MISC 16-000054

October 18, 2017

Middlesex, ss.




The sole issue remaining in this case is whether the town of Shirley (the "Town") violated Article 97 of the Amendments to the Massachusetts Constitution ("art. 97") by leasing certain town-owned land for use as a solar-powered electricity generation facility. This case commenced as an appeal under G. L. c. 40A, § 17, of the January 11, 2016 decision of the Shirley Zoning Board of Appeals (the "ZBA") denying a petition that sought to set aside the Shirley Planning Board's (the "Planning Board") November 9, 2015 decision granting site plan approval to SolarCity Corporation ("SolarCity") for construction of a solar panel facility (the "Project") on a portion of the Town's land at 21 Rear Patterson Road (the "Property"). [Note 2] SolarCity has since leased a portion of the Property (the "Project Site") from the Town for the Project. The plaintiffs are residents of the Town who, in addition to their now-abandoned zoning appeal, allege that the Town acquired the Property for purposes protected by art. 97 and, therefore, the Town was required to obtain a two-thirds vote in the Massachusetts Legislature to lease the Project Site to SolarCity. [Note 3]

In the sole remaining count of their complaint, Count IV, the plaintiffs seek a declaration, pursuant to G. L. c. 231A, §§ 1 and 2, that the ZBA's decision to deny their petition, thereby approving the site plan for the Project and authorizing the disposition of the public's rights in the Property, exceeded the ZBA's authority and violated art. 97. [Note 4] SolarCity and the ZBA (collectively the "defendants") have moved for partial summary judgment on Count IV, and the plaintiffs have filed a cross-motion for summary judgment as to that count. [Note 5], [Note 6] For the reasons stated below, I find and rule that the Property is not subject to art. 97.


The material undisputed facts pertinent to these cross-motions for summary judgment are as follows:

1. A vote taken on Article 4 of the October 3, 1988 Shirley Special Town Meeting ("Article 4") authorized the Board of Selectmen to exchange land with J&A Realty Trust (the "Vote"). [Note 7] Specifically, the Vote identified the Property as one of two parcels of land the Town was to acquire and described the Property as containing 11.62 acres of land, "which parcel shall be used by the Town for protection of water resources and other compatable [sic] purposes, including conservation and recreation . . . ."

2. Pursuant to the Vote, the Town acquired the Property from John T. Bresnahan, Jr., Trustee of J&A Realty Trust, by deed dated August 20, 1990, and recorded with the Middlesex South District Registry of Deeds in Book 2086, Page 284 (the "Deed"). [Note 8]

3. The Deed provides that the Property "is being conveyed to the Town of Shirley for purposes of protection of water resources and other compatible purposes including conservation and recreation as approved and authorized by the voters of the Town of Shirley . . . ."

4. The Property lies in a Rural Residential ("RR") zoning district and also in a Water Supply and Wellhead Protection overlay district ("Water Protection District") under the Shirley Protective Zoning Bylaws (the "Bylaw"). The Bylaw provides in Section 2.8 that as between an underlying zoning district and a zoning overlay district, the more restrictive district regulations shall apply. In an RR district, "public utility" is a use allowed by special permit (Section 3.1.1.c.5); in a Water Protection District, "[n]ecessary public utilities designed so as to prevent contamination of groundwater" is a use allowed as a matter of right, but certain increases in impermeable area require the issuance of a special permit by the Planning Board.

5. On October 1, 2015, the Massachusetts Department of Environmental Protection (the "DEP") Drinking Water Program issued an approval letter for the Project, subject to five conditions enumerated in the letter. [Note 9]

6. SolarCity applied to the Planning Board for site plan approval and for a special permit pursuant to Section 4.13 of the Bylaw, governing special permits in the Water Protection District, in connection with the Project. The Planning Board issued a decision dated October 28, 2015, and filed with the Town Clerk on November 9, 2015, granting approval of the site plan, and issuing a special permit authorizing SolarCity to construct and operate a "solar energy generating facility using photovoltaic solar panels installed on ground-mounted racks" at the Project Site, with the facility to be leased to SolarCity or its designee (expected to be National Grid), for a period not to exceed 20 years. [Note 10]

7. The plaintiffs appealed the site plan approval decision, but not the special permit approval, to the ZBA. The ZBA issued a decision, filed with the Town Clerk on January 11, 2016, denying the appeal.

8. The Town has leased the Project Site to SolarCity.


Standard of Review

"Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law." Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643-644 (2002); Mass. R. Civ. P. 56 (c). "The moving party bears the burden of affirmatively showing that there is no triable issue of fact." Ng Bros. Constr., supra, 436 Mass. at 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney Gen. v. Bailey, 386 Mass. 367 , 371, cert. denied, 459 U.S. 970 (1982). Bare assertions and conclusions regarding a party's understandings, beliefs, and assumptions are not sufficient to withstand a well-pleaded motion for summary judgment. Key Capital Corp. v. M & S Liquidating Corp., 27 Mass. App. Ct. 721 , 728 (1989), rev. denied, 406 Mass. 1101 (1989). Whether a fact is material or not is determined by the substantive law, and "an adverse party may not manufacture disputes by conclusory factual assertions." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros. Constr., supra, 436 Mass. at 648. When appropriate, summary judgment may be entered against the moving party and may be limited to certain issues. Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56 (c).

Article 97

Article 97 provides, in relevant part:

"The people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment; and the protection of the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a public purpose.


Lands and easements taken or acquired for such purposes shall not be used for other purposes or otherwise disposed of except by laws enacted by a two thirds vote, taken by yeas and nays, of each branch of the general court." (Emphasis added.)

The rights recognized and protected by art. 97 include "the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources." Mahajan v. Department of Envtl. Protection, 464 Mass. 604 , 612 (2013). In Mahajan, the Supreme Judicial Court ("SJC") provided the standard for determining the applicability of art. 97, stating: "[t]he critical question to be answered is not whether the use of the land incidentally serves purposes consistent with art. 97, or whether the land displays some attributes of art. 97 land, but whether the land was taken for those purposes, or subsequent to the taking was designated for those purposes in a manner sufficient to invoke the protection of art. 97." Id. at 615. See Smith v. Westfield, 478 Mass. 49 , 56 (2017). Land that is protected by art. 97 cannot be disposed of without a two-thirds vote of both branches of the Legislature. See Mahajan v. Department of Envtl. Protection, supra, 464 Mass. at 611.

Even where land was taken for purposes included within the protection of art. 97, where those purposes were not the overarching purpose of the acquisition, or were only incidental to a non-art. 97 use for which the land was also taken or dedicated, or where the land was taken for more than one use, including a use or uses not protected by art. 97, then the requirements of art. 97 for a vote of the Legislature to approve a change in use will not apply. In Mahajan, the Boston Redevelopment Authority ("BRA") took property on Long Wharf by eminent domain as part of the 1964 Downtown Waterfront-Faneuil Hall urban renewal plan. 464 Mass. at 606-607. The urban renewal plan provided that its basic goal was to eliminate blight, deterioration, and obsolescence, among other purposes. Id. Of the urban renewal plan's fifteen specified objectives, one was for the provision of "public ways, parks and plazas" and the design principles included "establish[ing] an orderly sequence and hierarchy of open spaces and views," and "establish[ing] a relationship between buildings, open spaces and public ways." Id. at 617-618. In 2008, the DEP granted the BRA a waterways license pursuant to G. L. c. 91, for the BRA's plan to redevelop part of Long Wharf to accommodate a restaurant. Id. at 609-610. Residents of Boston's North End neighborhood appealed the DEP's decision, arguing that the land was subject to art. 97 and that the DEP could not grant a license to the BRA without a two-thirds vote of the Legislature. Id. at 610-611.

The SJC determined that, although the urban renewal plan included goals that were similar to art. 97 purposes, the overarching purpose of the urban renewal plan was distinct from art. 97. Mahajan v. Department of Envtl. Protection, supra, 464 Mass. at 612. In reaching that conclusion, the SJC discussed the prior public use doctrine, stating "the spirit of art. 97 is derived from the related doctrine of 'prior public use.'" Id. at 616. Under the prior public use doctrine, "public lands devoted to one public use cannot be diverted to another inconsistent public use without plain and explicit legislation authorizing the diversion." Id., quoting Robbins v. Department of Pub. Works, 355 Mass. 328 , 330 (1969). But, crucially to the present action, the SJC emphasized that the doctrine only applies "to those lands which are in fact 'devoted to one public use.'" Mahajan v. Department of Envtl. Protection, supra, 464 Mass. at 616 (citations omitted).

The Deed

The Town took title to the Property pursuant to the Deed, which provided that the land was conveyed to the Town "for purposes of protection of water resources and other compatible purposes including conservation and recreation . . . ." Based on this language, the plaintiffs contend that the Property was acquired for a purpose identified in art. 97 and therefore cannot be used for purposes inconsistent with art. 97, or otherwise disposed of without the requisite legislative vote. The defendants counter that the language does not designate the Property solely for purposes protected by art. 97 and that the term "other compatible purposes" opens the door to uses that do not fall under art. 97, as long as they are consistent with protection of water resources.

While "protection of water resources" is unquestionably an art. 97 protected purpose, it is not apparent that "other compatible purposes" must also be art. 97 uses. To determine whether uses that are compatible with water protection can only be other uses that are independently protected by art. 97, it is useful to examine the requirements of the Water Protection District described in § 4.13 of the Bylaw. Section 4.13.1 provides that the purpose of the Water Protection District is "to protect, preserve, and maintain present and potential sources of groundwater supply within the Town for public health, safety, and welfare." The Water Protection District allows uses such as: outdoor recreation, including boating, hunting, and fishing; paving of existing residential driveways; necessary public utilities designed so as to prevent contamination of groundwater; residential development; and, with a special permit, which SolarCity acquired here, expansion of "impermeable" area. See Bylaw § 4.13.4. Zone II of the Water Protection District, in which the Project Site is located, further allows, by special permit, commercial, industrial and institutional uses, and even allows "the handling and storage of toxic or hazardous materials in quantities greater than those associated with normal, one-family household use . . . ." Id. at § 4.13.4(e)(2), (e)(3).

Thus, a broad array of uses that do not themselves meet the purposes of art. 97, but which are not inconsistent with the water protection purposes for which the Property was acquired, are contemplated by the Town's own zoning bylaw as being compatible with protection of water resources in an overlay district designed to protect public wells. It is within this context that the meaning of the phrase "other compatible uses" in the Deed must be considered. While protecting water resources unquestionably constitutes an art. 97 purpose, the language in the Deed is not sufficient to invoke the protection of art. 97, where it provides for other uses that, while consistent with water protection, do not themselves fall under art. 97. See Nickolas v. Marlborough, 32 Mass. L. Rptr. 125 (2014) (Salinger, J.) (determining park land not subject to art. 97 where city took land for "a mix of uses, some of them within the scope of art. 97 and some not").

The plaintiffs argue as well that the phrase in the Deed, "for purposes of protection of water resources and other compatible purposes including conservation and recreation," further limits what might otherwise be a broader range of "compatible uses" to only those that are related to conservation and recreation. They characterize the Deed's language as "conservation-minded language." However, the use of the words "including conservation and recreation" to modify "compatible purposes" evinces the intent of the drafters of the Deed to provide examples of compatible uses, but not an exhaustive list. "The use of the word 'including' . . . indicates that the enumeration . . . in the section is not an all-inclusive list." Connerty v. Metropolitan Dist. Comm'n, 398 Mass. 140 , 149 n.8 (1986), citing 2A C. Sands, Sutherland Statutory Construction § 47.23, at 194 (4th ed. 1984) (holding all intentional torts meant to be excluded from coverage of Massachusetts Tort Claims Act, G. L. c 258, § 10 (c), despite list "including" only certain specified intentional torts). The word "include" is defined as "to take in or comprise as a part of a whole or group." Free Merriam-Webster Dictionary, at https://www.merriam- webster.com/dictionary/include, visited October 3, 2017. The phrase "including conservation and recreation" provides examples of compatible uses but does not restrict the land only to conservation or recreation as the only uses deemed compatible with the purpose of water protection. The Deed simply enumerates conservation and recreation as but two out of an array of possible uses that are compatible with protecting water resources. Affording the language the expansive meaning urged by the plaintiffs would restrict the potential uses of the Property in a manner not suggested by language in the Deed and in a manner that would be incompatible with the wide range of uses already deemed by the Town, in the Bylaw, to be consistent with the protection of water resources.

The plaintiffs also draw attention to the characteristics and attributes of the Property, including the presence of a stream designated as a coldwater habitat, a rare species habitat, and wetlands. The inquiry, however, is not whether the land "simply displays some attributes of art. 97 land generally," but whether the land was taken for those purposes. Mahajan v. Department of Envtl. Protection, supra, 464 Mass. at 614.

The SJC, describing the language of art. 97 as "imprecise," warned of the "practical consequences" that could result from an overly broad interpretation of art. 97. See Mahajan v. Department of Envtl. Protection, supra, 464 Mass. at 614 (discussing June 6, 1973, opinion of then Attorney General Robert Quinn interpreting art. 97). Here, the practical consequence of accepting the plaintiffs' proposed expansive view is that the Town would not be able to allow uses determined by the Town's own zoning bylaw to be compatible with protection of water resources if the Deed is interpreted to mean that the use of the Property is restricted solely to conservation purposes. The Deed's language "other compatible purposes," as with the water protection provisions of the Bylaw, is intended to give flexibility to the Town in utilizing the Property, while still protecting water resources.

To the extent that the plaintiffs argued at hearing that the Project is an industrial or commercial use, and prohibited within the RR district of the Bylaw, the Bylaw specifically allows uses in the RR district that are "otherwise exempt from zoning under M. G. L. c. 40A Section 3." Bylaw, § 3.1.1(a)(6). General Laws c. 40A, § 3, provides, in relevant part, that "[n]o 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." Here, the DEP's Drinking Water Program approved the Project, finding that it will not negatively impact the Town's drinking water. Accordingly, the plaintiffs cannot successfully object to the Project by asserting it is prohibited in the RR district, notwithstanding the voluntary dismissal of their zoning appeal counts, nor can they rely on any alleged failure to comply with the Bylaw as evidence that the use is incompatible with water protection.

As to the plaintiffs' assertion in their complaint that the Project Site is designated as conservation land on various plans and maps in a manner that might otherwise restrict it to art. 97 uses, the plaintiffs have not come forward with any evidence in support of that assertion. To defeat a motion for summary judgment, the opposing party cannot rely on bare assertions and conclusions. See Key Capital Corp. v. M & S Liquidating Corp., supra, 27 Mass. App. Ct. at 728.

The record before the court does not support the plaintiffs' position that the Property is protected by art. 97. Accordingly, the defendants are entitled to summary judgment on Count IV, the only remaining count of the complaint.


For the reasons stated above, the defendants' Motions for Partial Summary Judgment on Count IV are hereby ALLOWED and the plaintiffs' Cross-Motion for Summary Judgment on Count IV is DENIED.

Judgment will enter accordingly.


[Note 1] M. Adam Arakelian, Cynthia M. Furman, Daniel Furman, Suzanne Geeter, Heidi A. Korhonen, Matthew J. Korhonen, Frances L. Morong, and Tim Paulding have withdrawn as plaintiffs.

[Note 2] The site plan approval for the Project also encompasses land at 21 Patterson Road, which is owned by the Shirley Water District. The land at 21 Patterson Road is not germane to Count IV.

[Note 3] On September 21, 2017, the parties filed a Stipulation of Dismissal with Prejudice as to Counts I, II, and III, which made claims pursuant to G. L. c. 40A, § 17.

[Note 4] Count IV seeks declaratory relief as against the ZBA, notwithstanding the fact that the Town, and not the ZBA, is the entity that entered into the lease with SolarCity, and therefore would appear to be the proper defendant. Further, to the extent Count IV seeks relief essentially directing the ZBA to annul its decision affirming the Planning Board site plan approval, the plaintiffs' exclusive remedy was pursuant to G. L. c. 40, § 17, under which the plaintiffs have conceded that they are not aggrieved parties. As no party has raised this as an issue, and as it is an infirmity that would have been susceptible to a curative amendment, I will proceed to address Count IV on the merits.

[Note 5] The plaintiffs filed a motion to amend to add a new Count V to the complaint, seeking relief in the nature of mandamus, directed to the ZBA (and not the Town), with respect to the art. 97 issue. At the time of the hearing on the cross-motions for summary judgment, the motion had not been marked for hearing. The proposed amendment raises no new substantive issues with respect to the application of art. 97, does not change the result of the present decision, and is therefore futile. Accordingly, the motion has been denied.

[Note 6] The ZBA relies on SolarCity's submissions for its Motion for Partial Summary Judgment on Count IV.

[Note 7] SolarCity's Appendix in Support of its Motion for Partial Summary Judgment on Count IV ("SolarCity Appendix"), Exhibit 4.

[Note 8] SolarCity Appendix, Exhibit 5.

[Note 9] SolarCity's Appendix, Exhibit 6. Condition 2 states, "[t]he leases shall contain a prohibition against the application of road salt or other deicing chemicals on the access road." Id.

[Note 10] It is not clear from the ZBA decision, nor is it described anywhere else in the record, under which provision of Section 4.13 of the Bylaw it was determined that a special permit was required. It may well have been a special permit for increase in impervious area, but the specific special permit applied for and approved is not relevant to my decision, as the granting of the special permit was not appealed, the parties have stipulated to the dismissal of all zoning aspects of this action, and in any event, "[n]o zoning ordinance or bylaw shall prohibit or unreasonably regulate the installation of solar energy systems . . . ." G. L. c. 40A, § 3, 9th para.