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Adams Residents Take Solar Issue to Superior Court

By Dan Gigliotti
iBerkshires Correspondent
04:08PM / Friday, December 20, 2013
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A group of residents are filing suit over a proposed solar array being installed in their neighborhood.

ADAMS, Mass. — A group of residents filed a legal complaint against the Adams Zoning Board of Appeals on Wednesday, challenging its ruling to allow permitting for a private solar array installation in a residential area.

Shaun Sutliff, David Krzeminski, Edward Driscoll and Peter Lipka, represented by attorney Andrew Hochberg, accuse the Adams ZBA of a slew of transgressions, including exceeding its authority to reverse the Planning Board's denial of a site plan approval submitted by 217 East Road Solar Project LLC for a large-scale photovoltaic installation.

The plaintiffs — who are all abutting property owners to the proposed project site — make 14 total allegations of unlawfulness against the ZBA, East Road Solar Project and property owners Jeffrey and Carrie Loholdt. On Thursday, legal summonses were being prepared to be sent to each defendant, according Hochberg.

The solar project in question called for the installation of a 1.5 megawatt array comprised of about 6,500 solar panels.

The ZBA's official ruling was filed on Dec. 3, after which time any member of the public needed to submit an appeal to the town clerk's office within 20 days.

"The four main plaintiffs in this complaint are only four of [about 20] neighbors on East Road and in that East Road section ... that are concerned about this project in their residential district," Hochberg said, who was contacted by the collective of residents sometime in August or September. His first appearance as legal counsel came at a Sept. 23 Planning Board hearing.

The plaintiffs claim that the proposed large-scale, ground-mounted solar installation on East Road must fundamentally be classified as an industrial use, much like a power plant.

"[My] clients expressed very serious concerns that a project such as this ... it's kind of like putting a coal or gas or oil-fired power plant in the middle of a residential zone. It's an industrial use. An industrial use belongs in an industrial zone," Hochberg said.

Filed in Berkshire Superior Court, the appeal challenges aspects of state law dealing with solar energy installations that are currently unprecedented to date. Hochberg argues that when MGL Chapter 40A, Section 3 was created by the Legislature decades ago to address the regulation of solar energy systems, the state did not consider large-scale, ground-mounted structures. Pointing to one paragraph in particular, the plaintiffs reference the same portion of state law in accusing the town of neglecting to adequately consider residents' health, safety or welfare, providing a multitude of explicit concerns.

The arguments pertaining specifically to the interpretation of state law and the classification of solar array systems may have a widespread influence on future legal cases on solar installation throughout the entire commonwealth.

In the complaint, there are numerous concerns written specifically in regards to the health and wellness of town residents. According to the claim, consequences of the project on public health include that of poor drainage promoting mosquito proliferation, noise issues and electric and magnetic field (EMF) risks. Among public safety issues identified, risks associated potential fires occurring as a result of the solar field and the town's lack of notifying and seeking approval from fire authorities. The abutting property owners also argue formally that the value of their real estate will be diminished as a result of the project.

This appeal comes on the heels of a ZBA ruling that took place over the course of two separate public hearings. On Nov. 12, the board voted 3-2 in favor of upholding the building inspector's denial of a building permit for the proposed project, after which it adjourned until the following week, awaiting the advice of town counsel as to the proper judicial procedure moving forward.

On Nov. 19, Town Counsel Edmund St. John III gave detailed advice regarding the impact of the prior ZBA vote made to uphold a building permit denial and its authority to rule on the denial made by the Planning Board as part of East Road Solar Project's request for a site plan.

Following counsel's advice, the ZBA ruled 3-2 in favor of denying the Planning Board's decision, a ruling Hochberg believes necessitated four votes, or a super majority. If it is determined that this ruling required four votes, the Planning Board's decision would effectively have been upheld.

"After those first two votes — the building inspector's denial of a site plan and the Planning Board's denial of a site plan application — remain in full force and effect,” Hochberg said.

A judge will be asked to rule on the ZBA's authority to grant or deny site plan approvals, to review decisions made by other town boards and committees and the impact or importance of a building permit.

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The four residents in the appeal also accuse the ZBA of depriving their rights to due process by opening its Nov. 19 meeting to public comments, after claiming otherwise at its prior meeting.

If a judge finds that the ZBA is not the ruling authority on site plan approvals and that the Planning Board is, then it is likely East Road Solar Project will be found to have failed to follow the proper procedure in its own appeal process. On Sept. 23, the Planning Board voted unanimously to deny the request of a site plan approval by the proposed project, after determining it should not be allowed in a residential district. Hochberg argues that East Road Solar Project was supposed to have appealed to a higher judiciary, namely Land Court, Superior Court or Housing Court. By now, the time to file that appeal has long since passed, according to Chapter 40A, Section 17.

Driscoll, a former selectmen, said Friday morning that he is part of a collective of more than 20 residents who have taken an issue with the proposed solar project, though he was not aware that an appeal was filed in just his name and three others.

"I knew that I was a plaintiff, I thought I was one of 22, not one of four. All I know that is that it was filed, but I haven't seen it yet, so I really have no comment."

When asked what his contribution to the appeal process has been so far, Driscoll said, "nothing."

Plaintiffs in the appeal also request that they are reimbursed by the town for all attorney and legal fees, within reason.

As of Thursday morning, Adam Filson, counsel for the East Road Solar Project, had no knowledge of the appeal filed against the group.

Town officials could not be reached for comment on Friday morning.

All necessary parties will file an answer for appearance in court. Then a hearing will begin in Superior Court.


Tags: lawsuit,   solar array,   solar project,   ZBA,   

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