Judge takes Northfield solar appeal under advisement


Staff Writer

Published: 11-28-2022 4:18 PM

GREENFIELD — A Franklin County Superior Court judge has taken arguments under advisement following a hearing seeking to appeal the special permits for three solar arrays that were approved for Pine Meadow Road in Northfield.

Judge Karen Goodwin said she will issue a decision on whether the appeal process should proceed as soon as possible following Monday morning’s hearing, during which the solar company’s attorney argued that the plaintiffs — abutter Christopher Kalinowski and the environmental nonprofit RESTORE: The North Woods — could not identify a “concrete, particularized injury” as a result of the solar arrays’ approval.

“It is Mr. Kalinowski’s burden — and on a higher level, RESTORE — to show that they are suffering particular and individualized injuries,” said Ryan O’Hara, the attorney representing BlueWave Solar. “It needs to be special and different from what happens to the community.”

Kalinowski and RESTORE, however, argue the Planning Board’s approvals in July 2021 should be overturned because the board allegedly violated the Mullin Rule, which dictates whether a board member who missed part of a hearing can participate at future ones; the board allegedly does not have the authority to issue special permits for large solar arrays; and the board allegedly failed to make proper findings under the zoning bylaws to support approval of the special permits.

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 tracts of land owned by the L’Etoile family and Hopping Ahead LLC.

“Array A,” which Kalinowski abuts, is the largest of the three arrays at roughly 26 acres and will be located north along Pine Meadow Road, beyond Riverview Road. “Array B” will be located across from the Four Star Farms main building. A third, smaller array, “Array C,” will be on the Connecticut River side of Pine Meadow Road.

The core of O’Hara and BlueWave Solar’s argument is that the plaintiffs lack the legal standing to appeal all three arrays because Kalinowski only directly abuts Array A, while RESTORE, a nonprofit membership organization, had “no presence in Northfield,” until just before the appeal was filed when residents signed up, according to O’Hara.

O’Hara emphasized again that Kalinowski and RESTORE’s argument does not show individual injuries posed to them and that any harms from the project, if any, would affect the entire community, not just Kalinowski. The amended civil complaint filed with Franklin County Superior Court focuses several paragraphs on “Array A,” which, if built, will cause Kalinowski to “suffer a loss of the rural and agricultural values and aesthetic of the scenic country setting” of his neighborhood, while also negatively affecting “prime farmland.”

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In court on Monday, attorney Ethan Dively, who is representing Kalinowski, said the large arrays being put up on one road will certainly change the “hyperlocal” neighborhood of Pine Meadow Road.

According to Dively, Northfield had not at the time approved an exception to the Mullin Rule — allowing a board member who missed a hearing to vote on a permit by watching a video recording and reading meeting notes — meaning that Planning Board member Tammy Pelletier, who missed a portion of the Feb. 18, 2021 meeting, should not have been able to vote on the permits, thus denying the supermajority needed to approve the projects. Pelletier, who was deposed earlier in the appeal process, and court documents submitted by BlueWave Solar’s attorneys, say that Pelletier only missed introductions at the hearing and had signed on right as the presentation was beginning.

Dively also suggested the Zoning Board of Appeals should have handled these permits because BlueWave Solar’s arrays are located outside of the Solar Overlay District. Northfield’s bylaws direct the Planning Board to handle solar arrays located inside the overlay, but do not have specific language for facilities outside the overlay. Goodwin, however, suggested that if there is no clear language, then maybe the Planning Board should take responsibility for arrays outside the overlay because it already has the experience.

Northfield Town Counsel Jeffrey Blake said town policy when it comes to assigning permitting authority in cases like this comes down to boards communicating with one another.

Closing out the plaintiffs’ argument, Dively said the Planning Board failed to make proper findings in its conditions for approving the permits. More specifically, Dively said the board found the project will “have adverse effects (that) overbalance its beneficial effects on the town.” O’Hara said this was a scrivener’s error, but Dively said it was not fixed.

“Whether it’s a scrivener’s error or not, it wasn’t corrected,” Dively said. “On this basis, a remand is appropriate so the board can make a proper finding.”

If Goodwin feels the Planning Board acted within the proper channels to come to its decision, then Dively said he is hopeful his client will get a chance to continue the process through a trial.

“What we’re asking for, your Honor, is Mr. Kalinowski gets his day in court,” Dively said.

Protest of solar arrays outside court

Before Monday’s hearing, a group of residents, farmers and environmental advocates stood outside the Franklin County Justice Center to show their opposition to solar arrays being sited on “prime farmland” across Massachusetts. Prime farmland, as designated by the U.S. Department of Agriculture, is “land that has the best combination of physical and chemical characteristics for producing food, feed, forage, fiber and oilseed crops, and that is available for these uses.”

Outside the courthouse, the group raised concerns about potential negative effects the construction of solar arrays could have on farmland, especially as the need for food will only continue to rise.

“We’re going to need food as regions of the country dry up and flood out,” Plainfield resident and fourth-generation farmer Ed Stockman said of the effects climate change will bring. “I don’t want to give anyone the impression we don’t want clean energy. What we need to do is put it on these buildings.”

“We could have solar on that roof, that roof or this roof,” added Wendell resident Jim Thornley, pointing to the roofs of All Souls Church, the Greenfield Recorder offices and the Franklin County Justice Center. “If (green energy sources were) dispersed, we could cut down the need for these giant plants.”

Fred Beddall, a Northampton farmer for 25 years, agreed with Stockman that local communities need to continue to grow their own food.

“We need to grow more food in Massachusetts, not less,” Beddall said. “I’m very concerned about losing prime farmland. … Putting solar on it downgrades its ability to grow food.”

Solar, Beddall said, is a “great accessory use” for farms, but it can limit what farmers can grow or produce on the land. Instead, alternative locations should be sought out for solar panels so operations can be “farm-first.”

The BlueWave Solar project continues as environmental advocates across the state pushback against industrial solar operations. In October, a petition, created by Greenfield-based Save Massachusetts Forests, was delivered with more than 1,500 signatures to Gov. Charlie Baker requesting a moratorium on state subsidies for large-scale solar projects.

Shelburne Falls resident Janet Sinclair, who helped organize Monday’s protest, said their main goal is to “call attention to this issue.”

“It’s not just about Northfield, but why are we having large-scale solar on our farmland,” Sinclair said.

In the future, she said the focus will be on continuing to inform the public about large-scale solar arrays in the state.

“These people will continue to do that, continue to do public education,” Sinclair explained. “We’re always paying attention if this is happening in any town.”

Chris Larabee can be reached at clarabee@recorder.com or 413-930-4081.