MA Superior Court Reverses Historic District Commission Decision Denying Approval of Solar Panels on Historic Church
The Massachusetts Superior Court recently issued an order that will allow a church in Bedford, Massachusetts to install solar panels on its roof over the objections of Bedford’s Historic District Commission (“HDC”). The ruling could affect any historic structure owners seeking to add solar panels to their property.
The First Parish in Bedford, Unitarian Universalist church (“First Parish”) was originally built in 1729. In 2016, First Parish developed a plan to install solar panels on its roof, which would offset a significant portion of its energy consumption. Because First Parish is subject to the jurisdiction of the Bedford HDC, the HDC’s approval (called a “certificate of appropriateness”) was required before the project could proceed. The HDC denied the request for a certificate of appropriateness, effectively vetoing First Parish’s project because, according to the HDC, the church’s “historic and architectural value is of great significance to Bedford” and “the installation of solar panels on the roof would be highly visible and incongruous to the historic aspect of the Church and its architectural characteristics.”
In June 2016, First Parish appealed the HDC’s denial to the Middlesex Superior Court. The First Parish in Bedford v. Historic District Commission of the Town of Bedford, Case No. 1681CV01844. The HDC is subject to the constraints of its enabling legislation, the Massachusetts Acts of 1964, Chapter 118 (the “1964 Acts”). Among other things, the 1964 Acts set forth certain criteria the HDC must consider when determining the “appropriateness of exterior architectural features of buildings and structures within the historic district wherever such features are subject to view from a public street, way or place.” Lawyers for First Parish argued that the HDC decision was arbitrary, and that the solar panels would not materially interfere with the historic value of the church. The court eventually agreed and granted summary judgment in favor of First Parish, noting the HDC’s denial of the certificate of appropriateness was “facially deficient” and did not address the factors set forth in the 1964 Acts. Applying the two-step framework established by Warner v. Lexington Historic Districts Commission, 64 Mass. App. Ct. 78 (2005)—which presumptively annuls “facially deficient” decisions in step one, unless the court requests, as step two, a “supplemental statement” of denial—the court then ordered the HDC to submit a supplemental statement regarding the HDC’s basis for the denial (“Supplemental Denial”).
After reviewing the Supplemental Denial and related briefing, including arguments based on the Warner decision, the court concluded in July 2018 that the HDC’s Supplemental Denial had failed to salvage its facially deficient initial decision. Importantly, the court found that the supplemental statement of reasons consisted solely of (i) conclusory statements, (ii) evidence not before the HDC in 2016 when it made its denial, and (iii) findings of fact that the HDC had not originally used to justify its denial. The court also observed that its request for a supplemental statement of reasons was not a license for the HDC to “backwards engineer” its denial in a way that would overcome the court’s determination of facial deficiency.
The HDC has appealed the ruling. Assuming it survives appellate review, First Parish holds a few lessons for those seeking to install solar panels on historic structures. First, local historic commissions must adhere to their enabling legislation, consider relevant factors, and adequately document their decisions. Second, the two-step framework in Warner applies during judicial review of historic commission decisions and—at the discretion of the court—may give a local historic commission a second chance to salvage a facially deficient opinion. Third, any second chance afforded under Warner is not a license to “backward engineer” a denial, and historic commissions are limited to what was in the record and actually considered during the initial application and review process. And finally, the Superior Court can—and will—reverse a historic commission’s denial when it has failed to provide adequate justification.
Beveridge & Diamond’s Natural Resources & Project Development Practice Group represents clients during renewable energy and solar project development, including permitting, litigation, and transactional matters. For more information on how these developments may impact your business, or solar development in Massachusetts, please contact any of the authors of this article, or your usual Beveridge & Diamond contact.