MARY B. DUSEAU, SUSAN L. MOORMAN, KATHLEEN Z. ZEAMER, DANIEL K. EDWARDS, JUDITH B. ZAHN, as TRUSTEE for the JUDITH B. ZAHN LIVING TRUST, BARBARA R. O'SHEPA, STANLEY J. PITCHKO, JR., PATRICIA J. PITCHKO, ALAN BOROWSKI, STEPHEN E. LAIZER, PATRICIA LAIZER, MELISSA A. HESSION, DAVID J. MUSANTE, CINDY A. BARCOMB, KATHLEEN A. SHEEHAN, ANITA R. GINGRAS, MELODY S. EDWARDS, JASON LAPRADE, JAMES TARR also known as JAMES N. TARR and BETSY TARR v. SZAWLOWSKI REALTY, INC., TOWN OF HATFIELD, and HATFIELD SOLAR, LLC.

INTRODUCTION

These two consolidated cases stem from the Defendant Hatfield Solar, LLC’s (“Hatfield Solar”) proposed construction of 8,000 + solar collection panels on property in the Town of Hatfield’s Rural Residential district, known and numbered as 45 Chestnut Street in Hatfield (the “Property”). Plaintiffs are the owners of other properties in the Town of Hatfield, seeking to block construction of the solar collection facility in its proposed location.

In Land Court Case No. 12 MISC 470612 (“Case 1”), Plaintiffs seek a declaratory judgment, pursuant to G. L. c. 240, § 14A, concerning the applicability of certain provisions of the Town of Hatfield Zoning By-laws (the “By-laws”), specifically Use 5.26 in the By-laws’ Section 3 Table of Permitted Uses, to Hatfield Solar’s proposed use of the Property. [Note 1] In Count I of Land Court Case No. 13 MISC 477351 (“Case 2”), [Note 2] Plaintiffs appeal pursuant to G. L. c. 40A, § 17 from a decision of the Hatfield Zoning Board of Appeals (the “Board”) which upheld the issuance of a building permit for the solar collection panels on the Property on the grounds that the use is not a permitted use described in Use 5.26, and must be allowed as an exempt use pursuant to G.L. c. 40A, § 3, ¶ 9 (the “ § 3 Solar Provision”).

Ultimately, both cases hinge on the interpretation of the Table of Use Regulations in the By-laws. In particular, Use 5.26 in Table 1 lists three categories of renewable or alternative energy facilities which are permitted by right, with site plan approval, in the Industrial (“I”) and Light Industrial (“LI”) districts (collectively, the “Industrial Districts”), and prohibited in all other districts of the Town. Plaintiffs seek to establish that Hatfield Solar’s solar collection facility falls into one of three renewable or alternative energy uses permitted in the Industrial Districts and that, therefore, the § 3 Solar Provision does not automatically exempt Hatfield Solar’s Project from application of the By-laws. Hatfield Solar argues that its solar collection facility is not a permitted use in any district of the Town and, therefore, must be exempted from zoning regulation pursuant to the § 3 Solar Provision.

Plaintiffs filed Case 1 on September 25, 2012, naming the Town of Hatfield (the “Town”) and the owner of the Property, Szawlowski Realty, Inc. (“Szawlowski”) as Defendants. The Town filed an answer on October 15, 2013, seeking dismissal of Plaintiffs’ request for declaratory judgment. [Note 3] Szawlowski filed an answer on October 23, 2012, asserting the following affirmative defenses: failure to state a claim for which relief can be granted, lack of standing and subject matter jurisdiction, failure to name a necessary party, ripeness, and failure to exhaust all administrative remedies. Hatfield Solar was allowed to intervene in Case 1 on November 5, 2012, and answered the Complaint, asserting the same affirmative defenses as Szawlowski, except the failure to exhaust administrative remedies. Plaintiffs filed their Complaint in Case 2 on March 22, 2013, after the Board denied their administrative appeal of the building permit for the solar collection panels. [Note 4] The two cases were consolidated on April 29, 2013.

On May 23, 2013, Hatfield Solar moved for summary judgment in Case 1, that the installation of solar panels for the collection of energy is a use which must be allowed by right in the Rural Residential District pursuant to the § 3 Solar Provision because it is not otherwise allowed in the Town of Hatfield. Hatfield Solar also moved for summary judgment in Plaintiffs’ Case 2, G.L. c. 40A, §17 appeal, that the Board’s correctly upheld the building permit because, in the absence of a use regulation specifically permitting the construction of the proposed solar collection facility anywhere in the Town, the § 3 Solar Provision exempts the use from prohibition in the RR District in which the facility would be located.

Plaintiffs have opposed Hatfield Solar’s motions for summary judgment, and have cross- moved for a summary judgment in Case 1 in its favor, declaring that Use 5.26 of the By-laws’ Table of Uses applies to the use proposed by Hatfield Solar, restricting it to the Industrial Districts only. They have also moved for partial summary judgment in Case 2, invalidating the Board’s decision. Plaintiffs take the position that Hatfield Solar’s proposed use is either a “Renewable or Alternative Energy Development Facility,” or a “Renewable or Alternative Energy Manufacturing Facility” under Use 5.26, and that Use 5.26 constitutes a reasonable regulation of the installation of solar energy collection facilities such as Hatfield Solar proposes, making Hatfield Solar’s project ineligible for exemption under the § 3 Solar Provision.

On October 30, 2013, a hearing was held on the Parties’ cross-motions. On November 13, 2013, after the Parties were given an opportunity to file supplemental briefing, the court took the cross-motions under advisement. [Note 5] Now, on the basis of the pleadings and other Rule 56 materials filed in this matter, I have determined that there are no material facts in dispute and that the Plaintiffs are entitled to summary judgment as a matter of law in Case 1 and to partial summary judgment in Count 1 of Case 2.

UNDISPUTED MATERIAL FACTS

Based upon the pleadings and other admissible Rule 56 materials, as well as the Parties’ oral representations at the summary judgment hearing, I find the following material facts are not in dispute:

1. Defendant Hatfield Solar, LLC (“Hatfield Solar”) is a duly organized and existing Massachusetts limited liability company with its principal office at 88 Black Falcon Avenue, Suite 342, in Boston.

2. Defendant Szawlowski Realty, Inc. (“Szawlowski”) is a duly organized and existing Massachusetts business corporation with a principal office at 103 Main Street in Hatfield.

3. Szawlowski is the record owner of the property located at 45 Chestnut Street in Hatfield (the “Property”). The Property consists of approximately 35.6 acres and is zoned Rural Residential (“RR”).

4. Szawlowski has leased the property to Hatfield Solar for the planned installation of 8,000 panels for the collection of solar energy, with an installed electric generating capacity of approximately 2400 kilowatts (2.4 megawatts) (the “Project”). The Project will generate electricity, which Hatfield intends to sell to utility companies on a “wholesale basis.” Hatfield Solar does not intend to provide or sell electricity directly to retail customers.

5. The Town of Hatfield Zoning By-laws (“By-laws”) Section 3.0, entitled “Use Regulations,” states that “[e]xcept as provided by law or in this By-law, no building or structure shall be erected, and no building, structure or land or part thereof shall be used for any purpose or in any manner other than one (1) or more of the uses hereinafter set forth as permitted by right, permitted by site plan review, or as permissible by special permit and so authorized. Any use not specifically permitted is prohibited.”

6. Section 3.0 of the By-laws includes a Table of Use Regulations (“Table 1”). According to Table 1, Use 5.26 is permitted by right, subject to “Site Plan Review – Administrative Review from the Planning Board,” in the Industrial Districts only. Use 5.26 includes the following: “Renewable or Alternative Energy Development Facilities, Renewable or Alternative Research and Development (R& D) Facilities, or Renewable or Alternative Energy Manufacturing Facilities including for the manufacture and/or assembly of equipment for Solar, Thermal, Solar Photovoltaic, Hydro Electric and Wind Generation.”

7. Use 5.26 was added to the By-laws by vote of the Hatfield Annual Town Meeting on May 11, 2010.

8. On October 24, 2012, the Hatfield Building Inspector issued building permit No. 2012-2914 (the “Building Permit”) for construction of the Project on the Property.

9. On November 16, 2012, Plaintiffs appealed to the Board from the issuance of the Building Permit. [Note 6]

10. On February 20, 2013, the Board denied the appeal and upheld the issuance of the Building Permit to Hatfield Solar (“Decision”). The Decision states, in relevant part, that Plaintiffs “allege that the project is not permitted in a Rural Residential District under Use 5.26 of the Hatfield Zoning [By-laws] and further allege that the zoning protection for solar energy systems pursuant to [G. L. c. 40A, § 3, ¶ 9] is not applicable to this project and seek the revocation of the Building Permit.” The Board voted, following discussion, “to deny the appeal of the [Plaintiffs] and to uphold the issuance of the Building Permit by the Building Inspector.”

11. On March 5, 2013, the Board amended the Decision, by adding the following language: “[t]he reason for denial is that based on its legislative history and plain language, [Use] 5.26 of the Hatfield Zoning [By-laws] is not applicable to the construction contemplated under the building permit. Moreover, the language of G. L. c. 40A, § 3 exempts solar collection panels that are the subject of this building permit.”

DISCUSSION

Pursuant to Mass. R. Civ. P. 56(c), summary judgment is appropriate when there are no genuine issues of material fact and, viewing the evidence in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law. Opara v. Mass. Mut. Life Ins. Co., 441 Mass. 539 , 544 (2004); Attorney General v. Bailey, 386 Mass. 367 , 370- 71 (1982) (citations omitted). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue of fact and that the record entitles them to judgment as a matter of law. Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706 , 711 (1991). Evidence submitted is viewed in the light most favorable to the non-moving party. Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). When the court is faced with cross-motions, as is the situation here, it analyzes the parties' legal positions guided by which party has the burden on the issues before the court. Each moving party bears the burden of affirmatively demonstrating the absence of triable issues of fact and its entitlement to judgment as a matter of law. Lev v. Beverly Enter.–Massachusetts, Inc., 457 Mass. 234 , 237 (2010). Here, the undisputed material facts are sufficient to entitle the Plaintiffs to judgment as a matter of law on both the Case 1, G.L. c. 240, § 14A claim and the Case 2, G.L. c. 40A, § 17appeal.

I. The Project is a Permitted Use under the By-laws.

Section 3.0 of the By-laws addresses the uses allowed in each of the Town’s zoning districts. Section 3.0 includes a Table of Use Regulations (Table 1). Table 1 lists six broad categories of uses. Under each of the broad categories, there are specific uses listed by number. For each of the numbered uses, Table 1 denotes those districts in which the use is allowed by right, allowed by special permit, or allowed by right with site plan approval. Section 3.0 provides that that any use “not specifically permitted” under this By-law “is prohibited.”

One of the broad categories of uses in Table 1 is “Wholesale, Transportation and Industrial Uses.” Use 5.26, which falls under said category, includes the following: “Renewable or Alternative Energy Development Facilities, Renewable or Alternative Research and Development (R& D) Facilities, or Renewable or Alternative Energy Manufacturing Facilities including for the manufacture and/or assembly of equipment for Solar, Thermal, Solar Photovoltaic, Hydro Electric and Wind Generation.” According to Table 1, the Use 5.26 facilities are permitted by right, subject to administrative site plan review, only in the Industrial Districts of the Town, and are prohibited in all other districts.

It is undisputed that the Hatfield Solar Project is a facility for the collection of solar energy for the purpose of generating electricity, which Hatfield will then sell to wholesalers. As such, it falls within the first category of facilities listed under Use 5.26 – “Renewable or Alternative Energy Development Facilities.” The By-laws do not define “Renewable or Alternative Energy Development Facilities.” Nor do they define the separate terms “renewable or alternative energy” and “development facility.”

In the absence of an express definition of a word or phrase in the bylaw itself, however, the court looks to “ordinary principles of statutory construction.” Eastern Point, LLC v. Zoning Bd. of Appeals, 74 Mass. App. Ct. 481 , 486 (2009), citing Framingham Clinic Inc. v. Bd. of Appeals of Framingham, 382 Mass. 283 , 290 (1981). Under those rules, undefined words are given their “usual and accepted meanings, as long as these meanings are consistent with their statutory purpose.” Eastern Point, LLC, 74 Mass. App. Ct. at 386, citing Commonwealth v. Zone Book, Inc., 372 Mass. 366 , 369 (1977). Meanings are derived from sources presumably known to the statute’s enactors, such as other legal contexts and dictionary definitions. Zone Book, Inc., 372 Mass. at 369. The undefined term at issue should be construed together with any associated words or phrases within the statutory context. Bldg. Comm’r of Franklin v. Dispatch Commc’ns of New England, Inc., 48 Mass. App. Ct. 709 , 717-718 (2000). When interpreting a zoning by-law or ordinance, technical words and phrases, or ones that may have acquired a “peculiar and appropriate meaning in law,” are construed according to such meaning. G. L. c. 4, § 6, ¶ 3.

When necessary, courts may also turn to the General Laws and other legislation in order to assign meaning to undefined terms, because the interpretation of provisions using identical language must be uniform. Bldg. Inspector of Mansfield v. Curvin, 22 Mass. App. Ct. 401 , 403 (1986). Courts interpreting other provisions in G. L. c. 40A, § 3 (“§ 3”) have consistently relied on statutes pertaining to matters outside the zoning context in order to determine the scope of uses protected by § 3. When interpreting the § 3, ¶ 1 exemption for agricultural uses, for example, the Appeals Court looked to the provisions of G. L. c. 61A, concerning the assessment and taxation of agricultural land, to determine whether the raising and selling of horses constituted “agriculture” under § 3. Bateman v. Bd. of Appeals of Georgetown, 56 Mass. App. Ct. 236 , 243 (2002); Steege v. Bd. of Appeals of Stow, 26 Mass. App. Ct. 970 , 971 (1988). Similarly, the Supreme Judicial Court relied on decisions addressing the tax exemption statutes when construing the § 3 educational use exemption. See, e.g., Regis College v. Town of Weston, 462 Mass. 280 , 290 n.12 (2012) (and cases cited). The process is identical when faced with alleged zoning restrictions of religious institutions, with the court free to investigate other sources in order to determine whether the § 3 exemption for religious uses applies. See Needham Pastoral Counseling Ctr., Inc. v. Bd. of Appeals of Needham, 29 Mass. App. Ct. 31 , 45 (1990) (stating other legal contexts and definitions are helpful, and relying on federal and state case law, legal treatises and articles in an attempt to define religious activity).

Here, Plaintiffs offer a compelling argument that “alternative energy development,” is a technical term already defined by statute. In particular, § 1 of G. L. c. 164, the statute governing the manufacture and sale of gas and electricity, defines “alternative energy development” as including, but not limited to, “solar energy, wind, wood, alcohol, hydroelectric, biomass energy systems, renewable non-depletable and recyclable energy sources.” [Emphasis added.] This definition was added in 2008. See 2008 Mass. Acts c. 169. In the same 2008 legislative act, the identical definition of “alternative energy development” was added to G. L. c. 25A, § 3, and G.L. c. 25A, § 10(c) was amended to list the qualifications necessary for a municipality to qualify for “green” community funding, providing that “[t]o qualify as a green community, a municipality or other local government body shall . . . provide for the as-of-right siting of renewable or alternative energy generating facilities, renewable or alternative energy research and development facilities, or renewable or alternative energy manufacturing facilities in designated locations [.]” Notably, the three types of renewable or alternative energy facilities which a municipality must allow in order to qualify as a green community under the 2008 legislation generally match the three types of renewable or alternative energy facilities listed under Use 5.26 as allowed by right in the Industrial Districts. [Note 7]

Use 5.26 was added to the By-Laws in 2010, two years after the definitions of “alternative energy development” and the green community requirements were added to G. L. c. 25A and G.L. c. 164. Thus, the drafters of the Use 5.26 amendment, and the Town Meeting adopting said amendment, were presumably aware of the statutory language adopted in 2008. See Zone Book, Inc., 372 Mass. at 369 (a word’s accepted meaning may be drawn from sources presumably known to a statute’s enactors).

The legislative history of the Use 5.26 amendment also implies an intent to conform the Use 5.26 list of facilities to include all three types described in G.L. c. 164, § 10 for green community qualification. The text of the Use 5.26 amendment originally proposed at a Planning Board hearing on April 12, 2010 listed only two types of facilities: “Alternative Energy Research and Development Facilities and/or Manufacturing Facilities including for the manufacture of equipment . . . .” However, the final form of the amendment enacted on May 11, 2010 included the third and separate “Renewable or Alternative Energy Development Facilities” category, and also revised the titles of the other two facilities to include “renewable” ? indicating a deliberate intent to include all three types of facilities described in c. 164, including solar energy generating facilities like the Project. Hatfield Solar has offered no contrary legislative history relating to the Use 5.26 amendment.

Further, the court must, if possible, construe by-laws so as to maintain their validity. Shea v. Town of Danvers, 21 Mass. App. Ct. 996 , 997 (1986), citing Doliner v. Town Clerk of Millis, 343 Mass. 10 , 15 (1961). As noted above, Section 3.0 of the By-laws provides that “any use not specifically permitted is prohibited.” In light of the strictures of the § 3 Solar Provision, and where the By-laws do not otherwise expressly permit solar energy facilities, construing Use 5.26 to include the Project under “Renewable or Alternative Energy Development Facilities” avoids a potential conflict with the § 3 Solar Provision. See Fordham v. Butera, 450 Mass. 42 , 44 (2007) (citations omitted) (stating that every presumption is to be made in favor of a bylaw, and its enforcement is not to be refused unless it conflicts beyond a reasonable doubt with an enabling act or the Constitution); Wilson v. Town of Sherborn, 3 Mass. App. Ct. 237 , 240 (1975);

Hatfield Solar argues in its summary judgment motion that its Project does not fall under any category listed under Use 5.26 because it does not involve manufacturing or development of equipment. I reject Hatfield Solar’s assertion that Use 5.26 includes only facilities that manufacture or develop solar panels— i.e. the equipment to be used as part of the Project— but does not include a facility which collects solar energy using those panels. To support its argument, Hatfield Solar asks this court to read the clause “including for the manufacture and/or assembly of equipment for Solar, Thermal, Solar Photovoltaic, Hydro Electric and Wind Generation” as modifying all three of the facilities described under Use 5.26. However, this interpretation is contrary to the well-established rules of statutory construction [Note 8] that a modifying clause generally refers to the last antecedent, unless the subject matter or dominant purpose of the statute requires a different interpretation. Selectmen of Topsfield v. State Racing Comm’n, 324 Mass. 309 , 312 (1949). The use of the word “or” is disjunctive “unless the context and main purpose of all the words demand otherwise.” Miller v. Miller, 448 Mass. 320 , 329 (2009) (citations omitted).

Here, the three different types of renewable or alternative energy facilities listed under Use 5.26 are separated both by commas and by use of the conjunction “or.” And there is nothing in the By-laws to suggest that use of the word “or” should not be treated as disjunctive. Thus, each listed facility must be treated as separate and distinct from the others. Moreover, there is nothing in the By-laws to suggest that the final modifying clause, “including the manufacture and/or assembly of equipment for Solar, Thermal, Solar Photovoltaic, Hydro Electric and Wind Generation” should be applied to more than the immediately preceding facility – “Renewable or Alternative Energy Manufacturing Facilities.” [Note 9]

For the reasons stated, I find that the Plaintiffs are entitled to summary judgment in Case 1, declaring that pursuant to the By-laws, Section 3, Table 1, Use 5.26, Hatfield Solar’s proposed solar panel collection facility is permitted by right, with administrative site plan review, in the Industrial and Light Industrial Districts, and prohibited in all other districts of the Town, including the RR District in which the Property is located.

2. The Board’s Decision was Based on an Incorrect Interpretation of Use 5.26.

Under G. L. c. 40A, § 17, a zoning board’s decision will not be overturned unless it is “based on a legally untenable ground or is unreasonable, whimsical, capricious or arbitrary.” Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003), citing MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970). Here, for the reasons discussed at length in the preceding paragraphs, the Board based its Decision on an incorrect interpretation of Use 5.26. Therefore, the Decision must be annulled.

The Board’s initial Decision, dated February 25, 2013, simply states that the Board voted “to deny the appeal and to uphold the issuance of the Building Permit by the Building Inspector.” On March 5, 2013, the Decision was amended, adding that “[t]he reason for denial is that based on its legislative history and plain language, [Use] 5.26 of the Hatfield Zoning [By-law] is not applicable to the construction contemplated under the building permit. Moreover, the language of G. L. c. 40A, § 3 exempts solar collection panels that are the subject of this building permit.”

Massachusetts General Laws, Chapter 40A, § 3, ¶ 9 (referred to herein as the “§ 3 Solar Provision”) states, in relevant part, that “[n]o zoning ordinance or bylaw 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.”

The § 3 Solar Provision does not provide the blanket exemption suggested by the Board’s finding. Under the statutory language, a municipality may reasonably regulate solar energy systems, but cannot prohibit them outright. As discussed above, this court has determined that the Project falls under the first of the three types of facilities listed under Use 5.26 (i.e., a “Renewable or Alternative Energy Development Facility”) which, pursuant to Table 1 of the By- laws, is allowed by right with administrative site plan review in the Industrial Districts of the Town, although prohibited in all other districts, including the RR District in which the Property is located. Thus, to the extent that the Project may be classified as a type of “solar energy system” [Note 10] or a structure that facilitates the collection of solar energy, addressed under the § 3 Solar Provision, then an exemption under such Provision would be implicated only if it can be demonstrated that restricting solar energy systems only to the Industrial Districts is an “unreasonable” regulation, and that such a regulation is not necessary to protect the public health and welfare.

The reasonableness of a regulation depends on the particular facts of each case, and factors that may be considered include whether a regulation substantially diminishes or detracts from a proposed project’s usefulness, or imposes an excessive cost that outweighs legitimate municipal concerns. Trustees of Tufts College v. Medford, 415 Mass. 753 , 757 (1993). Hatfield Solar bears the burden of proving the local bylaw is unreasonable as applied to its project. Rogers v. Town of Norfolk, 432 Mass. 374 , 383 (2000), citing Trustees of Tufts College, 415 Mass. at 757. However, Hatfield Solar has not addressed this issue, [Note 11] and it was apparently not considered by the Board.

Generally, the party claiming an exemption from a statutory provision carries the burden to prove that it is entitled to the exemption. Goodrow v. Lane Bryant, 432 Mass. 165 , 170 (2000); see also New England Forestry Found. v. Bd. of Assessors of Hawley, 468 Mass. 138 , 148 (2014) (tax exemption); Trustees of Tufts College v. Medford, 415 Mass. at 763 (agricultural exemption under G. L. c. 40A, § 3). Hatfield Solar, as the party claiming that its Project is exempt from operation of the By-laws pursuant to G. L. c. 40A, § 3, ¶ 9, has failed to carry its burden on summary judgment.

Therefore, and in light of my decision in Case 1, I find that the Board’s Decision upholding the issuance of the Building Permit is based on the legally incorrect premise that the Project is not regulated under Use 5.26 and is consequently exempt from zoning regulation by the § 3 Solar Provision. The Plaintiffs are, therefore, entitled to summary judgment under Count I in Case 2, annulling the Board’s Decision. The matter is remanded to the Board for further proceedings consistent with this Decision.

Final Judgment shall not enter at this time, as there remain unresolved claims in Case 2 of the Consolidated cases. Within fourteen (14) days of this Decision, counsel shall contact Sessions Clerk Kathleen Hayes to schedule a status conference. Counsel should confer with each other to arrive at several, mutually acceptable alternative conference dates before contacting the Sessions Clerk.