SJC sends bid for solar farm permit back to zoning board

In brief

• The SJC ruled the town of Petersham improperly denied a special permit for a large-scale solar farm based solely on generalized concerns over tree cutting.
• The court held the Dover Amendment requires municipalities to provide reasonable opportunities for solar energy development.
• Special permit denials must be supported by individualized, site-specific findings showing denial is necessary to protect public health, safety or welfare.
• The case was remanded to the zoning board for a new review under the legal standard clarified by the SJC.

A town zoning board improperly denied a special permit to build a solar farm based solely on a board member’s concern that the project would require significant tree cutting, the Supreme Judicial Court has decided.

Plaintiff Sunpin Energy Services sought to build a large-scale ground-mounted solar energy system in the town of Petersham, which is 97 percent forested.

Because the project’s proposed site sat outside the designated “solar electric overlay district” where a solar farm can be built by right, the plaintiff needed the town’s three-member zoning board to approve a special permit.

Meanwhile, per the ninth paragraph of the Dover Amendment, G.L.c. 40A, §3, municipalities may not “unreasonably regulate” the installation of solar energy systems “except where necessary to protect the public health, safety or welfare.”

One of the three board members voted to deny Sunpin’s application because the project would require substantial tree cutting, which she interpreted as going against the intent of the town’s zoning bylaw.

Because the vote was not unanimous as required of three-member permit-granting boards under Chapter 40A, §9, the application was denied.

A Land Court judge affirmed the decision, which the Appeals Court subsequently reversed.

On further review, the SJC agreed that the application was wrongly denied and remanded the case back to the board to provide site-specific reasons why denying the application was necessary to protect public health, safety or welfare in accordance with paragraph nine of Chapter 40A, §3.

“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,” Justice Scott L. Kafker wrote for the SJC. “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.”

The 25-page decision is Sunpin Energy Services, LLC, et al. v. Zoning Board of Appeals of Petersham, Lawyers Weekly No. 10-081-26.

Balanced precedent?

Plaintiffs’ counsel James F. Martin of Springfield said it was important that the SJC recognized and reaffirmed the principles of Chapter 40A, §3, and the protection that provision of the Dover Amendment provides to solar energy systems.

It’s disappointing that this case could go on for an extended period of time, because the board clearly has taken a position that it is prepared to challenge solar arrays in its community.

— James F. Martin, Springfield

At the same time, Martin said he was hoping the SJC would remand the case back to the board with very tight constraints on the review process, as previously ordered by the Appeals Court. Instead, the SJC chose to remand it for another hearing with no constraints beyond those provided in the decision and under the law.

“The bottom line is that this case is now more than five years old,” Martin said. “It’s disappointing that this case could go on for an extended period of time, because the board clearly has taken a position that it is prepared to challenge solar arrays in its community.”

Petersham attorney Michael E. Shamgochian, who represented the town, described the ruling as a “far more moderate result” than what the Appeals Court ordered.

Specifically, he noted, the SJC rejected the developer’s request that it order the issuance of a permit, confirmed that local boards retain meaningful authority to protect public health, safety and welfare through a site-specific analysis, and recognized that forest preservation is a legitimate consideration in that analysis.

“The result is a balanced precedent with useful guidance for every city, town and solar developer,” Shamgochian said.

Margaret E. Sheehan of the Community Land & Water Coalition in Plymouth, who submitted an amicus brief on behalf of her organization and other land preservation groups, called the ruling a “clear, bottom-line win” for local zoning control over “industrial-scale” solar siting.

That is because the court reaffirmed that municipalities may deny such facilities by showing, based on fact-driven findings, that doing so is necessary to protect public health, safety and welfare, she said.

The result is a balanced precedent with useful guidance for every city, town and solar developer.

— Michael E. Shamgochian, Petersham

She also applauded the court’s acknowledgement that forests deliver vital public benefits, including carbon storage, water protection, cooling and biodiversity.

At the same time, Sheehan said she was concerned that the SJC did not analyze the 50-year legislative history of Chapter 40A, §3. The statute’s solar language “was never intended to shield massive projects that clear-cut hundreds of acres, risking misuse of the Dover Amendment,” she said.

Zachary Gerson, a Boston attorney who represents solar farm developers and who co-authored an amicus brief on behalf of a pair of solar energy industry groups, viewed the decision as a positive step in terms of clarifying what municipalities can do to restrict or prevent solar projects seeking special permits.

“I think the challenge for this decision will be that these are often pretty intense local issues and [the court’s] standard is not so precise and clear that it will foreclose future disputes,” Gerson said, noting that he was speaking for himself and not the industry groups.

Kate Moran Carter of Boston, who co-authored the Real Estate Bar Association and Abstract Club’s joint amicus brief in the case, said the SJC correctly recognized that inclusion of solar projects within the Dover Amendment framework must mean something.

“It cannot simply represent a marginal tightening of municipal police powers,” Carter said. “It reflects the Legislature’s deliberate decision to afford meaningful protection to solar development.”

Still, Carter said she was concerned the court’s framework could undercut legislative intent by inviting highly fact-specific, case-by-case inquiries into whether a municipality’s zoning scheme provides a “reasonable opportunity” for solar development.

“It would not be surprising if the SJC is asked in the coming years to further define the contours of the framework it announced in Sunpin,” Carter said.

David K. McCay, a Westborough attorney who handles solar energy issues, said the decision provides important lessons for municipal officials.

“First, the town’s zoning must provide meaningful opportunities for the development of large-scale solar energy facilities,” he said. “Second, special permit denials of solar facilities must be site specific and necessary to protect public health, safety and welfare, and cannot rest on the anticipated ‘parade of horribles’ from the development of numerous solar facilities.”

Nevertheless, McCay said the decision illustrates how, under the Dover Amendment, rural communities are being forced to bear a disproportionate share of the economic, environmental and aesthetic burden of large-scale solar facilities.

Proposed project

The town of Petersham allows large-scale ground-mounted solar electric installations as of right on an approximately five-acre parcel of town-owned land, but it requires developers to acquire special permits to build solar farms elsewhere.

Sunpin sought a permit for construction and operation of a large-scale solar energy system on rural private property owned by plaintiff Ralph Lapinkas Jr.

The project called for extensive clearing of vegetation and trees on approximately 14 acres of a 24-acre parcel.

In September 2021, after a multi-day hearing held over the previous three months, two board members voted to approve the application while a dissenting member, Maryanne Reynolds, voted to deny.

Reynolds noted in her statement of reasons that though Sunpin satisfied the specific requirements for large-scale solar installations outlined in the relevant bylaw, granting the permit would be improper because of the significant tree cutting it would require.

In particular, she noted that the contemplated deforestation would thwart the commonwealth’s energy policy goals while laying the groundwork for waves of development that would result in natural lands being fragmented into small, isolated pieces with greatly reduced environmental value.

The plaintiffs sought review in Land Court, where Judge Jennifer S.D. Roberts upheld the denial.

The Appeals Court reversed, ordering the board to “expeditiously issue the special permit after considering whether imposition of reasonable conditions is warranted.”

The town then petitioned the SJC for further review.

Site-specific analysis

The SJC found that the board’s denial indeed was improper under the Dover Amendment.

In its opinion, the court clarified that 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,” Kafker wrote. “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.”

Meanwhile, the SJC rejected the argument that Sunpin was one of the “exceptional cases” in which the SJC might order a board to grant a permit.

Instead, the court ordered the board to apply, on remand, “the site-specific analysis required here, including whether avoiding deforestation at this particular site is necessary to protect the public health, safety, or welfare, and if so, how this site differs from others in the town where large solar energy systems may be sited.”