ZBA Gets Legal Advice on Solar Permitting

Report on the Meeting of the Zoning Board of Appeals, August 22, 2024, Part 1

This meeting was held over Zoom and was recorded.

Present
Steve Judge (Chair), Everald Henry, Craig Meadows, David Sloviter, and Philip White.

Associate members: David Ahlfield, Hilda Greenbaum, and John Varner.

Staff: Jacinta Williams (Planner), Rob Morra (Building Commissioner), Chris Brestrup (Planning Director).

With the public hearing for a Shutesbury Road large-scale solar project scheduled to open on September 12, 2024 the Zoning Board of Appeals (ZBA) got a legal lesson from Attorney Jonathan Murray of KPLaw on how to decide “Yea”or “Nay and what conditions could be imposed on a Special Permit, and how and what to write in a decision that will pass muster in court should either side appeal. The town has not yet passed a solar bylaw, so it must rely on findings under Zoning Bylaw 10.38 (Energy Generating Facilities) for support or denial of this project.

The Massachusetts General Law regulating solar installations is Chapter 40A, Section 3, Paragraph 9, what is known as the “Dover amendment,” exempts solar installations, as well as childcare, religious, and educational structures from zoning regulations. This particular section states that “no zoning ordinance shall prohibit or unreasonably regulate the installation of solar energy systems or the building of structures that facilitate the collection of solar energy, except where necessary to protect the public health safety or welfare.” The goal of the legislation was to promote solar energy but was written when solar projects were small rooftop installations, and the coming of large-scale solar farms and their impact on the environment and residents was not contemplated nor anticipated. However, towns have a little more flexibility in regulating solar systems than for childcare, schools or churches for which boards can only regulate height and bulk.

Three major court cases bear on this subject: Tracer Lane Realty LLC v. City of Waltham, PLH, LLC v. Ware, and Sunpin Energy Services v. O’Neil, Chair of the Petersham Zoning Board. The Supreme Judicial Court (SJC) was faced with the question in 2022, whether the Tracer Lane project promotes or restricts the use of solar energy? The developer, Tracer Lane Realty, sought an access road to a solar installation in Lexington through a residential zone in Waltham where solar installations are not allowed and thus was denied a permit by Waltham. The SJC found this denial unreasonable because Waltham’s zoning bylaw would only allow solar installations in 2% of the land in the city. But the SJC did determine that large-scale solar is exempt by the Dover amendment. In solar parlance, large-scale means an installation larger than 25 megaWatts nameplate capacity which Murray said was about an acre in Massachusetts.

Associate ZBA member John Varner asked if there are any incentives or requirements for solar development. Murray replied that the legislature is talking about it, and there probably will be incentives like allowing greater density but probably no requirements. New legislation did not make it out of committee in this year’s session. Planning Director Chris Brestrup noted that the Amherst bylaw is in development, so the town has been applying the Energy Generating Facilities section of the town’s zoning bylaw for the five arrays that have been permitted thus far. She also noted that Amherst’s stretch code supports any kind of energy saving or production of energy, and net zero applies to all town buildings that are built or changed except Jones Library, which is not owned by the town.

Tracer Lane did not address whether a town can require a Special Permit for large solar arrays. The Court of Appeals in PLH Electric v. Ware found that it is legal for a municipality to require a Special Permit on large-scale installations, as long as it serves “a legitimate municipal purpose” and doesn’t prohibit an installation. Issuance of a Special Permit must be connected to legitimate public health, safety or welfare issues; it can’t be used to deny a permit.

In Sunpin Energy v. O’Neil (O’Neil was the Chair of Petersham, Massachusetts ZBA) the permit denial was appealed to the Worcester County Land Court. Sunpin Energy, from Irvine, California,  needed a Special Permit from the ZBA to build a solar array on a 24-acre parcel with some wetlands abutting Harvard Forest, the largest land owner in Petersham. The developer intended to sell the generated power directly to National Grid. The whole town of Petersham is zoned residential/agricultural. Because the vote to grant the special permit was 2-1 the special permit was denied since state law requires a unanimous vote from a 3-member board. The decision was written by the dissenting member. The case was argued in the Worcester County Land Court on July 9, 2023.  The adverse effects cited include:

—impacts on natural and working lands

—placement in a residential area

—required significant cutting of trees

—adversely affected habitat.

From these findings, Murray cautioned the ZBA to read the town’s bylaw carefully, particularly its purpose and what interests it protects because “the purpose is the rationale for a denial of a special permit.” The Sunpin case required the denial be related to reasons of public health, safety and welfare. The Land Court determined that cutting of trees provided a reasonable impact for denial because it relates to the Commonwealth’s energy and water management policies.

 Murray ended his presentation with an update on the status of solar legislation today. It was one of the “unfinished” acts at the end of this legislative session. Both state houses passed laws resulting from the setting up of an energy infrastructure committee to study the siting and permitting of large-scale solar arrays larger than 2.5 megawatts. Any smaller project would be under town jurisdiction, perhaps similar to a Ch. 40B consolidated permit, after a hearing lasting no longer than a year. Larger arrays would be decided by a re-formed State Energy Facilities Siting Board. However, this legislation is still pending.

Questions from the Board:
Does the Dover amendment include battery storage? No, Murray said the legislature is still working on the law. The thinking is that if the battery storage is connected to a solar array or supports solar, it is exempt. But now, it is felt that there is some economic feasibility to having battery systems connected to the grid to take excess energy off the grid during low-use hours to use at peak times. Towns may get more regulative authority, but they will remain exempt if connected to a solar system. The permitting board or person has not been specified: it could be the zoning board or the chief executive of the town.

Murray’s parting advice to the board is if you find adverse effects, cite them in the decision, give specific examples and reports from experts about “reasonable” adverse impacts. The board thanked him profusely for the presentation but felt more confused than enlightened. They asked the Planning Director to get permission from the Town Manager for legal counsel to be present at the hearing for the Shutesbury Road solar project, like Ch. 40B hearings for affordable housing projects. Such legal support is a cost to the town not the developer.