Claire Haggerty et al.
Borrego Solar Systems, Inc. et al.  No. 135544
MEMORANDUM OF DECISION AND ORDER ON MR. AND MRS.
HAGGERTYS' MOTION FOR SUMMARY JUDGMENT
J. CURRAN, Associate Justice.
Mrs. John and Claire Haggerty seek to annul the decision of
the Grafton Planning Board which granted a special permit to
neighbor Christy Pease to construct and operate a four-acre
renewable solar collection farm on residential property
directly across the street from their home. They have brought
a motion for summary judgment because, they claim, the
Grafton Planning Board granted the special permit under an
inapplicable provision of the town's zoning
reasons that follow, the Haggertys' motion must be
following undisputed facts are taken from the summary
judgment record and where disputed, the facts are viewed in
the light most favorable to the nonmoving party. See,
Sullivan v. Liberty Ins. Co., 444 Mass. 34, 38, 825
N.E.2d 522 (2005).
Haggerty owns and lives, along with her husband, John, at 90
Old Upton Road, Grafton, Massachusetts. Christy Pease owns 79
Old Upton Road, which lies directly across the street. Ms.
Pease runs a business on the property where she leases her
barn stalls for boarding and for horseback riders to
congregate before going on trail rides in the area. The
properties owned by both Ms. Pease and the Haggertys are
located in an R-40 zoning district that provides sites for
" low density residential development." They are
not located in the " Campus Development Overlay"
district, a zoning area so designated by Grafton's
Pease entered into a lease with Borrego Solar to construct
and operate a renewable solar collection farm on a portion of
her property. On September 22, 2014, Borrego applied to the
Grafton Planning Board for a special permit to construct the
solar collection farm on Ms. Pease's property under the
" Electric Generation" use regulation of the
By-Law. The facility consists of 2, 058 solar panels designed
to sit on racking above the ground.
Grafton Planning Board held hearings on the special permit
application and site plan modification. On May 5, 2015, the
Planning Board voted 5-0 to grant the special permit and 3-1
to approve the site plan. The special permit allowed Borrego
to construct the solar energy facility under section 220.127.116.11
of the By-Law. The Haggertys appealed this decision of the
18.104.22.168 of the By-Law is a Use Regulation Schedule that sets
out what type of buildings or structures shall be permitted
in specific zoning districts, as well as what type of
authorization is required before constructing such a building
or structure. Under section 1.5.1 of the By-Law, the Planning
Board " shall have the authority to grant special
permits for all uses designated with the symbol 'S'
on the Use Regulation Schedule in section 22.214.171.124."
section 126.96.36.199, under the " Electric generating or
distribution station or substation" classification, the
R-40 zoning district is designated with the " S"
symbol indicating that such an " electric generating or
distribution station or substation" may be built in the
R-40 district under special permit. The By-Law does not
define what an " electric generating or
distribution" station is. However, it is undisputed that
the solar collection farm in question is an electric
generating facility. Consolidated Statement of
Facts, ¶ 14.
section 188.8.131.52, " [w]here an activity might be
classified under more than one of the uses in the Use
Regulation Schedule, the more specific classification shall
determine permissibility; if equally specific the more
restrictive shall govern."
9 of the By-Law governs the uses and structures that fall
within the Campus Development Overlay district of Grafton, an
area of .775 square miles that makes up 3.48% of the
town. Section 9.2.A provides that " all
uses and structures within that district permitted by the
provisions of this section 9, and any other uses and
structures shall be governed solely by the provisions of this
by-law relating to the underlying district in which such uses
and structures are located ." (Emphasis added.)
section 9.4B of the By-Law, the use of " research and
development in the fields of Alternative energy and Renewable
Energy" is permitted inside the Campus Development
Overlay district. The By-Law specifically defines "
Renewable energy" in section 2.1, in part, as: "
[e]nergy derived from natural resources which are regenerated
over time through natural processes. Such energy resources
include the sun (solar) . . . Renewable energy ...