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Haggerty v. Borrego Solar Systems, Inc.

Superior Court of Massachusetts, Worcester

September 27, 2016

Claire Haggerty et al.
v.
Borrego Solar Systems, Inc. et al. [1] No. 135544

          MEMORANDUM OF DECISION AND ORDER ON MR. AND MRS. HAGGERTYS' MOTION FOR SUMMARY JUDGMENT

          DENNIS J. CURRAN, Associate Justice.

         Mr. and 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 by-law.[2]

         For the reasons that follow, the Haggertys' motion must be DENIED.

         BACKGROUND

         The 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).

         Claire 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 By-Law.

         Ms. 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.

         The 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 3.2.3.1 of the By-Law. The Haggertys appealed this decision of the Planning Board.

         Section 3.2.3.1 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 3.2.3.1."

         In section 3.2.3.1, 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.

          Under section 3.2.2.1, " [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."

         Section 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.[3] 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.)

          Under 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 ...


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