GREENFIELD — A Franklin County Superior Court judge deemed an abutter had standing to appeal the special permit for three proposed solar arrays on Pine Meadow Road in Northfield, setting up a future trial.
In a flurry of decisions, Judge Karen Goodwin found the plaintiffs, Christopher Kalinowski and environmental nonprofit RESTORE: The North Woods, and their experts “raise genuine issues of material fact” to BlueWave Solar’s arguments and meet the legal standing requirements to move the case forward to a trial.
“The parties agree that a de novo trial will be required if the court finds standing and rejects the plaintiffs’ technical challenges to the decisions,” Goodwin wrote in documents filed with Franklin County Superior Court.
While Goodwin found the plaintiffs met the standing requirement, she denied their motions for summary judgment challenging the Northfield Planning Board’s authority to issue the permit, their view that the board violated the Mullin Rule — which allows a board member to participate in future hearings after missing one — and their argument that the board failed to make the required findings. Goodwin also denied BlueWave Solar’s motion to strike the plaintiff’s experts and their opinions.
Kalinowski’s appeal, which was filed in September 2021, follows the Northfield Planning Board’s approval of conditions for special permits for the three solar arrays. In total, the project is estimated to cost $20 million for construction and will consist of about 76 acres of solar arrays installed across three noncontiguous tracts of land owned by the L’Etoile family and Hopping Ahead LLC.
“Array A,” which Kalinowski’s property abuts, is the largest of the three at roughly 26 acres and would be located north along Pine Meadow Road, beyond Riverview Road. “Array B” would be across from the Four Star Farms main building. The smallest, “Array C,” would be on the Connecticut River side of Pine Meadow Road.
Goodwin approved Kalinowski’s motion for summary judgment in relation to having standing for Array A on the basis of his claim that Array A would “alter the rural character of the neighborhood and reduce his property value.”
While Kalinowski does not have presumptive standing for arrays B and C because he is not an abutter, Goodwin said “alleged degradation of a neighborhood’s character can confer standing” based on the town’s bylaws. BlueWave Solar challenged the substance of that argument, but an opinion from Kalinowski’s expert — Greenfield Board of Assessors Chair and real estate broker Joe Ruggeri — raised “genuine issues of material fact,” thus summary judgment cannot be granted for either party.
With standing found, the second factor moving the case forward to trial was Goodwin’s denial of Kalinowski and RESTORE’s technical challenges to the Planning Board’s approval of the arrays. The plaintiffs argued the board’s approvals should be overturned due to their claim that the board violated the Mullin Rule, doesn’t have the authority to issue special permits for solar arrays and did not make proper findings.
At one of the special permit hearings for the project, Planning Board member Tammy Pelletier missed the opening 15 minutes of BlueWave Solar’s introductions, but did not “miss anything of substance.” Goodwin said courts have not been applying the rule in an “overly stringent fashion” in cases where a member missed introductions and the only evidence of what Pelletier missed by being late comes from her affidavit and deposition testimony. With this as the only evidence against the plaintiff’s challenges, Goodwin wrote there is a “material issue of fact, which the court cannot decide on summary judgment.”
In challenging the Planning Board’s authority to issue the permits, the plaintiffs argue the Zoning Board of Appeals is the permit-granting authority for similar projects, “namely public utilities and research, development and/or manufacturing of renewable energy.” The bylaws, however, do not “assign authority to either the Planning Board or ZBA for issuing special permits for solar panels.”
Goodwin wrote the town’s bylaws give the Planning Board responsibility for all matters concerning the Solar Overlay District, including site plan review. While the arrays are sited outside the district, Goodwin said the town demonstrated the Planning Board’s authority by acting on these applications and it’s logical for the same board to handle all solar projects.
“Although the arrays are proposed for areas outside the district, it makes sense for the same municipal body to have responsibility for all solar panel installations in the town,” Goodwin wrote. “The court should and will defer to the town’s reasonable interpretation of its own bylaws.”
The plaintiffs also argued the decisions must be overturned because they did not include written findings, while the defendants counter that the detailed conditions on the permit suffice. Goodwin noted the defendants “have the stronger argument” because “detailed conditions of approval can ‘do double duty as findings.’” In a special permit application, the board must determine in its findings that seven criteria laid out in the bylaw are met by the project.
Goodwin noted, however, that it will be an issue in a trial to determine if those conditions are sufficient findings.
“By attaching the conditions to specific criteria in the bylaws, the Planning Board’s conditions of approval could ‘do double duty’ as findings for the purpose of summary judgment,” Goodwin wrote. “Whether the Planning Board adequately considered and addressed those criteria will be an issue for trial.”
In this challenge, the plaintiffs also argue the special permit should be annulled because the decision concludes by saying the project “will have adverse effects [that] overbalance the beneficial effects on the town,” which is the opposite of the bylaw’s requirements. The defendants say this is a scrivener’s error and Goodwin agreed. She wrote that the court has authority to correct the error, but the Planning Board can also make a correction at a meeting without holding a public hearing, which would be “the better course.”
Goodwin also denied a motion by BlueWave Solar arguing the company does not need a special permit for arrays A or B due to a 2022 amendment to a state statue addressing use of agricultural land for renewable energy. She said there is “no indication that the legislation was intended to apply retroactively.”
With Goodwin finding legal standing for the case, along with denying the plaintiff’s technical motions to annul the permits, a trial will be scheduled in the future. A conference to review the status of the case is set for April 25.
Chris Larabee can be reached at clarabee@recorder.com or
413-930-4081.