Posted by: Patricia Salkin | August 12, 2014

MA Appeals Court Upholds Granting of Special Permit for Wind Turbine

The plaintiffs, GPH Cohasset, LLC, and GGNSC Cohasset, LLC (collectively, Golden Living), appealed from a judgment of the Land Court affirming a decision of the defendant planning board of Cohasset (board) to grant defendant Conservation Wind Partners, LP (Conservation Wind), a special permit to erect a wind turbine on property owned by defendant Trustees of Reservation (trustees). On appeal, Golden Living asserted, among other reasons, that: (1) the trustees and Conservation Wind did not satisfy their burden of proof to obtain approval of the special permit and site plan, (2) the wind turbine creates public safety concerns, (3) the judge erred by precluding Golden Living’s expert witnesses from testifying, and (4) the judge erred by declining to compel the production of the wind turbine’s operating manual.

As to the safety issue, the court noted that Golden Living put forth no evidence to show that the wind turbine was susceptible to blade throw or turbine collapse. The record indicates that the board did not act arbitrarily with regard to safety and that it adequately addressed Golden Living’s concerns by imposing extensive conditions for approval and ongoing operation. Secondly, Golden Living did not identify any experts in their interrogatory answers, representing instead that they would supplement their answers. Discovery closed on January 13, 2012; as of that date, Golden Living had failed to supplement the interrogatory answers. So when Golden Living attempted to submit the testimony of two experts after this date, the court found that the judge did not abuse his discretion in excluding Golden Living’s experts. Finally, Golden Living asserted that the board’s decision cannot stand because it failed to make sufficient factual findings that demonstrate the project complies with the zoning by-law. Section 12.4(1)(b) of the Cohasset zoning by-law requires that the board make “written findings certifying compliance” with the by-law before granting a special permit. However, since the judge found that “instead of making specific findings, the Board conditioned its approval on the Trustees complying with numerous conditions to ensure compliance with the Bylaw”, the court found the board made sufficient findings to support its approval.

GPH Cohasset, LLC v Trustees of Reservations, 85 Mass. App. Ct. 555 (MA. App. 6/25/2014)

The opinion can be accessed at: http://caselaw.findlaw.com/ma-court-of-appeals/1671022.html


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