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COMMONWEALTH OF MASSACHUSETTS TRIAL COURT

HAMPDEN, SS. LAND COURT DEPARTMENT

CASE NO. 2011 MISC. 448605 (Long, J.)

RUSSELL BIOMASS, LLC, Plaintiff

vs.

TOWN OF RUSSEL PLANNING BOARD consisting of the following named individuals who are sued herein solely in their official capacity as members of the Planning Board and not personally: James Oleksak, Scott Loomis, and Deanna Coffin Ridgeway, and TOWN OF RUSSELL Defendants

AMENDED COMPLAINT:

ZONING APPEAL UNDER G.L. 40A, § 17

1. Plaintiff Russell Biomass, LLC (“Russell Biomass”) is a duly organized and

existing Massachusetts limited liability company with its principal office at 52 Dexter

Road, Lexington, Massachusetts 02420.

2. The Defendant Town of Russell (“Russell”) is a duly organized and

existing municipal corporation, incorporated as a town on February 25, 1792 by 1791

Mass. Acts, c. 39, with its Town Hall located at 65 Main Street, Russell, Massachusetts

01071.

3. Defendant Russell Planning Board consists of the following named

individuals who are sued herein solely in their official capacity as members of the

Planning Board and not personally:

James Oleksak, Chair, 1400 General Knox Road, Russell, MA 01071 Scott Loomis, 95 Main Street, Russell, MA 01071 Deanna Coffin Ridgeway, 114 Dickinson Hill Road, Russell, MA 01071

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4.

On or about June 1, 2009, Plaintiff Russell Biomass, LLC submitted to the

defendant Planning Board two site plan review applications, entitled respectively “Site

Plan Review Power Plant Facility ” and “Site Plan Review Transmission Line,” both

dated June 1, 2009.

5. In a memorandum dated June 19, 2009, plaintiff Russell Biomass, LLC

requested the defendant Planning Board to “engage a peer review engineering/planning

consultant to review the Russell Biomass site plan review application.”

6. The defendant Planning Board ignored plaintiff Russell Biomass, LLC’s

June 19, 2009 request to “engage a peer review engineering/planning consultant to

review the Russell Biomass site plan review application.”

7. Section 6.5.4.b of the Russell Zoning Bylaw states as follows:

The Planning board shall obtain with each submission a deposit sufficient to cover any expenses connected with a public hearing and review of plans, including the costs of any engineering or planning consultant services necessary for review purposes. The minimum application fee shall be $125.00.

8. In a memorandum dated June 19, 2009, quoting Section 6.5.4.b of the

Russell Zoning Bylaw, plaintiff Russell Biomass, LLC stated to the defendant Planning

Board that “Russell Biomass, LLC is ready and willing to make ‘a deposit sufficient to

cover any expenses connected with

Review of plans, including the costs of any

engineering or planning consultant services necessary for review purposes.’”

9. The defendant Planning Board did not accept plaintiff Russell Biomass,

LLC’s June 19, 2009 offer to make ‘a deposit sufficient to cover any expenses

connected with

Review of plans, including the costs of any engineering or planning

consultant services necessary for review purposes.’”

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10.

During April to June, 2010, plaintiff Russell Biomass, LLC urged the

defendant Planning Board to retain a traffic consultant of the Board’s choosing at the

plaintiff’s expense, but the Board ignored that request and did not accept the

accompanying offer to pay.

11. The defendant Planning Board held twenty or more public hearings

without focusing as a key concern on Frog Hollow Road and its proposed extension for

transportation of wood material to the proposed biomass plant.

12. The defendant Planning Board’s refusal to credit information submitted to

it by plaintiff Russell Biomass, LLC concerning the use of Frog Hollow Road for access

to its proposed biomass plant is arbitrary, capricious, or both.

13. The defendant Planning Board’s refusal to credit information submitted to

it by plaintiff Russell Biomass, LLC, showing that transportation by rail is not a feasible

alternative to trucks for transportation of wood material to the proposed biomass plant is

arbitrary, capricious, or both.

14. Between June of 2009 and the spring of 2011, the defendant Planning

Board held 26 public hearings on plaintiff Russell Biomass, LLC’s applications for site

plan review approval.

15. It was only in the fall of 2010, after approximately 20 public hearings, that

the defendant Planning Board finally focused on Frog Hollow Road and its proposed

extension for access to the proposed biomass plant.

16. On October 28, 2010, plaintiff Russell Biomass, LLC submitted to the

defendant Planning Board comprehensive documentation concerning Frog Hollow Road

and its proposed extension.

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17. The defendant Planning Board’s refusal to credit the documentation

submitted to it by plaintiff Russell Biomass, LLC, concerning Frog Hollow Road and its

proposed extension was arbitrary, capricious, or both.

18. Section 6.5.7.b of the Russell Zoning Bylaw, entitled “Criteria for Review,”

states as follows:

6.5.7 Criteria for Review

The following criteria and guidelines shall be used by the Planning Board in evaluating the Site Plan and all information submitted as part of the application:

… b. The site plan minimizes traffic and safety impacts of the proposed

development on adjacent highways or roads, and maximizes the convenience

and safety of vehicular and pedestrian movement within the site.

19. The site plan review application and supporting information submitted to

the defendant Planning Board by plaintiff Russell Biomass, LLC shows that the biomass

plant proposal minimizes traffic and safety impacts of the proposed development on

adjacent roads (assuming arguendo that Frog Hollow Road and its proposed extension

are adjacent to the proposed biomass plant site).

20. On April 29, 2011, the defendant Planning Board filed with the Russell

Town Clerk a decision denying site plan review approval.

21. A true copy of the defendant Planning Board's written decision denying

site plan review approval is attached hereto and incorporated herein by reference.

22. The decision of the defendant Planning board, denying site plan review

approval to plaintiff Russell Biomass, LLC, exceeds that board’s authority under section

6.5.7 of the Russell Zoning Bylaw, which defines and limits the defendant Planning

Board’s authority concerning site plan review.

23. Section 6.5.6.2 of the Russell Zoning Bylaw states as follows:

… The Planning Board’s final action in writing shall consist of either:

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a.

Approval of the site plan based on a determination that the proposed project will constitute a suitable development and is in compliance with the standards set forth in this bylaw.

b.

Disapproval of the site plan based on a determination that the application was incomplete and insufficient information as submitted to review the proposal; or

c.

Approval of the project subject to any conditions, modifications and restrictions which will ensure that the project meets the Criteria for Review.

24.

The site plan review application and supporting information submitted to

the defendant Planning Board by plaintiff Russell Biomass, LLC was sufficient for the

Board to review and approve the proposal.

25. The site plan review application and supporting information submitted to

the defendant Planning Board by plaintiff Russell Biomass, LLC was complete.

26 The defendant Planning Board has not filed any rules or regulations with

the Russell Town Clerk.

27. The defendant Planning Board has not set up any municipal special

account for fees for employment of outside consultants.

28. Section 6.5.4.b of the Russell Zoning Bylaw (which states that “The

Planning board shall obtain with each submission a deposit sufficient to cover any

expenses connected with a public hearing and review of plans, including the costs of

any engineering or planning consultant services necessary for review purposes. The

minimum application fee shall be $125.00.”) is inconsistent with G.L. c. 44, § 53G.

29. Plaintiff Russell Biomass, LLC did not renege on its voluntary commitment

to fund the traffic consultant desired by the defendant Planning Board.

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30. Plaintiff Russell Biomass made it clear in writing to the defendant Planning

Board that the economic viability issue for its proposed biomass plant, emerging after

December 2010, called for suspension of project funding

31. Plaintiff Russell Biomass made it clear in writing to the defendant Planning

Board that if the project was determined to be economically viable, then plaintiff Russell

Biomass, LLC would be able to honor its voluntary commitment to fund the traffic

consultant desired by the defendant Planning Board.

32. At least twice in public hearings prior to December, 2010, plaintiff Russell

Biomass, LLC informed the defendant Planning Board that issue of the project’s

economic viability question was unresolved.

33. Plaintiff Russell Biomass, LLC asked the defendant Planning Board to

suspend its site plan review proceedings until the project economic viability issue could

be resolved, so that the prior one and one half years of proceedings, with over two

dozen public hearing sessions, would not have to be repeated. The defendant Planning

Board’s refused to grant that request. Said refusal was arbitrary, capricious, or both.

that the final DOER regulations had still not been issued (in accordance with Secretary

34. All members of the defendant Planning Board have admitted publicly that

they opposed plaintiff Russell Biomass, LLC’s proposed biomass plant prior to

submission of the site plan review applications in 2009.

35. Since submission of the site plan review applications in 2009, the

members of the defendant Planning Board have continued to seek ways to oppose,

obstruct, and prevent construction or operation of plaintiff Russell Biomass, LLC’s

proposed biomass. Plant.

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36. While the members of the defendant Planning Board have a constitutional

right as individual citizens to oppose the proposed biomass plant in a lawful manner, as

members of the defendant Planning Board their denial of site plan review approval has

denied plaintiff Russell Biomass, LLC its constitutional right under Article 29 of the

Declaration of Rights in the Massachusetts State Constitution of 1780 to “an impartial

interpretation of the laws, and administration of justice. It is the right of every citizen to

be tried by judges as free, impartial and independent as the lot of humanity will admit.”

37. For the reasons set forth in this Amended Complaint, and for such other

reasons as may be developed through pretrial discovery, the decision of the defendant

Planning Board, denying site plan review approval to plaintiff Russell Biomass, LLC:

(a)

exceeds that Board’s authority;

(b)

is arbitrary, capricious, or both;

(c)

is based on one more legally untenable grounda;

(d)

is based on factual statements, findings of fact, or both, which are inaccurate,

omit significant facts, or both; and

(e)

was rendered by a Planning Board whose members were not “as impartial as the

lot of humanity will admit” as required by Mass. Const, Decl. of Rights Art. 29.

38. Plaintiff Russell Biomass, LLC, as the applicant for site plan review

approval of a proposed biomass plant, is aggrieved by the attached decision of the

defendant Planning Board.

First Claim for Relief: G.L. c. 40A, § 17; zoning appeal

39. Paragraphs 1 through 38 above are re-alleged as though fully set forth

herein.

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WHEREFORE, plaintiff Russell Biomass, LLC prays that the defendant Planning

Board’s decision be annulled or remanded, and for such other and further relief as the

court may deem just in the circumstances, and that the court award plaintiffs the costs

of this action.

Second Claim for Relief: G.L. c. 240, § 14A, to determine applicability of

certain provisions of the Russell Zoning By-law

40. Paragraphs 1 through 38 above are re-alleged as though fully set forth

herein.

41. Pursuant to G.L. c. 185, § 1 (j 1/2), the Land Court has "exclusive original

jurisdiction" of "Complaints under section fourteen A of chapter two hundred and forty to

determine the validity and extent of municipal zoning ordinances, by-laws and

regulations.

42. This action is brought to determine the validity and the application to the

subject property of the provisions of the Russell Zoning Bylaw, Section 6.5, entitled “Site

Plan Review.”

WHEREFORE, plaintiff Russell Biomass, LLC prays that the Court adjudicate

the manner and extent to which the provisions of Section 6.5 of the Russell Zoning

Bylaw are applicable, and whether they are valid as applied, to the proposed biomass

plant site, transmission line, and Frog Hollow Road/Frog Hollow Road Extension, and

grant such other and further relief as the court deems just in the circumstances.

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Third Claim for Relief: G.L. c. 231A, Declaratory Judgment

43. Paragraphs 1 through 38 above are re-alleged as though fully set forth

herein.

44. The Land Court has jurisdiction of this claim under G.L. c. 231A, § 1 and

G.L. c. 185, § 1(k).

45. There exists between the parties to this action an actual justiciable

controversy within the jurisdiction of this court, concerning the matters alleged above in

this complaint.

WHEREFORE, plaintiffs pray that the court adjudicate and declare the rights of

the parties, and grant such other and further relief as it deems just in the circumstances,

and award plaintiffs the costs of this action.

Plaintiff Russell Biomass LLC by its attorney,

Michael Pill, Esq., BBO# 399880 Green, Miles, Lipton & Fitz-Gibbon, LLC 77 Pleasant Street, P.O. Box 210 Northampton, MA 01061-0210 Phone (413) 586-8218 FAX (413) 584-6278 email mpill@verizon.net

CERTIFICATE OF SERVICE

Dated September 12 2011

I hereby certify that a true copy of the above document was served as follows: Date, Manner of Service, and person(s) served: September 12, 2011, via email attachment and via first class U.S. mail with postage prepaid, addressed to:

Michael Callan, Esq. Doherty Wallace Pillsbury & Murphy P.C. 1414 Main Street, Suite 1900

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Direct phone (413) 233-9514 Firm phone (413) 733-3111 Firm FAX (413) 734-3910 mcallan@dwpm.com & pmaleck@dwpm.com

Michael Pill, Esq.

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MP/csh/L1.855.34.RussellBiomass