Massachusetts Land Court Indicates That Consistency is Key in Applying Zoning Requirements to Solar Projects

The Massachusetts Land Court recently struck down a local planning board’s denial of an application for a permit for a large-scale solar project as arbitrary and capricious based on conflicting decisions the board had recently made on applications for similar projects.

In Ironwood Renewables, LLC v. Town of Carver, Land Court No. 21 MISC 000488 (Oct. 27, 2022), the plaintiff, Ironwood Renewables, LLC (“Ironwood”), applied for a permit to construct and maintain a 3.26 megawatt ground-mounted solar photovoltaic installation. As required by the local zoning bylaw, Ironwood included in its application a list of the six abutting properties and the project’s proposed setbacks from these properties. The zoning bylaw required that large-scale solar projects meet either (1) a minimum 200-foot setback from all abutting properties or (2) a reduced setback from all “direct abutters” based on a waiver request. The zoning bylaw did not define the term “direct abutters.” Still, Town Counsel had previously advised the board to interpret that term as “only those abutters directly impacted by the reduced setback.” Ironwood’s setback plan included (i) requests for waivers to reduce setback to 50 feet from four properties that shared a common property line and (ii) no change to the 200-foot setback for the remaining two properties.

The planning board denied the application on the grounds that Ironwood had not complied with the requirement to submit waivers from the properties of all “direct abutters.” The Court found the board’s denial to be “a paradigm of arbitrary and capricious decision-making” based on its inconsistency with recent decisions to grant permits to two similar projects with reduced setbacks where the applicants had sought waivers from “direct abutters”—i.e., those properties located along a property boundary that would be subject to a proposed reduced setback——but had not provided waivers for all abutting properties. In the absence of any explanation for this change in interpretation of the meaning of the term “direct abutters,” the Court reversed the board’s decision and instructed it to issue Ironwood the permit for its proposed solar project.

Following this decision, solar permit applicants in the Town of Carter need only seek waivers for reduced setbacks from those properties that directly share a property line with a proposed reduced setback. The Court’s opinion also signals to other local jurisdictions that it will hold local planning and zoning boards to some consistency in their decision-making. Solar project applicants should review prior solar applications and decisions in a municipality since they may provide guidance on how to best position their own applications.

Beveridge & Diamond's Land Development, Real Estate, and Housing industry group represents owners, builders, and developers nationwide in matters involving land use, environmental law, and litigation. Our Massachusetts office provides land use, entitlement, and permitting and review services to businesses, utilities, governmental entities, colleges and universities, individual landowners, and other property development at the local, state, and federal levels. For more information, please contact the authors.