings on December 8, 2011 and December 15, 2011, which were attended by Driscoll and his attorney. In fact, Driscoll’s attorney made two written proposals to the Planning Board relating to the Project. As such, I find that Driscoll was not denied due process with respect to the Planning Board’s approval of the Project and issuance of the Approval Decision.

J. Ex Parte Communications:

Plaintiffs allege that the Approval Decision was a direct result of improper, ex parte communications between representatives of the Trustees and Alfred Moore, the Chairman of the Planning Board (“Moore”). To the extent Plaintiffs allege violations of open meeting laws, it should first be noted that “[p]ower to set aside public action because of violations of [G.L. c. 39,] § 23B is discretionary in nature.” Tebo, supra, at 623, citing Robinson v. Planning Bd. of Hingham, 6 Mass. App. Ct. 835 , 836 (1978). A party alleging impropriety on the part of the board or any of its officials has the burden of proof. Bonan v. City of Boston, 398 Mass. 315 , 321 (1986); Arrigo v. Planning Bd. of Franklin, 12 Mass. App. Ct. 802 , 811 (1981). Even if ex parte communications occur, a decision of a local board will be overturned only if “substantial justice” was not achieved in light of the communications. See Fandel v. Bd. of Zoning Adjustments of Boston, 280 Mass. 195 (1932) (upholding zoning decision where plaintiff failed to show that zoning authority relied on communications provided after the close of the public hearing); see also Valley Properties, Inc. v. Pinnacle Partners, Inc., 14 LCR 52 , 64 (2006).

Plaintiffs first argue that the Informal Meetings were improper because no notice was provided to anyone relative to these meetings. The Informal Meetings, held before the Application was filed, were official meetings of the Planning Board and were therefore open to the public. Even though certain information was presented to the Planning Board at the Informal Meetings, there is no evidence that the Board relied on any of this information or that information presented at the Informal Meetings was not subsequently presented at the meetings for which notice was properly provided. Plaintiffs and the rest of the general public had every opportunity to vet the Project through attendance of several Planning Board meetings at which the Project was open to public comment. The fact that the Project was discussed at the Informal Meetings is no secret, as the agendas and minutes reflect discussion of the Project.

Plaintiffs next allege that David Croll, Chairman of the Board of Directors of the Trustees (“Croll”) had improper, ex parte telephone conversations with Moore. In support of this allegation, Plaintiffs rely on several e-mails between various representatives of the Trustees, most of which were sent by Croll. The court admitted a number of these e-mail chains de bene. Upon review, however, Plaintiffs’ brief makes extraordinary leaps of faith in deducing from these e-mails that several conversations were held between Croll and Moore. First, the e-mails and contents therein are hearsay and are incredibly unreliable to support the proposition that Croll and Moore had ex parte negotiations relative to the Conditions. Second, these e-mails only indicate that Croll had the intent to reach out and contact Moore, not that he ever actually contacted him. Sloan testified, however, that on a conference call between representatives of the Trustees, Croll mentioned that he had a telephone conversation with Moore. Plaintiffs have failed to allege that even if this conversation took place, it resulted in any undue influence over the special permit and site plan approval process or that such conversation lead to injustice. [Note 40] In its discretion, this court finds no basis for overturning the Approval Decision based on alleged and unproven ex parte communications. Accordingly, I find that Plaintiffs were not denied due process by any alleged and unproven ex parte conversations between the Trustees and the Planning Board.

With respect to the Special Permit this court must defer to the discretion of the Planning Board. See Roberts, supra, at 486. The Planning Board was able to analyze the Feasibility Study and all supporting documentation relative to the Approved Turbine and determine that the Approved Turbine complied with all of the special permit criteria in the Bylaw. Furthermore, the site plan approval process is intended to regulate, but not prohibit, a specific use. See Prudential Ins. Co., supra, at 282-283. Considering the numerous conditions to the Approval Decision, it is clear that the Planning Board exercised its authority to regulate the Approved Turbine. I find that with respect to each issue raised by Plaintiffs, the Planning Board was within its discretion to issue the Special Permit and Site Plan Approval. As such, this court shall uphold the Approval Decision.

Judgment to enter accordingly.