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Wind Turbine Arbitration Ruling

JAMS ARBITRATION

Quarry Hills Associates, Inc., Claimant

and Respondent in Counterclaim                                            Ref. No.

1400013592

vs.

Town of Milton, its contractors,

agents and servants, Respondents and

Claimants in Counterclaim 1

FINAL AWARD

Parties and Counsel

Claimant and Respondent in Counterclaim:

)

)

Quarry Hills Associates, Inc. and Quarry Hills Associates Limited Partnership2

Counsel for Quarry Hills Associates, Inc. and Quarry Hills Associates Limited Partnership

Jeffery A. Tocchio (BB0#552654)

W. Prescott Golding, Jr. (BB0#670386)

DROHAN TOCCHIO & MORGAN, P.C.

175 Derby Street, Suite 30

Hingham, MA 02043

(781) 749-7200

jtocchio@dtm -law .com

Adam J. Brodsky (BBO #548018)

100 Recreation Park Drive, Suite 20 1

Hingham, MA 02043

(781) 340-6900

adam@brodskylaw.com

 

Mark S. Bourbeau, BBO #050715

Bourbeau & Associates, P.C.

266 Beacon Street

Boston, MA 02116

Tel: (617) 536-9695

Fax: (617) 536-9697

msb@bourbeaulaw.com

 

Respondents and Claimants in Counterclaim

Town of Milton,

Counsel for Town of Milton

John P. Flynn, BBO # 172640

jflynn@mhtl.com

David A. DeLuca, BBO# 543964

ddeluca@mhtl.com

Karis L. North, BBO #648998

knorth@mhtl.com

Brandon H. Moss, BBO# 657461

bmoss@mhtl.com

Murphy, Hesse, Toomey & Lehane, LLP

300 Crown Colony Drive, Suite 410

Quincy, MA 02269-9126 (617) 479-5000

Procedural background

This matter began as a civil action in the Massachusetts Superior Court, docket number NOCV10-02114. The court has ordered that all counts not dismissed in that case be submitted to binding arbitration, as called for in the lease between the parties. Accordingly the Claimant has filed a complaint for arbitration with JAMS to which the Respondent has replied and filed a counterclaim for arbitration. Claimant has filed a response to the counterclaim. The parties have agreed that all issues encompassed in the Complaint and Counterclaim, except those that were dismissed, are arbitrable and are the subject of this arbitration, and are recited in the complaint for arbitration and the counterclain1 for arbitration, as discussed herein.

Rules Governing the Arbitration

The JAMS Comprehensive Arbitration Rules and Procedures govern this matter.

Parties

Quarry Hills Associates Limited Partnership is a limited partnership of which Quarry Hills Associates, Inc. is the general partner. (Both will be referred to as QHA or the Lessee, as appropriate). It operates the Granite Hills Golf Club on land, some of which is leased from the Town of Milton (which will be referred to as the Town or Lessor or Landlord, as appropriate) under a written lease.

Pre hearing proceedings and discovery

Discovery and exchanges of information were made between the parties under the JAM Rules. Disputes arising relating to discovery and exchanges of information were resolved in due course by submissions to and rulings by the undersigned arbitrator, pursuant to several conference calls. No depositions were taken.

Brief Overview of the Case.

QHA operates a The Granite Hills Golf Club under a fifty-year lease from the Town on land formerly used as a landfill by the Town. The Town now proposes to erect and operate a wind turbine on land immediately adjacent to the demised premises, the spinning blades of which would encroach to some degree on the airspace over the demised premises. The Town has also authorized a taking of rights to certain land on the demised premises in order to provide access for the assembly and construction of the turbine.

QHA claims that the construction and operation of the wind turbine will frustrate a fundamental purpose of the lease, will interfere with its quiet enjoyment of the demised land and that the actions taken by the town to change its land use regulations to authorize the taking of certain rights in order to accomplish its plan to construct and operate the wind turbine are precluded by the terms of the lease.

The lease contains an arbitration clause that states, "The parties agree to attempt to resolve all disputes under the LEASE by discussions among the parties.

The parties agree that, if informal discussions have failed to result in an acceptable resolution, they shall invoke the Alternative Dispute Resolution Procedure established herein ... " The Alternative Dispute Resolution Procedure provides for submission of the dispute to "an organization acceptable to the parties whose decision shall be binding on the parties." As mentioned above. the Superior Court has ordered that all disputes under the lease be decided by arbitration before JAMS, the organization agreed to by the parties. The parties, at the direction of the court, have filed appropriate claims and counterclaims in arbitration relating to their disputes under the lease and selected the undersigned as the sole arbitrator in the matter.

Pursuant to the lease, QHA filled and capped the landfill and designed and constructed a professional level golf course. QHA also utilized adjacent land from a landfill in Quincy which it also closed and capped and utilized other parcels as well. For fill, it utilized material that came from the Big Dig.

Claims and Counterclaims

The Allegations in the QHA arbitration complaint can be summarized as follows:

Count I alleges that the Town has made repeated unauthorized entries in connection with its plan to erect and install a wind turbine on land adjacent to the leased premises and seeks a declaratory judgment that Town's entry for any purpose not expressly authorized by the lease is a breach of QHA rights under sec. 11 .1 of the lease. The lease provides that, so long as lessee pays rent and performs its obligations and covenants under the lease lessee shall peaceably and quietly have hold and enjoy the leased premises for the Term. QHA claims that the Town has breached and threatens to continue to breach this covenant of quiet enjoyment.

In its defense the Town claims that it had permission to make the entries that it did make.

Count II seeks a declaration that the Town meeting authorization for an eminent domain taking is a breach of sec. 4.4 of the lease. The Town covenants in sec. 4.4 that it shall not "by way of ordinance, rule or regulation prohibit, bar or limit the exercise by LESSEE of any rights of use granted hereby." QHA alleges that the Town has authorized a taking of rights in 6.5 acre portion of the leased premises for road widening, the temporary passage over the leased premises of construction workers, vehicles, equipment, cranes and components of the industrial turbines and that such action breaches the lease or will lead to a breach of the lease when the taking is made and the operations to construct the wind turbine begin.

Count III requests a declaration that the repeated entries of the Town constitute a trespass.

Count IV request a declaration that passage of amendments to the land use regulations of the Town to allow the construction and operation of a wind turbine on town owned residentially zoned land is a breach of section 4.4 of the Lease.

Section 4.4 states: "4.4 Lessor Covenants that during the TERM of this LEASE, LESSOR shall not by way of ordinance, rule or regulation prohibit, bar, or limit the exercise by LESSEE of any of the rights of use granted hereunder."

Section 1 of the lease states, "The LESSOR leases said premises to the

LESSEE for the purpose of construction, operation and maintenance of a

professional level golf course." The parties differ in their interpretation of the lease

language and whether the actions taken by the Town regarding the amendments of

its by-law amount to an ordinance rule or regulation prohibiting barring or limiting

the use by QHA of the premises as a professional level golf course.

Count V sounds in breach of contract. It alleges that the foregoing

amendments to the zoning By-law and the authorized and threatened taking by

eminent domain and entries into the leased premises constitute a breach of the

lease. It alleges that it has provided substantially all of the consideration bargained

for the by filling and capping of the land-fill at great expense to itself and of

benefit to the town and has also fulfilled its other promises to the town

(construction of the golf course, deeding a parcel known as the Bosworth parcel to

the town and contributing $300,000 to the Town for the construction of Townowned

athletic fields).

It alleges that the proposed construction and operation of the industrial

turbines would frustrate the fundamental purpose of the lease- the Claimants' right

to operate a professional level golf course and after QHA has performed

substantially all of its obligations under the lease.

QHA alleges that the construction and operation of the wind turbines would

frustrate the purpose of the lease (1) by creating noise which would interfere with

play on substantial areas of the course and prevent QHA from offering a

professional level golfing experience in the market to which it caters; (2) by

creating distractions by way of movement of the large blades of the wind turbine

which would undermine the play of golf on substantial areas of the course. (3)

create flicker as the blades cross the path of ambient light during periods of time

during the golf season, thereby interfering with play and creating intolerable

distractions on the course; (4) undermine the unique aesthetics of the .course by

imposing a large structure in the view corridors available on the course and destroy

or interfere with the unique pastoral views presented by the adjacent Blue Hills

Reservation and thereby diminish the experience of the golfers who use the course.

Count VI and Count VII seek injunctive relief to prevent a continuing

trespass and to prevent what it claims is an undermining of the essential purpose of

the lease and to avoid what it claims is irreparable harm to the unique features of

the site as a professional level golf course.

In its prayers for relief, in addition to declaratory and injunctive relief QHA

seek money damages based on the injury the wind turbine would allegedly inflict

on the value of its leasehold and golf operations and also seeks all appropriate and

just relief to remedy the Town's breach or threatened breach of the lease.

Position and Affirmative Defenses of the Town.

The Town denies that the turbine would interfere with or cause damage to

any the rights of QHA under the lease or create damage to its golf operations. It

argues that the turbine would not create sufficient noise or distraction as would

interfere with the play of golfers on the course as a factual matter. It contests the

claim of QHA that the turbine would undermine the aesthetic provided by the

views on the course and that, in any event, the lease does not protect such purely

aesthetic virtues of the site. It argues further that such attributes are highly

subjective and that some would find that the wind turbines would add to the

aesthetic values as seen from the course.

The Town's other arguments are dealt with in the context of the discussion

that follows. 3

Counterclaims of the Town

The Town has asserted various counterclaims in this arbitration, as follows:

Counterclaim Count I- Breach of the lease (site plan)

The Town alleges that QHA was required by lease sections 3.4, 5.1 and 5.2

to submit Definitive Final Site Layout and Land use Plan prepared by registered

professional engineers and registered land surveyors and that the lease describes a

process for Town to review and approve such plans, in sec. 5.2. The Town asserts

that a Final Site Layout and Land use Plan was not filed "at any time relevant to

this arbitration" and alleges that it was damaged as a result of this failure.

Counterclaim Count II- Breach of the lease (Access road)

The Town asserts that an access road for Boston Gas (National Grid) is

required in section 5.1(1) of the lease and that QHA locked a gate across that road

in violation of the lease.

Counterclaim Count III- Breach of the lease (Environmental controls)

The Town asserts that the environmental controls required of QHA in

section 5.1 (f) of the lease are not adequate and QHA allowed silt to flow onto

Town land.

3 It did not press its claim that some of the claims of QHA were dismissed by the

Superior Court and not referred to arbitration or are not ripe for adjudication. Its

positions that some of the claims are barred by the economic loss rule or that the

claims do not arise out of the lease are dealt with in this award.

Counterclaim Count IV trespass- tee box at Hole #5.

The Town asserts that a tee box at hole #5 was built with grading material

that has encroached on Town land and has caused damage to the Town.

Counterclaim Count V (nuisance- trespass- tee box at Hole #5)

7

The Town asserts the tee box at hole #5 was built with grading material that

has encroached on Town land and that it prevents Town from achieving substantial

enjoyment of its land and impedes future access for public projects.

Counterclaim Count VI (Demand for accounting)

In response to the claim of QHA for rescission and restitution for sums it has

expended in capping the landfill and constructing the golf course the Town seeks

an accounting for sums expended by QHA and an accounting of the benefits QHA

has received in connection with its claims for rescission and restitution.

Relief Sought in Counterclaims of Town

The Town requests that QHA be denied all relief and a declaratory judgment

that the Town has not violated the lease and that, if built, the turbine would not

violate the lease. The Town also seeks such other and further relief as is justified

and equitable.

The responses of QHA to the counterclaims are as follows:

As for Count I of Counterclaim, QHA alleges that it submitted the Plan in

April1998.

As for Count II of Counterclaim QHA states that a substitute road was

constructed; that the Town cut the lock that QHA placed on a gate to the road on

2/26/2010 but that QHA does not know the motive for cutting the lock.

Furthermore that 2/26/2010 was not the only occasion on which the lock was cut

and QHA asserts that the Town does not have general rights of access on the

demised land. As to Count V, QHA admits that it deposited material around the tee

#5 but deny remaining allegations.

QHA assets various affirmative defenses including that the Town executed

and delivered an estoppel certificate (in which the Town is estopped from asserting

the failure to file an as-built site plan) in connection with certain bank financing.

Witnesses and evidence

The parties presented the testimony of witness and documentary evidence

over seven days of continuous hearings. A view of the relevant locations was

taken. Written submissions were filed on September 28,2012, with the arbitrator

reserving the right to require further briefing or oral argument and/or evidence

upon review of the written submissions.

The following persons testified as witnesses:

Charles M. Geilich

Christopher Sleeper

John S. Sanford, Jr.

Michael A. Bahtiarian

Diane Brickley

Mary Orlando

Frederick Neff, Psy. D

Dennis E. Harrington

Richard 1. Dennis, Sr.

Richard E. Kleiman

William B. Clark, Jr.

Richard A. Polich

Robert C. Mentzer, Jr

Robert J. McCunney, M.D.

Timothy Gerrish

Over seventy exhibits were received in evidence.

Findings of Fact

History of the site

The Town of Milton owns certain land within its borders that it used as a

landfill for many years. Environmental concerns eventually led to an order from

state authorities that the landfill be closed and capped.

The Town struggled to find means and methods of closing and capping and

the means to pay for it. The City of Quincy had a landfill on adjacent territory that

it, too, was required to close and cap.

Quincy Hills Associates Limited Partnership (with Quincy Hills Associates,

Inc. as its general partner) was formed to promote the filling and capping of both

landfills and acquiring other contiguous land and to develop the resulting

assembled site for the purpose of constructing and operating a professional level

golf course utilizing both the Quincy and Milton land.

The site was highly desirable for the location and development of a

professional level golf course for several reasons. Because of its elevation and

location, the site had spectacular views in several directions. To the north was the

city of Boston skyline. To the east was Boston harbor and the ocean. To the south

and west was the Blue Hills reservation and other protected lands. Initially a thirty six

hole course was envisioned but later revised to a twenty-seven hole course,

nine of which would be on the Milton land fill.

There were some aspects of the site that detracted from its pastoral atmosphere. It was on a flight path frequently used by aircraft landing at Logan airport. There was a radio tower with blinking lights in close proximity and within the line of sight of several holes.

Although Route 93 was not far away, it was not close enough to present any distraction, nor was any other heavily traveled highway.

The site was just a few miles from downtown Boston, which made it easy to get to. Its elevation and relative isolation however prevented its proximity to the City from interfering with its peaceful setting

The parties negotiated a fifty-year lease. As amended the commencement

date was agreed to be no later than December 31, 2002, and the term remained 50

years from that date. Thus, there are approximately 40 years remaining on the

term of the Lease.

QHA undertook to be responsible for the capping and filling of the landfill at

its own expense and to maintain it in accordance with the conditions and standards

imposed on the town by environmental authorities. The parties both understood

that QHA intended to create and operate a professional level golf course on the

site. One of the disputes now in this case is the meaning of the term "professional

level golf course".

Lease language.

The following language in the lease became the focus of this dispute.

1. Section 1 of the Lease describes the leased premises by reference to

Exhibit A, attached to and incorporated into the Lease.

2. Exhibit A to the Lease is a plan but not a stamped engineering

drawing, and shows the parcels of land subject to the Lease, as well as some

surrounding parcels, also owned by the Town of Milton.

3. Permitted activities under the lease are defined in section 4.1, which

states: "Lessee shall be permitted to utilize the leased premises for the purpose of

constructing, maintaining, and operating a professional level golf course and

associated activities for which greens fees or user fees may be charged." Section 1

of the Lease also states, "Lessor leases said premises to the Lessee for the purpose

of construction, operation and maintenance of a professional level golf course."

4. "Professional level golf course" is not defined in the Lease. However I

find from the weight of the evidence that the term, in the reasonable understanding

of the parties, refers to a high level of design, ambience and maintenance such that

professional golfers and high level amateur golfers would be attracted to and

utilize the course and that it could qualify to host high level amateur and

professional level tournaments and events.

5. In addition, QHA was also obligated to construct two high school

varsity athletic fields, based on certain included specifications. Ultimately, this

obligation was modified, and QHA made a cash payment to Milton in lieu of

constructing the fields.

10

6. Under Section 4.4 of the Lease Milton "covenants that during the term

of the Lease, Lessor shall not by way of ordinance, rule, or regulation prohibit, bar,

or limit the exercise by lessee of any of the rights of use granted hereunder." As

discussed below the parties do not agree on the meaning of this clause or whether

the actions of the Town constitute a breach of it.

7. Under Section 5 QHA was obligated to design, permit, construct and

maintain a final cap of the Milton landfill, and to construct athletic fields

elsewhere.

8. Section 5.1.1. of the Lease required QHA to acquire the necessary land

or interest in land and construct an access road to replace an access road then

available to Boston Gas (now NStar) property and to secure from Boston Gas or

any other applicable entity all required releases of the Town's obligation to provide

access to the Boston Gas property over the roads and ways described in a

December 31, 1969 deed from Boston Gas to the Town.

9. Under the section 5.1 of the Lease, and as part of the consideration for

the Lease, QHA was required to do significant environmental work at the leased

property. This environmental work included, under section 5.1(h), that QHA

"specifically be responsible for excavation of waste required to remediate locations

where wetland resource areas have encroached over areas which were previously

landfilled by Lessor." These obligations with respect to the environmental

conditions of the property, and particularly the long-term maintenance of the

landfill cap, were ongoing. These ongoing conditions include maintenance of the

drainage structures, removal of invasive species, management of invasive species,

maintenance of new wetland replications areas, and maintenance of the landfill

cap.

lO.QHA was also obligated, under section 5.l(m) of the Lease, to acquire

the land referenced as the "Bosworth" land, and convey that land to Milton. That

land was then to be included in the boundaries of the leased premises, as set forth

in Exhibit A to the Lease.

ll.As part of these requirements, under section 5.2 of the Lease, QHA

was required to submit a Definitive Final Site Layout and Land Use Plan ("the

Plan"), prepared by registered professional engineers and registered land

surveyors.

12.1n addition to the Plan required in section 5.2, section 5.l(o) required

QHA to provide to Milton at least one copy of all plans prepared by or on behalf of

QHA "related to closing and capping the Milton landfill, to construction of said

golf course, or to construction of said athletic field."

11

13. Rent under the Lease is established in section 5.3 and is calculated

based on a formula that represents a percentage of greens fees, and other fees, for

the entire course. The specifics of the formula have changed over the years through

various amendments to the Lease, but in all cases are still based on Milton

receiving some percentage of the fees for use of the golf course. The percentage

increases over the life of the Lease.

14. Pursuant to section 7.1 of the Lease, QHA is also responsible for all

real estate taxes assessed against the leased premises, and all such tax payments are

credited towards the rent. The annual amount varies, but QHA has paid

approximately between $25,000 and $35,000 annually in rent to Milton.

15. Section 8.1 of the Lease contains a provision relating to casualty and

certain types of taking.

16. Section 8.1 states that in the event that "all or any substantial part of

the leased premises are taken or damaged materially by the action of public or

other authority, this Lease shall terminate at the election of Lessee only, which

may be made notwithstanding Lessor's entire interest may have been previously

divested, by notice given to Lessor within 60 days after the occurrence of the event

giving rise to the election to terminate, which notice shall specify the effective date

of termination."

17. Under section 8.1, damage or taking is considered "substantial' if the

construction time needed to put the remaining leased premises into proper order

would take more than 6 months, or if more than 50% of the leased premises are

taken.

18. Section 8.1 also provides that if the leased premises are rendered

"unfit for use and occupation" and the Lease is not terminated, Lessee "shall use

due diligence to put the lease premises, or in the case of a taking what may remain

thereof, into proper condition for use and occupation and a just proportion of the

fixed rent according to the nature and extent of the injury shall be abated .... Where

a taking permanently reduces the area of the leased premises, the rent is

permanently abated, "as measured by a change in the percentage of gross revenues

in proportion to the uses which have been made unavailable to QHA.

Section 11.1 of the Lease declares, that "so long as [QHA] pays the rent and

performs its obligations and covenants hereunder, [QHA] shall peaceably and

quietly have, hold and enjoy the LEASED PREMISES for the TERM." In Section

4.4, the Landlord expressly covenanted that during the term of the Lease, it "shall

not by way of ordinance, rule or regulation prohibit, bar or limit the exercise by

[QHA] of any of the rights of use granted hereunder."

The executed Lease allows the Landlord only certain, specific access to the

Leasehold, limited "for the purpose of monitoring compliance with the LEASE,

environmental permits and LESSOR approvals of the final cap or to investigate

any nuisance conditions observed or reported" to the Landlord.

The Wind Turbine Project.

The Town of Milton decided that it wished to construct and operate a wind

turbine in order to offset its annual costs of electricity. It also \Vi shed to qualify for

certain benefits as a "green" community under various governmental programs. It

undertook a feasibility study that took into consideration a variety of possible sites

for the turbine. It commissioned studies to ascertain the locations at which there

would be sufficient wind energy resources aloft, the costs of various turbine

alternatives, and the impact of the turbine on the various locations under

consideration. It was understood that a wind turbine could create noise and have

visual impacts on the environment and on the use and occupation of proximate

land, including impacts created by its size and motion.

Certain sites near residential developments were rejected because of the

impact of a wind turbine on a neighborhood in terms of noise, unsightliness and

motion. The town settled on a parcel of Town owned land adjacent to the golf

course and determined to install a wind turbine on a mast that, with blades

covering a circular area 285 feet in diameter will rise 410 feet. It will utilize a

Hyundai wind turbine that would generate two megawatts of electricity and offset

62% of Milton's electrical municipal electric usage.

Town Enactments to Accommodate the Wind Turbine Project.

In order to effectuate the Town's decision to install and operate a wind

turbine it took several actions. The zoning by-law for the Town did not permit the

use of the land chosen for purposes of the proposed wind turbine project.

Accordingly the Town enacted two by-law changes to accommodate this project.

The Town created a Wind Turbine Overlay District to allow wind turbine

development at the golf course site. It also eliminated the need for a special permit

process pursuant to which the impacts of the project would be reviewed and

abutters given an opportunity to object. QHA argues that these actions were in

contravention to Section 4.4 of the Lease, undermined the fundamental purpose of

the lease and interfered with its rights of quiet enjoyment of the demised premises.

In detail, on May 7, 2009, the Town voted to amend Section IVD of its

Zoning Bylaws ("First Bylaw Amendment") in order to allow the Town as

Landlord to construct up to two industrial wind turbines, on land of Landlord only,

"pursuant to the provisions of a special permit issued by the Planning Board." The

First Bylaw Amendment specifies that "[t]he requirement set out in Sections III

(Use Regulation), V (Height Regulation), VI (Area Regulation), and VII (Parking

Regulation) of the zoning bylaws shall not be applicable to the wind turbine and

its components on the site." The First Bylaw Amendment's siting requirements for

the industrial wind turbines are unique to the area of the proposed site adjacent to

Granite Links Golf Course, and allows for the siting of up to two industrial wind

turbines "at least 100 feet from the green and fairway of any go If course."

Subsequently, the Town as landlord filed for a Special Permit pursuant to the

First Bylaw Amendment, and its Planning Board held the required meeting. At the

public hearing on the Landlord's special permit requests, QHA raised numerous

objections to the Landlord's Planning Board, including the fact that the Landlord

lacked the legal right to cross the Leasehold for the purpose of constructing or

operating the proposed Industrial Turbine Project. The Planning Board continued

the hearing, and hearing dates were subsequently continued 4-5 times such that no

Special Permit was ever issued by the Planning Board.

On September 20, 2010, a Special Town Meeting was held to amend the

First Bylaw Amendment to remove the Special Permit requirement protections, a

necessity for issuance of a Special Permit ("Second Bylaw Amendment") and

allow for the construction, maintenance and operation of the proposed Industrial

Turbine on Town-owned land "as of right." This circumvented all of the controls

that a developer normally has to fulfill. The Second Bylaw Amendment's siting

requirements for the proposed Industrial Turbine are unique to the area of the

proposed site adjacent to Granite Links, and allows for the siting of up to two

industrial wind turbines "at least 100 feet from the green and fairway of any golf

course."

QHA argues that the actions of the Town as landlord to twice amend its

zoning regulations to permit the construction and operation of its own proposed

Industrial Turbine Project, on its own property abutting the golf course on the

QHA Leasehold, are an express violation of Section 4.4 of the Lease, under which

the Landlord expressly covenanted that for the 50-year term of the Lease, it "shall

not by way of ordinance, rule or regulation prohibit, bar or limit the exercise by

[QHA] of any of the rights of use granted hereunder."

This argument is based on two propositions. First, that the Town's zoning

enactments qualify as ordinances, rules, or regulations within the meaning of

Section 4.4. Second, that the zoning enactments when implemented by the Town

by the construction and operation of the wind turbine will, as a mater of fact, limit

QHA's exercise of its rights under the lease to operate a professional level golf

course in violation of Section 4.4.

Citing Black's Law Dictionary (2009 Ed.) that defines "limit" as "1. A

restriction or restraint", QHA argues that the evidence shows that the zoning

enactments, by enabling the Landlord Town's proposed Industrial Turbine Project

adjoining the golf course, will "restrict or restrain" its use by golfers, and thus

impair QHA's business use of its Leasehold, in violation of Section 4.4. It also

argues that the actions of the Town will undercut the fundamental purpose of the Lease which is the operation of a professional level golf course.

The Town argues on the other hand that the enactment of a zoning by-law is

not an ordinance rule or regulation, nor is the authorization for a taking. It argues

furthermore, on the evidence, that the installation and operation of the wind turbine

will not limit restrict or restrain the use of the leased land as a professional level

golf course.

Ordinance Rule or Regulation

I find, contrary to the argument of the Town that a zoning by-law is an

ordinance rule or regulation as that phrase is used in the lease. Although by statute

a City's zoning enactments are defined as "ordinances", G.L. c. 43 Sec. 1, and, by

convention a Town's zoning enactments are referred to as by-laws, it is clear that

there is no meaningful distinction between them. See e.g, G.L. c. 40A § 5 where

both are referred to collectively. See also, Black's Law Dictionary (2009 Ed.)

definition of ordinance.

The Town argues that its actions have not "prohibited" or "barred" the

ability of QHA to use the Leased Premises for the purposes of running a

professional level golf course. It cites the dictionary definitions of the word

"prohibit" as a "bar" or a "ban." It argues that the word "bar," in turn, is defined as

to "exclude" to "prevent" or to "except." Meanwhile, the word "limit" means "to

restrict by or as if establishing by limits," to "confine or keep within limits," or "to

fix or assign definitely or specifically." Id. It argues that, in this case, QHA is

clearly able to continue to use the Leased Premises for all purposes that are

consistent with the Lease.

It is true that the by-law amendments do not by their terms limit bar or

prohibit the use of the premises as a professional level golf course. But it is

appropriate to look to the effect of the Town's actions, and the facts relating to the

proposed siting and operation of the wind turbine to determine what the impact of

these enactments will be on the operation of the golf course as a professional level

course. If the impact would be to limit the use of the premises as a professional

level golf course then the enactment of the by law change would be a link in the

chain of causation of such an impact.

It is also appropriate to consider whether the proposed actions of the Town

would undermine a fundamental purpose of the lease or constitute a breach of the

covenant of quiet enjoyment.

The taking and the claim for breach of the covenant of quiet enjoyment.

The Town also determined that in order to assemble, construct and erect

the turbine that it needed access through the demised leasehold premises and

authorized the taking of such rights by eminent domain. At the May 3, 20 10 Milton

Town Meeting the Town was authorized to take by eminent domain more than 6.5

acres of the Leased Premises to allow construction workers, vehicles, equipment,

cranes, and components of the Industrial Turbines to enter onto Leasehold areas for

the inspection, maintenance, repair and operation of the proposed Industrial Turbine for the remaining years of the Lease. The threatened takings would allow

for widening of the landfill access road on the landfill cap, as well as the sweep of

turbine blades over portions of the Leasehold.

QHA argues that, "Such massive intrusion onto the Leasehold, and

abrogation of QHA's specific rights under the Lease, is inextricably contrary to

QHA's right to protection from interference for the entire 50-year Lease term.

Section 11.1 of the Lease declares, that "so long as [QHA] pays the rent and

performs its obligations and covenants hereunder, [QHA] shall peaceably and

quietly have, hold and enjoy the LEASED PREMISES for the TERM." QHA

argues that the Landlord cannot avoid its contractual obligations and seize back

portions of the Leased Premises from QHA, by instituting its municipal power to

override the terms of the Lease, and in doing so limit QHA's ability to successfully

operate a professional level golf course for the remainder of the Leasehold period,

citing Doe v. New Bedford Housing Authority, 417 Mass. 273, 285-286 (1994)

Charles E. Burt, Inc. v. Seven Grand Corp., 340 Mass. 124, 127 (1959).

QHA argues that the Authorization of Taking-expressly approved by the

Town Meeting Taking Authorization-is an "order, rule or regulation," the natural

consequences of which would "prohibit, bar or limit" QHA's rights under the

Lease in violation of Section 4.4 of the Lease. It argues that the intent of Section

4.4 of the Lease was that the Landlord would take no action to interfere with the

intent of the parties to create and operate a professional level golf course.

QHA argues that the Town's argument that the Authorized Taking will

provide QHA an easement back over the access road ignores the fact that Sections

1, 11.1, 4.4 and 4.5 of the Lease protect QHA and the Leasehold from outside

intrusion. It argues that the fact that QHA will still have use of the access road is

irrelevant to an analysis of the actions of the Landlord. The Lease provides that

the Landlord does not have use of the access road or right of entry to any of the

Leasehold, except in very limited circumstances not related to the Industrial Wind

Turbine. QHA argues that it was keenly aware of the need to be protected from any

intrusion, and this was a specific subject of the negotiations between the Landlord

and QHA. QHA argues that the Landlord's seized access violates QHA's right of quiet enjoyment and frustrates the purpose of the Lease.

QHA argues that the Landlord's argument that the Town Meeting's

Authorization of Taking does not require the exercise by eminent domain, because

the authorization allows for the Board of Selectmen to acquire a portion of the

Leased Premises "by purchase, eminent domain or otherwise," is specious. No

portion of QHA's Leasehold is available for sale. The only way for the Landlord

to ''take back" portions of QHA's Leasehold is to make a taking by eminent

domain. I agree that any argument that the controversy is not yet ripe because the

Landlord is yet to exercise its eminent domain taking powers specifically

authorized by the Authorization of Taking is incorrect, as Section 19 of the Lease

allows the parties to arbitrate "disputes" under the Lease, and proof of prior

"breach" of the Lease is not required in order to resolve such "disputes" under the

Lease.

QHA also argues that the Landlord's argument that the Lease itself

authorizes a taking by eminent domain is unpersuasive. Section 8 (Casualty and

Taking) of the Lease provides no right for the Landlord to seize or take back a

portion of the Leased Premises. In fact, Section 8 is not a typical eminent domain

clause at all. It merely provides, under certain circumstances, additional options to

the tenant QHA, above its general eminent domain rights. Section 8 was never

intended to, nor does it, authorize the Landlord to take back any portion of QHA's

Leasehold or to preclude QHA from defending its right of exclusive possession in

the Leased Premises for the term of the Lease. The terms of the Lease are

unambiguous on this point. Moreover, when read in conjunction with Section

4.4-prohibiting the Landlord from taking any action that prohibits, bars or limits

the exercise by QHA of any of its rights of use under the Lease-it is clear that no

taking is authorized or created under the terms of the Lease.

Stated another way, the Town has not contracted away its power of eminent

domain, but it must respond to its obligations under the lease as to the

consequences of any such taking. In any event, at the hearing it appeared that the

activities of constructing the wind turbine, assembling its parts and using portions

of the leased land can be scheduled at times of the year or during hours that will

not interfere with the use of the demised premises as a professional level golf

course.

The Impact of the Wind Turbine Project

The foregoing analysis shows that, in order to evaluate the claims of QHA,

the facts relating to the impact of the wind turbine project on the operations of the

golf course must be assessed.

Evidence was taken on the nature of the play of golf, the level of golf play

for which QHA designed the course and which the course supports, the factors that

impact the play of golf and the use by QHA of the leased premises as a

professional level course and the enhanced revenue generated by the status of

Granit Links as a professional level golf course.

I am satisfied from the evidence that all parties understood that premises

would be designed and operated as a professional level golf course, and had a

common understanding of meaning of that phrase. The parties knew and intended

that the course would cater to and was designed to support the highest level of play

and the most accomplished level of pro and amateur player and events. The course

was designed and laid out by a well known and skillful designer of golf courses. It

was intended to have and does have an excellent local and regional reputation for

its design, and the challenge of play provided by the course. By its maintenance

and amenities. It has hosted several high level tournaments and attracts the most

advanced players.

When the lease was negotiated and the course laid out there were no wind

turbines adjacent to any holes and none were permitted under the zoning and land

use regulations in effect at the time.

From the evidence I find that the proposed turbine would rise 410 feet in the

air and its blades would sweep an area of 62,458 square feet. It would be visible

from most holes of play. It would rotate up to 16.7 rpm before governing

mechanisms and programming would limit its speed of rotation. Its blades at their

tip would travel at up to 100 mph.

There are three types of impacts that the turbine would have on the operation

of the course: sound, motion and aesthetic. The Town itself recognized that the

turbine could have these types of impacts on the environment in general and

rejected several sites on the grounds that, in substance, the turbine would present

unacceptable impacts on the neighborhoods in question.

There was credible testimony that an essential condition for playing golf,

especially at a professional level, is the absence of distracting sound and motion.

Golf etiquette and practice requires that distractions by way of motion and sound

be minimized. If it is not, the execution of a golf shot can be seriously impaired. In

the case of transient short-lived motion or sound the player can wait for it to abate

and adjust his or her play accordingly. The player can even adjust for more

continuous steady noise but not easily for distracting motion.

QHA argues that the insertion of the wind turbine will adversely affect the

view corridors enjoyed by the course and adversely affect the ambience because of

its size and location, apart from the impact of noise and motion. There are two

problems with this concern. First, aesthetics are highly subjective and reasonable

people can disagree on the aesthetic impact of the proposed structure. It is true that,

at present, the view corridors present, for the most part, unobstructed views of

green parkland in the direction in question. On the other hand there is another

structure in close proximity to the clubhouse, a 100 foot radio tower with

blinking lights, which undermines the views available at the course.

Second, it is much harder to argue that QHA is protected from the mere

presence of the structure on adjacent town land (apart from its motion and the

noise that it generates). The structure itself, if stationary, poses no threat to the play

of golf. Furthermore I cannot conclude that, from all the evidence, even if QHA

had the right to complain about the aesthetic impact of the structure, it is of such a

character as to constitute an unacceptable blight or that it would significantly

adversely affect the business of the course.

I am satisfied by a fair preponderance of the evidence that the operation of

the wind turbine would present a significant distraction to the play of golf on the

holes most proximate to it namely 4, 5, 6, and 7. The moving blades would be in

the line of sight of various golf shots. A golfer would not be able to make an

adjustment in lining up or executing a shot to counter the distracting effect of the

moving blades.

Golf holes 4 and 6 play directly toward the proposed wind turbine project.

Because hole No. 4 is a par 5, the majority of golfers would be hitting the third

shot directly at the proposed wind turbine. Hole No. 5 works away from the

proposed Industrial Turbine. Hole No. 6 plays back into the proposed Industrial

Turbine. The tee box on Hole No. 7 is one of the closest points on the golf course

to the proposed Industrial Turbine. On the 7th tee, for a right-handed golfer, the

Industrial Turbine would be moving right in a golfer's peripheral vision on the

golfer's right side. It would be right in line, basically, with the turbine, the golfer,

and where the golfer would be trying to hit it. I find credible the testimony of Mr.

Sleeper that, because of the close proximity of holes to the turbine, especially Nos.

6 and 7, that the decision of a professional level or elite level amateur golfer would

to play at Granite Links would be adversely influenced.

QHA's and the Landlord's acoustical engineers undertook similar analysis

and reached similar results concerning the noise impacts of the proposed Industrial

Wind Turbine on Granite Links. QHA's acoustical engineer, Michael Bahtarian,

computed the sound pressure level for the proposed Industrial Turbine site and

performed a noise survey to measure the existing ambient noise level at the

proposed turbine site. The background noise levels at the site were between 36 and

41 decibels. The Commonwealth of Massachusetts Department of Environmental

Protection has established that it is a violation of state noise regulation to have

noise 10 dB above background noise. Four golf holes will be affected at the 45 dB

level. The Landlord's engineer, Mr. Polich, concluded that portions of 5 golf holes

are within 45 dB. At this level a golfer will hear the classical "swoosh-swoosh-type

sound" from the wind turbine. I credit the testimony of Mr. Polich to the effect that

3 golf holes are located within the 50 dB noise contour. At 10 dB above

background noise "audibility would be quite striking" and would exceed

Massachusetts DEP noise regulations.

In addition to the noise affects addressed in his report and model, Mr.

Bahtarian also addressed the infrasound and amplitude modulation to be produced

by the proposed wind turbine. I credit his testimony that a person does not hear

infrasound, but feels it; and those affected have complaints similar to seasickness,

nausea and/or vertigo. Amplitude modulation is the Hswoosh-swoosh sound" that

comes from the wind turbine, creating a once-per-revolution per blade of audible

noise that is quite bothersome because it is an a rhythmic sound.

The town argues that the regular flight of aircraft on a glide path over the

course present a significant and comparable distraction and that the moving turbine

blades would not be more distracting to the play of golf than is the sound created

by large commercial aircraft on their glide path into Logan. Detailed expert

testimony was presented on this topic. During the view at least one aircraft was

observed making its approach. Over a 15-day period there were 294 arrivals, on

average, overflying the golf course on approach to Logan. But on one day in May

between the hours of 7 AM and 7 PM, there were 350 flight arrivals at that which

overflew the golf course, at an average height of the planes overflying the golf

course, near holes 4, 5, 6 and 7 (closest to the wind turbine) would be 2,000 to

3,000 feet.

Although there can be significant such traffic, depending on the time of day

and prevailing wind and airline schedules, I am satisfied from the testimony that

the distraction presented by such aircraft is not comparable to the distraction that

would be presented by the sound and motion of the wind turbine blades when in

operation, at the locations mentioned above. I am satisfied that a golfer can make

an adjustment to this type of distraction by waiting a few minutes for the noise to

abate which the golfer could not make for the distraction creating by the

continuous spinning blades.

Although there would be some flicker in the sunlight on the course created

by the spinning blades at certain times of the year based on the siting of the

turbine, and date as to hours of sunlight, I am satisfied that any shadow flicker

would be produced during a very limited time period, typically in the early hours

of the day in March, and on mornings in October. These times represent only 200

hours out of the entire year, and are not likely to be times when golfers are out on

the course. This effect is also the worst case, and assume 1 00% sunlight during the

lighted hours of the day. These results would also vary with weather, and cloud

cover would further reduce any potential flicker. As a result, I am persuaded that

that impact from flicker to the golf course would be negligible.

20

Rights of QHA Under the Lease Regarding the Distractions which would be

Created by the Motion and Noise of the Wind Turbine

The Town has special obligations as a landlord which has leased the

premises and then proposed to make use of immediately adjacent land in a way

that could undermine the understood purpose of the lease. The Town has a duty not

to interfere with the quiet enjoyment of the leased premises. It also has a duty not

to undermine the fundamental purpose of the lease which is to permit QHA to

develop and operate, at great up front cost, a professionalleve1 golf course. It has

the power to take rights in land by eminent domain and modify it land use

regulations but it also has duties as a contracting party to a commercial lease to not

exercise those powers in a way that violates its contractual and common law

obligations.

Quiet enjoyment

A landlord breaches the covenant of quiet enjoyment where the natural and

probable result of the landlord's action or inaction, is an interference with the

tenancy, significant enough to impair the character and value of the leasehold. See

as to residential tenancies, Andover Hous. Auth. v. Shkolnik, 443 Mass. 300, 311

n. 17 (2005); Doe v. New Bedford Housing Authority, 417 Mass. 273,285-286

(1994). In a commercial lease context, failure to fulfill duties or obligations

mandated in a lease agreement, where the failure to do so deprives the lessee of a

vital part of what the lessee needs in order to carry out his business, constitutes a

breach of the covenant of quiet enjoyment. Charles E. Burt, Inc. v. Seven Grand

Corp., 340 Mass. 124, 127 (1959). "The covenant of quiet enjoyment protects a

tenant's right to freedom from serious interference with his tenancy- acts or

omissions that impair the character and value of the leased premises." Doe, 417

Mass. at 285. The Landlord cannot permit or enter into an activity that will

interfere with the Leasehold.

Here I find that the noise and motion of the wind turbine will limit QHA's

ability to operate a professional level golf course on holes 4,5,6 and 7.

I do not regard QHA's claim as a claim for relief based upon emotional

reactions, as argued by the Town and thus I do not find the Texas case law cited by

the Town to be on point. See Rankin v. FPL Energy LLC, 266 S.W. 3d 506 (Tx.

Ct. App. 2008),where the Texas appeals court considered whether a wind farm

interfered with the landowner's use and enjoyment of his property. The court

found that a plaintiff's emotional response to the loss of their view due to wind

turbines does not "substantially interfere with the use and enjoyment of the

21

property" necessary to constitute a nuisance. ld. at 511. As noted above I have

concluded that impact of the turbine structure on the views available from the golf

course is debatable and QHA has not persuaded me that, apart from the noise and

motion problems discussed above, that QHA is protected from the mere presence

of the structure or that the aesthetic impact is sufficiently detrimental to QHA's

business as to interfere with the use of the premises as a professional level golf

course.

Furthermore I do not regard the operation of a wind turbine on land

immediately adjacent to the demised premises as the type of off-leasehold activity

found lacking as a breach of the covenant of quiet enjoyment in Kelly v. Jones, 80

Mass. App. Ct. 476,478 (2011). There the Plaintiffs claimed that landlord

impaired their right of quiet enjoyment by trying to "sabotage the plaintiffs

employment," and by ruining their social lives by talking about them in church. Id.

That conduct did not constitute a breach of the covenant because it did not

substantially "impair the character or value" of the leased premises (which is the

standard for breach of the covenant in Massachusetts). Id. Here the threat posed

from the noise and motion of the turbine is a threat to the character or value of the

leased premises.

Nor is the case of Rubin v. Beach Soap, 346 Mass. 771 (1963) on point

where a commercial tenant had his insurance cancelled because a landlord rented

an adjoining space to a high risk tenant. See also BF Keith v. Carpenter, 307 Mass.

27 (1940). Where the original tenant was a theater, and had right to advertise on

the outside of the building, the landlord's actions of leasing adjoining space to

tenant who also advertised, was not a breach even though the adjoining signs were

more brilliant and detracted from the original tenant's signs. Id. at 29-30. The

tenant had no reasonable expectation that it would be protected from competing

activity.

Apart from a breach of the covenant of quiet enjoyment the impact of the

motion and noise of the wind turbine on the play of golf at holes 4,5,6, and 7 will

also undermine a fundamental purpose of the lease which is to operate a

professional level golf course. The "grant of anything carries an implication, that

the grantee shall have all that is necessary to the enjoyment of the grant, so far as

the grantor has power to give it. The lease carried with it an implication that the

lessors would refrain from acts voluntarily undertaken which substantially 'impair

the character and value of the leased premises." Winchester, 266 Mass. 33, 36

1929). It would be a de facto breach of the Lease for the Landlord to devalue the

Leasehold the tenant had contracted for. See Doe v. New Bedford Housing

Authority, 417 Mass. 273, 285 (1994); Blackett v. Olanoff, 371 Mass. 714, 717-18

(1977); Winchester v. O'Brien, 266 Mass. at 36.

22

Remedy.

Since the only actionable threat to QHA is the noise and motion presented

by the wind turbine while the game of golf is being played on holes 4, 5,6, and 7, I

turn to a consideration of what remedy will adequately protect QHA from this

threat. There was evidence that the wind turbine can be programmed and

controlled to shut it down, for example, during high wind conditions. There was

also a suggestion that the Town considered mitigating the flicker impact of the

turbine by shutting it down at certain times of day on certain days of the year. It

seems quite likely that the motion and noise interference with the play of golf can

be remedied by shutting off the turbine during the hours on those days in the late

spring, the summer and the early fall that golf is being played. Thus I am inclined

to enter a limited injunction tailored to protecting the course from the noise and

motion of the turbine only when the play of golf is actually threatened thereby.

Thus the turbine should be allowed to operate outside of daylight hours when golf

is scheduled to be played and on the days of the year that golf is not being played.

It should be noted that this would result in no interruption of electrical service

since the turbine is being used only to feed into the grid and to provide the Town

with offsetting credits to its electric bill. I will take further evidence on this remedy

before finalizing my orders on this topic, as indicted below.

Eminent Domain Issues.

Resolution of the eminent domain issues follows from the analysis of the

sound and motion created by the turbine and the remedy which is to be ordered.

The schedule of operation of the turbine to be ordered will ensure that no protected

right of QHA will be violated. As stated, QHA is not protected under the lease

from the mere construction and existence of the turbine. Its operation can be

modified to prevent any actionable harm. The taking and utilization by the Town

of the rights it needs to assemble and erect the turbine, if done in the off season or

after hours, will not interfere with the play of golf and thus would not breach the

lease. Issues relating to what, if any, compensation would be due from the

temporary and partial taking and utilization of land leased to QHA during

construction or thereafter during maintenance is not before me as a controversy or

issue that arises under the lease.

Trespass issues

Assuming the taking the Town has authorized will cover the temporary

rights it needs over the leasehold in order to assemble and erect the wind turbine

and to maintain the turbine, issues of future trespass do not arise.

23

Rescission and damage issues

In view of the remedy to be imposed limiting the operation of the wind

turbine so as to not interfere with golf operations, rescission and damage issues are

moot. Damages associated with the technical trespass claims of QHA to date have

not been proved and thus would not be appropriate to award.

Counterclaims of the Town

Definitive Site Layout and Land Use Plan. (Count I)

The Town raises the issue that QHA did not comply with lease sections 3.4,

5.1 and 5.2 by failing to submit a Definitive Final Site Layout and Land use Plan

prepared by registered professional engineers and registered land surveyors. It

argues that this failure constitutes a breach of the lease that excuses the Town from

performance of it obligations under the lease and also that it suffered damages as a

result of this failure.

On May 4, 2004, the Landlord executed an Estoppel Certificate and

Agreement in connection with a loan agreement entered into between QHA and

Norwood Cooperative Bank. As a condition of the loan, the Landlord was required

to "certify, represent, covenant and agree" to the matters described in the Estoppel

Certificate and Agreement. Paragraph 2 of the Estoppel Certificate states: "The

Landlord and Tenant hereby acknowledge and agree that: (a) the Final Site Layout

and Land Use Plan pursuant to Section 5.2 of the Lease have been approved by the

Landlord, and no further Plan approvals are required by the Landlord with respect

to the Premises." Paragraph 12 of the Estoppel Certificate further states that "[t]his

Estoppel Certificate is binding on the Tenant, the Lender and the Landlord and

each of their successors and assigns."

On August 17, 2005, the Landlord executed another Estoppel Certificate in

connection with a loan agreement entered into between QHA and Sovereign Bank.

Again, as a condition of the loan, the Landlord Lease was required to "certify,

represent, covenant and agree" to the matters described in the Estoppel Certificate.

Paragraph 2( c) of the Estoppel Certificate states: "The Lessor represents and

warrants that: (c) Lessee has submitted and Lessor has approved the Definitive

Final Site Layout and Land Use Plan (the 'Definitive Plan') as provided in Section

5.2 of the Lease, and Lessee is currently in compliance with Section 5.2."

Consequently, the Town is estopped from making the allegations in

Counterclaim I. Furthermore the Town never made any effective objection or

claim prior to the bringing of the QHA claims in this case. In any event the Town

has suffered no damage from the lack of any plans. Furthermore the breach by

QHA, if any, is not material and does not provide a defense to the Town to any of

QHA's claims.

The Town has made a generalized claim that it needs as-built plans in order

to evaluate future applications by QHA for permits under the Town's land use bylaws

but has not shown that QHA could not satisfy this need if it arises in the

future.

Breach of the lease (Access road) (Counterclaim Count II)

The Town asserts an access road for Boston Gas (National Grid) is required

in section 5.1(1) of the lease and that QHA locked a gate across that road in

violation of the lease. QHA did block access by representatives of National Grid

for a short period of time on February 26, 2010. I fmd however that this was

unintended as far as the National Grid access was concerned and was remedied

shortly after it occurred. QHA recognizes the rights of National Grid

representatives to pass and re-pass over the Leasehold in accord with Section 5.1(1)

of the Lease. The Landlord is not entitled to, nor has it proven, any damages

relating to this incident. I am satisfied that injunctive relief is not required and that

the parties will cooperate in the future to make sure that access to National Grid is

not denied.

Allegations of Breach of the lease due to failure of QHA to maintain

Environmental controls. (Counterclaim Count III)

The Town asserts that the environmental controls required ofQHA in

section 5.1 (f) of the lease are not adequate and silt was allowed to flow onto Town

land. I am satisfied from the weight of the evidence that when this problem was

brought to the attention of QHA they took adequate steps to remedy the situation.

The evidence in support of the further claims of the Town that QHA has not

properly managed the spread of invasive species was not persuasive.

Trespass and nuisance: Tee Box at Hole #5 (Counterclaim Counts IV and V)

The Town asserts that a tee box at hole #5 was built with grading material

that has encroached on Town land and has caused damage to the Town. It claims

that this encroachment prevents Town from achieving substantial enjoyment of its

land and impedes future access for public projects.

The evidence supporting this claim of the Town is not persuasive. The

Lease grants to QHA use of "the LEASED PREMISES located on the land shown

on Exhibit A, attached hereto and incorporated by reference." The Lease contains

no description as to the metes and bounds conveyed, and the property lines shown

on Exhibit A have no starting point from which to identify the actual location of

the Lease-line. The Lease-line was prepared by outlining the site assigned as a

landfill. I conclude that it was not very accurate, even though QHA took it for

granted that it was an accurate depiction of what it had bargained for.

The two sketches produced by Decelle Group and relied upon by the

Landlord in claiming the golf course infringes upon the Lease-line are unstamped

documents including a note that "All information other than the lease and property

line shown is for information only and not guaranteed to be correct." Thus, the

plan disclaims the accuracy if any depiction of tee #5, or the placement or intrusion

of other structures .. From the testimony of Mr. Clark I conclude that this is an

unusual disclaimer for the Decelle Group to make. After being asked to compare

the two plans relied upon by the Landlord in support of its claim that QHA

surcharged the Lease-line, Mr. Clark testified that the scale in one of the two plans

is completely and utterly wrong, yet he could not identify which one he believed

was wrong and which he believed was correct. The Landlord has failed to persuade

me by a fair preponderance of the evidence that there has been either a trespass or

nuisance as claimed in Counterclaim Counts IV and V.

Counterclaim Count VI (Demand for accounting)

The Town seeks an accounting for sums expended by QHA and an

accounting of the benefits QHA has received in connection with the claims of

QHA for rescission and restitution. Having concluded, based upon the foregoing

analysis and fmdings, that QHA is not entitled to rescission or restitution, I am not

persuaded that the Town has established that it is entitled to any relief in the nature

of an accounting.

ORDER

In the draft award in this matter I stated as follows:

"Remedy

An award declaring the rights of the parties will be made based upon the

foregoing findings and discussion.

I will also award injunctive relief prohibiting the operation of the wind

turbine during the dates and hours that the golf course is open for play.

I direct that the parties further brief and offer written evidence, if necessary,

on the appropriate terms and conditions of the injunctive relief to be awarded.

The parties are encouraged to submit a joint proposal for the form of the

declaratory and injunctive award to be entered based upon the foregoing findings,

rulings, and discussion. I will hold the record open for such further evidence and

argument as is necessary. Counsel will submit their proposals relating to the form

of the final award within two weeks from the date of this order. If necessary a

hearing on the final award will be scheduled promptly thereafter.

Damages, costs and attorneys fees will not be awarded.

SO ORDERED

Subsequently the parties submitted written arguments and affidavits

addressing the question of remedy. Having reviewed these filings I have

determined that no further evidence or argument is needed. I declare that the record

in this matter is closed as of January 10, 2013.

I must address two issues: 1) the dates and hours of operation of the wind

turbine; and 2) The dates during which construction activities may take place.

Dates and Hours of Operation

The parties disagree about the degree of protection needed by QHA from the

effect of the operation of the wind turbine on the play of professional level golf at

the course. QHA takes the position that the turbine should not operate at any time

that the noise and motion of the turbine would interfere in any degree with the play

of golf. Milton argues that it should not be deprived of the use of the turbine at

times when there is little or no golf being played at a professional level.

I approach this issue as one of fashioning equitable relief that is fair to both

sides. This is inherent in the concept of interference with quiet enjoyment. Only

unreasonable uses of adjoining property of the landlord that result in substantial

injury to the tenant should be enjoined.

Although evidence has been presented that the course is used from time to

time and to some degree in the late fall and early spring and I am not persuaded

that QHA would suffer substantial harm from the operation of the turbine at such

times. In any event the "professional level" of play would not be seriously

impacted during the off-season. I credit the evidence that, for the purposes of

computing handicaps, only play during the golfing season between April 1 and

November 15 is credited in Massachusetts towards the computation of a golfers

handicap and that play during other times is regarded as "practice".

As to the hours of operation, the rule of reason should apply. The course is

open for play at 7:00 AM. It is unlikely that hole number four would be reached

before 7:30AM. Play continues until it becomes too dark. Although there was

evidence presented as to the times of "civil twilight" I am satisfied that as a

practical matter from other evidence that the interference of the turbine with play is

unlikely to be substantial at some time prior to civil twilight. I adopt the proposal

of the Town as to the times in the evening when the turbine may operate, as

reflected in the order set forth below.

Construction Operations

The Order of Conditions specifies that construction take place between 27

October 15 and March 15. Construction operations may involve temporary

crossing and re-crossing of the access road and alterations to access roads but will

not interfere with the play of golf. Apart from the limiting dates set forth above no

other relief is warranted regarding the construction operations in question.

Order

The wind turbine may be constructed, assembled, erected and installed between the dates of October 15 and March 15.

The turbine may be operated, and only operated, on an annual schedule as follows:

January, February and March: 24 hours per day seven days per week.

April, 7:30 PM to 7:30 AM

May, 8:00PM to 7:30AM

June, 8:15PM to 7:30AM

July, 8:00PM to 7:30AM

August, 7:30PM to 7:30AM

September, 6:30PM to 7:30AM

October. 6:00 PM to 7:30AM

November 1 to 15, 6:00 PM to 7:30AM

November 16 to November 30, 24 hour per day seven days per week

December, 24 hours per day, seven days per week.

I have declared the rights of the parties in the body of this award as set forth

above.

So Ordered.

Hon. Gordon L Doerfer, (Ret)

Arbitrator

January 15, 2013

PROOF OF SERVICE BY EMAIL & U.S. MAIL

Re: Quarry Hills Associates, Inc. I Town of Milton, Its contractors, agents and servants

Reference No. 1400013592

I, John J. Carr, not a party to the within action, hereby declare that on January 31, 2013 I served the attached Final Award on the parties in the within action by Email and by depositing true copies thereof enclosed in sealed envelopes with postage thereon fully prepaid, in the United States Mail, at Boston, MASSACHUSETTS, addressed as follows:

Jennifer A. Drohan Esq.

Jeffrey A. Tocchio Esq.

Drohan Tocchio & Morgan, P.C

175 Derby St.

Suite 30

Hingham, MA 02043

Tel: 781-749-7200

Email: jdrohan@dtm-law .com

jtocchio@dtm-law .com

Parties Represented:

Quarry Hills Associates, Inc.

Mark S. Bourbeau Esq.

Bourbeau & Associates, P.C.

266 Beacon Street

4th Floor

Boston, MA 02116

Tel: 617-536-9695

Email: msb@bourbeaulaw.com

Parties Represented:

Quarry Hills Associates, Inc.

John P. Flynn Esq.

David A. Deluca Esq.

Karis l. North Esq.

Murphy, Hesse, Toomey & Lehane, LLP

300 Crown Colony Dr., Ste. 410

PO Box 9126

Quincy, MA 02269

Tel: 617-479-5000

Email: jflynn@mhtl.com

ddeluca@mhtl.com

knorth@ m htl.co m

Parties Represented:

Town of Milton

Adam J. Brodsky Esq.

l/0 Adam J. Brodsky

100 Recreation Park Drive

Hingham, MA 02043

Tel: 781-340-6900

Email: info@brodskylaw.com

Parties Represented:

Quarry Hills Associates, Inc.

I declare under penalty of perjury the foregoing to be true and correct. Executed at Boston, MASSACHUSETTS on January 31, 2013.

John J. Carr

jcarr@jamsadr.com

 

 

1 No issue has arisen relating to the nominal inclusion of the terms "agents servants or

contractors in the caption of this matter.

 

2 Quarry Hills Associates Limited Partnership of which Quarry Hills Associates, Inc. is the general partner has been added, by agreement, as a real party in interest

 

3 It did not press its claim that some of the claims of QHA were dismissed by the

Superior Court and not referred to arbitration or are not ripe for adjudication. Its

positions that some of the claims are barred by the economic loss rule or that the

claims do not arise out of the lease are dealt with in this award.