WEBVTT
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Okay, Attorney Sewell.
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Good morning, Your Honors.
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I'm Bernadette D Sewell, I represent the City of Waltham
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and William Forte.
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This case is about the extent
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to which a municipality can determine
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where solar installations may be placed within
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the confines of each municipality.
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Section 3 of Chapter 40A states that no zoning ordinance
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or bylaw shall prohibit, or unreasonably regulate
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the installation of solar energy systems that facilitate
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the collection of solar energy,
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except when necessary to protect
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the public health, safety, or welfare.
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So tell me this, why is an access road
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not a structure that facilitates the collection
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of solar energy?
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It's not defined.
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If you look, in fact, at the brief that was filed by
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the Appellees, they try to shoehorn an access road
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into a facility that is permitted
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for generating solar power.
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So, let me ask the question again.
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Why is an access road not a structure that facilitates
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the collection of solar energy, after all,
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the access road is helpful in getting
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to the Lexington site,
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in order to construct what, I think you can see,
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there's a solar energy system which is for the collection
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of solar energy.
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So, why isn't the access road itself, a structure-
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Because it's helpful.
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Because it's not a structure.
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And so, when you say an access road is not a structure,
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what definition of structure are you looking to?
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Your Honor, I started to say that the Appellees try
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to shoehorn their-
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But I don't really care what the Appellees say.
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I would like to know what you say is inconsistent
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with the word structure and an access road?
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Because he talks about that facilitate
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the collection of solar energy.
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It's helpful, but it's not necessary.
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It's certainly not necessary in the place where
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the Appellees are trying to locate this particular one.
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Where in Paragraph 9 are you finding
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the word necessary?
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Well, it says "The facilitate the collection
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of solar energy."
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Yeah, so what facilitate means helpful, right?
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Helpful, yes.
Okay.
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So, isn't it helpful to get access to the Lexington site
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in order to build a solar energy plant?
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Yes.
Okay.
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But this particular route is not
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the only access they could actually go
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through the Lexington site.
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No, but it can, I don't, that's not.
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Well, I guess, yeah, explain to me why you think there needs
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to be an only route in order for it to be a structure
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that facilitates the collection of solar energy.
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I'm sorry, there needs to be.
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You're saying that the Waltham site needs to be
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the only route in order for it to facilitate
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the collection of solar energy in, no-
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No, Your Honor-
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So what is it that you're saying? (chuckles)
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This is not the only route that they actually have
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in order to access the Lexington site.
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There is access by right, through Lexington
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and also parts of Waltham,
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where the two of them come together
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and it's conservation land,
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but they actually give the fact
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that it's a solar installation.
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They have an as of right access through that,
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they have chosen not to take that route and instead,
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have chosen to take the routes
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of going through a residential area in Waltham.
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And the only thing that they could point to was the fact
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that there will be a small retaining wall
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on this access road and that they say,
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links it, or they try.
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They don't out and out say it
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because it's a difficult thing to do.
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But otherwise, that access road isn't connected
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to solar energy systems and the ability for those systems
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to generate solar power.
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Can you address, the Land Court Judge says
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when you cut off 98% of the land in the town-
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That, and I'm glad we've reached that.
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Yes, okay.
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It is simply untrue
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that Waltham doesn't allow solar installations on 98%.
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It simply is not true.
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Waltham has-
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So, that's a factual error by the Land Court Judge?
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It absolutely is a factual error.
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And that would-
And-
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Go ahead.
And in fact,
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the city in its motion for summary judgment,
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provided the cause with all of the information,
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but the Court didn't even mention it
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and relied only on that 2% that
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the Court investigated itself.
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The 2% is the industrial zones in Waltham.
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And what Waltham does is it says,
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if you're going to have a solar installation
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that is greater than one megawatt,
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which is the equivalent of a power plant,
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then we are going to restrict you to the industrial areas.
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But Waltham allows in every other area in Waltham access-
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Well, hold on, are they allowing
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this little solar panels on the house?
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Is that what you're saying?
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Is that why they're not-
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Even more than that, even more than that.
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Why don't you be specific?
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Because this is, the Land Court Judge says,
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okay, I've looked at,
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they wanna build this kind of plant
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and only 2% only 2% is available.
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Tell us why that's wrong and,
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or at least divvy up the type of solar
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that's possible here for us.
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That's the problem with the Lower Court decision is
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that there's no differentiation between the size
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of the installation that Tracer Lane is looking for.
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This is any other type of installation.
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Yes, that's the size of the installation
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that Tracer Lane wants to put in Lexington
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and access to Waltham,
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would only be in the industrial areas.
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But that doesn't mean that the rest
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of Waltham doesn't allow solar installations.
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If you look at, in the appendix, that were submitted.
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If you look at pages 189 to 261,
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every one of those pages has lists
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of every solar installation that Waltham has allowed.
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But are those just-
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Yeah, more than a thousand, at least-
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But I mean, are we talking about
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the little ones on houses, is that what we're talking about?
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We're talking about everything.
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We're talking about public buildings
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and public buildings are generally large buildings.
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Schools, commercial buildings, parking garages
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that have above-ground structures
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that allow solar installations on those.
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You cannot go to any zone, any area of Waltham
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without seeing solar installations.
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They are just not as big as the installation
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that Tracer Lane plans on installing in Lexington,
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and through the residential area in Waltham
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that it wants to go.
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Waltham does not run afoul of Paragraph 9.
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It doesn't prohibit any solar installations.
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It reasonably regulates solar installations.
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The large ones can go in the industrial areas.
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Anything smaller than those larger ones,
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if they're an accessory use,
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meaning it's not that principal reason
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for being at a particular location,
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but accessory to the principal use,
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then they are permitted everywhere.
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Is that how we assess Section 3 cases
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on a sort of citywide basis?
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I'm sorry, could you say that again?
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Can you give me an example of a Section 3 case
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where we've assessed the reasonableness of a regulation
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or a bylaw ordinance on a citywide basis
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that is, take childcare.
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I'm the City of Waltham,
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and I have zoned childcare to the industrial zones
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and you can have at it all childcare in
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the industrial zones.
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The residential zones, no.
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Is that a reasonable regulation under Section 3?
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Is that how we analyze it?
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Okay, because those sections.
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Those sections are different from Paragraph 9,
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or those paragraphs are different from Paragraph 9.
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Those are the paragraphs that
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that come before Paragraph 9 deal with childcare centers,
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schools, agricultural use, and so on.
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They are all very much part of the community.
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We want childcare centers.
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We want schools, we want farmland within communities.
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Section 9, and we don't allow anything other
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than reasonable regulation and you can't prohibit them,
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but with solar, there's more leeway for a municipality.
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The language is different from the language of all
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of the other paragraphs.
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And it's not additional regulation that is granted
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to municipalities that we definitely want to preserve.
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And, which frankly, the Court-
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Can I stop you, let's take agricultural, Paragraph 1.
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How is that language different?
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It says, "No ordinance or bylaw shall prohibit
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or unreasonably regulate."
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Well, that one is similar.
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That one is similar.
(chuckles) Okay, and so,
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let's use that one since it is similar.
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Is that done on a parcel by parcel basis or is that done
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on a citywide basis?
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That is I'm the City of Waltham
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and I wanna say I'm gonna be consistent with Paragraph 1,
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but you can't have, I don't know, horse barn,
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unless it's in the industrial zone.
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Is that how we analyze it?
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Well, there are cases that have looked at
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the agricultural paragraph,
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based on the city or town itself.
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If you wanted to put a horse barn in,
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off Moody Street in Waltham,
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which is part of a residential zone,
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you might have a problem.
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It's a very built-up area.
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Where exactly would you put the horse barn?
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But if you are talking about Western Massachusetts
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or Central Massachusetts,
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where you have residential zones
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and plenty of space for a horse barn,
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then prohibiting the horse barn
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in Central Massachusetts might be unreasonable.
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It wouldn't be unreasonable in Waltham
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because Waltham is a much more built-up area.
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Can you give me any legal authority where we've analyzed
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the Section 3 cases on this citywide basis as opposed
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to parcel by parcel?
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Are there any cases like Tysoe?
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Yeah.
Well-
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As you were saying, Waltham's got a reasonable plan,
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right, overall, we don't prohibit solar and we allow this,
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the plants in industrial zones.
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That's totally reasonable and I'm not disagreeing with you,
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but I'm wondering if
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that's how we analyze Section 3 cases.
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If you know of any examples in your extensive research
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that you found, or you analyzed it on a citywide basis.
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I don't have a case off the top of my head, Your Honor.
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But the line of cases seem to look at both citywide
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and parcel by parcel.
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Hmm, what is that line of cases?
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Can you give me just one?
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Well, for example, the cases that have come through
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the Land Court that have now resulted are coming up here.
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There are two cases Tysoe and-
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Right, but those cases are on review.
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I'm trying to figure out any other Section 3 cases
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where we do this that way.
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And it's okay if you haven't found any,
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but I wanted to ask, to give you the opportunity to tell me-
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Well, I guess what I'd rather ask,
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because I probably have the answer to that is
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where we're going with this?
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Why that is an issue when what we should be looking at here
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is whether what Waltham is trying to do
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is unreasonable under the circumstances, if we-
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But for your argument, they're tied together.
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Wait, wait, your argument sort of is, this is unreasonable.
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This is a cul-de-sac and a quiet road.
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And now you're gonna come through for however many months,
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eight months with all these big trucks.
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And it's not even for Waltham, it's for Lexington.
266
00:13:46.450 --> 00:13:49.100
And by the way, we have plenty of solar.
267
00:13:49.100 --> 00:13:52.300
Don't just look at the 2% commercial.
268
00:13:52.300 --> 00:13:53.520
We have plenty of solar here.
269
00:13:53.520 --> 00:13:55.090
So, this is unreasonable.
270
00:13:55.090 --> 00:13:59.350
So, what would help that argument a lot
271
00:13:59.350 --> 00:14:04.330
would be any suggestion that in Section 3 cases,
272
00:14:04.330 --> 00:14:08.180
you look at the circumstances
273
00:14:08.180 --> 00:14:11.593
of reasonableness by municipality.
274
00:14:13.110 --> 00:14:17.410
Okay, you have to look at what the consequences
275
00:14:17.410 --> 00:14:21.730
of a decision that would uphill the Land Court decision
276
00:14:21.730 --> 00:14:23.730
in this case, might mean
277
00:14:23.730 --> 00:14:27.080
for municipalities in Massachusetts.
278
00:14:27.080 --> 00:14:30.653
If the Court upholds the Land Court and says,
279
00:14:31.597 --> 00:14:34.920
"Waltham can't stop Tracer Lane
280
00:14:34.920 --> 00:14:39.920
from using this residential lot as a through road."
281
00:14:40.100 --> 00:14:43.090
Then what you're saying is that it's basically a free
282
00:14:43.090 --> 00:14:47.570
for all, for solar installations.
283
00:14:47.570 --> 00:14:49.940
I'm not saying that there shouldn't be solar installations
284
00:14:49.940 --> 00:14:51.480
in every single town.
285
00:14:51.480 --> 00:14:53.580
Obviously, we're all sensitive to the need
286
00:14:53.580 --> 00:14:58.580
for solar installations, but there has to be some way for,
287
00:14:59.040 --> 00:15:02.957
or there has to be authority in the municipality to say,
288
00:15:02.957 --> 00:15:04.740
"When it's going to be as big as the one
289
00:15:04.740 --> 00:15:08.540
that you are looking at, it has to be in this area.
290
00:15:08.540 --> 00:15:11.070
Otherwise, you can have solar installations
291
00:15:11.070 --> 00:15:12.360
all over the city,
292
00:15:12.360 --> 00:15:16.140
but something that is that big has to be in a certain area.
293
00:15:16.140 --> 00:15:18.940
And let me sort of follow through on what
294
00:15:18.940 --> 00:15:20.416
the logical consequences of this Section-
295
00:15:20.416 --> 00:15:24.300
Can I, but I wanna make sure I understand that.
296
00:15:24.300 --> 00:15:29.300
Are you saying any one of these commercial enterprises?
297
00:15:30.690 --> 00:15:33.540
I understand people put solar panels on their house
298
00:15:33.540 --> 00:15:37.530
and you're saying some of the city buildings may have on top
299
00:15:37.530 --> 00:15:40.100
of their garage, but if someone wants,
300
00:15:40.100 --> 00:15:43.363
they're in the commercial solar panel business,
301
00:15:44.720 --> 00:15:47.650
can they have a smaller commercial solar panel,
302
00:15:47.650 --> 00:15:51.070
but is it just this number is, has to be in 2%,
303
00:15:51.070 --> 00:15:55.280
but if they cut it down in half or three-quarters,
304
00:15:55.280 --> 00:16:00.280
does that open up any more than 2%, or is any commercial?
305
00:16:01.450 --> 00:16:03.010
Because I just wanna pin you down
306
00:16:03.010 --> 00:16:07.843
any commercial solar panel restricted to 2%.
307
00:16:09.390 --> 00:16:11.062
Anything of that size, one mega-
308
00:16:11.062 --> 00:16:13.230
But that's not the,
309
00:16:13.230 --> 00:16:14.795
I wanna do the commercial.
310
00:16:14.795 --> 00:16:17.970
Anything that's not putting it on your house.
311
00:16:17.970 --> 00:16:19.750
If someone wants to put,
312
00:16:19.750 --> 00:16:21.520
they're in the solar panel business
313
00:16:21.520 --> 00:16:23.490
and it's not putting on your house,
314
00:16:23.490 --> 00:16:25.850
are they limited to 2% of Waltham?
315
00:16:25.850 --> 00:16:27.530
Is the Land Court Judge right?
316
00:16:27.530 --> 00:16:30.040
No, there are much bigger installations
317
00:16:30.040 --> 00:16:32.670
that are not just what you would put on your house.
318
00:16:32.670 --> 00:16:36.840
Does the Waltham ordinance specifically authorize that?
319
00:16:36.840 --> 00:16:40.020
It does not because it allows for accessory use.
320
00:16:40.020 --> 00:16:40.886
This is a principle use.
321
00:16:40.886 --> 00:16:43.380
What is the definition of accessory use?
322
00:16:43.380 --> 00:16:46.790
Accessory use is use-of-land building
323
00:16:46.790 --> 00:16:50.400
or part of a building that is customarily incidental
324
00:16:50.400 --> 00:16:54.010
and subordinate to the principal use of the premises.
325
00:16:54.010 --> 00:16:56.000
Then it's clearly not commercial.
326
00:16:56.000 --> 00:16:59.060
Then you have restricted it to 2%.
327
00:16:59.060 --> 00:16:59.893
I'm sorry?
328
00:16:59.893 --> 00:17:01.790
Then you have restricted it to 2%
329
00:17:01.790 --> 00:17:04.683
because in order for it to be anything else,
330
00:17:06.564 --> 00:17:09.750
it has to be meet this definition of accessory use,
331
00:17:09.750 --> 00:17:12.313
which is subordinate to the primary use, right?
332
00:17:13.550 --> 00:17:15.950
Your Honor, we have to look at more
333
00:17:15.950 --> 00:17:19.180
than just what is happening in this case.
334
00:17:19.180 --> 00:17:20.580
That's our job, okay.
335
00:17:20.580 --> 00:17:23.830
Okay, (chuckles) well, Waltham does not have
336
00:17:23.830 --> 00:17:28.830
a comprehensive solar energy ordinance.
337
00:17:29.040 --> 00:17:31.130
We can't get past that,
338
00:17:31.130 --> 00:17:33.950
but we do allow solar use, as I said,
339
00:17:33.950 --> 00:17:36.550
but there are lots of communities that do have
340
00:17:36.550 --> 00:17:39.870
those sorts of regulations in place.
341
00:17:39.870 --> 00:17:42.740
And if the Land Court decision is upheld
342
00:17:42.740 --> 00:17:46.017
and it's basically solar installations under Paragraph 9,
343
00:17:46.017 --> 00:17:47.810
it can go anywhere.
344
00:17:47.810 --> 00:17:48.970
They're saying the opposite.
345
00:17:48.970 --> 00:17:50.680
There, it's a narrow decision.
346
00:17:50.680 --> 00:17:53.430
It says, "Look, you guys, by limiting it
347
00:17:53.430 --> 00:17:56.520
to 2% of your area are unreasonable."
348
00:17:56.520 --> 00:17:58.820
That's all this decision says.
349
00:17:58.820 --> 00:18:01.960
They're not saying, the Land Court's not saying
350
00:18:01.960 --> 00:18:04.780
you can stick solar panels wherever you want.
351
00:18:04.780 --> 00:18:07.310
It's just saying Waltham's made it impossible
352
00:18:07.310 --> 00:18:11.120
for this to happen because it's restricted to 2%.
353
00:18:11.120 --> 00:18:14.170
I thought the Land Court's decision is narrow.
354
00:18:14.170 --> 00:18:15.380
No, Your Honor,
355
00:18:15.380 --> 00:18:17.260
because the Land Court didn't even consider
356
00:18:17.260 --> 00:18:20.405
the fact that Waltham does allow solar use-
357
00:18:20.405 --> 00:18:23.820
The Land Court may have made a factual error that I don't,
358
00:18:23.820 --> 00:18:25.110
but I can't judge that yet.
359
00:18:25.110 --> 00:18:27.650
But the Land Court is not issuing a broad what
360
00:18:27.650 --> 00:18:29.310
with the Land Court, at least my sense
361
00:18:29.310 --> 00:18:31.400
of the holding was it's unreasonable
362
00:18:31.400 --> 00:18:36.400
to restrict solar panels to 2% of your population,
363
00:18:37.730 --> 00:18:39.687
2% of your geographic area.
364
00:18:39.687 --> 00:18:42.444
But it's not just solar to 2%.
365
00:18:42.444 --> 00:18:45.100
It's solar of that size.
366
00:18:45.100 --> 00:18:48.287
That's what can only take place in the industrial area.
367
00:18:48.287 --> 00:18:52.037
So, it's actually solar where it's its primary use.
368
00:18:52.037 --> 00:18:56.950
The only solar allowed in Waltham is accessory use,
369
00:18:56.950 --> 00:19:00.140
except for in 2% of the population, right?
370
00:19:00.140 --> 00:19:02.780
That's if the Land Court Judge was more precise,
371
00:19:02.780 --> 00:19:05.750
that's probably what he would've said, right?
372
00:19:05.750 --> 00:19:08.000
Yes, and Your Honor, if someone wanted
373
00:19:08.000 --> 00:19:12.010
to build half the size of an array in a commercial district
374
00:19:12.010 --> 00:19:13.390
and Waltham said, no,
375
00:19:13.390 --> 00:19:14.780
I think there'd be a pretty good chance
376
00:19:14.780 --> 00:19:17.460
that that would be considered unreasonable.
377
00:19:17.460 --> 00:19:21.040
The facts that we have in this case are not unreasonable
378
00:19:21.040 --> 00:19:24.870
because what they want to do is to use a residential zone
379
00:19:24.870 --> 00:19:26.700
for commercial purposes.
380
00:19:26.700 --> 00:19:30.200
And the fact that they should not be able
381
00:19:30.200 --> 00:19:33.010
to do that is a well-established principle.
382
00:19:33.010 --> 00:19:34.560
But can they use any other zone?
383
00:19:34.560 --> 00:19:36.760
Do you have zones besides industrial
384
00:19:36.760 --> 00:19:38.525
and residential and Waltham?
385
00:19:38.525 --> 00:19:40.090
Commercial, commercial.
386
00:19:40.090 --> 00:19:44.290
We only have four single-family resident zones-
387
00:19:44.290 --> 00:19:48.390
So, if they tried to build in a commercial zone
388
00:19:48.390 --> 00:19:50.460
it would've been permitted or no?
389
00:19:50.460 --> 00:19:53.130
That would probably be a different matter.
390
00:19:53.130 --> 00:19:56.603
Would it be permitted as the ordinance stands now?
391
00:19:58.260 --> 00:19:59.400
Possibly not.
392
00:19:59.400 --> 00:20:02.420
Would there be a successful challenge to it?
393
00:20:02.420 --> 00:20:03.443
I believe so,
394
00:20:03.443 --> 00:20:05.960
because that possibly could be unreasonable.
395
00:20:05.960 --> 00:20:07.360
Thank you, your time's up,
396
00:20:07.360 --> 00:20:10.475
and I'm gonna move over to the other side.
397
00:20:10.475 --> 00:20:12.870
Thank you.
Thanks so much.
398
00:20:12.870 --> 00:20:15.143
Okay, we have Attorney Fixler.
399
00:20:22.780 --> 00:20:24.260
May I please the Court.
400
00:20:24.260 --> 00:20:28.050
David Fixler, Tracer Lane II Realty, LLC.
401
00:20:28.050 --> 00:20:32.620
I wanna focus immediately on the dominant two questions
402
00:20:32.620 --> 00:20:35.420
that were being asked to the Appellant.
403
00:20:35.420 --> 00:20:40.249
First of all, the test isn't what, walking around Waltham,
404
00:20:40.249 --> 00:20:42.060
what installations maybe there?
405
00:20:42.060 --> 00:20:45.280
The test is what does the Waltham's Zoning Code permit
406
00:20:45.280 --> 00:20:48.980
and prohibit, and the Waltham Zoning Code,
407
00:20:48.980 --> 00:20:50.980
they argue, "Well, you can be in Waltham.
408
00:20:50.980 --> 00:20:52.630
Look, we allow it as an accessory use.
409
00:20:52.630 --> 00:20:55.350
We allow it as a use variance."
410
00:20:55.350 --> 00:20:59.400
But unfortunately for them, in Section 3.211,
411
00:20:59.400 --> 00:21:02.240
which is their accessory use provision,
412
00:21:02.240 --> 00:21:04.580
it only allows accessory uses
413
00:21:04.580 --> 00:21:07.500
that don't include any activity that's prohibited under
414
00:21:07.500 --> 00:21:09.190
the Waltham Zoning Code.
415
00:21:09.190 --> 00:21:12.530
So, since solar arguably, under their argument,
416
00:21:12.530 --> 00:21:15.690
our argument is it doesn't regulate solar at all.
417
00:21:15.690 --> 00:21:18.100
Their table of use doesn't regulate solar.
418
00:21:18.100 --> 00:21:21.067
And there's a clause in their zoning code that says,
419
00:21:21.067 --> 00:21:24.770
"Unless the use is expressly permitted, it's prohibited,"
420
00:21:24.770 --> 00:21:26.660
but putting that aside for a second,
421
00:21:26.660 --> 00:21:29.460
even if you take their argument, it's only expressly.
422
00:21:29.460 --> 00:21:31.790
It's only allowed arguably as a power station
423
00:21:31.790 --> 00:21:33.390
and that's only an industrial zone.
424
00:21:33.390 --> 00:21:36.930
So, the accessory use is actually illegal
425
00:21:36.930 --> 00:21:41.560
because solar can only be used in the industrial zone.
426
00:21:41.560 --> 00:21:45.170
Two, they say in their brief that, "Well, we get,
427
00:21:45.170 --> 00:21:46.490
we allow for use variances,
428
00:21:46.490 --> 00:21:49.950
but under G.L. c. 40A, Section 10,
429
00:21:49.950 --> 00:21:53.510
you could only have a use variance if it's expressly stated
430
00:21:53.510 --> 00:21:57.120
in the particular Municipality Zoning Code, and it's not.
431
00:21:57.120 --> 00:22:01.660
And third, what's really going on with the rooftop
432
00:22:01.660 --> 00:22:05.330
and the other solar that the Appellant is talking about,
433
00:22:05.330 --> 00:22:08.790
that's just case by case ad hoc zoning regulation,
434
00:22:08.790 --> 00:22:10.760
which, of course, is illegal
435
00:22:10.760 --> 00:22:12.980
because there is no uniformity or standards.
436
00:22:12.980 --> 00:22:15.159
Second to the question of,
437
00:22:15.159 --> 00:22:18.710
are there any cases where they do it by municipality?
438
00:22:18.710 --> 00:22:22.610
The answer is no, there are no Appellant and SJC cases.
439
00:22:22.610 --> 00:22:27.513
Every single case that has analyzed Section 3 has said
440
00:22:27.513 --> 00:22:29.340
that it's an allowed use,
441
00:22:29.340 --> 00:22:31.820
it's as of right in all zoning districts,
442
00:22:31.820 --> 00:22:34.440
and the analysis is then done
443
00:22:34.440 --> 00:22:37.600
on a parcel by parcel site-specific basis-
444
00:22:37.600 --> 00:22:38.820
Can I ask a question about that?
445
00:22:38.820 --> 00:22:43.820
So, does that mean if Waltham had 50% of its area zone
446
00:22:45.260 --> 00:22:48.987
for solar, would that make a difference for you?
447
00:22:48.987 --> 00:22:52.970
Would that make it a better case for Waltham or no?
448
00:22:52.970 --> 00:22:54.663
No, it would not.
449
00:22:55.981 --> 00:22:59.200
It's an as of right use in all zoning districts,
450
00:22:59.200 --> 00:23:00.920
it doesn't mean it's an as of right use
451
00:23:00.920 --> 00:23:04.270
on every single parcel in a particular zoning district.
452
00:23:04.270 --> 00:23:09.270
And there is no stopping a municipality under Paragraph 9
453
00:23:09.530 --> 00:23:13.460
of the statute from reasonably regulating.
454
00:23:13.460 --> 00:23:16.160
In fact, some municipalities do that.
455
00:23:16.160 --> 00:23:20.530
They have narrowly tailored non-discretionary regulations
456
00:23:20.530 --> 00:23:22.860
that have a direct nexus to the use.
457
00:23:22.860 --> 00:23:24.920
They take into account the site-specific,
458
00:23:24.920 --> 00:23:27.270
the topography, the surrounding built environment.
459
00:23:27.270 --> 00:23:28.480
And that's how they regulate it.
460
00:23:28.480 --> 00:23:31.730
But it's as of right in every zoning district.
461
00:23:31.730 --> 00:23:32.570
And the reason is,
462
00:23:32.570 --> 00:23:36.360
is because it's been placed in Section 3 by the legislature.
463
00:23:36.360 --> 00:23:38.300
The legislature in enacting
464
00:23:38.300 --> 00:23:41.380
the Solar Act in 1985 was prescient.
465
00:23:41.380 --> 00:23:45.620
They, not only did the legislature say that it's important
466
00:23:45.620 --> 00:23:47.310
for the Commonwealth to invest in
467
00:23:47.310 --> 00:23:49.850
and promote renewable energy, such as solar,
468
00:23:49.850 --> 00:23:51.000
they also foresaw
469
00:23:51.000 --> 00:23:53.240
that citing solar energy systems could prove
470
00:23:53.240 --> 00:23:55.730
to be challenging at the local level.
471
00:23:55.730 --> 00:23:59.190
And therefore, stated that the use of the land
472
00:23:59.190 --> 00:24:01.860
for such purpose is going to be protected
473
00:24:01.860 --> 00:24:03.710
and exempt from zoning regulation,
474
00:24:03.710 --> 00:24:05.066
which, of course, is the title for Section 3.
475
00:24:05.066 --> 00:24:07.890
Now, taking that into account.
476
00:24:07.890 --> 00:24:10.270
Taking into account that we're dealing
477
00:24:10.270 --> 00:24:12.210
with the Dover Amendment.
478
00:24:12.210 --> 00:24:15.160
If you have a circumstance like this,
479
00:24:15.160 --> 00:24:18.350
where there's a residential road
480
00:24:18.350 --> 00:24:21.260
and there's gonna be traffic for eight months,
481
00:24:21.260 --> 00:24:24.190
does the circumstances here whether it was raised
482
00:24:24.190 --> 00:24:29.100
or not raised, include concerns about protecting
483
00:24:29.100 --> 00:24:31.000
the public health, safety, or welfare?
484
00:24:33.460 --> 00:24:36.940
So, in fact, they, well, first of all,
485
00:24:36.940 --> 00:24:40.530
there is no regulation and there's no zoning regulation
486
00:24:40.530 --> 00:24:42.580
in Waltham to do that as applied test
487
00:24:42.580 --> 00:24:45.563
because they just facially say it's barred.
488
00:24:46.410 --> 00:24:50.270
If the question is if they had a zoning regulations,
489
00:24:50.270 --> 00:24:52.170
a narrowly tailored one such as the one
490
00:24:52.170 --> 00:24:55.560
that I just articulated, is that the question, Your Honor?
491
00:24:55.560 --> 00:24:58.630
And in that circumstance, could the fact
492
00:24:58.630 --> 00:25:01.330
that it's on a cul-de-sac in a residential area,
493
00:25:01.330 --> 00:25:03.680
there's gonna be trucks for eight months
494
00:25:03.680 --> 00:25:06.050
and then periodically with maintenance,
495
00:25:06.050 --> 00:25:08.980
could that be considered under the actual language
496
00:25:08.980 --> 00:25:11.160
of Section 3?
497
00:25:11.160 --> 00:25:14.720
Well, it's the land, that access road is a protected use.
498
00:25:14.720 --> 00:25:18.973
So, then the analysis would be on a site-specific basis.
499
00:25:20.182 --> 00:25:24.603
Does that use, would that use impact health,
500
00:25:26.830 --> 00:25:27.770
safety, and welfare?
501
00:25:27.770 --> 00:25:32.040
But it would have to be exactly looking at
502
00:25:32.040 --> 00:25:33.000
what you're doing there.
503
00:25:33.000 --> 00:25:34.820
And there actually is a Land Court case
504
00:25:34.820 --> 00:25:37.010
that's right on point on this, the Northbridge/McQuaid case,
505
00:25:37.010 --> 00:25:38.960
which talks about an access road.
506
00:25:38.960 --> 00:25:42.180
And you're looking at what is the use on that?
507
00:25:42.180 --> 00:25:45.290
And the use here, there are minimal impacts.
508
00:25:45.290 --> 00:25:49.130
It's the solar facility is a passive facility.
509
00:25:49.130 --> 00:25:52.460
So, once the construction is finished,
510
00:25:52.460 --> 00:25:54.280
there's not gonna be any real use.
511
00:25:54.280 --> 00:25:58.160
And the construction itself isn't gonna take that long.
512
00:25:58.160 --> 00:26:00.270
I'm confused, they couldn't pass a regulation
513
00:26:00.270 --> 00:26:03.140
that said you can't have solar facilities
514
00:26:03.140 --> 00:26:04.880
in residential areas,
515
00:26:04.880 --> 00:26:07.880
but they can have them in commercial and industrial,
516
00:26:07.880 --> 00:26:11.510
in a place that's got a significant percentage
517
00:26:11.510 --> 00:26:14.880
of space devoted to commercial industrial?
518
00:26:14.880 --> 00:26:16.700
I mean, it's a big deal to put one
519
00:26:16.700 --> 00:26:19.810
of these things in a residential neighborhood.
520
00:26:19.810 --> 00:26:22.220
So, I would answer that question in two ways, Your Honor.
521
00:26:22.220 --> 00:26:26.190
First, the market is going to call inappropriate parcels.
522
00:26:26.190 --> 00:26:27.273
With the real battle that's going-
523
00:26:27.273 --> 00:26:29.060
No, I'm not buying that one.
524
00:26:29.060 --> 00:26:32.020
Okay, then the next answer then is,
525
00:26:32.020 --> 00:26:34.400
is that the answer is no because it's a protected use.
526
00:26:34.400 --> 00:26:37.270
The way to go about the problem that you're-
527
00:26:37.270 --> 00:26:41.270
You got to totally individualize the cases, because again,
528
00:26:41.270 --> 00:26:45.050
this is a very experienced, knowledgeable Land Court Judge,
529
00:26:45.050 --> 00:26:48.510
and in a big fight that they're having on the Land Court.
530
00:26:48.510 --> 00:26:52.450
There really isn't the ability to take into account
531
00:26:52.450 --> 00:26:53.940
the overall percentages.
532
00:26:53.940 --> 00:26:56.460
I'm just surprised at that,
533
00:26:56.460 --> 00:26:59.012
but we'll look for the cases, but-
534
00:26:59.012 --> 00:27:01.740
That, but the reason for that, Your Honor,
535
00:27:01.740 --> 00:27:06.740
is that it's an exempt use under Section 3, so, therefore-
536
00:27:07.277 --> 00:27:10.450
But what does reasonable regulation mean then?
537
00:27:10.450 --> 00:27:12.730
You have to take it on a case by case,
538
00:27:12.730 --> 00:27:14.150
parcel by parcel basis.
539
00:27:14.150 --> 00:27:15.940
Give us examples please,
540
00:27:15.940 --> 00:27:17.630
of what would be under the Dover Amendment,
541
00:27:17.630 --> 00:27:20.460
this reasonable regulation in this case.
542
00:27:20.460 --> 00:27:21.293
Well, I think you could-
543
00:27:21.293 --> 00:27:23.520
And I know you're arguing was per se in this case,
544
00:27:23.520 --> 00:27:25.530
but help us flash this out.
545
00:27:25.530 --> 00:27:27.600
What is a reasonable regulation for solar-
546
00:27:27.600 --> 00:27:29.540
There could be reasonable dimensional regulations.
547
00:27:29.540 --> 00:27:33.190
There could be setbacks, it could be screening, but the,
548
00:27:33.190 --> 00:27:35.740
the regulation has to be narrowly tailored,
549
00:27:35.740 --> 00:27:39.670
such that it can trigger a site-specific review instead
550
00:27:39.670 --> 00:27:43.616
of a categorical upfront, banning the use entirely.
551
00:27:43.616 --> 00:27:46.480
Would it include putting it at the tail-end
552
00:27:46.480 --> 00:27:48.773
of a cul-de-sac to serve another town?
553
00:27:49.930 --> 00:27:52.980
At that point, I get, you could,
554
00:27:52.980 --> 00:27:53.820
but then you would have,
555
00:27:53.820 --> 00:27:56.470
you could always challenge that on it as an applied basis.
556
00:27:56.470 --> 00:28:01.470
But again, if you're looking at the use of the access road,
557
00:28:02.180 --> 00:28:05.000
first of all, it is part of the solar system.
558
00:28:05.000 --> 00:28:08.460
And so, you have to then look exactly
559
00:28:08.460 --> 00:28:10.110
what is the real use of the land
560
00:28:10.110 --> 00:28:13.247
that's gonna be impacted for that, but again-
561
00:28:13.247 --> 00:28:18.003
But is there a benefit to Waltham from this project?
562
00:28:18.910 --> 00:28:20.550
Well, yes.
Apart from
563
00:28:20.550 --> 00:28:23.853
the esoteric environmental?
564
00:28:25.239 --> 00:28:26.170
(chuckles) But that is the benefit.
565
00:28:26.170 --> 00:28:28.940
And that's where the legislature had-
566
00:28:28.940 --> 00:28:33.200
The electricity code is owned by Lexington, correct?
567
00:28:33.200 --> 00:28:37.470
But we have an existential challenge in this Commonwealth
568
00:28:37.470 --> 00:28:38.510
and that's-
I know.
569
00:28:38.510 --> 00:28:39.560
I've read all that stuff,
570
00:28:39.560 --> 00:28:40.850
but let me ask you something.
571
00:28:40.850 --> 00:28:44.613
Is there a benefit to Waltham from this, apart from that?
572
00:28:46.020 --> 00:28:47.837
Yes, I'm sorry, You honor,
573
00:28:47.837 --> 00:28:51.480
but the benefit is that they are,
574
00:28:51.480 --> 00:28:53.480
the whole Commonwealth is able to combat that.
575
00:28:53.480 --> 00:28:54.540
And this is the reason why
576
00:28:54.540 --> 00:28:57.700
the legislature put it as a protective use.
577
00:28:57.700 --> 00:29:00.014
Maybe I shouldn't interrupt you just as
578
00:29:00.014 --> 00:29:00.890
this (indistinct) question.
579
00:29:00.890 --> 00:29:04.850
But even under the Dover Amendment provisions,
580
00:29:04.850 --> 00:29:08.580
there still is reasonable regulation applied to this case.
581
00:29:08.580 --> 00:29:10.960
What is reasonable regulation?
582
00:29:10.960 --> 00:29:13.280
Well, reasonable regulation, well, we've already,
583
00:29:13.280 --> 00:29:18.280
the record already reflects what our client is willing to do
584
00:29:19.080 --> 00:29:21.820
for protocols to mitigate any kind of impacts.
585
00:29:21.820 --> 00:29:24.010
There's going to be about 12,
586
00:29:24.010 --> 00:29:26.090
the Land Court Judge found that the amount of trucks
587
00:29:26.090 --> 00:29:28.440
that are going down the road is minimal.
588
00:29:28.440 --> 00:29:33.440
We're gonna be sweeping every day and you can regulate
589
00:29:34.090 --> 00:29:36.620
the use of the road there, but you can't prohibit it.
590
00:29:36.620 --> 00:29:39.210
There are reasonable regulations that could be put in place,
591
00:29:39.210 --> 00:29:41.870
but Waltham doesn't have any zoning regulations
592
00:29:41.870 --> 00:29:46.140
that could do that because they categorically ban the use.
593
00:29:46.140 --> 00:29:48.810
And I just wanna go back to my global point,
594
00:29:48.810 --> 00:29:50.662
which is that's the reason why-
595
00:29:50.662 --> 00:29:52.007
Let's read it again, it says,
596
00:29:52.007 --> 00:29:54.580
"No zoning words or bylaws shall prohibit
597
00:29:54.580 --> 00:29:56.897
or unreasonably regulate."
598
00:29:58.260 --> 00:30:01.150
You're just saying the only thing they can do is put,
599
00:30:01.150 --> 00:30:03.910
they have to permit it, but they can mitigate it.
600
00:30:03.910 --> 00:30:05.700
They can require mitigation measures.
601
00:30:05.700 --> 00:30:08.680
You're basically saying in your interpretation,
602
00:30:08.680 --> 00:30:10.910
they can build it anywhere.
603
00:30:10.910 --> 00:30:12.910
No matter, they have a right to build it anywhere,
604
00:30:12.910 --> 00:30:16.050
as long as they mitigate the construction impacts.
605
00:30:16.050 --> 00:30:17.823
Build what anywhere?
606
00:30:18.672 --> 00:30:23.230
Your solar system as you'd refer to it?
607
00:30:23.230 --> 00:30:26.560
Well, no, the solar system, again,
608
00:30:26.560 --> 00:30:28.530
like many municipalities do,
609
00:30:28.530 --> 00:30:32.190
there can be a narrowly tailored regulation
610
00:30:32.190 --> 00:30:33.950
that talks about dimensional
611
00:30:33.950 --> 00:30:36.550
that make that calls inappropriate parcels
612
00:30:36.550 --> 00:30:39.070
from consideration, that's that.
613
00:30:39.070 --> 00:30:40.820
That is what's happening in municipalities
614
00:30:40.820 --> 00:30:44.400
that have adopted a narrowly tailored solar bylaw.
615
00:30:44.400 --> 00:30:45.900
Look at Lexington, for example.
616
00:30:45.900 --> 00:30:49.440
Lexington solar is as of right in every district subject
617
00:30:49.440 --> 00:30:50.940
to site plan review,
618
00:30:50.940 --> 00:30:52.577
and then they have different categories of that.
619
00:30:52.577 --> 00:30:54.410
That's one reasonable regulation,
620
00:30:54.410 --> 00:30:58.370
but could another one be, "Hey, we're a town
621
00:30:58.370 --> 00:31:03.370
that has 25% residential and 75% commercial industrial.
622
00:31:03.500 --> 00:31:06.000
We don't want you to put your solar panels
623
00:31:06.000 --> 00:31:08.070
in our people's neighborhoods,
624
00:31:08.070 --> 00:31:10.840
but you can build it anywhere in our commercial
625
00:31:10.840 --> 00:31:12.390
or industrial area."
626
00:31:12.390 --> 00:31:15.750
That's unreasonable?
Yes, Your Honor, because-
627
00:31:15.750 --> 00:31:17.060
Tell me which case says that,
628
00:31:17.060 --> 00:31:19.810
because it would be useful for me to know the case
629
00:31:19.810 --> 00:31:21.310
that says that's unreasonable.
630
00:31:23.000 --> 00:31:25.530
Every Dover Amendment case says
631
00:31:25.530 --> 00:31:28.180
that it's an as of right use in every district.
632
00:31:28.180 --> 00:31:30.130
Then again, that doesn't mean it's an as of right use
633
00:31:30.130 --> 00:31:32.920
on every parcel, which you can then reasonably regulate
634
00:31:32.920 --> 00:31:35.570
on a parcel by parcel site-specific basis.
635
00:31:35.570 --> 00:31:38.990
And in case, again, cases make,
636
00:31:38.990 --> 00:31:40.950
that was brilliantly articulated.
637
00:31:40.950 --> 00:31:44.760
Does a case say that you cannot do this
638
00:31:44.760 --> 00:31:47.330
by the way we normally do.
639
00:31:47.330 --> 00:31:51.070
In Dover cases, you cannot divide between residential
640
00:31:51.070 --> 00:31:53.490
and commercial, you can only do it parcel by parcel.
641
00:31:53.490 --> 00:31:56.510
So, it seems like it's a very nice articulation law.
642
00:31:56.510 --> 00:31:58.260
If you have the case, I would love to read that.
643
00:31:58.260 --> 00:32:00.340
Okay, well, there are no Appellate cases
644
00:32:00.340 --> 00:32:01.610
that specifically say that for solar,
645
00:32:01.610 --> 00:32:03.900
but the Land Court cases that every Land Court case
646
00:32:03.900 --> 00:32:06.470
that has viewed has gotten this issue,
647
00:32:06.470 --> 00:32:09.000
that's been confronted with this issue, because in Tysoe,
648
00:32:09.000 --> 00:32:10.559
I had to do a Tysoe and Northbridge case
649
00:32:10.559 --> 00:32:11.450
but the Appellant mentioned
650
00:32:11.450 --> 00:32:13.420
the issue actually wasn't contested,
651
00:32:13.420 --> 00:32:15.040
but in the Northbridge case,
652
00:32:15.040 --> 00:32:17.520
the PLH versus East Long Metal case,
653
00:32:17.520 --> 00:32:19.950
our case, every Land Court case that has dealt
654
00:32:19.950 --> 00:32:22.820
with this issue where the issue is,
655
00:32:22.820 --> 00:32:25.760
can you categorically upfront just exclude
656
00:32:25.760 --> 00:32:28.820
certain zoning districts from a consideration?
657
00:32:28.820 --> 00:32:31.010
The answer has been no because that violates
658
00:32:31.010 --> 00:32:32.220
the Dover Amendment, and instead,
659
00:32:32.220 --> 00:32:35.430
the analysis is it's on a site by site,
660
00:32:35.430 --> 00:32:36.750
parcel by parcel basis.
661
00:32:36.750 --> 00:32:41.300
And the reason is as the Land Court Judge has said
662
00:32:41.300 --> 00:32:45.840
in these cases is that the Section 3 requires municipalities
663
00:32:45.840 --> 00:32:50.160
to stand down and help the Commonwealth to do,
664
00:32:50.160 --> 00:32:51.790
assist in this protected use.
665
00:32:51.790 --> 00:32:55.120
The problem is the municipalities are not standing down.
666
00:32:55.120 --> 00:32:58.030
If you look at the ASD case, which is cited in the briefs,
667
00:32:58.030 --> 00:33:02.570
there is a case in an area where there's lots of land
668
00:33:02.570 --> 00:33:06.680
and they have a solar bylaw that's actually narrowly tailed
669
00:33:06.680 --> 00:33:07.710
to answer the questions.
670
00:33:07.710 --> 00:33:12.190
That actually has, it checks off every bell and whistle
671
00:33:12.190 --> 00:33:13.023
that you would need.
672
00:33:13.023 --> 00:33:15.637
And then, what happened was the Planning Board said,
673
00:33:15.637 --> 00:33:17.150
"Nah, we don't like this."
674
00:33:17.150 --> 00:33:19.150
And so we're going to try and graft
675
00:33:19.150 --> 00:33:21.910
on a special permit requirement in addition,
676
00:33:21.910 --> 00:33:24.180
and the Land Court said, "No, you can't do that.
677
00:33:24.180 --> 00:33:25.130
This is the problem."
678
00:33:25.130 --> 00:33:27.533
And that's why it's in Section 3.
679
00:33:28.572 --> 00:33:30.850
It's similar to the other uses in the sense
680
00:33:30.850 --> 00:33:34.360
that it is a use that can be seen as unwelcome
681
00:33:34.360 --> 00:33:38.760
at a local level and be discriminated against solely
682
00:33:38.760 --> 00:33:39.990
because of the use of itself,
683
00:33:39.990 --> 00:33:43.030
not on its compatibility with the land
684
00:33:43.030 --> 00:33:45.210
and the way to regulate it,
685
00:33:45.210 --> 00:33:48.090
so it's compatible with the particular neighborhoods
686
00:33:49.441 --> 00:33:53.270
and such is to have regulations that do exactly that,
687
00:33:53.270 --> 00:33:56.630
but that it doesn't prohibit it categorically upfront.
688
00:33:56.630 --> 00:33:58.490
But, you know, we're trying
689
00:33:58.490 --> 00:34:01.220
to discern a limiting principle here.
690
00:34:01.220 --> 00:34:05.120
Because I completely agree with you that
691
00:34:05.120 --> 00:34:08.960
the access road is a building or structure that facilitates
692
00:34:08.960 --> 00:34:12.180
the collection of solar energy.
693
00:34:12.180 --> 00:34:13.710
That seems pretty clear.
694
00:34:13.710 --> 00:34:17.710
So that means that the area in which you could have
695
00:34:17.710 --> 00:34:22.060
an impact is considerable in a municipality.
696
00:34:22.060 --> 00:34:24.660
So, whether it's commercial or residential,
697
00:34:24.660 --> 00:34:27.710
there has to be some, and I appreciate the Dover Amendment,
698
00:34:27.710 --> 00:34:30.870
and you're right, they were oppression in 1985
699
00:34:30.870 --> 00:34:33.110
to realize it'd be resistance,
700
00:34:33.110 --> 00:34:36.390
but there still has to be a limiting principle
701
00:34:36.390 --> 00:34:40.370
and an opportunity to be able to demonstrate
702
00:34:40.370 --> 00:34:43.340
that there shouldn't be a placement in this particular area.
703
00:34:43.340 --> 00:34:46.770
And, Your Honor, the way to do that is
704
00:34:46.770 --> 00:34:49.285
through a regulation that takes into account
705
00:34:49.285 --> 00:34:54.050
the specific surrounding-built neighborhood
706
00:34:54.050 --> 00:34:56.640
and topography and things like that.
707
00:34:56.640 --> 00:34:59.440
That's what these solar bylaws do if they're done properly.
708
00:34:59.440 --> 00:35:01.930
So, it's not automatically prohibited
709
00:35:01.930 --> 00:35:04.140
in any zoning district.
710
00:35:04.140 --> 00:35:07.200
However, within the zoning district, there are sites.
711
00:35:07.200 --> 00:35:09.900
The regulations allow a site-specific test.
712
00:35:09.900 --> 00:35:13.680
So, if Waltham were ahead of this and justice was talking
713
00:35:13.680 --> 00:35:16.410
about percentages, and it's only 2% here,
714
00:35:16.410 --> 00:35:18.860
they were ahead of this and they had limitations
715
00:35:18.860 --> 00:35:23.860
and they had 25% commercial availability for solar,
716
00:35:25.170 --> 00:35:26.620
it might be a different case?
717
00:35:27.880 --> 00:35:30.540
No, it would not be a different case in the sense of,
718
00:35:30.540 --> 00:35:32.737
if you're asking, can there be a categorical
719
00:35:32.737 --> 00:35:36.370
but does it matter whether it's 2%, 50%, 60%?
720
00:35:36.370 --> 00:35:38.600
The answer to that is no.
721
00:35:38.600 --> 00:35:40.860
The answer to the effect of your question is
722
00:35:40.860 --> 00:35:45.130
if they had a regulation that was like some of the other,
723
00:35:45.130 --> 00:35:46.950
like Lexington, or some of the other
724
00:35:46.950 --> 00:35:50.610
that actually took into account the site-specific areas,
725
00:35:50.610 --> 00:35:53.550
and the topography and things like that.
726
00:35:53.550 --> 00:35:55.410
And had it, did it on a sliding scale
727
00:35:55.410 --> 00:35:57.650
and had different categories, then the answer,
728
00:35:57.650 --> 00:36:02.300
it could be that your use might not make it.
729
00:36:02.300 --> 00:36:04.090
However, then you would still have the ability
730
00:36:04.090 --> 00:36:06.300
to say on as an applied basis,
731
00:36:06.300 --> 00:36:08.280
I still have the right to challenge that.
732
00:36:08.280 --> 00:36:09.157
But what we have here-
733
00:36:09.157 --> 00:36:13.880
But in this case, without the regulation
734
00:36:13.880 --> 00:36:15.930
that you suggest they should have had, right,
735
00:36:15.930 --> 00:36:17.830
we have to go by and I get your argument
736
00:36:17.830 --> 00:36:19.330
that they're saying it categorically.
737
00:36:19.330 --> 00:36:22.290
So that's why in your opinion, they lose.
738
00:36:22.290 --> 00:36:26.810
But if it wasn't that way and say it was an access road,
739
00:36:26.810 --> 00:36:29.310
and it was cutting through a preschool, right.
740
00:36:29.310 --> 00:36:31.730
And something absurd like that,
741
00:36:31.730 --> 00:36:34.580
which obviously is in this case, they could say,
742
00:36:34.580 --> 00:36:37.240
this is the wrong place for an access road
743
00:36:37.240 --> 00:36:39.868
to get to a solar farm, correct?
744
00:36:39.868 --> 00:36:43.000
Well, so what happened here actually is
745
00:36:43.000 --> 00:36:46.690
that they prohibited the road based
746
00:36:46.690 --> 00:36:48.640
on a long-held zoning principle.
747
00:36:48.640 --> 00:36:51.220
No, the commercial.
Yeah, they had that.
748
00:36:51.220 --> 00:36:53.870
You judge the parcel where the access is
749
00:36:53.870 --> 00:36:56.620
because the principle is land
750
00:36:56.620 --> 00:36:58.970
to which an access leads is an extension
751
00:36:58.970 --> 00:37:01.960
the principal use of the land, where the access is.
752
00:37:01.960 --> 00:37:03.380
And if that use is barred where
753
00:37:03.380 --> 00:37:07.240
the access crew is constructed, therefore it's barred here.
754
00:37:07.240 --> 00:37:09.640
That's actually how this came up.
755
00:37:09.640 --> 00:37:10.971
They said, "Hey."
756
00:37:10.971 --> 00:37:12.923
So, it doesn't matter in this case,
757
00:37:12.923 --> 00:37:14.350
because it's categorical.
758
00:37:14.350 --> 00:37:16.040
So, this isn't a case for a remand,
759
00:37:16.040 --> 00:37:19.420
for them to come up with reasons they made their bed,
760
00:37:19.420 --> 00:37:20.980
they said it's categorical.
761
00:37:20.980 --> 00:37:21.813
That is correct, Your Honor,
762
00:37:21.813 --> 00:37:23.620
there is no ability to remand
763
00:37:23.620 --> 00:37:26.550
because there is no zoning regulation that's applicable
764
00:37:26.550 --> 00:37:28.453
to this because they categorically excluded it.
765
00:37:28.453 --> 00:37:33.230
What if they passed a zoning regulation next week,
766
00:37:33.230 --> 00:37:35.305
too late?
767
00:37:35.305 --> 00:37:37.393
It's too late for our case, yes.
768
00:37:38.870 --> 00:37:42.548
Okay, because you know, they wouldn't necessarily know
769
00:37:42.548 --> 00:37:45.220
(chuckles) that this was coming, right?
770
00:37:45.220 --> 00:37:50.220
Well, I mean their neighboring town, Lexington did.
771
00:37:51.505 --> 00:37:52.600
The statute's been around,
772
00:37:52.600 --> 00:37:55.580
there are municipalities that are doing this
773
00:37:55.580 --> 00:37:58.270
and that are making well Taylor Law.
774
00:37:58.270 --> 00:38:00.310
Some, unfortunately, are barring
775
00:38:00.310 --> 00:38:05.310
the use in residential areas that have 50-acre parcels-
776
00:38:05.437 --> 00:38:07.900
But that's for another day,
777
00:38:07.900 --> 00:38:09.660
when you bring the next case as
778
00:38:09.660 --> 00:38:12.260
to the reasonableness, right? (chuckles)
779
00:38:12.260 --> 00:38:16.043
Well, I don't, well, I don't, for our case,
780
00:38:17.490 --> 00:38:20.240
our Judge did not actually categorically answered
781
00:38:20.240 --> 00:38:21.960
the amicus question that you post
782
00:38:21.960 --> 00:38:24.500
but he said under no circumstances,
783
00:38:24.500 --> 00:38:28.090
can you categorical exclude 98% of the land
784
00:38:28.090 --> 00:38:31.130
for me to consideration of solar facilities.
785
00:38:31.130 --> 00:38:34.403
But the answer to the amicus question is no,
786
00:38:35.740 --> 00:38:40.260
you have to be able to, it's a protected use.
787
00:38:40.260 --> 00:38:43.500
It's an allowed as of right use in every zoning district.
788
00:38:43.500 --> 00:38:46.180
That doesn't mean it's allowed as of right use
789
00:38:46.180 --> 00:38:47.020
on every parcel.
790
00:38:47.020 --> 00:38:51.440
And the AG brief puts out some regulations at the end.
791
00:38:51.440 --> 00:38:53.260
So, their thoughts on what regulations could be,
792
00:38:53.260 --> 00:38:55.390
there are some of the other amicus briefs do,
793
00:38:55.390 --> 00:38:57.130
and it can be regulated.
794
00:38:57.130 --> 00:39:00.740
This is not, there's not gonna be solar here, solar there.
795
00:39:00.740 --> 00:39:02.660
It's going to be where it should be.
796
00:39:02.660 --> 00:39:04.660
The problem is it's not being allowed
797
00:39:04.660 --> 00:39:05.970
to go where it should be.
798
00:39:05.970 --> 00:39:09.540
And the Commonwealth wants to promote solar
799
00:39:09.540 --> 00:39:12.270
and it's doing everything it can under the SMART program,
800
00:39:12.270 --> 00:39:13.760
but it has, it can't do everything
801
00:39:13.760 --> 00:39:14.970
when it comes to sighting.
802
00:39:14.970 --> 00:39:18.050
The only thing you can do on siting is to tell
803
00:39:18.050 --> 00:39:20.160
the municipalities through the Dover Amendment,
804
00:39:20.160 --> 00:39:22.700
this is a protected use, you have to stand back
805
00:39:22.700 --> 00:39:24.820
and it can only be openly regulated
806
00:39:24.820 --> 00:39:27.240
under certain circumstances on a site by site,
807
00:39:27.240 --> 00:39:28.763
parcel by parcel basis.
808
00:39:29.850 --> 00:39:31.530
Okay, thank you very much.