GPH Cohasset, LLC, et al. v. Trustees of Reservations, et al. (Lawyers Weekly No. 11-076-14)

GRAINGER, J.  The plaintiffs, GPH Cohasset, LLC; and GGNSC Cohasset, LLC (collectively, Golden Living), appeal 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 asserts 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.

Background.  We recite the facts as found by the judge following a bench trial, reserving certain details for our discussion of specific issues.  On October 28, 2010, Conservation Wind filed an application for a special permit and site plan approval to erect a wind turbine on certain property (locus) owned by the trustees.  The locus consists of two large parcels of land, which together comprise approximately 314 acres within two adjacent reservations known as Whitney and Thayer Woods (WTW) and Turkey Hill Reservation (Turkey Hill).  The towns of Cohasset and Hingham (collectively, towns) own much of the land surrounding the locus, which, along with the locus, is open to the public for recreational use.

The towns granted conservation restrictions to the trustees, limiting the use of the town-owned land in Turkey Hill (the municipal restrictions).  The municipal restrictions each contain several prohibited uses, including the construction of any permanent structure, cutting or removing trees, and any surface use other than agricultural, farming, forest, or recreational uses.  The municipal restrictions also each contain an appendix A identifying the land burdened by the restrictions.  The locus is not included or described in either town’s appendix A.  The trustees’ expert, Nancy Harris, testified that the municipal restrictions do not burden any part of the locus.

In addition to appendix A, a land use and management plan (land use plan) was appended to each of the municipal restrictions as exhibit B.  Harris testified that the terms of the land use plans do not restrict any part of the locus.

Before applying for site plan approval and a special permit, the trustees engaged a consulting firm to conduct a feasibility study to evaluate, among other things, the environmental impact of the wind turbine.  A sound study conducted in coordination with the feasibility study found that the Vestas 90 model turbine would produce a noise level increase of no more than six decibels (expressed as dBA) above the current ambient noise level at the closest neighboring property (the Golden Living property, a nursing home).  Noise level increases at all other neighboring locations were less than six dBA above ambient.  The Department of Environmental Protection’s (DEP) noise policy provides that emissions of more than ten dBA above ambient will violate the provisions of 310 Mass. Regs. § 7.10 (2001), the DEP’s noise regulation.

The feasibility study also evaluated the stroboscopic “shadow flicker” impact at various adjacent locations.  The study found that the Vestas 90 model turbine, and a more distant siting, would result in a maximum shadow flicker of fifty-five hours per year at the nearest residential property (the Golden Living property).  This calculation was a maximum figure that did not take into account certain corrective factors (such as cloud cover).  The shadow flicker impact at all other neighboring locations was estimated to be less than fifty-five hours per year.  There are no  Federal, State, or local regulations governing the maximum permissible shadow flicker impact on nearby property.  However, generally accepted practice within the industrial wind turbine industry subjects an abutting owner or structure to no more than thirty hours per year of shadow flicker.

On March 10, 2011, the board issued a decision approving Conservation Wind’s application for a special permit and site plan approval to erect the wind turbine, subject to thirty-seven conditions.  On March 25, 2011, Golden Living filed a complaint in the Land Court appealing the board’s decision.  After a four-day bench trial, including a site view, a judge of the Land Court issued a forty-four-page decision upholding the board’s approval.  Golden Living filed this timely appeal.

Discussion.  Golden Living asserts a litany of reasons why Conservation Wind failed to satisfy its burden for approval of the special permit; we address them seriatim.  “On appellate review, the judge’s findings of fact will not be set aside unless they are ‘clearly erroneous’ or there is ‘no evidence to support them.’”  Wendy’s Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 383 (2009), quoting from DiGiovanni v. Board of Appeals of Rockport, 19 Mass. App. Ct. 339, 343 (1985).

Zoning.  Golden Living asserts that the board’s decision cannot stand because it failed to make sufficient factual findings that demonstrate the project complies with the zoning by-laws.  Section 12.4(1)(b) of the Cohasset zoning by-laws requires that the board make “written findings certifying compliance” with the by-laws before granting a special permit.  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.”  We have held that detailed conditions of approval “do double duty as findings.”  Tebo v. Board of Appeals of Shrewsbury, 22 Mass. App. Ct. 618, 621 (1986).  Moreover, we agree with the judge that the “board avoided the common vice of parroting the statutory standards for a grant of a special permit in lieu of findings.”  Id. at 622.  In sum, we agree with the judge’s determination that the board made sufficient findings to support its approval.

Noise.  Golden Living asserts that Conservation Wind failed to establish that the wind turbine would comply with applicable noise regulations.  Specifically, Golden Living criticizes Conservation Wind’s experts’ two sound studies, asserts that each used a different wind speed, and argues that both failed to account for changes in ambient noise levels throughout the year.  The judge found that Golden Living’s claims were meritless because the sound studies were not based on different wind speeds, and determined that ambient noise levels would not exceed the allowed ten dBA threshold at any time of the year.  The judge also noted that the board’s decision conditions approval on the conduct of a noise impact study after the wind turbine is erected, and requires the wind turbine to be shut down if the impact exceeds ten dBA.  We agree with the judge that this condition was sufficient to address any noise concerns and to ensure compliance with the ten dBA threshold.

Shadow flicker.  Golden Living asserts that Conservation Wind failed to show that the wind turbine would not result in excessive shadow flicker.  As stated supra, while there are no Federal, State, or local regulations governing maximum acceptable levels of shadow flicker, the generally accepted industry practice limits shadow flicker to no more than thirty hours per year.  The feasibility study found that, assuming one hundred percent clear skies and no shadows from trees or structures, the Vestas 90 model turbine would create a maximum of fifty-five hours of shadow flicker per year at the Golden Living property.  The judge found that the Golden Living property is surrounded by large trees and that the fifty-five-hour calculation represented a maximum and conservative figure.  Moreover, and similar to the noise concern, the board conditioned approval of the special permit on the requirement that the wind turbine be shut down if actual shadow flicker impact exceeds thirty minutes per day or thirty hours per year (condition 10).

Site control.  Golden Living claims that the trustees cannot demonstrate proper site control over the locus.  In particular, Golden Living asserts that the trustees’ legislative mandate does not permit the locus to be the site of a for-profit wind energy plant because the municipal restrictions expressly prohibit such use.  As stated supra, the municipal restrictions each contain an appendix A that specifically describes the burdened land.  The judge both examined appendix A and credited the testimony of the trustees’ expert, Harris, that the locus was not burdened by the municipal restrictions.  On this record we discern no error.  In addition, and contrary to the assertion that the locus was intended to be restricted in the manner described by Golden Living, the judge determined that a 2008 amendment to the trustees’ articles of organization allowed the acquisition and ownership “in land . . . and structures as [they deem] appropriate and in the public interest.”  In that context the trustees also adopted a strategic plan that stated the goal of reducing the trustees’ carbon footprint.  See note 3, supra.  There is ample support for these findings in the record.

Public safety.  Golden Living asserts that the wind turbine presents safety concerns (ice throw, blade throw, turbine collapse, and fire) that were not addressed by the board.

The judge found that the board’s conditions of approval adequately addressed Golden Living’s safety concerns.  We concur.  The wind turbine will be set back more than 400 feet in each direction from the nearest property line.  Golden Living does not dispute that the setback meets the minimum setback requirement in the zoning by-laws.  Golden Living puts 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.

Exclusion of expert witnesses.  During discovery, 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.  In the joint pretrial memorandum, filed April 23, 2012, Golden Living identified, for the first time, two experts they expected to testify at trial.  Although the experts were disclosed four months prior to trial, Golden Living concedes that the disclosure was made well after the close of discovery.  The judge granted Conservation Wind’s and the trustees’ motion in limine to exclude Golden Living’s experts.  Golden Living asserts that the judge abused his discretion in precluding its expert witnesses’ testimony.

“Trial judges have ‘broad discretion to make discovery and evidentiary rulings conducive to the conduct of a fair and orderly trial. . . .  Within this discretion lies the power to exclude or deny expert testimony.’”  Mattoon v. Pittsfield, 56 Mass. App. Ct. 124, 131 (2002), quoting from Nally v. Volkswagen of America, Inc., 405 Mass. 191, 197 (1989).

We conclude that the judge did not abuse his discretion in excluding Golden Living’s experts.  The judge was entitled to determine that allowing the experts to testify after Golden Living’s late disclosure would have prejudiced the defendants or caused delay of the trial.  See Kearns v. Ellis, 18 Mass. App. Ct. 923, 924 (1984) (“Under Mass.R.Civ.P. 26[e][1][B], 365 Mass. 776 [1974], a ‘party is under a duty seasonably to supplement his response with respect to . . . the identity of each person expected to be called as an expert witness’”).  We cannot say that excluding the experts was an abuse of discretion in these circumstances.  See Shaw v. Rodman Ford Truck Center, Inc., 19 Mass. App. Ct. 709, 713 (1985).

Vestas operating manual.  Golden Living complains that the judge erred in refusing to compel Vestas, a nonparty, to produce the operating manual for the Vestas 90 model turbine.  We review a trial judge’s decision to deny ordering the production of documents for abuse of discretion.  Bishop v. Klein, 380 Mass. 285, 288 (1980).  We discern no such abuse here.

Golden Living has neither challenged the validity of the by-laws setback requirement, nor suggested that the wind turbine fails to comply with the by-laws.  Instead, Golden Living merely speculates that the operating manual contains a larger setback requirement than the by-laws.  The board was charged with determining whether the proposed wind turbine satisfied the by-laws, not the manufacturer’s operating guidelines.  The judge did not err in denying Golden Living’s motion to compel the production of the operating manual.

Judgment affirmed.

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