Zoning – Solar energy – Dover Amendment

Where (1) plaintiffs applied for a special permit to build a large-scale ground-mounted solar energy system in the town of Petersham, which is 97 percent forested, and (2) the application was denied based on a zoning board member’s concern that the project would require significant tree cutting, a judgment in favor of the board should be vacated because a blanket prohibition on large-scale ground-mounted solar energy systems in the town is not necessary to protect public health, safety or welfare.

“The plaintiffs, Sunpin Energy Services, LLC (Sunpin), and [another], seek to build a largescale ground-mounted solar energy system in the town of Petersham (town), a rural town that is ninety-seven percent forested. Based on the location of the project and pursuant to the town’s zoning bylaw (bylaw), Sunpin applied for a special permit from the zoning board of appeals (board), the town’s special permit granting authority. One of three board members voted to deny the application primarily because the project would require significant tree cutting, contrary to her interpretation of the bylaw’s intent and purpose. Because the vote was not unanimous as required by G.L.c. 40A, §9, twelfth par., the application was denied.

“The plaintiffs then challenged that decision by commencing this action in the Land Court, and a judge granted summary judgment in favor of the board’s denial of the permit. The plaintiffs then appealed to the Appeals Court, which vacated the judgment on the ground that the board’s decision was arbitrary and capricious. We granted the board’s application for further appellate review.

“We conclude that, in accordance with the Dover Amendment‘s solar provision, G.L.c. 40A, §3, ninth par. (paragraph nine), a town must provide reasonable opportunities to build solar energy systems and may not deny a special permit for such a project unless doing so is necessary to protect public health, safety, or welfare. This requires individualized and site-specific reasons for denying a special permit application. Where, as here, the town is ninety-seven percent forested and the application was denied primarily because of generally applicable concerns about tree cutting, such a denial is effectively a blanket prohibition on large-scale ground-mounted solar energy systems in the town. Because sylvan as well as urban communities must provide reasonable opportunities for solar energy facilities and because this blanket prohibition is not necessary to protect public health, safety, or welfare, the denial of the special permit was improper under paragraph nine. Accordingly, we vacate the judgment of the Land Court and remand the matter to that court for entry of an order remanding the matter to the board for further proceedings consistent with this opinion. …

“The Legislature has made clear in the Dover Amendment the importance of solar energy systems to the Commonwealth as a whole, and its concern that local municipalities should support and not unduly interfere with the siting of such systems. … To essentially prohibit the siting of large-scale solar systems in a town that is ninety-seven percent forested based on concerns about tree cutting is therefore unreasonable. …

“We recognize that paragraph nine’s references to ‘health’ and ‘welfare’ embrace the important documented benefits of forests — each of which affects residents’ physical, emotional, or spiritual well-being. … Indeed, we have previously acknowledged the myriad ways forested land can support health and welfare. … Consequently, avoiding unnecessary deforestation is an appropriate consideration for a board evaluating a special permit application for a solar energy system.

“Nevertheless, the special status and strong encouragement of solar energy systems reflected in the Dover Amendment require that the board consider the particular deforestation at issue — in other words, the deforestation required to construct a particular project at a specific site — to determine whether its avoidance is necessary to protect public health, safety, or welfare. That does not mean that preventing deforestation at a particular site cannot be necessary for such protection given the existence of other wooded areas or that the entire town must be made available to be transformed into a solar energy parking lot, as the board projected. Rather, when considering a permit, a site-specific analysis is required, as is a more comprehensive review of the town’s over-all regulation in regard to the siting of large-scale solar energy systems, in order to determine whether the town has provided reasonable opportunities for these sitings. …

“This dual analysis will inform whether the denial of the special permit is necessary to protect the public health, safety, or welfare at this particular location as provided by paragraph nine or reflective of a general prohibition or unreasonable regulation of solar energy systems that is precluded by the rest of paragraph nine. Such analysis ensures the application of the special permit requirement is ‘limited and narrowly applied in a way that is not unreasonable, is not designed or employed to prohibit the use or the operation of the protected use, and exists where necessary to protect the health, safety or welfare.’ …

“For these reasons, we vacate the board’s decision and order that the case be remanded to the board for reconsideration in light of this opinion. …

“For the foregoing reasons, the board’s denial of the special permit application was improper under G.L.c. 40A, §3, ninth par. Accordingly, we vacate the judgment of the Land Court and remand the matter to that court for entry of an order remanding the matter to the board for further proceedings consistent with this opinion.”

Sunpin Energy Services, LLC, et al. v. Zoning Board of Appeals of Petersham (Lawyers Weekly No. 10-081-26) (25 pages) (Kafker, J.) The case was heard by Jennifer S.D. Roberts, J., on motions for summary judgment. James F. Martin (Jonathan S. Klavens also present) for the plaintiffs; Michael E. Shamgochian (David J. Doneski also present) for the defendant; the following submitted briefs for amici curiae: Thaddeus Heuer & Zachary Gerson for Solar Energy Industries Association & another; Margaret E. Sheehan for Community Land and Water Coalition, Inc., & others; Andrea Joy Campbell & Seth Schofield for the Massachusetts attorney general; Kate Moran Carter, Kathleen M. Heyer & Nicholas P. Shapiro for Real Estate Bar Association for Massachusetts, Inc., and another (Docket No. SJC-13860) (July 14, 2026).

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