Zoning – Solar facility – Special permit

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Where the Northfield planning board denied a request for a special permit to construct a large-scale solar power facility, the board’s decision must be annulled because it does not satisfy the minimum requirements described in Wendy’s Old Fashioned Hamburgers of New York., Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 381 (2009).

“This is a Dover Amendment case involving a proposed solar facility. The Plaintiffs, BWC Ashuela Brook, LLC and BlueWave Origination, LLC (collectively ‘BlueWave’), have brought this G.L.c. 40A, §17 appeal of the denial of a special permit by the Defendant, Town of Northfield Planning Board (the ‘Board’), to construct a large-scale solar power facility on Pine Meadow Road in Northfield. …

“BlueWave’s motion for summary judgment offers two distinct legal bases for the annulment of the Board’s decision. First, it argues that the Board had no authority to deny a special permit because the development of solar facilities is protected from local zoning by the Dover Amendment, G.L.c. 40A, §3, para. 9. Second, and alternatively, it argues that, even if the Board had the authority to deny the Project, in this instance, its denial was not supported by sufficient facts and, therefore, was arbitrary and capricious as a matter of law. …

“BlueWave contends that the Board had no legal authority to deny a special permit for the Project because the Dover Amendment prohibits such a denial. Instead, the Board should have applied the more deferential standard reserved for site plan review and issued the special permit with conditions. The current state of the law does not support this argument. …

“Whether expressly stated in a local bylaw or not, a municipality may deny a solar facility where necessary to protect the health, safety or welfare of its community. This authority stems from the Dover Amendment itself and need not be repeated in the local regulation in order for it to be properly considered by the local board. Furthermore, there is no law that supports BlueWave’s premise that, in the absence of special permit criteria expressly incorporating the penumbral protections of G.L.c. 40A, §3, para. 9, the Board was mandated to evaluate the application under the standard for site plan review rather than for a special permit. In this case, the Board applied the proper standard when it considered the health, safety and welfare of the community in denying a special permit for BlueWave’s Project. …

“Turning to BlueWave’s second argument — that the Board’s decision is arbitrary as a matter of law — the analysis is different. …

“BlueWave’s second attack on the Board’s findings charges that, in concluding that the Project failed to satisfy the special permit criteria, the Board merely repeated words and phrases from the Bylaw rather than making findings based on facts as required by Wendy’s Old Fashioned Hamburgers of New York, Inc. It contends that, absent factual findings, the court must conclude that the decision was unreasonable, whimsical, capricious or arbitrary and therefore invalid. …

“Whether the Board’s decision was arbitrary as a matter of law turns on whether, despite its length, the decision cites facts to support its denial. In making this determination, the court must respect the discretionary authority of the Board. Here, however, the Board’s decision repeats regulatory terms and phrases that, while on their face evince a keen understanding of the engineering principles behind the limitations on construction in the Floodplain Overlay District or an AE floodplain, lack factual support. Indeed, some of those regulatory terms do not apply to the Project, while others appear to be based on conjecture. Most importantly, the decision points to no evidence that the Project land is uniquely susceptible to a ‘major flood event,’ or that such a flood event is likely to occur beyond that which is assumed in the AE flood zone and accounted for in the Bylaw. Instead, the decision appears to be based on fear that a catastrophic flooding event may occur in the future and, if so, the presence of the Project would wreak havoc on the Town.

“Based on the summary judgment record, the Board’s conclusion that the ‘siting of a large-scale solar array in the flood plain is a serious threat to the health, safety and welfare of the neighborhood, abutters, the Town and the Commonwealth’ is based on speculation. On balance, the court must conclude that the Board’s decision does not satisfy the minimum requirements described in Wendy’s Old Fashioned Hamburgers of New York, Inc. I am thus constrained to conclude that the decision is unreasonable, whimsical, capricious or arbitrary as a matter of law. …

“For the foregoing reasons, BlueWave’s motion for summary judgment on Count I is allowed and the decision of the Board is hereby annulled. For now, the court will not rule on Count II of the Verified Complaint as it is unnecessary in light of this decision. The case shall be remanded to the Board with directions to conduct a further public hearing on BlueWave’s special permit request. At the close of the public hearing, the Board should either (1) issue the special permit, with or without the conditions that were attached to the site plan approval; or (2) deny the special permit based on factual findings from the record before it. In conducting this further review, the Board must remember that the Project is a protected use under G.L.c. 40A, §3, para. 9 and, thus, it may only deny the special permit if, based on facts in the record and not a speculative fear of a catastrophic storm, the Project presents an unreasonable risk to the health, safety and welfare of the citizens of Northfield.

“Judgment will enter on Count I of BlueWave’s Verified Complaint annulling the decision of the Board and ordering a limited remand to the Board.”

BWC Ashuela Brook, LLC, et al. v. Planning Board of the Town of Northfield, et al. (Lawyers Weekly No. 14-027-26) (18 pages) (Smith, J.) (Franklin Land Court) (Docket No. 25 MISC 000081) (May 5, 2026).

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