KEARSARGE WALPOLE LLC & Another v. ZONING BOARD OF APPEALS OF WALPOLE & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-128

KEARSARGE WALPOLE LLC & another1

vs.

ZONING BOARD OF APPEALS OF WALPOLE & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This case involves a dispute over whether a large-scale

solar array may be sited in Walpole outside of overlay districts

created pursuant to a town of Walpole (Walpole) zoning bylaw. A

judge of the Land Court determined that a decision of the zoning

board of appeals of Walpole (board), upholding the denial of a

building permit to Kearsarge Walpole LLC (Kearsarge) based on

the bylaw, had to be annulled because the bylaw violates G. L.

c. 40A, § 3, ninth par., the so-called "solar energy provision."

On appeal, the board and Walpole (town defendants) seek

reversal, arguing that summary judgment was improper because

Walpole's zoning bylaw confining large-scale solar development

1Norfolk County. Another plaintiff, Norfolk County
Agricultural High School, has not joined in this appeal.

2 Town of Walpole.
to restricted overlay districts is reasonably grounded in the

promotion of public health, safety, and welfare and therefore

does not violate the solar energy provision. We conclude that

under Tracer Lane II Realty, LLC v. Waltham, 489 Mass. 775, 781

(2022) (Tracer Lane), the bylaw violates the solar energy

provision. Accordingly, we affirm.

Background. Norfolk County Agricultural High School

(Norfolk Aggie) is a regional vocational high school that

prepares students to enter occupations related to agriculture.

The campus consists of parcels of land owned by Norfolk County,

with addresses on North Street, Main Street, and Fisher Street

in Walpole's rural residential zoning district. In June of

2017, the county issued a request for qualifications for the

installation and operation of solar facilities on the Norfolk

Aggie campus. Kearsarge bid successfully and entered into

negotiations with the county for the development of the project.

Those negotiations resulted in a January 2020 letter of intent

(LOI) between the county and Kearsarge detailing the agreement

to build and operate approximately ten solar sites across the

Norfolk Aggie campus.

On January 15, 2021, Kearsarge, Norfolk Aggie, and the

county entered into an energy management services agreement

governing the portion of the overall project to be developed on

the North Street property. Kearsarge agreed to lease the

2
property on which it would install, own, and operate a solar

facility. Electricity produced at the facility would be sold to

the county at a reduced rate.3

On March 24, 2021, Kearsarge applied to the Walpole

planning board for site plan review of the North Street project,

which it withdrew when the Walpole building commissioner refused

to sign the application because the "use [was] not allowed in

the district." In May of 2021, Kearsarge applied to the

building commissioner for a building permit for the property;

the building commissioner denied the application because the

project was a nonconforming use with no applicable exception,

among other reasons. Kearsarge appealed the building

commissioner's decision to the board. The board upheld the

commissioner's decision after public hearing, finding that the

proposed use of the property was nonconforming and could not be

excepted from the overlay district bylaw as an essential

government function, nor as a project with an educational

purpose.

Kearsarge appealed to the Land Court pursuant to G. L.

c. 40A, § 17, arguing that the project is immune from regulation

3 In accordance with the LOI, Kearsarge already had
constructed a parking lot canopy solar facility and a rooftop
solar facility on the campus. Kearsarge obtained "as of right"
building permits from Walpole for both installations between
September and October 2020, under the essential government
function zoning exemption.

3
by the zoning bylaw because (1) the county's proposed use is an

essential government function; (2) the project is exempt from

regulation under the solar energy provision; and (3) the project

is exempt from regulation under the education provision of G. L.

c. 40A, § 3, third par. Acting on cross motions for summary

judgment, the motion judge annulled the board's decision because

the Walpole zoning bylaw violates G. L. c. 40A, § 3, ninth par.

The motion judge also concluded that the primary purpose of the

project was financial with, at best, an incidental educational

purpose and thus that the project was not protected from

regulation by the Walpole zoning bylaw as an educational use.

These cross appeals followed.

Discussion. "Summary judgment is appropriate where there

are no genuine issues of material fact and the moving party is

entitled to judgment as a matter of law. We review a decision

on a motion for summary judgment de novo and, thus, 'accord no

deference to the decision of the motion judge'" (citations

omitted). Tracer Lane, 489 Mass. at 778.

The town defendants contend it was error to award summary

judgment to Kearsarge, as the Walpole zoning bylaw does not

violate the solar energy provision. Under G. L. c. 40A, § 3,

ninth par., "No 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

4
solar energy, except where necessary to protect the public

health, safety or welfare." To determine if a zoning bylaw

comports with the solar energy provision, the pertinent inquiry

is whether the interest advanced by the ordinance or bylaw

outweighs the burden placed on the installation of solar energy

systems. Tracer Lane, 489 Mass. at 781.

In Tracer Lane, 489 Mass. at 782, the Supreme Judicial

Court held that "[i]n the absence of a reasonable basis grounded

in public health, safety, or welfare," a municipality may not

create "[a]n outright ban of large-scale solar energy systems in

all but one to two percent of a municipality's land area." To

do so would violate the solar energy provision contained in

G. L. c. 40A, § 3. In reaching this conclusion, the court

presumed that the interest the municipality's code advanced --

"preservation of each zone's unique characteristics" -- was

legitimate. Id. at 781. Yet because nothing in the record in

Tracer Lane suggested the "stringent limitation" of one to two

percent of the land area was "necessary to protect the public

health, safety or welfare,'" the Supreme Judicial Court

determined that "the zoning code violate[d] the solar energy

provision." Id., quoting G. L. c. 40A, § 3, ninth par.

5
Here, Walpole's bylaw establishes large-scale ground-

mounted solar photovoltaic overlay districts (SPODs).4 Four

sites in the town are designated as SPODs, covering between 1.85

and 2.07 percent of the total land area. The parcel at issue

here is not located in a SPOD.

The town defendants argue that Tracer Lane is

distinguishable in two important respects. First, unlike the

bylaw in Tracer Lane, Walpole's zoning bylaw does not explicitly

prohibit or limit solar installations to any particular zone,

such that, theoretically, up to 10.14 percent of Walpole's total

land area could be sited for large-scale solar development.5

Second, the town defendants argue that the interests advanced by

its bylaw promote public health, safety, and welfare

sufficiently to justify the burden placed on solar development.

Specifically, the bylaw protects agriculture and open space

values in the rural residential district. We are not persuaded.

4 Smaller-scale solar facilities outside of the SPODs are
permitted in all zoning districts where they are accessory uses.
This was true of the bylaw at issue in Tracer Lane as well, 489
Mass. at 778, but it did not save the bylaw, because large-scale
solar facilities "are key to promoting solar energy in the
Commonwealth." Id. at 781.

5 The town defendants suggest that the entirety of the
industrial or limited manufacturing zoning districts as well as
other districts such as highway business could conceivably be
suitable for solar installations.

6
As to the argument that the bylaw allows the expansion of

the SPODs, requiring every desired expansion of solar use to

obtain discretionary zoning relief is exactly the local

interference that G. L. c. 40A, § 3, ninth par., is designed to

prevent. The issue is whether the bylaw "unduly restricts solar

energy systems," and as the bylaw currently stands, it does.

Tracer Lane, 489 Mass. at 781. At any time, applicants

interested in developing a new large-scale solar installation

outside of the approximately two percent of land in the existing

SPODs would have to petition to amend the Walpole zoning bylaws

pursuant to the amendment process established in G. L. c. 40A,

§ 5, which essentially requires applicants to submit their

proposed amendment to a public hearing and town vote. Once the

bylaws are amended to expand a SPOD, large-scale ground-mounted

solar projects are subject to "as of right" site plan review.

Even assuming that this process does not constitute a total

prohibition on development outside the SPOD and the land area

available for large-scale solar development reaches ten percent,

applicants still face a significant hurdle under the bylaw.6

6 Indeed, the portions of the Waltham zoning code
invalidated in Tracer Lane, which explicitly prohibited solar
development, were also subject to the statutory amendment
process. See G. L. c. 40A, § 5 ("Zoning ordinances or by-laws
may be adopted and from time to time changed by amendment,
addition or repeal, but only in the manner hereinafter
provided").

7
As to the argument that the bylaw protects a rural

residential zone for agriculture, open space, and lower density

single-family residential land use, the Supreme Judicial Court

rejected a similar argument in Tracer Lane. In Tracer Lane, 489

Mass. at 776, the road proposed to service a large-scale solar

facility in Lexington was to be located in an entirely

residential zone of Waltham. In other words, the road to

support the large-scale solar project was going to be a

commercial use in a residential zone. As the Supreme Judicial

Court did in Tracer Lane, supra at 781, we presume here that the

interests Walpole's zoning bylaw advance are "legitimate." See

Rogers v. Norfolk, 432 Mass. 374, 378 (2000) (legitimate

municipal purposes include preserving character of

neighborhood). The record, however, does 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.

Conclusion. Like the bylaw at issue in Tracer Lane, the

Walpole bylaw here unduly restricts solar energy systems and

therefore violates G. L. c. 40A, § 3, ninth par. Because we

8
hold that the bylaw violates the solar energy provision, we need

not reach the issues raised by the cross appeal.7

Judgment affirmed.

By the Court (Neyman, Henry &
Ditkoff, JJ.8),

Clerk

Entered: August 22, 2024.

7 Kearsarge argues that the motion judge erred in finding
that the project is not protected under the essential government
function doctrine or under the education protections of G. L.
c. 40A, § 3, third par.

8 The panelists are listed in order of seniority.

9