SJC hears challenge to Petersham denial of large solar project under Dover Amendment

At a hearing in the Supreme Judicial Court, James F. Martin, attorney for the appellants, argued that the Zoning Board of Appeals of Petersham improperly denied a special permit for a large ground-mounted solar project in violation of the Dover Amendment. "This is a Dover Amendment case," Martin told the court, saying the project complies with the town's solar bylaw and that the bylaw expressly permits "necessary" tree clearing.

The bench pressed how the Land Court reached its conclusion that locating the project in a forested parcel served the public welfare. Justice Kafka asked how reviewing courts should treat a split three-member ZBA vote where a lone member provided a lengthy written dissent: when the statute requires unanimity and a split vote results in denial, which reasoning should control appellate review?

Martin told the justices the Land Court erred by relying on a general-purpose bylaw provision rather than the town's detailed solar bylaw and stressed that Petersham is overwhelmingly forested, a fact he said limits possible locations for large ground-mounted solar. He noted the parcel is privately owned and that the record shows the owner could clear the land in any event; the proposal would clear a portion of a 24-acre parcel, he said.

Michael Shamgochian, counsel for the Petersham Zoning Board of Appeals, responded that municipal regulators retain discretion under Tracer Lane to regulate the magnitude and placement of solar systems and that certain bylaw sections cited by the appellant are standards that apply after permitting rather than criteria that automatically trigger approval. "Tracer Lane envisioned municipal action on solar energy systems that had a reasonable basis grounded in public safety, health and welfare," Shamgochian told the court.

Justices and counsel debated whether the dissenter's concern about deforestation—expressed at length in a 26-page opinion—could supply a permissible public-welfare rationale under the Dover Amendment. The bench queried whether the preservation of trees can constitute a public-health or public-welfare interest sufficient to justify an as-applied denial, and whether reliance on that concern amounts to a de facto ban in a town described in the record as "substantially forested" (the transcript includes varying percentage figures: 94%, 96% and 97% were each mentioned).

The court also examined whether the two members who voted in favor included sufficient findings tying approval to the bylaw's criteria; the bench expressed concern that an approval that simply restates the bylaw without meaningful findings would be vulnerable to later challenge. Counsel and justices discussed the project’s magnitude and context: the record describes a project footprint roughly comparable to "11 football fields" and a perimeter fence described in the record as a chain-link enclosure, and the site abuts Harvard Forest, raising habitat- connectivity concerns.

Neither side asked the SJC to resolve a novel rule about percentages of land in a municipality; rather, the debate focused on whether the record for this particular parcel contains a limiting, site-specific basis for denial or instead reflects an impermissible, ad hoc invocation of general-purpose policy. Argument concluded with the court pressing counsel on the proper framing of the as-applied Dover inquiry and the role of board findings when statutory unanimity produces a denial.

The court did not announce a decision at the conclusion of argument. The case raises questions about how permitting boards must articulate denials when statutory rules make a split vote a functional denial, and about how environmental and character-based concerns interact with the Dover Amendment’s protections for renewable-energy uses.