Shutesbury seeks dismissal of suit filed by solar biz

By SCOTT MERZBACH

Staff Writer

Published: 08-02-2023 3:19 PM

SHUTESBURY — A Land Court lawsuit contending that Shutesbury’s zoning bylaw is overly restrictive and may doom plans to develop five large solar projects on 190 acres of mostly wooded land remains active, though the town’s attorney is seeking to have the case dismissed.

In the most recent response in the W.D. Cowls, Inc. suit against the town, filed on July 28, Kendra Berardi and Jessica Bardi, attorneys with Robinson and Cole, LLP in Boston who represent PureSky Energy solar company, argue that the case, brought in April, should continue.

“Plaintiffs maintain that there are seven provisions of the zoning bylaw... that when applied on their own, and cumulatively, serve to prohibit or unreasonably regulate commercial solar facilities in the town and which have no reasonable basis grounded in public health, safety or welfare,” the attorneys write.

Berardi and Bardi contend that the town’s zoning bylaw is in violation of Massachusetts laws known as the “Dover Amendment,” which references the need to protect health, safety or welfare when enacting regulations or prohibitions on solar projects, as well as the Supreme Judicial Court’s Tracer Lane v. Waltham decision in 2022, in which the court ruled solar energy systems are protected by the Dover Amendment from local regulation.

In the town’s motion to dismiss, Donna L. MacNicol of MacNicol and Tombs LLP of Greenfield, writes that the bylaws, adopted in May 2008 and amended in June 2021 “does not prohibit but does reasonably regulate solar electric installations” to protect health, safety and welfare of the community.

The solar company doesn’t have standing to be party to the lawsuit, as it is not owner of the land, MacNicol contends.

Plans for the solar developments were presented nearly two years ago by Amp Solar Development, or ASD, which has since been taken over by PureSky. Those plans originally called for ground-mounted arrays on land owned by W.D. Cowls. The arrays would generate 45 megawatts of power and could serve 5,000 households, according to the company.

Since then, W.D. Cowls submitted preliminary subdivision plans with the Planning Board on Jan. 19 for four of the five sites. Those sites include two of the three on Pratt Corner, one on Leverett Road and one on Montague Road at Carver Road.

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By submitting the preliminary subdivision plans on the day Shutesbury was holding a special Town Meeting to amend the zoning bylaws related to solar projects, the idea was to freeze in place existing zoning rights. But planners determined that these filings could not be accepted, because they were not delivered at a public meeting of the Planning Board or sent by registered mail. The filings were also not in order because the town clerk did not receive written notice at least a day in advance.

In their March 2021 presentation to the Select Board, the solar developers floated the possibility of having a municipal partnership model that would generate $450,000 for the town in the first year of payment in lieu of taxes.

At that time, officials were warned that aspects of the zoning may be subject to litigation. Since then, the town has made the bylaw more stringent through the amendments adopted at the special Town Meeting in January, though those changes are awaiting approval from the attorney general. One aspect of the zoning is a forest mitigation measure that requires permanent protection of at least four times the amount of woods as are converted to solar installation.

MacNicol notes that the town’s bylaw is permissive, 70% of land in Shutesbury could be used for solar, “but at the same time works to preserve forests, carbon sequestration, natural habitat, biodiversity, protection of the aquifer, private wells and municipal resources” and that waivers be granted from ideal development standards.

The case is being heard before Judge Michael D. Vhay.

The properties that would be used for the solar developments are located in the town’s forest conservation zoning district, in which large scale, ground mounted systems are allowed by special permit from the Planning Board, and the zoning bylaw has a waiver provision. Still, the lawsuit notes that “when applied cumulatively, the unlawful provisions wholly exclude commercial solar facilities within the entire town.”

This is not the first time controversy has come over solar projects in Shutesbury. A previous 5.6-megawatt solar development on the Wheelock Tract off Pratt Corner Road proved controversial several years ago, both because of the removal of trees and the possibility that it was once a Native American burial ground.

A group known as Smart Solar Shutesbury has been formed, calling the project the “pursuit of massively destructive industrial solar development that would clear-cut hundreds of acres of our important forest and pose serious threat to our sole drinking water supply.”

But more than 5,500 acres in Shutesbury, Pelham, Leverett and Amherst have already been permanently protected by W.D. Cowls, meaning those properties will never be used for solar arrays.

Cinda Jones, president of W.D. Cowls, said the lawsuit filed by Cowls’ solar partners is about fighting climate change, not the town.

“Our world depends on land conservation and solar development. Cowls is invested in both,” Jones said. “After years of study and deep consideration we’re confident we’re doing the right thing for mother earth.”

Scott Merzbach can be reached at smerzbach@gazettenet.com.]]>