Opinion
21-P-294
07-12-2022
PLH LLC & another[1] v. COMMISSIONER OF DEPARTMENT OF ENERGY RESOURCES & others.[2]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case arises from the effort of the plaintiffs, PLH LLC and Ecos Energy LLC, to obtain financial incentives under the "Solar Massachusetts Renewable Target (SMART) Program," to develop a four megawatt solar energy system on a residential lot in the town of East Longmeadow. The SMART Program is a voluntary statewide program that provides financial incentives for the development of solar energy, administered by the Department of Energy Resources (department). See 225 Code Mass. Regs §§ 20.00, 20.03 (2017). A "statement of qualification" (SOQ) is a necessary precursor to obtaining the financial incentives available under the SMART program. See 225 Code Mass. Regs § 20.06 (2017). The department denied the plaintiffs' application for an SOQ, concluding that they did not meet one of the three prerequisites -- specifically that they did not demonstrate that they had all "necessary permits" from the town "to construct the project where proposed" because the town prohibited ground-mounted solar installations in the residential zoning district. The plaintiffs filed this action in the Superior Court, seeking a declaration that they had all necessary permits within the meaning of 225 Code Mass. Regs. § 20.06 (c) at the time they submitted their application to the SMART program and an injunction requiring the department to issue the SOQ and place the plaintiffs' application in the same place in the SMART program queue that they would have enjoyed had the department timely approved the initial application. The Superior Court granted the department's motion to dismiss, and final judgment entered on January 29, 2021. The plaintiffs filed a timely notice of appeal. We affirm.
Qualified applicants are assigned an incentive compensation rate based on the order in which the department received their application and the capacity remaining in the SMART program. Early applicants receive the highest compensation, and the rate of compensation decreases by block for later applicants until the eighth block, which is the program's capacity, is filled.
Applicants "must provide evidence of the following in order to obtain a Statement of Qualification: 1. an executed Interconnection Service Agreement, as tendered by the Distribution Company; 2. demonstrate a sufficient interest in real estate or other contractual right to construct the Solar Tariff Generation Unit at the location specified in the Interconnection Service Agreement; and 3. all necessary governmental permits and approvals to construct the Solar Tariff Generation Unit with the exception of ministerial permits, such as a building permit, and notwithstanding any pending legal challenge(s) to one or more permits or approvals." 225 Code Mass. Regs. § 20.06 (c). Although it appears that site plan review would be required by the town regardless of whether the project is allowed as of right, the department and the plaintiffs agreed that site plan review within this context was considered a "ministerial" permit under the SMART program regulations. That issue is not before us.
Background.
The background facts are largely undisputed. On November 26, 2018, the department began accepting applications for SOQs. The plaintiffs submitted their application for an SOQ, along with a copy of the local zoning bylaw, on or about November 30, 2018. Within days of filing their application with the department, the plaintiffs filed a complaint in the Land Court seeking a declaration that the bylaw's prohibition of solar facilities in the residential district was unlawful. They did not reveal their intent to do so, however, in their application.
Plaintiffs contend they submitted the application on November 29, 2018. This dispute is not material to our review.
The department's agent corresponded with the plaintiffs on March 7, 2019, indicating that "the zoning bylaw only allows ground mounted solar energy facilities in the industrial or industrial [g]arden [p]ark [z]oning [d]istricts." On March 14, 2019, the plaintiffs responded by acknowledging the limitation in the bylaw but contending that it is unlawful and, therefore, they had all necessary approvals. Their response also informed the department that they had commenced an action in the Land Court challenging the validity of the bylaw's prohibition of solar installations in the residential zoning district. The department denied the application on April 11, 2019, on the single basis that the plaintiffs had not demonstrated that they "have received the necessary permit/approval from the [t]own to construct the project where proposed." Some forty-one days later, the plaintiffs commenced this action pursuant to G. L. c. 231A, § 1; G. L. c. 212, §§ 3,4; and G. L. c. 249, § 4. The department moved to dismiss; the plaintiffs cross-moved for summary judgment. The judge allowed the department's motion to dismiss and denied the cross motion for summary judgment.
The case was decided on a motion to dismiss; no party raises and we do not consider whether the plaintiffs exhausted any administrative remedies they may have had or chose a proper appellate avenue.
Meanwhile, the Land Court, on August 20, 2019, some four months after the department's decision, entered a declaration that the town's prohibition against ground-mounted solar installations in a residential district runs afoul of G. L. c. 4 0A, § 3. On May 3, 2021, the Land Court denied the town's motion for reconsideration. Judgment entered October 14, 2021. So far as we can discern from the docket, there was no appeal.
We may take judicial notice of dockets in separate cases. Cannonball Fund, Ltd. v. Dutchess Capital Mgt., LLC, 84 Mass.App.Ct. 75, 91 (2013) .
After oral argument in this case, the Supreme Judicial Court issued Tracer Lane II Realty, LLC v. Waltham, 489 Mass. 775 (2022), and held that where a city "prohibited solar energy systems ... in all but one to two percent of its land area, its zoning code violates the solar energy provision" contained in G. L. c. 40A, § 3. Tracer Lane II Realty, LLC, 489 Mass. at 781.
The parties are aware of this case as the department filed a letter attaching the case pursuant to Mass. R. A. P. 16 (1), as appearing in 481 Mass. 1628 (2019).
While it is agreed that the town in this case limited solar energy systems to the industrial and "industrial garden park" zoning districts, the record does not reflect the percentage of the town's land that is comprised of the industrial and industrial garden park districts. Nor does the record in this case indicate whether in the Land Court action the town advanced any public health, safety, or welfare concerns for its zoning limitation on solar projects.
The record suggests that the plaintiffs filed a new application for the SMART program on September 6, 2019, and their application met the requirements for an SOQ, but there was no longer capacity in the SMART program and the department put them on a waiting list.
Discussion.
General Laws c. 40A, § 3 1 9, provides that "[n]o zoning ordinance or by-law shall prohibit or unreasonably regulate the installation of solar energy systems or the building of structures that facilitate the collection of solar energy, except where necessary to protect the public health, safety or welfare." At the time of the plaintiffs' application, the town's zoning bylaw prohibited ground-mounted "[p]hotovoltaic [a]rrays" in the residential zoning district where the property at issue was located. The plaintiffs' argument to the Superior Court and to this Court is that the town's prohibition of solar energy generating facilities in a residential district was unlawful under G. L. c. 40A, § 3, and the department should have approved the application regardless of the prohibition. The plaintiffs contend that the department (i) should have determined that the local by-law was unlawful and concluded that the plaintiffs had all "necessary permits," or alternatively, (ii) should have revisited the application after the Land Court's decision, and, applying the Land Court's decision retroactively, approved the SOQ. We disagree.
"A challenged provision in a zoning bylaw is presumptively valid, and a challenger bears the burden to prove otherwise." Rogers v. Norfolk, 432 Mass. 374, 379 (2000). "The test is not the other way around." Id. at 383. At the time of the plaintiffs' application, the bylaw's prohibition of solar generating facilities in residential zones in the town presumptively was valid. Moreover, the bylaw was not patently invalid on its face; c. 40A, § 3, allowed regulation of solar facilities as "necessary to protect the public health, safety or welfare," and the department had no basis on the application before it to conclude that the prohibition of solar generating facilities in residential zones was inconsistent with that exception. As the plaintiffs note in their brief, no court had decided that issue. Given the information the department had, the department cannot be faulted for rejecting the plaintiffs' application for an SOQ.
The plaintiffs claim that the department had a responsibility under its regulations to make a threshold determination as to what was a "necessary" permit and should not have "accepted the [b]ylaw's validity at face value and discounted [the] [p]laintiffs' claims made in the Land Court." But the plaintiffs have made no showing that the department, in the course of considering an application for an SOQ, had the authority to declare invalid the town's restriction on where in the town ground-mounted solar facilities may be placed. Cf. CommCan, Inc. v. Mansfield, 488 Mass. 291, 293-294 (2021) (holding property owner may challenge town bylaw pursuant to G. L. c. 240, § 14A, if it "allege[s] that the zoning bylaw or ordinance in question 'restrict[s] or limit[s] the present or future use, enjoyment, improvement or development' of that property") with Salisbury Nursing & Rehabilitation Ctr., Inc. v. Division of Admin. Law Appeals, 448 Mass. 365, 371, 374 (2007) (substantive challenges to validity of statute or regulation must be brought by means of declaratory judgment action pursuant to G. L. c. 2 31A, § 2, and G. L. c. 3 0A, § 7); Doe v. Sex Offender Registry Bd. No. 10800 , 459 Mass. 603, 629-631 (2011) (same).
The plaintiffs argue that the Land Court's decision invalidating the town's blanket prohibition of ground-mounted solar facilities should be given "retroactive effect" here because the department's decision was still under direct review when the Land Court decision issued. See Galiastro v. Mortgage Elec. Registration Sys., Inc., 467 Mass. 160, 169-171 (2014). The plaintiffs have failed to demonstrate, however, that the doctrine of retroactivity applies in these circumstances where the department made what the plaintiffs describe as a non-adjudicatory decision, from which the plaintiffs have identified no direct avenue of appeal.
That the bylaw's restriction on the placement of solar energy systems was later declared to be invalid does not change the facts as they were presented to the department or the authority of the department in acting on the application for an SOQ. Moreover, while the plaintiffs suggest that the department, apparently sua sponte, should have reopened and reconsidered the application after the Land Court determined that the blanket prohibition of ground-mounted solar facilities was invalid, they point to no regulation allowing or requiring it to do so. In fact, the plaintiffs do not even allege that they requested that the department reopen or reconsider the application. The plaintiffs cite no authority for their suggestion that when the plaintiffs made the department aware that they were challenging the prohibition in the Land Court, the department could or should have deferred action on the plaintiffs' application until the Land Court issued its decision. Again, it is not apparent from the record that the plaintiffs requested a stay of the department's decision or that the department had the discretionary authority to delay its decision, given the interests of other applicants and the goals of the SMART Program to provide incentives to encourage the development of solar energy generating units. See 225 Code Mass. Regs. § 20.01 (2017). While we are not unsympathetic to the time-sensitive nature of the plaintiffs' application, they have not shown that the department had the power to ignore the provisions in the local bylaw in place at the time of the plaintiffs' application or reconsider its decision once it had denied the application. The complaint properly was dismissed.
Nothing herein would prevent the plaintiffs from filing a new application for consideration based on updated factual developments.
Judgment affirmed.
Green, C.J., Sullivan & Henry, JJ.
The panelists are listed in order of seniority.