Building Inspector of Palmer v. Palmer Motorsports Park, LLC. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-173
BUILDING INSPECTOR OF PALMER1
vs.
PALMER MOTORSPORTS PARK, LLC.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant corporation, Palmer Motorsports Park, LLC
(PMP), appeals from a judgment of civil contempt. After a
trial, a Land Court judge found that PMP had failed to comply
with an order included in a judgment dated January 14, 2020. On
appeal, PMP asserts that the judge's order was ambiguous and,
even if the order was clear and unequivocal, PMP's noncompliance
should be excused under the doctrine of impossibility. We
affirm.
"[A] civil contempt finding [must] be supported by clear
and convincing evidence of disobedience of a clear and
unequivocal command." Birchall, petitioner, 454 Mass. 837, 853
1 Bonita J. Weeks, the named plaintiff, was sued in her capacity
as building inspector and zoning enforcement officer of the Town
of Palmer.
(2009). The order at issue, reproduced in the margin,2 was clear
and unequivocal. It required PMP, "by no later than 45 days
from the entry of this Judgment," to take two actions: (a) to
implement certain noise mitigation measures and (b) to provide
the town with "actual noise readings" from certain locations so
the town could assess the efficacy of the mitigation measures.
We discern no ambiguity in the language of the order concerning
the timing of the two actions required of PMP. Plainly, both
were to occur within forty-five days. PMP's reading of the
order -- that the forty-five day deadline applied only to
implementation of the mitigation measures, and that there was no
clear time constraint on its obligation to provide noise
readings "following" implementation -- is a strained and
unnatural interpretation of the order's clear command. "[A]
2 "[T]he Court . . . ORDERS PMP, by no later than 45 days from
the entry of this Judgment, to (a) implement proper mitigation
measures so as to remedy all of the noise conditions that the
evidence at the trial of this matter and/or the study of the
Palmer Motorsports Park (the 'Park') prepared by Resource
Systems Group, Inc., dated November 1, 2018 shows are not in
compliance with Condition #10 [of a Special Permit issued in
December 2007]; and (b) following PMP's implementation of such
measures, provide to the Planning Board of the Town of Palmer,
for professional review at PMP's expense, actual noise readings
from the same locations as the 'original study' described in
Condition #10. In order to fulfill the requirements of
subparagraph (b) . . . , such actual noise readings and
corresponding data must be in such form as to allow a
professional acoustical engineer engaged by the Board to
determine whether noise from the Park, after PMP's
implementation of mitigation measures, meets the requirements of
Condition #10."
2
party's self-serving characterization of a provision as
'ambiguous' does not make it so." Stabile v. Stabile, 55 Mass.
App. Ct. 724, 726-727 (2002).
Although the order clearly required PMP to implement the
noise mitigation measures and to provide the required data
within forty-five days of January 14, 2020, that is, by February
28, 2020,3 PMP argues that it was impossible to comply with the
order because no "high-sound" events were scheduled during the
off-season months of January and February. Moreover, PMP's
ability to schedule an event to generate the required noise
level data was further hampered by the outbreak of the COVID-19
pandemic.4
It was not until July 16, 2020, that PMP held the first
event that would generate the required data. PMP contracted
with an entity called Cross-Spectrum Acoustics (CSA) to take the
noise readings. Because of equipment problems, CSA was unable
to gather data from two of the four required monitoring
locations. PMP held a second event on August 8, 2020, at which
CSA obtained data from all four required locations. PMP did not
provide the partial July 18 noise readings or the complete
3 In fact, PMP had already complied with the first part of the
order before it was issued. Its only remaining obligation was
to provide noise readings by February 28, 2020.
4 "On March 10, 2020, the Governor declared a state of emergency
throughout the Commonwealth in response to the spread of COVID-
19." Christie v. Commonwealth, 484 Mass. 397, 398 (2020).
3
August 8 readings to the town. On September 22, 2020, exactly
forty-five days after the August 8 event, the plaintiff filed
the contempt complaint.
"Noncompliance with a court order may be excused where
compliance becomes impossible, but the burden of proving
impossibility lies with the alleged contemnor." Commonwealth v.
One 1987 Ford Econoline Van, 413 Mass. 407, 412 (1992). The
judge rejected PMP's impossibility argument. He found that
PMP's inability to comply with the judgment ended with the event
held on July 16, but that PMP withheld the partial data from
that event. The judge also found that PMP did not produce the
data from the August 8 event until after it received the
contempt complaint. The judge concluded, "Even if the 45-day
clock started on July 16, 2020 (a generous reading of the
Judgment), PMP was obligated either to provide to the Town
testing data by August 31, 2020, or seek modification of the
Judgment."
We review the judge's underlying conclusions of law de
novo, the findings of fact for clear error, and the ultimate
finding of contempt for abuse of discretion. See Martinez v.
Lynn Hous. Auth., 94 Mass. App. Ct. 702, 705 (2019); Commercial
Wharf E. Condominium Ass'n v. Boston Boat Basin, LLC, 93 Mass.
App. Ct. 523, 532 (2018). We discern no basis to disturb the
contempt judgment.
4
PMP argues that it was unable to provide the noise readings
to the town because the data was in the hands of its contractor,
CSA. Perhaps, as PMP argues, the plaintiff did not introduce
any evidence to contradict the track owner's testimony that he
mailed the noise readings to the town as soon as he received
them from CSA. But the burden was on PMP to show that it was
"reasonably diligent and energetic in attempting to accomplish
what was ordered" (citations omitted). One 1987 Ford Econoline
Van, 413 Mass. at 412. PMP presented no evidence that the data
it was required, by court order, to produce to the town was
somehow inaccessible, or that PMP was at all diligent or
energetic in pressing CSA to provide that data.
Finally, there is no merit to PMP's claim that the
plaintiff was required to show willful or intentional
disobedience. See United Factory Outlet, Inc. v. Jay's Stores,
Inc., 361 Mass. 35, 37 (1972) (to hold corporation in civil
contempt "it is not necessary to show that there was wilful
disobedience or intention to violate the order. It is enough to
establish that persons acting for the corporation were
responsible for acts or inaction which in fact constituted a
5
violation").
Judgment of contempt
affirmed.
By the Court (Rubin,
Massing & D'Angelo, JJ.5),
Clerk
Entered: February 17, 2023.
5 The panelists are listed in order of seniority.
6