Solar developer sues Marion Planning Board

Jan 12, 2019

MARION — ZPT Energy Solutions, LLC, a solar power company that was denied a special permit to build an array at 78 Wareham Road, has appealed the denial with the Massachusetts Land Court.

On Dec. 28, George Kiritsy, ZPT’s attorney, notified the Planning Board the complaint. In the complaint, ZPT seeks to have the special permit denial overturned, a new special permit issued, and also wants a ruling that invalidates the bylaw.

On Oct. 5, the solar energy company applied for a special permit to build a solar farm on 18.7 acres of a 21.8 acre lot.

After public hearings on Nov. 5 and Dec. 3, which featured comments from a number of residents, the Planning Board voted against the permit saying the solar energy bylaw prohibits large-scale clearing for solar farms.

Although the bylaw does not define what constitutes large-scale clearing, most Planning Board members agreed that more than 18 acres was large-scale.

“The Planning Board deems the size of the project at a wooded site with a proposed clearing of 18.7 acres… to conflict with the exact purpose of the 230-16F bylaw to not alter residential neighborhoods by the substantial clearing of forested areas,” states the special permit and site plan decision issued by the Planning Board.

The decision also notes that the proposed clearing would consist of 86 percent of the total land space, which it refers to as “decidedly large”

In its complaint, ZPT Energy solutions notes that the large-scale argument is the only reason for the denial of the special permit and is not clearly defined.

“The Town of Marion Zoning Bylaw does not define ‘large-scale clearing of forested areas,’ ‘large-scale,’ ‘clearing’ or ‘forested.’ The Bylaws do not provide or establish any formula, example or rationale that would provide clarity to the terms,” the complaint states.

As a result, “determinations are made on a case by case basis [and] any proposed tree clearing operations can be the basis for denial of the Special Permit Application,” the complaint continues. 

Kiritsy also states in the complaint that the bylaws violate chapter 40A of Massachusetts General Law, which states which activities may not be governed by bylaws.    

Neither Kiritsy nor Planning Board Chair Will Saltonstall had any comment on the case. 

ZPT Energy Solutions and the Planning Board have a case management conference on Jan. 28 to attempt to settle some of the issues pre-trial.