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Solar Company Sues Shutesbury Over Zoning Bylaw

Local residents say keeping land forested is a better path to fighting climate change.

A map showing proposed solar siting between Montague Rd and Wendell Rd in Shutesbury. Screenshot: Sarah Robertson.

By Sarah Robertson

SHUTESBURY – A solar energy company, PureSky Energy, is suing the town of Shutesbury over zoning bylaws it claims are unreasonably restrictive and undermine the state’s renewable energy goals. W. D. Cowls, the local forestry business that plans to lease five parcels of forested land to the company for solar arrays, has been named as a plaintiff in the lawsuit, which claims the bylaws render the plan commercially unviable.

Shutesbury’s 2021 bylaws prohibit solar arrays larger than 15 acres, and place a number of restrictions on arrays larger than 1.5 acres. The company argues that these restrictions effectively block solar development on 99% of the town’s land.

“Ground-mounted solar systems are under extreme cost pressures and must reach a certain economy of scale in order to be profitable,” the complaint argues. “Primarily this is due to very high interconnection costs for these projects, which typically remain constant regardless of system size. A proposed solar project needs to be large enough to spread these costs out or the project will be uneconomic.”

Massachusetts’s official “road map” to decarbonize the electrical grid by 2050 calls for the development of 20 gigawatts (GW) of solar energy-generating capacity. PV Magazine reported last year that solar panels covered 7,900 acres of land in the state, half of which was clear-cut forest, amounting to 3 GW. 

“Cowls is fighting climate change. Not the town of Shutesbury,” W. D. Cowls president Cinda Jones wrote in an email to the Reporter. “Before climate-changemakers can justify investing more resources in Shutesbury solar project-planning, it must first be determined if the restrictive bylaw is legal.” 

The complaint, filed in land court in April, argues that Shutebury’s bylaws “unreasonably regulate commercial solar projects and do so without any reasonable basis grounded in public health, safety or welfare.”

On Monday night, the activist group Smart Solar Shutesbury hosted an online meeting to discuss the lawsuit and the proposed projects. Speakers shared their opposition to clear-cutting forests for solar arrays, concern that the projects could impact water quality and runoff, and frustration with the legal process. 

“This lawsuit undercuts and undermines our democratic processes, and threatens our health and safety,” said Sharon Weizenbaum. “We do need solar, but we need it sited in appropriate places. Sacrificing forestlands for solar is absolutely inappropriate.”

Weizenbaum said she joined the group, a chapter of Smart Solar Western Massachusetts, in response to the rapid development of solar facilities on forested land over the past decade. After the developer, then known as Amp Energy, began filing initial plans with Shutesbury’s conservation commission in 2019, Smart Solar members helped the town craft its bylaws regulating large-scale projects. 

The company’s proposed arrays near Carver Road, Leverett Road, and Pratt Corner would affect approximately 360 acres of forested land, according to documents filed with the con com.

The new bylaw allows “large-scale” projects, defined as any project between 1.5 and 15 acres, with restrictions. As the arrays would be on land zoned for “forest conservation” – as is most of Shutesbury –  and not in one of nine districts designated for solar development, they would also require a special permit from the planning board. 

The bylaw also disallows ground-mounted solar arrays on slopes steeper than a 15% grade, on unpaved roads, or on land designated by the state as “core habitat,” and bans the use of pesticides or herbicides. Companies must also permanently preserve four times as much land as they use for solar.

The lawsuit Amp Energy filed in April claims these restrictions have “no reasonable basis grounded in public health, safety or welfare.” (The company has since been acquired by two international asset management firms and rebranded as PureSky Energy.)

By the company’s assessment, the bylaws restrict solar development to 1.1% of the town’s land area, potentially in violation of MGL Ch. 40A §3, a state law known as the Dover Amendment.

The Dover Amendment, first enacted in 1950, prohibits local authorities from “unreasonably” regulating agricultural, religious, and educational developments using zoning laws. In 1985 it was expanded to cover “the installation of solar energy systems.”

“The Dover Amendment protects solar installation from NIMBY reactivity,” Jones said. “Because non-experts cannot comprehend that some solar in the woods is more beneficial than keeping every single tree, and nobody seemingly wants to share their view with solar panels.” 

“This law was written in 1985 before the concept of large-scale solar existed,” Weizenbaum said.  “Industrial solar companies and large landowners now abuse it to apply legal force to push their agenda on small communities.”

The amendment was central to the state Supreme Judicial Court’s ruling last year in the case Tracer Lane II Realty, LLC v. City of Waltham. The court ruled in favor of a solar developer that wanted to build an access road through a residential neighborhood, stating that denying the project would impede the state’s legislative goal of promoting solar energy.

This goal – zero carbon emissions by 2050 – is driving electrification and solar development, according to Shutesbury’s state representative, Aaron Saunders. New England generated 11% of its energy from renewable sources in 2022, he said, after arduous years legislators spent fighting for solar and offshore wind.

The representative attended Monday’s meeting and thanked attendees who testified last week in favor of H.3230, a bill he has introduced that would change the Dover Amendment to allow towns to regulate solar facilities for the purpose of preserving “forested lands, agricultural lands, or wetlands.” 

“We need to do this in a way that is responsible,” Saunders said. “Clear-cutting our forests is maybe the least responsible way to add to our renewable energy portfolio.”

“There’s a reason that these issues are happening in communities like Shutesbury, and communities like Wendell,” he added, “and it is not because our municipal governments have millions upon millions of dollars in our legal defense funds…. The bylaw that Shutesbury adopted was, by a lot of standards, a light touch.”

Western Massachusetts legislators are behind five of at least 12 bills about solar energy development currently moving through the State House. Another bill Saunders has filed with state senator Jake Oliviera addresses the issue of state solar incentives resulting in the clear-cutting of forest by making ground-mounted arrays on Chapter 61 land and other important habitat ineligible for the subsidies.

Senator Jo Comerford and representative Natalie Blais have filed a bill to incentivize solar development on parking lots, and senator Paul Mark and representative Lindsay Sabadosa filed another to encourage solar siting on disturbed lands in lieu of forests.

“There are very generous subsidies for these types of developments, and there don’t have to be,” Saunders said. “We need to take those public funds and invest it in places where solar works… in rooftops, in parking lots, in our built environment. And there are plenty of these spaces right now.”

Jones disagrees with the assessment that the state’s solar energy goals can be met without clearing some forestland. “It doesn’t all fit on rooftops, median strips, and parking lots,” she told the Reporter. “Some solar has to go in forests. That’s the reality.”

“At the urging of Shutesbury town leaders, Cowls has conserved 84% of its timberland in Shutesbury and hopes to build green energy on less than 2%,” Jones said. “We are dedicated to making this world, this town, a better place and are confident that our green energy partnerships will combat climate change.”

“Cowls, Amp, and PureSky’s lawsuit is not only challenging our right to protect these woods, it’s attacking the democratic process on the local level,” Smart Solar Shutesbury member Jill Buchanan said on Monday. “These incredibly powerful and massive companies want to make as much money as they can, and the result will wreak havoc on our communities.”

The activists ended Monday’s event by requesting donations for a legal fund, either to be given to the town or to hire an independent attorney. The result of the lawsuit, they said, could set a precedent for how solar energy is governed statewide.

“With Shutesbury having this lawsuit, we’re looking at it in Amherst, talking about this bylaw,” said Amherst resident Renee Moss. “They’re saying ‘we don’t want to set a maximum [array size], because we’re afraid of being sued!’”

“To have the largest private landowner in Massachusetts ally with a very large multinational corporation, and force a town into this kind of legal battle with the asymmetry of resources, is wrong,” said Shutesbury resident Carols Fontes. “And it’s also wrong because the town made its opinion well known by voting for the solar bylaw.”

Some attendees at Monday’s meeting suggested residents boycott Cowls Building Supply, the retail store owned by Jones’s family.

“Amp Energy’s court action has nothing to do with the retail store, Cowls Building Supply, nor the livelihoods of the dozens of local residents employed there,” Jones wrote in response.

The Shutesbury con com has approved the solar company’s plans delineating wetlands and other natural resources on the five proposed sites. Chair Miriam DeFant told the Reporter that as of this week, no applications from PureSky or Cowls are pending before the committee. She declined to comment further on the proposed projects.

Representatives from PureSky Energy and Amp Energy did not respond to repeated requests for comment by press time.

A version of this article was published in the Montague Reporter.

Sarah Robertson is an independent journalist living in western Mass.

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