Authors
Joel E. Antwi
Associate, Washington, D.C.
jantwi@goulstonstorrs.com+1 617 574 0585
Sydney Cramer
Associate, Boston
scramer@goulstonstorrs.com+1 617 574 0504
Mariana Korsunsky
Director, Boston
mkorsunsky@goulstonstorrs.com+1 617 574 3584
Kevin P. O'Flaherty
Of Counsel, Boston
koflaherty@goulstonstorrs.com+1 617 574 6413
Gary M. Ronan
Director, Boston
gronan@goulstonstorrs.com+1 617 574 3593Related Expertise
Kearsarge Walpole LLC v. Zoning Board of Appeals of Walpole involved a dispute over where a large-scale solar array could be placed in Walpole, Massachusetts. In Kearsarge, a solar developer (Kearsarge), along with Norfolk County Agricultural High School (Norfolk Aggie), and Norfolk County, entered into an agreement to construct a solar facility on the Norfolk Aggie campus, which is located in Walpole’s rural residential zoning district.
Kearsarge applied to the Walpole building commissioner for a building permit. The commissioner denied the permit, deeming the project a nonconforming use under Walpole’s zoning bylaw. The Walpole Planning Board upheld the commissioner’s decision, finding that the project was a nonconforming use and did not qualify for any exception from the Walpole zoning bylaw, which established that large-scale solar facilities be located within certain overlay districts. Kearsarge appealed to the Land Court, arguing that the project was exempt from Walpole’s restrictions pursuant to the “Solar Energy Provision” of G. L. c. 40A, § 31. Kearsarge also argued that the project was exempt under the “Education Provision” of G. L. c. 40A, § 3.2
The Land Court granted summary judgment in favor of Kearsarge, reasoning that the board’s decision indeed violated the Solar Energy Provision. However, the Land Court rejected Kearsarge’s assertion that the project constituted an educational use.
The Appeals Court affirmed the Land Court, applying the doctrine set forth in Tracer Lane II Realty, LLC v. Waltham, 489 Mass. 775, 781 (2022). Under Tracer Lane, the Court’s determination hinged on “whether the interest advanced by the ordinance or bylaw outweighs the burden placed on the installation of solar energy systems.” In Tracer Lane, the Court of Appeals ruled that Waltham’s near total ban on solar facilities (except in “one to two” percent of the city’s land area) constituted a violation of the Solar Energy Provision.
Here, Walpole argued that its zoning bylaw (which also restricted solar facilities to less than 2% of the town) was different than Waltham’s law given that the Waltham bylaw amounted to a blanket ban on solar facilities while the Walpole law allowed for expansion of the overlay districts wherein solar facilities were permitted. The Court rejected this argument holding that a town need not impose a blanket ban on solar facilities to violate the Solar Energy Provision. Rather, the Solar Energy Provision prohibits local ordinances that “unduly restrict . . . solar energy systems.” Walpole’s bylaw, by requiring “discretionary zoning relief” in order to construct solar facilities in all but 2% of the city constituted such an undue restriction – especially where expansion of the overlay districts would require an applicant to “petition to amend the Walpole zoning bylaws [by] submit[ing] their proposed amendment to a public hearing and town vote.” This, in the Court’s view was “a significant hurdle.” The Court also rejected Walpole’s argument that the interests advanced by its bylaw (protecting agriculture) promoted public health, safety, and welfare sufficient to justify that significant burden on solar development. According to the Court, “[t]he record . . . [did] not support a conclusion that a bylaw this stringent is necessary to protect the public health, safety, or welfare interests that Walpole seeks to promote.”
Kearsarge is another instance where the Appeals Court makes clear that Massachusetts courts will not hesitate to reign in local authority in the interest of enforcing the Solar Energy Provision.
Pursuant to Mass. Gen. Laws Ann. c. 40A, § 3, Ninth Paragraph, “[n]o zoning ordinance or by-law 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.”
Under Mass. Gen. Laws Ann. c. 40A, § 3, Second Paragraph, “[n]o zoning ordinance or by-law shall regulate or restrict the interior area of a single-family residential building nor shall any such ordinance or by-law prohibit, regulate or restrict the use of land or structures for religious purposes or for educational purposes . . .”
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