The Massachusetts Supreme Judicial Court (“SJC”) recently issued an important decision concerning the limits of municipal discretion when considering special permit applications for the development of solar energy systems. In Sunpin Energy Services, LLC v. Zoning Board of Appeals of Petersham, the SJC made clear that the denial of such an application cannot be premised on generalized concerns; rather, it must be supported by individualized and site-specific reasons which demonstrate that denial is necessary to protect the public health, safety, or welfare.
Sunpin Energy Services sought to construct a large-scale solar energy system in Petersham, Massachusetts – a town that is 97% forested. Two members of the Petersham Zoning Board of Appeals (“ZBA”) voted to approve the project, but one member voted to deny the application. Under the applicable state law, a unanimous vote was required for this three-member board, which meant that this member’s no vote resulted in a denial of the application. This dissenting board member premised her no vote on the large number of trees that would be cleared to develop the solar project and her concerns about setting a precedent for further deforestation in the future.
Solar development in Massachusetts is governed by the so-called Dover Amendment, G.L. c. 40A, § 3. Under this law, municipalities may regulate solar facilities; however, any denial of a proposed solar project must be necessary to protect the public health, safety, or welfare. Through the Sunpin decision, the SJC clarified that such a denial cannot be premised upon generalized policy objections or broad concerns. Rather, to satisfy the requirements of the Dover Amendment, a local board must support any denial with individualized and site-specific reasons. A municipality therefore must undertake a site-specific analysis and evaluate whether any unique characteristics of the specific site make denial of the solar project necessary.
In Sunpin, the ZBA’s generalized concerns about deforestation connected with this project and/or potential future development did not satisfy this standard because they were not tied to the particular characteristics of the proposed project or its location. The SJC acknowledged the ZBA’s deforestation and environmental concerns and noted that many public benefits afforded by forests. The Court clarified, however, that these concerns must be evaluated in the context of the specific project before the board. The ZBA (i.e., the dissenting member) provided nothing to demonstrate anything specific about the trees that would be removed for this specific project (especially in the context that Petersham is 97% forested).
The SJC’s decision and reasoning aligns with recent amendments to state law and the development of affordable housing. Those amendments to the Zoning Act increased the standard for abutters to appeal permits granted for the development of much needed housing. (My colleague Christopher R. Agostino provides a great overview of these amendments.) With these statutory amendments and the SJC’s recent decision in Sunpin, it is evident that denials of applications for projects across Massachusetts cannot be based upon generalized concerns. Moving forward, denials of solar projects will require individualized, fact-based decision making.
Adam Gutbezahl is a shareholder in the firm’s Litigation Department and its Commercial Real Estate, Construction Law, and Employment Law Groups, where he handles complex commercial, employment, land use, and real estate disputes with extensive jury and bench trial experience. He is also a recognized thought leader on Generative AI’s legal implications, publishing the monthly newsletter ChatAdamG on AI’s impact in the workplace. Adam can be reached at agg@riw.com or (617) 570-3502.
