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Appeals court hears challenge to Petersham zoning board denial of large ground‑mounted solar project
Summary
Sumpkin Energy asked the Appeals Court to overturn a zoning board decision and the Land Court's summary judgment that together blocked a proposed large ground‑mounted solar array in Petersham. Appellant counsel said the town’s Section 18 clearing rules and state precedent mean the board may condition but may not deny most solar projects; the ZBA
Sumpkin Energy appealed a Petersham Zoning Board of Appeals denial of a proposed large ground‑mounted solar array, arguing the ZBA improperly applied local tree‑clearing standards in a way that amounts to a de facto prohibition of large‑scale solar in the town.
Why it matters: The appeal tests how local bylaw standards that limit vegetation clearing interact with Chapter 40A's protections for solar energy systems and recent appellate guidance such as Tracer Lane and similar decisions addressing municipal limits on siting large solar projects.
Jim Martin, counsel for Sumpkin Energy, told the panel that Petersham’s adoption of a Section 18 bylaw governing vegetation removal did not, and could not, give the ZBA authority to impose a blanket denial. Martin argued that under Chapter 40A, section 3 (paragraph 9) and the case law the court cited (including Tracer Lane), special permits for solar may be conditioned but generally may not be denied except in rare, documented circumstances (for example, if a proposal would threaten a vital community resource or public safety). Martin said the project had undergone multiple conservation‑commission reviews, that an order of conditions addressed buffers and wildlife passages, and that the ZBA’s dissent “reads in” policy objections not grounded in the bylaw.
Opposing counsel David Doneski, representing the Petersham ZBA, argued the board’s concerns about forest fragmentation and large‑scale tree clearing fall within the town’s authority to protect public health, safety, and welfare. Doneski said that the record shows a robust fact‑finding process and that the board’s decision is not a de facto ban: the town allows smaller arrays by right and larger ones by special permit, and the narrow question is whether the board reached a lawful conclusion given Section 18’s standards and the local environmental context.
The panel asked both sides whether the practical result of applying the bylaw would prohibit nearly all arrays in a heavily forested town and whether that potential effect would be reviewable under Tracer Lane and other appellate decisions. Counsel debated whether the landowner could clear timber on private land without permits and whether the town’s environmental‑protection interest (carbon sequestration, habitat fragmentation) could constitute a lawful basis for denial under the public‑health, safety and welfare standard.
Martin asked the court to grant judgment in Sumpkin’s favor rather than remand, arguing remand would be futile because the dissenting board member had stated an unwillingness to approve any tree‑cutting projects; Doneski replied that remand is the ordinary remedy and the board’s membership has changed since the contested decision so a remand is appropriate.
The court took the argument under advisement after questioning; no disposition was announced from the bench.
Ending: The panel took the case under advisement and proceeded to the next matter.
