-: Okay, Attorney Sewell.
-: Good morning, Your Honors.
I'm Bernadette D Sewell, I represent the City of Waltham
and William Forte.
This case is about the extent
to which a municipality can determine
where solar installations may be placed within
the confines of each municipality.
Section 3 of Chapter 40A states that no zoning ordinance
or bylaw shall prohibit, or unreasonably regulate
the installation of solar energy systems that facilitate
the collection of solar energy,
except when necessary to protect
the public health, safety, or welfare.
-: So tell me this, why is an access road
not a structure that facilitates the collection
of solar energy?
-: It's not defined.
If you look, in fact, at the brief that was filed by
the Appellees, they try to shoehorn an access road
into a facility that is permitted
for generating solar power.
-: So, let me ask the question again.
Why is an access road not a structure that facilitates
the collection of solar energy, after all,
the access road is helpful in getting
to the Lexington site,
in order to construct what, I think you can see,
there's a solar energy system which is for the collection
of solar energy.
So, why isn't the access road itself, a structure-
-: Because it's helpful.
Because it's not a structure.
-: And so, when you say an access road is not a structure,
what definition of structure are you looking to?
-: Your Honor, I started to say that the Appellees try
to shoehorn their-
-: But I don't really care what the Appellees say.
I would like to know what you say is inconsistent
with the word structure and an access road?
-: Because he talks about that facilitate
the collection of solar energy.
It's helpful, but it's not necessary.
It's certainly not necessary in the place where
the Appellees are trying to locate this particular one.
-: Where in Paragraph 9 are you finding
the word necessary?
-: Well, it says "The facilitate the collection
of solar energy."
-: Yeah, so what facilitate means helpful, right?
-: Helpful, yes. -: Okay.
So, isn't it helpful to get access to the Lexington site
in order to build a solar energy plant?
-: Yes. -: Okay.
-: But this particular route is not
the only access they could actually go
through the Lexington site.
-: No, but it can, I don't, that's not.
Well, I guess, yeah, explain to me why you think there needs
to be an only route in order for it to be a structure
that facilitates the collection of solar energy.
-: I'm sorry, there needs to be.
-: You're saying that the Waltham site needs to be
the only route in order for it to facilitate
the collection of solar energy in, no-
-: No, Your Honor-
-: So what is it that you're saying? (chuckles)
-: This is not the only route that they actually have
in order to access the Lexington site.
There is access by right, through Lexington
and also parts of Waltham,
where the two of them come together
and it's conservation land,
but they actually give the fact
that it's a solar installation.
They have an as of right access through that,
they have chosen not to take that route and instead,
have chosen to take the routes
of going through a residential area in Waltham.
And the only thing that they could point to was the fact
that there will be a small retaining wall
on this access road and that they say,
links it, or they try.
They don't out and out say it
because it's a difficult thing to do.
But otherwise, that access road isn't connected
to solar energy systems and the ability for those systems
to generate solar power.
-: Can you address, the Land Court Judge says
when you cut off 98% of the land in the town-
-: That, and I'm glad we've reached that.
-: Yes, okay.
-: It is simply untrue
that Waltham doesn't allow solar installations on 98%.
It simply is not true.
Waltham has-
-: So, that's a factual error by the Land Court Judge?
-: It absolutely is a factual error.
-: And that would- -: And-
-: Go ahead. -: And in fact,
the city in its motion for summary judgment,
provided the cause with all of the information,
but the Court didn't even mention it
and relied only on that 2% that
the Court investigated itself.
The 2% is the industrial zones in Waltham.
And what Waltham does is it says,
if you're going to have a solar installation
that is greater than one megawatt,
which is the equivalent of a power plant,
then we are going to restrict you to the industrial areas.
But Waltham allows in every other area in Waltham access-
-: Well, hold on, are they allowing
this little solar panels on the house?
Is that what you're saying?
Is that why they're not-
-: Even more than that, even more than that.
-: Why don't you be specific?
Because this is, the Land Court Judge says,
okay, I've looked at,
they wanna build this kind of plant
and only 2% only 2% is available.
Tell us why that's wrong and,
or at least divvy up the type of solar
that's possible here for us.
-: That's the problem with the Lower Court decision is
that there's no differentiation between the size
of the installation that Tracer Lane is looking for.
This is any other type of installation.
Yes, that's the size of the installation
that Tracer Lane wants to put in Lexington
and access to Waltham,
would only be in the industrial areas.
But that doesn't mean that the rest
of Waltham doesn't allow solar installations.
If you look at, in the appendix, that were submitted.
If you look at pages 189 to 261,
every one of those pages has lists
of every solar installation that Waltham has allowed.
-: But are those just-
-: Yeah, more than a thousand, at least-
-: But I mean, are we talking about
the little ones on houses, is that what we're talking about?
-: We're talking about everything.
We're talking about public buildings
and public buildings are generally large buildings.
Schools, commercial buildings, parking garages
that have above-ground structures
that allow solar installations on those.
You cannot go to any zone, any area of Waltham
without seeing solar installations.
They are just not as big as the installation
that Tracer Lane plans on installing in Lexington,
and through the residential area in Waltham
that it wants to go.
Waltham does not run afoul of Paragraph 9.
It doesn't prohibit any solar installations.
It reasonably regulates solar installations.
The large ones can go in the industrial areas.
Anything smaller than those larger ones,
if they're an accessory use,
meaning it's not that principal reason
for being at a particular location,
but accessory to the principal use,
then they are permitted everywhere.
-: Is that how we assess Section 3 cases
on a sort of citywide basis?
-: I'm sorry, could you say that again?
-: Can you give me an example of a Section 3 case
where we've assessed the reasonableness of a regulation
or a bylaw ordinance on a citywide basis
that is, take childcare.
I'm the City of Waltham,
and I have zoned childcare to the industrial zones
and you can have at it all childcare in
the industrial zones.
The residential zones, no.
Is that a reasonable regulation under Section 3?
Is that how we analyze it?
-: Okay, because those sections.
Those sections are different from Paragraph 9,
or those paragraphs are different from Paragraph 9.
Those are the paragraphs that
that come before Paragraph 9 deal with childcare centers,
schools, agricultural use, and so on.
They are all very much part of the community.
We want childcare centers.
We want schools, we want farmland within communities.
Section 9, and we don't allow anything other
than reasonable regulation and you can't prohibit them,
but with solar, there's more leeway for a municipality.
The language is different from the language of all
of the other paragraphs.
And it's not additional regulation that is granted
to municipalities that we definitely want to preserve.
And, which frankly, the Court-
-: Can I stop you, let's take agricultural, Paragraph 1.
How is that language different?
It says, "No ordinance or bylaw shall prohibit
or unreasonably regulate."
-: Well, that one is similar.
That one is similar. -: (chuckles) Okay, and so,
let's use that one since it is similar.
Is that done on a parcel by parcel basis or is that done
on a citywide basis?
That is I'm the City of Waltham
and I wanna say I'm gonna be consistent with Paragraph 1,
but you can't have, I don't know, horse barn,
unless it's in the industrial zone.
Is that how we analyze it?
-: Well, there are cases that have looked at
the agricultural paragraph,
based on the city or town itself.
If you wanted to put a horse barn in,
off Moody Street in Waltham,
which is part of a residential zone,
you might have a problem.
It's a very built-up area.
Where exactly would you put the horse barn?
But if you are talking about Western Massachusetts
or Central Massachusetts,
where you have residential zones
and plenty of space for a horse barn,
then prohibiting the horse barn
in Central Massachusetts might be unreasonable.
It wouldn't be unreasonable in Waltham
because Waltham is a much more built-up area.
-: Can you give me any legal authority where we've analyzed
the Section 3 cases on this citywide basis as opposed
to parcel by parcel?
-: Are there any cases like Tysoe?
-: Yeah. -: Well-
-: As you were saying, Waltham's got a reasonable plan,
right, overall, we don't prohibit solar and we allow this,
the plants in industrial zones.
That's totally reasonable and I'm not disagreeing with you,
but I'm wondering if
that's how we analyze Section 3 cases.
If you know of any examples in your extensive research
that you found, or you analyzed it on a citywide basis.
-: I don't have a case off the top of my head, Your Honor.
But the line of cases seem to look at both citywide
and parcel by parcel.
-: Hmm, what is that line of cases?
Can you give me just one?
-: Well, for example, the cases that have come through
the Land Court that have now resulted are coming up here.
There are two cases Tysoe and-
-: Right, but those cases are on review.
I'm trying to figure out any other Section 3 cases
where we do this that way.
And it's okay if you haven't found any,
but I wanted to ask, to give you the opportunity to tell me-
-: Well, I guess what I'd rather ask,
because I probably have the answer to that is
where we're going with this?
Why that is an issue when what we should be looking at here
is whether what Waltham is trying to do
is unreasonable under the circumstances, if we-
-: But for your argument, they're tied together.
Wait, wait, your argument sort of is, this is unreasonable.
This is a cul-de-sac and a quiet road.
And now you're gonna come through for however many months,
eight months with all these big trucks.
And it's not even for Waltham, it's for Lexington.
And by the way, we have plenty of solar.
Don't just look at the 2% commercial.
We have plenty of solar here.
So, this is unreasonable.
So, what would help that argument a lot
would be any suggestion that in Section 3 cases,
you look at the circumstances
of reasonableness by municipality.
-: Okay, you have to look at what the consequences
of a decision that would uphill the Land Court decision
in this case, might mean
for municipalities in Massachusetts.
If the Court upholds the Land Court and says,
"Waltham can't stop Tracer Lane
from using this residential lot as a through road."
Then what you're saying is that it's basically a free
for all, for solar installations.
I'm not saying that there shouldn't be solar installations
in every single town.
Obviously, we're all sensitive to the need
for solar installations, but there has to be some way for,
or there has to be authority in the municipality to say,
"When it's going to be as big as the one
that you are looking at, it has to be in this area.
Otherwise, you can have solar installations
all over the city,
but something that is that big has to be in a certain area.
And let me sort of follow through on what
the logical consequences of this Section-
-: Can I, but I wanna make sure I understand that.
Are you saying any one of these commercial enterprises?
I understand people put solar panels on their house
and you're saying some of the city buildings may have on top
of their garage, but if someone wants,
they're in the commercial solar panel business,
can they have a smaller commercial solar panel,
but is it just this number is, has to be in 2%,
but if they cut it down in half or three-quarters,
does that open up any more than 2%, or is any commercial?
Because I just wanna pin you down
any commercial solar panel restricted to 2%.
-: Anything of that size, one mega-
-: But that's not the,
I wanna do the commercial.
Anything that's not putting it on your house.
If someone wants to put,
they're in the solar panel business
and it's not putting on your house,
are they limited to 2% of Waltham?
Is the Land Court Judge right?
-: No, there are much bigger installations
that are not just what you would put on your house.
Does the Waltham ordinance specifically authorize that?
It does not because it allows for accessory use.
This is a principle use.
-: What is the definition of accessory use?
-: Accessory use is use-of-land building
or part of a building that is customarily incidental
and subordinate to the principal use of the premises.
-: Then it's clearly not commercial.
Then you have restricted it to 2%.
-: I'm sorry?
-: Then you have restricted it to 2%
because in order for it to be anything else,
it has to be meet this definition of accessory use,
which is subordinate to the primary use, right?
-: Your Honor, we have to look at more
than just what is happening in this case.
-: That's our job, okay.
-: Okay, (chuckles) well, Waltham does not have
a comprehensive solar energy ordinance.
We can't get past that,
but we do allow solar use, as I said,
but there are lots of communities that do have
those sorts of regulations in place.
And if the Land Court decision is upheld
and it's basically solar installations under Paragraph 9,
it can go anywhere.
-: They're saying the opposite.
There, it's a narrow decision.
It says, "Look, you guys, by limiting it
to 2% of your area are unreasonable."
That's all this decision says.
They're not saying, the Land Court's not saying
you can stick solar panels wherever you want.
It's just saying Waltham's made it impossible
for this to happen because it's restricted to 2%.
I thought the Land Court's decision is narrow.
-: No, Your Honor,
because the Land Court didn't even consider
the fact that Waltham does allow solar use-
-: The Land Court may have made a factual error that I don't,
but I can't judge that yet.
But the Land Court is not issuing a broad what
with the Land Court, at least my sense
of the holding was it's unreasonable
to restrict solar panels to 2% of your population,
2% of your geographic area.
-: But it's not just solar to 2%.
It's solar of that size.
That's what can only take place in the industrial area.
-: So, it's actually solar where it's its primary use.
The only solar allowed in Waltham is accessory use,
except for in 2% of the population, right?
That's if the Land Court Judge was more precise,
that's probably what he would've said, right?
-: Yes, and Your Honor, if someone wanted
to build half the size of an array in a commercial district
and Waltham said, no,
I think there'd be a pretty good chance
that that would be considered unreasonable.
The facts that we have in this case are not unreasonable
because what they want to do is to use a residential zone
for commercial purposes.
And the fact that they should not be able
to do that is a well-established principle.
-: But can they use any other zone?
Do you have zones besides industrial
and residential and Waltham?
-: Commercial, commercial.
We only have four single-family resident zones-
-: So, if they tried to build in a commercial zone
it would've been permitted or no?
-: That would probably be a different matter.
Would it be permitted as the ordinance stands now?
Possibly not.
Would there be a successful challenge to it?
I believe so,
because that possibly could be unreasonable.
-: Thank you, your time's up,
and I'm gonna move over to the other side.
-: Thank you. -: Thanks so much.
Okay, we have Attorney Fixler.
-: May I please the Court.
David Fixler, Tracer Lane II Realty, LLC.
I wanna focus immediately on the dominant two questions
that were being asked to the Appellant.
First of all, the test isn't what, walking around Waltham,
what installations maybe there?
The test is what does the Waltham's Zoning Code permit
and prohibit, and the Waltham Zoning Code,
they argue, "Well, you can be in Waltham.
Look, we allow it as an accessory use.
We allow it as a use variance."
But unfortunately for them, in Section 3.211,
which is their accessory use provision,
it only allows accessory uses
that don't include any activity that's prohibited under
the Waltham Zoning Code.
So, since solar arguably, under their argument,
our argument is it doesn't regulate solar at all.
Their table of use doesn't regulate solar.
And there's a clause in their zoning code that says,
"Unless the use is expressly permitted, it's prohibited,"
but putting that aside for a second,
even if you take their argument, it's only expressly.
It's only allowed arguably as a power station
and that's only an industrial zone.
So, the accessory use is actually illegal
because solar can only be used in the industrial zone.
Two, they say in their brief that, "Well, we get,
we allow for use variances,
but under G.L. c. 40A, Section 10,
you could only have a use variance if it's expressly stated
in the particular Municipality Zoning Code, and it's not.
And third, what's really going on with the rooftop
and the other solar that the Appellant is talking about,
that's just case by case ad hoc zoning regulation,
which, of course, is illegal
because there is no uniformity or standards.
Second to the question of,
are there any cases where they do it by municipality?
The answer is no, there are no Appellant and SJC cases.
Every single case that has analyzed Section 3 has said
that it's an allowed use,
it's as of right in all zoning districts,
and the analysis is then done
on a parcel by parcel site-specific basis-
-: Can I ask a question about that?
So, does that mean if Waltham had 50% of its area zone
for solar, would that make a difference for you?
Would that make it a better case for Waltham or no?
-: No, it would not.
It's an as of right use in all zoning districts,
it doesn't mean it's an as of right use
on every single parcel in a particular zoning district.
And there is no stopping a municipality under Paragraph 9
of the statute from reasonably regulating.
In fact, some municipalities do that.
They have narrowly tailored non-discretionary regulations
that have a direct nexus to the use.
They take into account the site-specific,
the topography, the surrounding built environment.
And that's how they regulate it.
But it's as of right in every zoning district.
And the reason is,
is because it's been placed in Section 3 by the legislature.
The legislature in enacting
the Solar Act in 1985 was prescient.
They, not only did the legislature say that it's important
for the Commonwealth to invest in
and promote renewable energy, such as solar,
they also foresaw
that citing solar energy systems could prove
to be challenging at the local level.
And therefore, stated that the use of the land
for such purpose is going to be protected
and exempt from zoning regulation,
which, of course, is the title for Section 3.
-: Now, taking that into account.
Taking into account that we're dealing
with the Dover Amendment.
If you have a circumstance like this,
where there's a residential road
and there's gonna be traffic for eight months,
does the circumstances here whether it was raised
or not raised, include concerns about protecting
the public health, safety, or welfare?
-: So, in fact, they, well, first of all,
there is no regulation and there's no zoning regulation
in Waltham to do that as applied test
because they just facially say it's barred.
If the question is if they had a zoning regulations,
a narrowly tailored one such as the one
that I just articulated, is that the question, Your Honor?
-: And in that circumstance, could the fact
that it's on a cul-de-sac in a residential area,
there's gonna be trucks for eight months
and then periodically with maintenance,
could that be considered under the actual language
of Section 3?
-: Well, it's the land, that access road is a protected use.
So, then the analysis would be on a site-specific basis.
Does that use, would that use impact health,
safety, and welfare?
But it would have to be exactly looking at
what you're doing there.
And there actually is a Land Court case
that's right on point on this, the Northbridge/McQuaid case,
which talks about an access road.
And you're looking at what is the use on that?
And the use here, there are minimal impacts.
It's the solar facility is a passive facility.
So, once the construction is finished,
there's not gonna be any real use.
And the construction itself isn't gonna take that long.
-: I'm confused, they couldn't pass a regulation
that said you can't have solar facilities
in residential areas,
but they can have them in commercial and industrial,
in a place that's got a significant percentage
of space devoted to commercial industrial?
I mean, it's a big deal to put one
of these things in a residential neighborhood.
-: So, I would answer that question in two ways, Your Honor.
First, the market is going to call inappropriate parcels.
With the real battle that's going-
-: No, I'm not buying that one.
-: Okay, then the next answer then is,
is that the answer is no because it's a protected use.
The way to go about the problem that you're-
-: You got to totally individualize the cases, because again,
this is a very experienced, knowledgeable Land Court Judge,
and in a big fight that they're having on the Land Court.
There really isn't the ability to take into account
the overall percentages.
I'm just surprised at that,
but we'll look for the cases, but-
-: That, but the reason for that, Your Honor,
is that it's an exempt use under Section 3, so, therefore-
-: But what does reasonable regulation mean then?
-: You have to take it on a case by case,
parcel by parcel basis.
-: Give us examples please,
of what would be under the Dover Amendment,
this reasonable regulation in this case.
-: Well, I think you could-
-: And I know you're arguing was per se in this case,
but help us flash this out.
What is a reasonable regulation for solar-
-: There could be reasonable dimensional regulations.
There could be setbacks, it could be screening, but the,
the regulation has to be narrowly tailored,
such that it can trigger a site-specific review instead
of a categorical upfront, banning the use entirely.
-: Would it include putting it at the tail-end
of a cul-de-sac to serve another town?
-: At that point, I get, you could,
but then you would have,
you could always challenge that on it as an applied basis.
But again, if you're looking at the use of the access road,
first of all, it is part of the solar system.
And so, you have to then look exactly
what is the real use of the land
that's gonna be impacted for that, but again-
-: But is there a benefit to Waltham from this project?
-: Well, yes. -: Apart from
the esoteric environmental?
-: (chuckles) But that is the benefit.
And that's where the legislature had-
-: The electricity code is owned by Lexington, correct?
-: But we have an existential challenge in this Commonwealth
and that's- -: I know.
I've read all that stuff,
but let me ask you something.
Is there a benefit to Waltham from this, apart from that?
-: Yes, I'm sorry, You honor,
but the benefit is that they are,
the whole Commonwealth is able to combat that.
And this is the reason why
the legislature put it as a protective use.
-: Maybe I shouldn't interrupt you just as
this (indistinct) question.
But even under the Dover Amendment provisions,
there still is reasonable regulation applied to this case.
What is reasonable regulation?
-: Well, reasonable regulation, well, we've already,
the record already reflects what our client is willing to do
for protocols to mitigate any kind of impacts.
There's going to be about 12,
the Land Court Judge found that the amount of trucks
that are going down the road is minimal.
We're gonna be sweeping every day and you can regulate
the use of the road there, but you can't prohibit it.
There are reasonable regulations that could be put in place,
but Waltham doesn't have any zoning regulations
that could do that because they categorically ban the use.
And I just wanna go back to my global point,
which is that's the reason why-
-: Let's read it again, it says,
"No zoning words or bylaws shall prohibit
or unreasonably regulate."
You're just saying the only thing they can do is put,
they have to permit it, but they can mitigate it.
They can require mitigation measures.
You're basically saying in your interpretation,
they can build it anywhere.
No matter, they have a right to build it anywhere,
as long as they mitigate the construction impacts.
-: Build what anywhere?
-: Your solar system as you'd refer to it?
-: Well, no, the solar system, again,
like many municipalities do,
there can be a narrowly tailored regulation
that talks about dimensional
that make that calls inappropriate parcels
from consideration, that's that.
That is what's happening in municipalities
that have adopted a narrowly tailored solar bylaw.
Look at Lexington, for example.
Lexington solar is as of right in every district subject
to site plan review,
and then they have different categories of that.
-: That's one reasonable regulation,
but could another one be, "Hey, we're a town
that has 25% residential and 75% commercial industrial.
We don't want you to put your solar panels
in our people's neighborhoods,
but you can build it anywhere in our commercial
or industrial area."
That's unreasonable? -: Yes, Your Honor, because-
-: Tell me which case says that,
because it would be useful for me to know the case
that says that's unreasonable.
-: Every Dover Amendment case says
that it's an as of right use in every district.
Then again, that doesn't mean it's an as of right use
on every parcel, which you can then reasonably regulate
on a parcel by parcel site-specific basis.
-: And in case, again, cases make,
that was brilliantly articulated.
Does a case say that you cannot do this
by the way we normally do.
In Dover cases, you cannot divide between residential
and commercial, you can only do it parcel by parcel.
So, it seems like it's a very nice articulation law.
If you have the case, I would love to read that.
-: Okay, well, there are no Appellate cases
that specifically say that for solar,
but the Land Court cases that every Land Court case
that has viewed has gotten this issue,
that's been confronted with this issue, because in Tysoe,
I had to do a Tysoe and Northbridge case
but the Appellant mentioned
the issue actually wasn't contested,
but in the Northbridge case,
the PLH versus East Long Metal case,
our case, every Land Court case that has dealt
with this issue where the issue is,
can you categorically upfront just exclude
certain zoning districts from a consideration?
The answer has been no because that violates
the Dover Amendment, and instead,
the analysis is it's on a site by site,
parcel by parcel basis.
And the reason is as the Land Court Judge has said
in these cases is that the Section 3 requires municipalities
to stand down and help the Commonwealth to do,
assist in this protected use.
The problem is the municipalities are not standing down.
If you look at the ASD case, which is cited in the briefs,
there is a case in an area where there's lots of land
and they have a solar bylaw that's actually narrowly tailed
to answer the questions.
That actually has, it checks off every bell and whistle
that you would need.
And then, what happened was the Planning Board said,
"Nah, we don't like this."
And so we're going to try and graft
on a special permit requirement in addition,
and the Land Court said, "No, you can't do that.
This is the problem."
And that's why it's in Section 3.
It's similar to the other uses in the sense
that it is a use that can be seen as unwelcome
at a local level and be discriminated against solely
because of the use of itself,
not on its compatibility with the land
and the way to regulate it,
so it's compatible with the particular neighborhoods
and such is to have regulations that do exactly that,
but that it doesn't prohibit it categorically upfront.
-: But, you know, we're trying
to discern a limiting principle here.
Because I completely agree with you that
the access road is a building or structure that facilitates
the collection of solar energy.
That seems pretty clear.
So that means that the area in which you could have
an impact is considerable in a municipality.
So, whether it's commercial or residential,
there has to be some, and I appreciate the Dover Amendment,
and you're right, they were oppression in 1985
to realize it'd be resistance,
but there still has to be a limiting principle
and an opportunity to be able to demonstrate
that there shouldn't be a placement in this particular area.
-: And, Your Honor, the way to do that is
through a regulation that takes into account
the specific surrounding-built neighborhood
and topography and things like that.
That's what these solar bylaws do if they're done properly.
So, it's not automatically prohibited
in any zoning district.
However, within the zoning district, there are sites.
The regulations allow a site-specific test.
-: So, if Waltham were ahead of this and justice was talking
about percentages, and it's only 2% here,
they were ahead of this and they had limitations
and they had 25% commercial availability for solar,
it might be a different case?
-: No, it would not be a different case in the sense of,
if you're asking, can there be a categorical
but does it matter whether it's 2%, 50%, 60%?
The answer to that is no.
The answer to the effect of your question is
if they had a regulation that was like some of the other,
like Lexington, or some of the other
that actually took into account the site-specific areas,
and the topography and things like that.
And had it, did it on a sliding scale
and had different categories, then the answer,
it could be that your use might not make it.
However, then you would still have the ability
to say on as an applied basis,
I still have the right to challenge that.
But what we have here-
-: But in this case, without the regulation
that you suggest they should have had, right,
we have to go by and I get your argument
that they're saying it categorically.
So that's why in your opinion, they lose.
But if it wasn't that way and say it was an access road,
and it was cutting through a preschool, right.
And something absurd like that,
which obviously is in this case, they could say,
this is the wrong place for an access road
to get to a solar farm, correct?
-: Well, so what happened here actually is
that they prohibited the road based
on a long-held zoning principle.
-: No, the commercial. -: Yeah, they had that.
You judge the parcel where the access is
because the principle is land
to which an access leads is an extension
the principal use of the land, where the access is.
And if that use is barred where
the access crew is constructed, therefore it's barred here.
That's actually how this came up.
They said, "Hey."
-: So, it doesn't matter in this case,
because it's categorical.
So, this isn't a case for a remand,
for them to come up with reasons they made their bed,
they said it's categorical.
-: That is correct, Your Honor,
there is no ability to remand
because there is no zoning regulation that's applicable
to this because they categorically excluded it.
-: What if they passed a zoning regulation next week,
too late?
-: It's too late for our case, yes.
-: Okay, because you know, they wouldn't necessarily know
(chuckles) that this was coming, right?
-: Well, I mean their neighboring town, Lexington did.
The statute's been around,
there are municipalities that are doing this
and that are making well Taylor Law.
Some, unfortunately, are barring
the use in residential areas that have 50-acre parcels-
-: But that's for another day,
when you bring the next case as
to the reasonableness, right? (chuckles)
-: Well, I don't, well, I don't, for our case,
our Judge did not actually categorically answered
the amicus question that you post
but he said under no circumstances,
can you categorical exclude 98% of the land
for me to consideration of solar facilities.
But the answer to the amicus question is no,
you have to be able to, it's a protected use.
It's an allowed as of right use in every zoning district.
That doesn't mean it's allowed as of right use
on every parcel.
And the AG brief puts out some regulations at the end.
So, their thoughts on what regulations could be,
there are some of the other amicus briefs do,
and it can be regulated.
This is not, there's not gonna be solar here, solar there.
It's going to be where it should be.
The problem is it's not being allowed
to go where it should be.
And the Commonwealth wants to promote solar
and it's doing everything it can under the SMART program,
but it has, it can't do everything
when it comes to sighting.
The only thing you can do on siting is to tell
the municipalities through the Dover Amendment,
this is a protected use, you have to stand back
and it can only be openly regulated
under certain circumstances on a site by site,
parcel by parcel basis.
-: Okay, thank you very much.