Environmental and Land Use Law

Updates on Environmental and Land Use Law in New England and the US from Anderson & Kreiger LLP

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New Ground in Zoning: A Case Developers, Abutters and Municipalities Should Bookmark

GPH Cohasset v. Trustees

Conservation land owners — poised to become renewable energy developers?

GPH Cohasset v. The Trustees of Reservations, a land court case approving a town’s permit for a wind turbine to be developed on conservation-owned land, reached a variety of interesting, and potentially important holdings on issues including noise, shadow flicker, view point protection and fragmentation. It is worth a look for those who deal with land use and environmental permitting. If nothing else, the decision should be bookmarked for Judge Sands’ succinct yet comprehensive summary of the SJC’s and Appeals’ Court’s tangled standing jurisprudence.

This post focuses on two key points in GPH Cohasset that courts are likely to address further as more renewable projects are proposed and permitted:

First, renewable energy production may be a valid charitable purpose on land owned by conservation groups.

  • The plaintiffs in this case challenged the conservation group’s ability to “engage in the business of real estate development and energy production” because the 1891 legislation under which the group was formed provided that of its purpose was “acquiring, holding, arranging, maintaining and opening to the public … beautiful and historic tracts of land.” The Court, however, noted that the enabling legislation also gave the group all of the powers and privileges enjoyed by non-profit corporations, including the power to amend its charter and stated purpose, as long as the amended purpose remained consistent with the original purpose. The group had amended its Charter in 2008 to include holding land to serve the public interest and to educate the public with regard to historic and natural land stewardship. The Court held the group’s stated goal of using the Conservation Wind turbine to reduce its carbon footprint and educate visitors to its property on renewable energy options was consistent with the organization’s charter and enabling legislation. This holding, although necessarily limited by the terms of the authorizing legislation and charter, recognizes that renewable energy production may be a valid charitable purpose on land owned by conservation groups. It may encourage more renewable energy development by other holders of conservation land, presenting interesting questions about when a group can and cannot do so.

Second – for now – abutters may not have standing to challenge conditions placed on permits that do not harm them, if the applicant did not object to those conditions.  But it will be interesting to see whether the Supreme Court decision Koontz v. St. Johns River Water Mgmt. Dist., which came out days after this decision (see A&K’s summary of the decision here) – changes this finding on appeal (or in practice).

  • The plaintiffs challenged the town’s conditioning of the Special Permit on wind energy developer’s negotiation with the town of a discounted rate for power generated by the turbine. The plaintiffs argued this condition amounted to an attempt by the developer to “purchase” Planning Board approval.  The Court summarily rejected the argument, explaining that where the applicant did not challenge the condition, abutters who are not harmed by it do not have standing to challenge it under Durand v. IDC Bellingham, LLC, 440 Mass. 55 n. 18 (2003).  However, GPH Cohasset was decided eleven days before the Supreme Court’s decision in Koontz, which has been viewed as narrowing the permissible scope of demands a municipality can make to mitigate a project’s environmental effects. This case is currently on appeal, and so Koontz may nonetheless find its way into the GPH Cohasset litigation. Separately, municipalities may be more cautious in demanding similar conditions when issuing permits to other renewable developers in light of Koontz, even if the Appeals Court does not address the issue.

The case is GPH Cohasset LLC v. The Trustees of Reservations, 21 Land Ct. Rptr. 290 (June 14, 2013) (Sands, J.).

About Mina: I specialize in Environmental Law, Litigation, Energy Law and Municipal Law at Anderson & Kreiger. I will co-chair the BBA’s Environmental Law Section Public Service Committee in September 2013.  In my last post, I analyzed the latest case on environmental cleanup insurance under Boston Gas.

 

Photo credit: Tambako the Jaguar

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Mina Makarious


Posted In: Renewable Energy

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