Building Inspector of Palmer v. Palmer Motorsports Park, LLC.

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