MISC 16-000385

May 2, 2017

Plymouth, ss.



In this two-count complaint, Plaintiff sought to challenge a proposed solar project (Project) owned by Renewable Energy Development Partners, LLC (REDP), which has been permitted by the Plymouth Building Inspector. Plaintiff had requested the Building Inspector enforce the Bylaw, and issue a cease and desist order against REDP, which he declined to do. Plaintiff did not appeal the Building Inspector's decision to the Plymouth Board of Appeals (Board) within thirty days, as required under sections 8, and 15, of G. L c. 40A (The Zoning Act). Instead, Plaintiff initiated this action, seeking relief under G. L. c. 40A, § 17, in Count I, and declaratory relief under G. L. c. 231A, in Count II. In defense of his failure to appeal the Building Inspector's action, Plaintiff asserts, among other things, that he is excused from exhausting the Zoning Act's administrative remedies before seeking judicial review because such attempts would be futile in this case. During the summary judgment hearing, Plaintiff assented to the dismissal of his G. L. c. 40A, § 17 claim set forth Count I, leaving only Plaintiff's request for declaratory relief for determination in this summary judgment decision. This court concludes on the record that the court lacks jurisdiction because Plaintiff failed to exhaust his administrative remedies.

At issue in Plaintiff's declaratory judgment count is the Building Inspector's interpretation of G. L. c. 40A, § 3, paragraph 9, read in conjunction with the Bylaw. The statute provides "[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." The Building Inspector determined that the Plymouth Bylaw makes no express provision for solar energy systems. The form of the Bylaw is prohibitive, meaning that uses which are not specifically allowed are deemed prohibited. Because the Solar Project is not a use specifically mentioned in the Bylaw, the Building Inspector concluded that it is prohibited. He further concluded that the Bylaw's prohibition of such use violates G. L. c. 40A, § 3, and therefore he approved REDP's application for its Project. Plaintiff's position is that the Building Inspector's interpretation is flawed because REDP's Project falls within the category of uses allowed in a Light Industrial (LI) district, therefore there is no outright ban in the Town of Plymouth and G. L. c. 40A, § 3 is not violated.

By agreement of the parties, the case is before the court on cross-motions for summary judgment, incorporating all aspects of a Motion to Dismiss filed by REDP. [Note 1] The record includes the Bylaw; affidavits of Margaret Sheehan, Esq., Plaintiff's counsel; Plaintiff Gene LaFond and Ms. Sharl Heller, on behalf of Plaintiff; and affidavits of Kate Moran Carter, Esq., and Thomas Melehan, on behalf of REDP, and the exhibits attached to the parties' motions and affidavits.

The following material facts are not in dispute. [Note 2]

The Parties

1. Defendant Renewable Energy Development Partners, LLC (REDP) is a Massachusetts- based project development company that specializes in the distributed generation renewable energy market. REDP has experience permitting and developing solar projects on both private and municipal land. Thomas Melehan is REDP's managing director. Plaintiff is an abutter to the proposed Project site.

The Project

2. The Project is located on land that is zoned Rural Residential (RR). Both the project site and Plaintiff's property are located within the RR district of the Bylaw.

3. The Director of Inspectional Services (DIS) issued certain zoning permits to REDP for the Solar Project, comprising multiple solar arrays with a generating capacity. The Project will involve the collection of solar energy for electricity generation.

The 2012 Permits

4. The Building Inspector issued two permits: Zoning Permit #Z20120251 on March 29, 2012, and #Z20120153 on March 8, 2012 (2012 Zoning Permits).

a. #Z20120251 approved the installation of "152,500 sq. ft. of solar panels and related access road, pads, equipment, lights and fence, subject to attached Planning letter dated 2/14/12 and Public Works letter dated 2/28/12." This permit was for Lot 57A as shown on the Site Plan filed with the application.

b. #Z20120153 approved the installation of "39,670 sq. ft. of solar panels and related access road, pads, equipment, lights and fence, subject to attached Planning letter dated 2/14/12 and Public Works letter dated 2/28/12." This permit was for Lot 47B as shown on the Site Plan.

The 2016 Permits

5. The Building Inspector issued two permits: Zoning Permit #Z20160256 on March 8, 2016, and #Z20160275, on March 11, 2016 (2016 Zoning Permits). [Note 3]

a. #Z20160256 approved the construction of "a solar panel array 4055 solar pv panels groundmounted at 1.27 MW, access road, pads, equipment and fence, [subject] to Site Plan review from Planning [d]ated 2/14/12, DPW comments dated 2/18/16 and Fire [Dept.] comments dated 2/19/16." This permit is for Lot 59-2 and was a new permit.

b. #Z20160275 approved the construction of "4,522 PV Solar panels at 1.4 MW ground mounted array, equipments, pads and fence; subject to Site Plan Review [d]ated 2/14/12; DPW comments dated 2/18/16 and Fire [Dept.] comments dated 2/19/16." This permit was an amendment to the permit for Lot 57A issued in 2012.

Requests for Enforcement

6. Plaintiff's counsel sent a letter, dated May 19, 2016, to the Building Inspector, the Chair of the Board of Selectmen and the Planning Director requesting an enforcement action and stop work order "regarding [REDP's] Industrial Solar Facility, Off Herring Pond Road, Plymouth." The letter stated, in part, "[t]he Town appears to be under the wrongful impression that G. L. c. 40A, Section 3, exempts solar facilities from local zoning. It does not. The Renewable Energy Development project that is now underway is governed by the Zoning Bylaw yet the Town has failed to enforce the Bylaw, inventing a hybrid approval process and only required a ‘site plan review.'"

7. In a letter dated May 26, 2016, Plaintiff's counsel requested the Building Inspector "put the Town and [REDP] on notice that [Plaintiff] intends to pursue all legal options to stop work on the [Project]." This letter referenced the May 19, 2016 letter requesting enforcement "with regard to this project" and the Building Inspector's failure to "issue a stop work order to prevent further environmental destruction and zoning violations while the dispute . . . is resolved." Counsel further stated that Plaintiff intended to "appeal [the] denial to the [Zoning Board] as provided by the Bylaw and G. L. c. 40A and to thereby exhaust our administrative remedies."

8. In a letter dated May 31, 2016, the Building Inspector denied Plaintiff's request for enforcement, stating "[t]he zoning permits comply with [G. L. c. 40A, section 3] and Plymouth Zoning Bylaw section 205-1. ‘No zoning ordinance or bylaw shall prohibit or unreasonably regulate the installation of solar energy systems.'"

9. On July 8, 2016, Plaintiff's counsel sent another letter to the Building Inspector, requesting an enforcement action regarding the "Renewable Energy Development Partners LLC Industrial Solar Facility, 144R Herring Pond Road, Plymouth." The letter stated the Building Inspector had "failed to respond in writing to the May 19, 2016 request for enforcement and stop work order in this matter as required by G. L. c. 40A, section 7."

10. In response, Town Counsel emailed Plaintiff's counsel on July 29, 2016, explaining "[the Building Inspector] responded to [the] May 19, 2016 request for zoning enforcement with respect to Renewable Energy Partners, no further response is required with respect to [the] duplicative request of July 8, 2016."

Unrelated Proposed Solar Projects in Plymouth

11. Since the Town's approval of the Project, it has approved several other solar projects, with approximately 29 MW of the projects located in residentially-zoned areas.

12. On July 18, 2016, the Building Inspector denied a request for enforcement submitted by Plaintiff's counsel on behalf of a third party unrelated to Plaintiff and not a party to this lawsuit. The request pertained to a particular proposed solar array project at 59 Kristin Road in Plymouth. The Building Inspector denied the request, stating, "[t]he zoning permit complies with [G. L. c. 40A, § 3] and [Bylaw] Section 205-1. ‘No zoning ordinance or bylaw shall prohibit or unreasonably regulate the installation of solar energy systems.'"

* * * * *

"Rule 56(c) of the Massachusetts Rules of Civil Procedure . . . provides that a judge shall grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 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 it 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). The court may treat a motion to dismiss for lack of subject matter jurisdiction as one for summary judgment when considering matters outside the pleadings. Bell v. Zoning Bd. of Appeals, 429 Mass. 551 , 555 (1999).

I. G. L. c. 231A

Plaintiff argues this court has jurisdiction under G. L. c. 231A. REDP counters that, because Plaintiff failed to exhaust his administrative remedies under the Zoning Act he is barred from now seeking declaratory relief.

G. L. c. 231A provides, in relevant part,

[t]he supreme judicial court, the superior court, the land court . . . within their respective jurisdictions, may on appropriate proceedings make binding declarations of right, duty, status and other legal relations sought thereby, either before or after a breach or violation thereof has occurred in any case in which an actual controversy has arisen and is specifically set forth in the pleadings and whether any consequential judgment or relief is or could be claimed at law or in equity or not; and such proceeding shall not be open to objection on the ground that a merely declaratory judgment or decree is sough thereby and such declaration, when made, shall have the force and effect of a final judgment or degree and be reviewable as such . . . .

The purpose of this statute is to "afford a plaintiff relief from uncertainty and insecurity with respect to rights, duties, status and other legal relations. [It] ‘is to be liberally construed and administered.'" Nelson v. Comm'r of Corr., 390 Mass. 379 , 388 (1983) (citations omitted).

a. Exhaustion of Administrative Remedies

On May 19, 2016, Plaintiff submitted a request for a zoning enforcement action and stop work order to the Building Inspector. The Building Inspector denied that request on May 31, 2016. Under G. L. c. 40A, § 8, "[a]n appeal to the permit granting authority . . . may be taken by any person aggrieved by reason of his inability to obtain a permit or enforcement action from any administrative officer[.]" The Board is the permit granting authority in Plymouth. Under G. L. c. 40A, § 15, an appeal to the Board must be taken within thirty days from the date of the order or decision being appealed. Therefore, following the Building Inspector's denial, the next step in the administrative process was an appeal to the Board not later than June 30, 2016.

"The general rule . . . is that, if administrative action ‘may afford the plaintiffs some relief, or may affect the scope or character of judicial relief, exhaustion of the possibilities [of such administrative action] should ordinarily precede independent action in the courts.'" Clark & Clark Hotel Corp. v. Bldg. Inspector of Falmouth, 20 Mass. App. Ct. 206 , 209 (1985), citing Nelson v. Blue Shield of Massachusetts, Inc., 377 Mass. 746 , 752 (1979). Plaintiff failed to appeal the Building Inspector's denial of enforcement to the Board and exhaust all administrative remedies. Accordingly, he may not now seek the same relief by recasting his claim as a declaratory judgment action.

Plaintiff's c. 231A claim under Count II attempts to circumvent his failure to appeal the Building Inspector's refusal to issue a stop work order. A request for declaratory relief "does not operate to suspend the ordinary requirement that a plaintiff exhaust his administrative remedies before seeking judicial relief. While c. 231A was intended as remedial legislation giving a party a new and additional procedure for resolving controversies, there is no indication that it was intended as an automatic substitute for administrative proceedings." East Chop Tennis Club v. Massachusetts Comm'n Against Discrimination, 364 Mass. 444 , 450–451 (1973) (citations omitted); Clark & Clark Hotel, 20 Mass. App. Ct. at 212.

In defense of his decision to forego an appeal to the Board, Plaintiff argues his claim falls within one of the exceptions to the exhaustion doctrine. G. L. c. 231A, § 3 provides "the failure to exhaust administrative relief prior to bringing an action under section one shall not bar the bringing of such action if the petition for declaratory relief is accompanied by an affidavit stating that the practice or procedure set forth pursuant to section two is known to exist by the agency or official therein described and that reliance on administrative relief would be futile." [Note 4] Plaintiff argues that the Building Inspector and the Board have established a practice of exempting solar projects, like the one at issue here, from their prohibition in residentially-zoned districts. He characterizes this practice as "consistently repeated," demonstrated by the Building Inspector's denial of Plaintiff's requests for enforcement as to REDP's Project, and alleged denials for requests for enforcement against other unrelated solar projects in the Town. [Note 5] Secondly, Plaintiff argues any appeal to the Board would be futile because a final administrative decision would have taken months to reach, at which time the Project would become a "fait accompli."

Exceptions to the exhaustion doctrine are narrowly applied. Allowing a plaintiff to pursue declaratory relief to avoid administrative remedies risks substituting the court, rather than the administrative agency, as fact-finder. See Gallo v. Div. of Water Pollution Control, 374 Mass. 278 , 288 (1978) (stating that bypassing the administrative appeal procedure risks frustrating the "comprehensive and uniform statutory scheme"). The Board is the appropriate body to interpret its own Bylaw, in accordance with G. L. c. 40A, § 3, and is accorded deference due to its "special knowledge" of the bylaw's history and purpose. Wendy's Old Fashioned Hamburgers of New York, Inc. v. Bd. of Appeal of Billerica, 454 Mass. 374 , 381 (2009). Zoning boards often are required to interpret the interaction between local regulations and the Commonwealth's statutes, specifically G. L. c. 40A, § 3, which is required here. See, e.g., Regis College v. Town of Weston, 462 Mass. 280 (2012); Martin v. Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, 434 Mass. 141 (2001). Plaintiff's failure to appeal to the Board deprived it of reviewing the Building Inspector's determination and providing a decision informed by the Board's local knowledge and expertise, actions falling well within its jurisdiction. [Note 6] Also, the remedies set forth in the Zoning Act are expressly meant to be exclusive.

Plaintiff has failed to demonstrate the Building Inspector's denial of enforcement constitutes a "practice . . . known to exist by the agency or official" that would render any appeal futile. The record before the court shows that the Building Inspector issued one denial of Plaintiff's May 19, 2016 request for enforcement, on May 31, 2016. While Plaintiff characterizes its subsequent letters, one submitted on May 26th, and one submitted on July 8, 2016, as separate new requests for enforcement actions, all three letters pertain to the same Project. Plaintiff's July 8, 2016 letter appears to acknowledge this, stating the Building Inspector had "failed to respond in writing to the May 19, 2016 request for enforcement and stop work order in this matter as required by G. L. c. 40A, section 7" (italics added). The July 8, 2016 letter does not constitute a second, unrelated request for enforcement.

The permitting of unrelated solar projects also does not demonstrate any practice or pattern by the Board that would effectively justify forgoing an appeal due to futility. Plaintiff cannot support its claim that an appeal to the Board is futile based on decisions rendered by the Building Inspector. [Note 7] Plaintiff had the opportunity to appeal the Building Inspector's denial issued on May 31, 2016. He was not denied an administrative appeal, but instead simply chose not to pursue one. See Athol Mem'l Hosp. v. Comm'r of Div. of Med. Assistance, 437 Mass. 417 , 425 (2002). Plaintiff is unable to now sidestep that choice by repackaging it pursuant to G. L. c. 231A. [Note 8]

II. Conclusion

"Ordinarily, when a party brings a declaratory judgment action pursuant to G. L. c. 231A, the rights of the parties should be declared . . . . However, where the court lacks jurisdiction to make a declaration of rights, the correct disposition of the case is dismissal of the complaint." Iodice v. Newton, 397 Mass. 329 , 335 (1986); see also Colangelo v. Bd. of Appeals, 407 Mass. 242 , 247 (1990) (stating one cannot avoid the requirements of G. L. c. 40A, § 17, by framing a challenge as a request for declaratory judgment). Plaintiff did not exhaust his administrative remedies before seeking judicial review, therefore this court lacks jurisdiction. [Note 9]

For the foregoing reasons, Plaintiff's motion for summary judgment is DENIED. Defendant REDP's motion for summary judgment is ALLOWED, and Count II of Plaintiff's complaint will be DISMISSED. Since Plaintiff previously waived his claim under G. L. c. 40A, s. 17, the entire complaint will be dismissed.

Judgment to enter accordingly.


[Note 1] The municipal defendants joined in REDP's motion to dismiss.

[Note 2] Plaintiff and REDP each submitted a statement of material facts as well as responses to the other's submissions. Because Plaintiff withdrew Count I during oral argument and after the case had been fully briefed, many facts presented by the parties are no longer material to the remaining count, and therefore are not set forth above. Some undisputed facts are set forth for context.

[Note 3] A zoning permit is apparently a prerequisite to a building permit under the Plymouth Bylaw.

[Note 4] Plaintiff did not submit affidavits with his unverified Complaint and Prayer for Declaratory Judgment and Injunctive Relief, filed July 13, 2016. The Complaint alleged in paragraph 39 that "[e]xhaustion of administrative remedies is not [a] viable option, would be futile and would not provide an adequate remedy because the Town's unlawful legal position on this issue has become entrenched over the past two years." Several affidavits were attached to Plaintiff's motion for a temporary restraining order and preliminary injunction, filed July 20, 2016, and supplemented with additional filings on July 28, 2016, and August 3, 2016, which did not specifically address the issue of futility or the Board's known practices and procedures.

Plaintiff's supplement filed August 3, 2016, states the Town effectively "foreclosed all further avenues for exhaustion . . . by informing [Plaintiff's counsel] that the [Building Inspector] would not respond to Plaintiff's July 8, 2016 request for enforcement . . ." and that this "arbitrary and legally unfounded refusal to respond . . . has foreclosed the Plaintiff's ability for administrative appeal to the [Board], depriving Plaintiff of the opportunity to exhaust administrative remedies." Additional affidavits are attached from Plaintiff's counsel, Gene LaFond and Sharl Heller.

[Note 5] The parties in their statement of material facts could agree only that, following the Building Inspector's approval for the Project in this case, several other solar projects have been approved, some within residentially- zoned areas. The parties did not agree as to the specific number of projects. The court has included facts regarding unrelated projects solely for the context of Plaintiff's legal position with respect to his claim of futility.

[Note 6] Plaintiff's argument that the time required for the Board to render a decision on any appeal supports his futility argument because the Project would be complete is unavailing. Plaintiff had the opportunity to request preliminary injunctive relief and did so, albeit unsuccessfully. The fact that a party may lawfully proceed with and potentially complete work (at its risk) under a permit approved by the Building Inspector pending the appeal process does not constitute futility under G. L. c. 231A, § 3. The futility exception applies when the "power or authority of the agency [itself is] in question, and not where the exercise of that agency's discretion is challenged." Ciszerski v. Industrial Acc. Bd., 367 Mass. 135 , 141 (1975). The Board has the authority to interpret its own Bylaw in the first instance.

[Note 7] Plaintiff also has not pointed to decisions or actions taken by the Board that demonstrate any appeal to the Board would have been futile.

[Note 8] G. L. c. 231A will not rescue a plaintiff who failed to comply with the time standards required under G. L. c. 40A. Cappuccio v. Zoning Bd. of Appeals of Spencer, 398 Mass. 304 , 314 (1986).

[Note 9] Having determined Plaintiff failed to exhaust his administrative remedies, the court does not reach the merits of his declaratory judgment action with respect to the Building Inspector's interpretation of the Bylaw.