DALE BRIGGS and LAURA BRIGGS vs. ZONING BOARD OF APPEALS OF MARION and JONATHAN SYLVIA, ELIZABETH DUNN, DOMINGO P. ALVES, JR., ERIC PIERCE, and THOMAS COOPER, as they are members of the Zoning Board of Appeals of Marion.

Plaintiffs filed their unverified Complaint on March 14, 2013, pursuant to G. L. c. 40A, § 17, appealing a decision (the “ZBA Decision”) of Defendant Marion Zoning Board of Appeals (the “ZBA”) which denied Plaintiffs’ appeal of the Building Commissioner’s denial of Plaintiffs’ application for a building permit (the “Building Permit”) to construct and install a solar energy farm at property located at 512 County Road, Marion, MA (“Locus”). A case management conference was held on April 22, 2013. Plaintiffs filed their Motion for Summary Judgment on August 16, 2013, together with supporting memorandum, Statement of Material Facts, and Affidavit of Dale Briggs. On September 17, 2013, the ZBA filed its Opposition, together with supporting memorandum and Statement of Additional Material Facts. Plaintiffs filed their Reply on September 24, 2013. A hearing on the motion was held on September 30, 2013, and the matter was taken under advisement.

I find that the following material facts are not in dispute:

1. Locus is a vacant lot containing 5.93 acres, has 100 feet of frontage on County Road, and is located in a Residence D Zoning District. Locus is shown on the “Approval Not Required Plan” dated April 11, 2013 and prepared by N. Douglas Schneider & Associates, Inc. (the “ANR Plan”). Locus is also shown as Lot 17 on Assessors Map 21. Plaintiffs reside on abutting property to the south of Locus located at Lot 14 on Map 21.

2. In August of 2012 Plaintiffs filed an application (the “Application”) with the Marion Building Commissioner for the Building Permit to construct and install a “solar energy system” on Locus. The solar energy system would contain 3,520 panels in a fenced area, and met all applicable setback and yard requirements of the Marion Zoning Bylaws (the “Bylaws”). [Note 1] The facility will be located in a wooded area and will be partially screened in areas that will be visible.

3. On September 4, 2012, the Building Commissioner denied the Application (the “Building Commissioner Decision”).

4. Plaintiffs appealed the Building Commissioner Decision to the ZBA. The ZBA held a public hearing on February 7, 2013, and on February 22, 2013, voted to deny the appeal (the ZBA Decision). The ZBA Decision made the following findings:

1. The Marion Zoning Bylaw allows for the development of solar energy facilities as a accessory use to otherwise permitted residential and non residential uses (see Section 6.3).

2. The Marion Zoning Bylaw provides for the development of solar energy facilities as a permitted use within the Limited Industrial District (“LI District”). See Section 4.2.

3. The Marion Zoning Bylaw provides for the development of solar energy facilities pursuant to receipt of a special permit in the General Business District (“GB District”). See Section 4.2.

4. The Board concludes that the Zoning Bylaw neither “prohibits” nor “unreasonably regulates” the installation or use of solar energy facilities.

The ZBA Decision stated

The Marion Zoning Bylaw prohibits uses and structures not specifically allowed, either by right or by special permit, within the Town’s named zoning districts. The development of a commercial solar energy facility is, accordingly, prohibited within the Town’s Residential Zoning Districts. The prohibition of commercial solar energy facilities within the Town’s designated residential districts does not violate the spirit or intent of G. L. c. 40A, s. 3 and it cannot be said to constitute a facially or even as applied violation of the statute.

The ZBA Decision did not make findings on the possible impacts of a solar energy facility on the public health, safety, or welfare.

5. The ANR Plan was approved by the Marion Planning Board on April 25, 2013, and was sufficient to preserve the “use of [Locus]” under G.L. c. 40A, § 6, for three years from the date of submittal. [Note 2] Therefore, Plaintiffs have vested rights against zoning changes in the Residence D Zoning District, and the Bylaws at the time of filing of the ANR Plan govern this matter. [Note 3] The ANR Plan was recorded with the Registry on May 9, 2013, at Plan Book 57, Plan 1055.

6. G. L. c. 40A, § 1A defines “solar energy system” as

a device or structural design feature, a substantial purpose of which is to provide daylight for interior lighting or provide for the collection, storage and distribution of solar energy for space heating or cooling, electricity generating, or water heating. [Note 4]

No one disputes that Plaintiffs’ proposed solar farm is a “solar energy system” as defined in G. L. c. 40A, § 1A of the Bylaws.

7. G. L. c. 40A, § 3 states as follows:

No 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.

8. § 4.1 of the Bylaws states:

Except as may be provided otherwise in this Bylaw, no building or structure shall be constructed, and no building or structure or land or part thereof, shall be used for any purpose or manner other than for one or more of the uses hereinafter set forth as permitted in the district in which such building, structure or land is located or set forth as permissible by Special Permit in said district as so authorized.

9. § 6.3 of the Bylaws states that “[a]ccessory uses are permitted only in accordance with lawfully existing principal uses.” “Accessory Use” is defined in §11 of the Bylaws as: “[a] use incidental and subordinate to the principal use of the structure or lot.”

10. At the time of the filing of the Application, the Bylaws did not mention a “solar energy system.” The Use Table (§ 4.2) does not include “solar energy systems” in any zoning district’s permitted uses.

11. Table of Principal Use Regulations (§ 4.2) states the use of “Light Manufacturing” is allowed in a LI District as of right, and with a Special Permit in a GB District.

12. “Light Manufacturing” is defined in § 11 of the Bylaws as “fabrication, assembly, processing, finishing work or packaging.”

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Plaintiffs argue that the ZBA Decision is arbitrary, capricious, an abuse of discretion, and violates G. L. c. 40A § 3. Specifically, Plaintiffs contend that because solar energy systems do not fall in a principle use category provided by the Bylaws, the only allowed use of solar energy systems is as accessory to residential and non-residential principle uses. Plaintiffs argue that this restriction on solar energy systems is ‘unreasonable regulation’ in violation of G. L. c. 40A, § 3. Plaintiffs also contend that should this court find that the ZBA violated G. L. c. 40A, § 3, Plaintiffs are entitled to a ‘builder’s remedy.’ I shall examine each issue in turn.

A. Bylaws

Under the Bylaws at the time of filing, Plaintiffs argue that solar energy systems, including their proposed solar farm, are unreasonably restricted. They contend that the residential accessory use and non-residential accessory use allowed by the Bylaws, is the only permitted use of a solar energy system because no districts explicitly allow them, and as a result they must be excluded. [Note 4a] (See Bylaws §4.1.) In particular, Plaintiffs argue that neither the LI District nor the GB District allow solar energy systems because they are not listed in the use table, and because solar energy collection does not fall under the Bylaws’ definition of “light manufacturing,” which is listed in the use table.

In their brief, the ZBA states that a commercial non-accessory solar farm is a “light manufacturing” use under the Bylaws, which is not allowed in a residential district but is allowed as of right in a LI District, and is allowed by Special Permit in a GB District. [Note 5] Therefore, the ZBA argues, it cannot be said that solar energy systems have been unreasonably regulated because they are allowed in designated commercial districts, and as accessory in a residential district to residential uses. “Light Manufacturing” is defined as “fabrication, assembly, processing, finishing work or packaging” by the Bylaws in § 6.3(11) “Definitions.” [Note 6] The ZBA contends that a solar energy system could be considered “processing” under the Bylaws pursuant to the definition of “light manufacturing”. The ZBA argues a solar farm “encompasses the ‘process’ by which sunlight is collected and converted to an energy commodity.” Plaintiffs do not deny this statement in their Reply, but also state that a solar energy system does not involve a “processing” of electricity. [Note 7] They rely on the statutory definition of a solar energy system which is defined under G. L. c. 40A, § 1A as

a device or structural design feature, a substantial purpose of which is to provide daylight for interior lighting or provide for the collection, storage and distribution of solar energy for space heating or cooling, electricity generating, or water heating.

Plaintiffs argue that a solar energy system does not have any attribute that would fit within the Bylaws’ definition. Plaintiffs also argue that the term “manufacture” has been interpreted by case law as involving tangible differences in physical qualities, of which a solar farm has none. Plaintiffs cite cases that hold the process of changing the same material into another form is not manufacturing. See Tilcon-Warren Quarries v. Commissioner of Revenue, 392 Mass. 670 (1984) (quarry operation is not manufacturing, which is defined as “transformation of some preexisting substance or element into something different, with a new name, nature or use,”); The Charles River Breeding Labs v. State Tax Comm’n, 374 Mass. 333 (1978) (breeding laboratory is not manufacturing, which “involves a change of some substance, element, or material into something new or different”,); Hopkinton LNG Corp. v. State Tax Comm’n, 372 Mass. 286 (1977) (conversion of gas to liquid is not manufacturing, which is defined as “something possessing a new nature and name and adapted to a new use”). Plaintiffs argue that using these cases as guidance, there is no reasonable definition of “manufacturing” that would include solar energy systems. [Note 8] Essentially, Plaintiffs contend that solar energy collection and conversion is analogous to the above-referenced cases in that the process takes material and converts it into another form without adding anything or changing its nature.

As a result of the forgoing, the disputed issue is whether or not a solar energy system can be categorized as “light manufacturing” under the Bylaws and would therefore be allowed as a non-accessory use in the GB District and the LI District. The problem is that in the ZBA Decision, the ZBA did not make findings that solar energy systems could be categorized as “light manufacturing” for zoning purposes. The ZBA Decision stated that “[the] Bylaw provides for the development of solar energy facilities as a permitted use within the Limited Industrial District... [and the] Bylaw provides for the development of solar energy facilities pursuant to receipt of a special permit in the General Business District.” There was no specific finding as to why solar energy systems are an allowed use in either the GB District (with a Special Permit,) or the LI District. Nowhere in the ZBA Decision does the term “light manufacturing” appear. The explanation that solar energy systems fall into the category of “processing,” and therefore are allowed in the LI District and the GB District as “light manufacturing,” was only put forth in the ZBA’s Opposition Brief.

This court reviews the ZBA Decision de novo. Because “solar energy systems” were not mentioned in the Bylaws at the time of filing, there is no provision governing this dispute. The ZBA has correctly asserted that it is entitled to deference in interpreting its Bylaws. Wendy’s Old Fashioned Hamburgers of N.Y., Inc., v. Board of Appeals of Billerica, 454 Mass. 357 , 381, (2009), Tanner v. Board of Appeals of Boxford, 61 Mass. App. Ct. 53 , 57, (1985). But it has not made a determination of a solar energy system as “light manufacturing”. As a result, this court opines that the ZBA should be extended the opportunity to make findings on this issue. This case is therefore remanded to the ZBA to hold a hearing within thirty days of this decision and to make findings on whether solar energy systems are “light manufacturing” under the Bylaws. This court retains jurisdiction over the matter after such decision is rendered. The parties shall advise this court within twenty days of the date of the remand decision whether such decision shall be appealed, and if so, shall file such appeal with this court.

B. G.L. c. 40A, §3

Plaintiffs assert that the ZBA Decision constitutes unreasonable regulation and prohibition on solar energy systems under G.L c. 40A, § 3. Plaintiffs focus on the language of G. L. c. 40A, § 3, and argue that unless their proposed solar energy system endangers the health, safety or welfare of the public, it cannot be prohibited by the ZBA. Because Plaintiffs gave evidence to the ZBA that their proposal would not endanger the health, safety or welfare of the public, they argue that the ZBA’s denial of their appeal constitutes the unreasonable regulation prohibited by the statute.

Plaintiffs assert, in Dale Briggs’ affidavit, that there would be no adverse impacts on the health, safety, or welfare of the public from the solar farm. The affidavit states that the solar panels which would be installed are “typical” and “have been tested in many installations.” The plan for the proposed facility would include a fence, and Plaintiffs argue that an attractive nuisance would be unlikely because no children live on any abutting property. The affidavit also addressed the fact that neighbors would not likely see the solar farm as the area was wooded, and where applicable, would be screened from the abutting properties. Therefore, Plaintiffs argue that there is no evidence of any endangerment to the public health, safety, or welfare, from their solar energy system.

The ZBA Decision made no findings on the impact of Plaintiffs’ proposal on the public health, safety, or welfare. The ZBA did not reach this issue because they found the regulations imposed on Plaintiffs to be reasonable. The ZBA appeared to determine that solar energy systems fall under the category of ‘light manufacturing’ and are therefore allowed by right in the LI District and in the GB District by Special Permit. As discussed, supra, the ZBA Decision did not describe how a solar farm would fall under the category of “light manufacturing.” Provided that the ZBA can make such determination, this court must decide whether such determination, as imposed by the Bylaws, is ‘unreasonable’ under G.L. c. 40A, §3.

Plaintiffs appear to argue that the Bylaws are unreasonable because solar energy farms are only allowed as an accessory use, not that the limitation of solar energy farms to the LI District and the GB District is unreasonable. It does not appear that they disagree with the ZBA Decision that a commercial solar energy system is not appropriate for a residential zone. The ZBA Decision, which prohibits large scale commercial solar farms in a residential district, appears to be rational. Separation of residential and commercial districts is a longstanding purpose of zoning. See Circle Lounge and Grille, Inc. v. Board of Appeal, 324 Mass. 427 ,431, (1949) (“[t]he residence zone was designed to protect residence against business”); DiGiovanni v. Pope, 20 LCR 44 , (2012) (holding primary uses that are commercial are prohibited in residential districts); SCIT Inc., v. Planning Board of Braintree, 19 Mass. App. Ct. 101 , 107 (1986) (zoning ordinances are intended to apply uniformly and divide land into compatible uses to have a predictive quality). Therefore, provided that the ZBA can justify a finding that a solar energy farm is “light manufacturing” under the Bylaws, I find that the ZBA Decision, which maintains the division between commercial solar energy systems and residential accessory solar energy uses, is reasonable and does not violate G.L. c. 40A, §3.

After the remand and after all remaining issues have been resolved, I shall issue a judgment in this case.