In a recent decision with important implications for renewable energy development in Massachusetts, Sunpin Energy Services, LLC v. Zoning Board of Appeals of Petersham, the Supreme Judicial Court held that municipalities may not rely on generalized deforestation concerns to block large-scale solar projects. In the process, the SJC made clear that the Massachusetts Zoning Act’s “Dover Amendment” protects solar energy facilities from local regulations that may effectively prevent their development, and requires site-specific findings of substantial “public health, safety or welfare” concerns before a solar project can be denied.
The Sunpin case arose from a proposed 4.3-megawatt solar facility in Petersham that would require clearing part of a wooded property. Although two members of the zoning board voted to approve the special permit required for the project, the application was denied because approval required a unanimous vote. The dissenting board member concluded that the project was inconsistent with the town’s zoning goals, largely because of the amount of tree removal involved.
The case eventually made its way to the SJC, which rejected the Board’s denial of the special permit. The Court found that, while municipalities may require special permits for solar facilities, the Dover Amendment prohibits local regulations that unreasonably restrict solar development. A permit may be denied only where denial is necessary to guard against site-specific “public health, safety, or welfare” concerns. Generalized concerns about tree removal, blight, or over-development will not suffice.
The Court focused on the practical effect of denying Sunpin’s application. Because the Town is approximately 97 percent forested, denying solar projects whenever substantial tree clearing is required would leave little meaningful opportunity for large-scale solar development and could effectively operate as a town-wide prohibition. The Court found this inconsistent with the Commonwealth’s general policy of encouraging solar energy generation and the specific protections afforded to solar facilities under the Dover Amendment.
At the same time, the SJC made clear that environmental and forest-preservation concerns can remain important to the permitting process. Municipalities may consider the impacts of deforestation when evaluating a particular project, but those concerns must be tied to the specific characteristics of the site and must support a finding that denial is necessary to protect public health, safety, or welfare.
Going forward, developers and municipalities should expect close judicial scrutiny of any reasons offered for denying solar projects. Site-specific concerns tied to public health, safety, or welfare may still support a denial, but Sunpin makes clear that local boards cannot rely on generalized deforestation concerns or broader policy objections that, if applied in each case, would effectively foreclose large-scale solar development.
If you have questions about this decision, please contact Molly Gorman or any member of Prince Lobel’s Real Estate or Energy & Cleantech groups.