Land Court strikes down permit for Hatfield solar project By DAN CROWLEY Staff Writer Wednesday, January 7, 2015 (Published in print: Thursday, January 8, 2015)

HATFIELD — A state Land Court judge has ruled that town officials erred in granting a building permit for construction of a large-scale solar power plant off Chestnut Street, striking a major blow to a renewable energy company in Boston that was founded by a member of the Kennedy family. The ruling comes more than two years after a group of 21 residents and abutters filed a lawsuit to settle a zoning dispute. It also marks the first time the courts have ruled on a state law that, in certain cases, can exempt the installation of solar energy systems from local bylaws and ordinances. “This was never an in-my-backyard issue,” said Stanley Pitchko Jr., an abutter and one of the plaintiffs who filed the lawsuit against the town and Szawlowski Realty Inc., which owns the property. “It totally was an issue about where, appropriately, these should be placed.” In October 2012, former building inspector Stanley Sadowski had granted a building permit to Hatfield Solar LLC to install 8,276 solar panels at a cost of $1.7 million at 45 Chestnut St. Hatfield Solar is a development company owned by Citizens Enterprises Corp., whose president is Joseph P. Kennedy II. The plant was expected to produce as much as 2.4 megawatts of power on approximately 35.6 acres in a rural residential district, electricity the company intended to sell wholesale to utility companies, according to court documents. Citizens Enterprises in September 2012 had withdrawn an application for site plan review before the town’s Planning Board, telling the Gazette at the time that it had become clear the board would not act on the site plan within the 65-day time frame outlined in the town’s bylaws. Some critics of the proposal at the time said they feared the company would instead seek a building permit that would circumvent a public vetting of the project, a scenario that played out. “It was kind of put together, in my opinion, on the sly,” Pitchko said.

At issue in the Land Court case was whether the project was a permitted use in town. Hatfield Solar argued that its planned facility was not a permitted use in any district and was therefore exempt from Hatfield’s zoning regulations under state law. In other words, it was allowed by right in a rural residential zone. A solar provision in state law states that no local zoning or bylaw can prohibit or unreasonably regulate the installation of solar energy systems or the building of structures that facilitate the collection of solar energy unless to protect the public health, safety or welfare. At the time, Hatfield did not have a detailed bylaw regulating solar arrays — it does now — but its bylaws did refer to “renewable or alternative energy development facilities,” and stated that they were allowed only in industrial and light industrial use districts. The plaintiffs had appealed the building permit before the Zoning Board of Appeals, which denied the appeal on the grounds that Hatfield’s zoning was “not applicable to the construction contemplated under the building permit.” In a Jan. 2 ruling that meticulously dissected the language of Hatfield’s zoning bylaw on alternative energy facilities, Land Court Judge Judith Cutler ruled in favor of the plaintiffs, who argued that the town’s zoning language made Hatfield Solar’s project ineligible for an exemption under the state’s solar provision. Cutler ruled that Hatfield Solar’s proposed solar panel facility is permitted by right, with site plan review, in industrial and light industrial districts and prohibited in all other districts in town. The decision annulled the ZBA’s decision on the building permit appeal. The permit has since expired, according to Kyle J. Scott, the town’s building inspector and zoning enforcement officer. The ZBA, Cutler wrote, “based its decision on an incorrect interpretation ... Therefore, the decision must be annulled.” The state’s solar provision, she continued, “does not provide the blanket exemption suggested by the board’s finding. Under the statutory language, a municipality may reasonably regulate solar energy systems, but cannot prohibit them outright ... Hatfield Solar bears the burden of proving the local bylaw is unreasonable as applied to its project.” Citizens Enterprises did not respond Wednesday to phone and email messages seeking comment. Town Administrator Paul Boudreau said he was surprised by the ruling. “I thought that the building inspector’s interpretation of the law was correct, and town counsel’s,” he said. “Where it goes from here, I haven’t a clue.” Attorney Michael Pill of Green, Miles, Lipton LLP, of Northampton, who represented the plaintiffs in the case, said he’s pleased that the uncertainty over the zoning issues is over and said the ruling could have gone either way.

“It’s not often that the Kennedys don’t get what they want,” Pill said from his Northampton office. “This is clearly an industrial use, enough electricity to power 400 or 500 homes.” “Hatfield is prime farmland,” he added. “You shouldn’t be using that kind of land to chew up for a solar project.” A final judgment in the case has not been issued, as there is a still a boundary dispute in question, but Friday’s ruling settles the major zoning dispute as to what’s allowed and where under the town’s bylaws regarding large-scale solar installations. The defendants, Hatfield Solar, Szawlowski Realty Inc. and the town, have the right to appeal the ruling. Shelley Szawlowski, president of the realty company and a signatory on the building permit application, was not available for comment, according to the company. Dan Crowley can be reached at [email protected].