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 Boards 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 (Towns 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. A decision of todays date has been issued (the Decision). In accordance with the Decision, it is hereby:
ORDERED and ADJUDGED that Golden Living has standing to challenge the decision of the Planning Board granting (1) the Special Permit and (2) Site Plan Approval for the Project (the Approval Decision).
ORDERED and ADJUDGED that Driscoll is not entitled to a presumption of standing pursuant to G.L. c. 40A, § 11.
ORDERED and ADJUDGED that the Individual Plaintiffs have standing to challenge the Approval Decision.
ORDERED and ADJUDGED that the Approval Decision contains sufficient findings as a matter of law.
ORDERED and ADJUDGED that the procedural error relating to the corporate existence of the Conservation Wind, LP is insufficient grounds to invalidate the Approval Decision.
ORDERED and ADJUDGED 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 Trustees Restated Articles of Organization (the Articles).
ORDERED and ADJUDGED that Locus is not burdened by any conservation or other land use restrictions.
ORDERED and ADJUDGED that the Trustees have site control over Locus.
ORDERED and ADJUDGED that the Project complies with the noise requirements set forth by the Massachusetts Department of Environmental Proection and recognized in the Zoning Bylaws of the Town of Cohasset (the Bylaw).
ORDERED and ADJUDGED that the Planning Board adequately considered the siting of the Approved Turbine in an effort to mitigate shadow flicker.
ORDERED and ADJUDGED that the Planning Board did not act arbitrarily as it relates to the impact of shadow flicker.
ORDERED and ADJUDGED that the Planning Board did not abuse its discretion relative to Section 19.2.4 of the Bylaw as it relates to fragmentation.
ORDERED and ADJUDGED that the Planning Board did not act arbitrarily as it relates to safety concerns caused by the Project. [Note 3]
ORDERED and ADJUDGED that the Planning Board did not abuse its discretion by issuing Condition 24 to the Approval Decision.
ORDERED and ADJUDGED that Driscoll was not denied due process with respect to the Planning Boards approval of the Project and issuance of the Approval Decision.
ORDERED and ADJUDGED that Plaintiffs were not denied due process by any alleged and unproven ex parte conversations between the Trustees and the Planning Board.
ORDERED and ADJUDGED 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.
By the court. (Sands, J.)
[Note 1] Plaintiffs Darren Donovan and Carrie Donovan have been defaulted and Jule Dale filed a Partial Voluntary Stipulation of Dismissal on August 1, 2012, dismissing all claims by her against Defendants with prejudice. The other Plaintiffs are herein referenced as Plaintiffs.
[Note 2] On April 19, 2011, Partners filed its Certificate of Limited Partnership with the State of Delaware Secretary of State, pursuant to section 17-201(a) of the Delaware Revised Uniform Limited Partnership Act (the Act). Pursuant to the Act, Partners is a for-profit business entity.
[Note 3] Neither party presented evidence relating to blade throw/failure or turbine collapse. The Bylaw does not require specific proof and Planning Board consideration of these safety concerns. The Plaintiffs also put forth no evidence to show that the Approved Turbine is unsafe in these regards.