SUNPIN ENERGY SERVICES, LLC, & Another v. ZONING BOARD OF APPEALS OF PETERSHAM (2025)

Here, the parties do not challenge the validity of § 18 of the bylaw, and agree that the town's special permit requirement set forth in § 18 does not violate the protections afforded by the ninth paragraph of G. L. c. 40A, § 3.[11]  The parties also agree that "[l]ike all municipalities, [the town] maintains the discretion to reasonably restrict the magnitude and placement of solar energy systems."  Tracer Lane, 489 Mass. at 782.  Accordingly, our analysis focuses on the question whether the board abused its discretion under the special permit section of the bylaw, keeping in mind that the Legislature has determined that no regulation may prohibit a solar energy installation unless reasonably grounded in public health, safety, or welfare.  Put another way, the question before us is whether the board used the special permit requirement to impose its own preference that large-scale solar energy systems not be placed in wooded areas.  See Prime v. Zoning Bd. of Appeals of Norwell, 42 Mass. App. Ct. 796, 802-803 (1997) (special permit may not be denied to prohibit protected use or impose board's preference).  See also Wendy's, 454 Mass. at 387 (we review whether reasons given by board "had a substantial basis in fact, or were . . . mere pretexts for arbitrary action or veils for reasons not related to the purposes of the zoning law" [citation omitted]).  Here, as Reynolds's statement makes clear, the special permit was denied because the board preferred (on behalf of the town's inhabitants) a different use of the property, that is, to leave it in its natural state.  In other words, the permit was denied because the board concluded that maintaining forest land was preferable to solar energy development that involved tree removal.[12]  In reaching this conclusion, the board exceeded its discretionary powers.  "[N]either G. L. c. 40A, § 6, nor the by-law permits denial of a special permit based on an undifferentiated fear of the future.  Although a board may properly consider the reasonably likely impact of a particular use on an area's development potential, . . . a board may not deny a permit simply by conjuring a parade of horribles."  Britton, 59 Mass. App. Ct. at 75.  See Fitzsimonds v. Board of Appeals of Chatham, 21 Mass. App. Ct. 53, 57 (1985) (error to deny special permit because granting it might lead to future year-round occupancy; board improperly and impermissibly relied upon, "as bearing upon [the] present decision, a putative problem to be faced in the indefinite future").  "The board may not refuse to issue a permit for reasons unrelated to the standards of the by-law for the exercise of its judgment."  Slater v. Board of Appeals of Brookline, 350 Mass. 70, 73 (1966) (no discretionary power to deny special permit because board thought adjacent land might be more appropriate location for parking).