Posted by: Patricia Salkin | February 19, 2014

MA Land Ct. Remands ZBA Interpretation of Residential Solar Energy Uses

Dale and Laura Briggs sought to construct a solar energy system (System) on their property, but the Marion Building Commissioners denied their application. The Briggs appealed to the Marion Zoning Board of Appeals (ZBA), which also denied their application. The Briggs then brought suit appealing the decision of the ZBA. On appeal, the court noted several relevant facts, such as the “Marion Zoning Bylaws [allowing] for the development of solar energy facilities as [a] accessory use to otherwise permitted residential and non residential uses.” And, that the ZBA did not determine the impact of the System on the pubic health, safety, or welfare. It was also undisputed that the proposed System qualified as a “solar energy system” as defined in the bylaws. However, at the time the Briggs’ made their application to construct the System, the bylaws did not include this term in the permitted Use Table. The Briggs’ argued that because the bylaws only allow for this type of System as an accessory use and not a principle use that it was an unreasonable regulation, and they were entitled to a builder’s remedy.

The Briggs’ argued that the ZBA’s denial constituted an “unreasonable regulation and prohibition on solar energy systems” because the board did not establish that the System proposed a danger to the health, safety, and welfare of the public, and as such could not be prohibited. However, the ZBA did not make any findings on whether the System impacted the health, safety, and welfare of the public because it found that it was prohibited under the regulations in a residential area as a principle use. The court remanded the case ordering the ZBA to provide a justification for its particular classification of the System, but did find that a distinction “between commercial solar energy systems and residential accessory solar energy uses” was reasonable.

Briggs v. Zoning Bd. Of Appeals of Marion, 2014 WL 471951 (MA Land Ct. 2/6/2014)

The opinion can be accessed at: http://masscases.com/cases/land/2014/2014-13-477257-DECISION.html


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Categories

%d bloggers like this: