Agenda - Planning Commission - 08/05/2010

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Zoning Bulletin May 25, 2010 I Volume 4 I No. 10 • The Background/Facts: Berkshire Wind Power Corporation, LLC ("Berkshire") sought to construct, service, and maintain a wind power project ("Wind Facility") in the town. In order to do so, it sought to ac- cess Brodie Mountain in the town by constructing a road (the "Road") over a largely abandoned jeep trail. In May 2004, Berkshire, together with the individual owning property over which the jeep trail traversed, applied for a special permit from the town's Zoning Board of Appeals (the "Board") to construct the Road. The Board granted Berkshire's special permit (the "Special Permit"). Under town bylaws, a special permit lapses in one year if: "a substan- tial use or construction has not begun under the permit by that date, ex- cept for good cause." In order to avoid Lapse of the Special Permit, Berkshire had to com- mence "substantial use or construction" by June 29, 2005. Actual construction of the Road by Berkshire did not begin until May 16, 2006. The Road construction was completed shortly thereafter. In the late summer of 2006, Silverleaf Resorts, Inc. ("Silverleaf") learned that Berkshire began construction of the Road after the Spe- cial Permit had lapsed. Silverleaf filed an enforcement request with the town's building inspector. That request was denied by the building in- spector. Also, the Board upheld that denial. Silverleaf then appealed the Board's action to court. (In June 2008, the Berkshire Wind Cooperative Corporation (the "Cooperative") acquired all of Berkshire's assets. The Cooperative en- tered the case in July 2008.) In court, the Cooperative did not dispute the fact that actual construc- tion of the Road did not begin until almost two years after the Special Permit issued. However, the Cooperative had argued that "many other activities during that one-year period... were sufficient to prevent lapse of the Special Permit." The Cooperative pointed to the following activi- ties in support of its argument: use of the jeep trail as access by foot and all -terrain vehicles for various agents and governmental employees who visited the Wind Facility; use of the jeep trail by engineers who prepared "cut and fill" calculations necessary for estimating the costs of modifica- tions to the jeep trail; and use of the jeep trail by an environmental con- sultant, representatives from various environmental agencies, prospective contractors, developers, and equipment suppliers. The Court's Decision: Judgment for Silverleaf. The Massachusetts Land Court held that the Cooperative's Special Permit lapsed and was thus void when Road construction began. The court said this was because the Cooperative "did not commence substan- tial use or construction" of the Road within one year from the date of issuance of the Special Permit, as required by the town bylaws. In so holding, the court explained that Mass. Gen. L. c. 40A, § 9 au- thorized cities and towns to prescribe the lapse period for special per- mits, so long as they do not exceed two years. The court said that Mas- 2010 Thomson Reuters 9 157