Local Wind Turbine Opposition Hits Headwinds in Massachusetts

It was a tough spring for parties seeking to use zoning and land-use laws to oppose wind turbines in Massachusetts.  A number of Massachusetts Courts have recently rejected challenges to local decision makers’ approvals of wind turbine projects.  While these cases have generally involved the application of settled law, a favorable body of case law is developing for wind turbine developers.

  • In March, the Land Court dismissed a challenge to a building permit for wind turbines as out of time, finding that the challengers had constructive notice of the permits and were therefore ineligible for a longer challenge period.  See Gavin v. Haas, Case No. 12 MISC 470629 (Mass. Land Court, March 10, 2014).
  •  In May, the Appellate Division of the District Court reversed a District Court holding and found that a party who was only a “visual abutter” lacked standing to challenge the siting of a wind turbine in Dennis under the Old King’s Highway Act, a statute that designates a region of Cape Cod as a historic district.  See Aquacultural Research Corp. v. Old King’s Highway Regional Historic District Commission,App. Div. No. 13-ADMS-40022 (App. Div. Southern District, May 30, 2014).  Although arising in a particular statutory context, the rationale of the decision could be applied more broadly.
  • In June, the Massachusetts Appeals Court affirmed a Land Court decision upholding the Planning Board of Cohasset’s approval of a special permit and site plan to erect a wind turbine on land owned by the Trustees of Reservation.  GPH Cohasset, LLC v. Trustees of Reservations, No. 13-P-1304 (App. Div. June 25, 2014).  In that case, the owners of the nearest property (a nursing home) had challenged the special permit on a number of grounds, largely relating to alleged procedural deficiencies and to noise and shadow flicker concerns.
  • Also in June, my colleague, Tad Heuer, successfully defended a challenge to the Fairhaven Zoning Board’s decision to deny a request to enjoin the operation of wind turbines operating in Fairhaven.  The Superior Court rejected plaintiffs’ claims, which focused on alleged technical and procedural violations of the Fairhaven Zoning Code and building code permit procedures as well as noise concerns.

These cases should not be over-read.  They each turn on particular facts, and in some cases the plaintiffs advanced tenuous arguments.  However, it would seem that, despite the fervor of some wind turbine opponents, the courts are generally declining to treat wind generation facilities differently than other land use projects.

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