Posted by: Patricia Salkin | May 25, 2018

MA Appeals Court Finds Property Owner Failed to Exhaust Administrative Remedies in Solar Development Project Permit Case

This post was authored by Matthew Loeser, Esq.

This case arose from the Plymouth planning board’s approval of three zoning permits issued to defendant Renewable Energy Development Partners, LLC (“REDP”), to build a solar development ground-mounted photovoltaic project on three lots off Herring Pond Road in Plymouth. To obtain zoning permits, REDP submitted an application with an accompanying site plan. The building inspector determined that the project was not an allowed use under the by-law. He also found the by-law prohibition was in violation of G. L. c. 40A, § 3, which set forth that “[n]o zoning ordinance or by-law shall prohibit or unreasonably regulate the installation of solar energy systems ….” The building inspector approved REDP’s application for the project, and the board unanimously approved the site plan. Lafond, an abutter to the site, learned about the project and requested the issuance of a stop work order and enforcement of § 205–40 of the by-law, which governed uses in the rural residential zone. When Lafond’s request was denied, he filed a two-count complaint in the Land Court, alleging that the zoning permits and site plan review of the project were invalid. The Land Court held that it lacked jurisdiction since Lafond failed to appeal the building inspector’s denial to the zoning board of appeals.

The court found that the record reflected the building inspector considered whether the project was a permissible use under the existing by-law. The building inspector found that it was not, but determined that the by-law was violative of State law. The court held that any grievance with this determination would be precisely the type of dispute that G. L. c. 40A, § 8, governed. Thus, the zoning board of appeals was in the best position to determine whether the building inspector’s interpretation of the bylaw was correct. Here, since Lafond had the opportunity to appeal the building inspector’s decision, but failed to do so, he failed to exhaust administrative remedies. Accordingly, the court affirmed the Land Court’s decision.

Lafond v Renewable Energy Development Partners, LLC, 2018 WL 1734566 (unrep. MA App. 4/11/2018)

 


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