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Town's Authority to Adopt Solar Moratorium Memorandum �l"� TOWN OF BARNSTABLE �BANNOFFICE OF TOWN ATTORNEY MASS. Fo19. A.� 367 Main Street Hyannis, Massachusetts 02601-3907 Phone 508-862-4620 FAX 508-862-4782 KAREN L.NOBER,Town Attorney karen.nober@town.barnstable.ma.us CHARLES S.McLAUGHLIN,Jr.,Senior Counsel charles.mclaughlin@town.barnstable.ma.us KATHLEEN CONNOLLY,Assistant Town Attorney kathleen.connolly@town.barnstable.ma.us TO: Steven Costello, Chair and Members of the Planning Board CC: Elizabeth Jenkins, Kate Maldonado, Jim Kupfer FR: Kate Connolly UNWl t/%, - DT: March 28, 2022 I RE: Town's Authority to Adopt a Solar Zoning Moratorium in general and the proposed citizens petition specifically. A citizens petition was filed with the Town Clerk's office seeking to amend the Town's zoning ordinance to include a moratorium on solar installations. The questions have therefore arisen whether the Town has authority to adopt such a moratorium in its zoning and specifically whether this citizens petition can be adopted. Generally speaking,the Zoning Act, G.L. C. 40A, authorizes a municipality to enact a development moratorium through its zoning bylaws. Collura v. Arlington, 367 Mass. 881, 886-887 (1975) (upholding Arlington's amendment to the zoning bylaw which temporarily suspended the construction of apartment buildings in certain areas while it reviewed its comprehensive plan). A municipality does not,however,have authority to simply impose a development moratorium for unlimited or lengthy time periods or without some relevant areas of concern that it will use the moratorium time period to analyze and study, and to develop a planning process to resolve the concerns that provide the reason for the moratorium through regulation. As courts have held, "[a] municipality may impose reasonable time limitations on development, at least where those restrictions are temporary and adopted to provide controlled development while the municipality engages in comprehensive planning studies." Sturges v. Chilmark, 380 Mass. 246, 252 (1980) (upholding Chilmark's zoning bylaw which limited rate of development due to concerns that development would affect subsoil conditions affecting water supplies and sewage disposal). As the Massachusetts Attorney General's Office(AGO)has opined in reviewing municipal bylaws, such a temporary moratorium is within the Town's zoning power when the stated intent is to manage a new use and there is a stated need for"study, reflection and decision on a subject of[some] complexity..."W.R. Grace v. Cambridge Citv Council, 56 Mass. App. Ct. 559 (2002) (City's temporary moratorium on building permits in two districts was within the City's authority to zone for public purposes.) A municipality's home rule powers (so-called powers pursuant to an amendment to the Massachusetts constitution that allows municipalities to adopt more stringent local ordinances provided they are not inconsistent with state law)have some limitation. In Zuckerman v. Town of Hadley, 442 Mass. 511 (2004) the town had adopted a rate of development bylaw setting an annual cap on the number of building permits that could be issued. The AGO approved the bylaw but a few years later, following a challenge by a developer,the Supreme Judicial Court invalidated it. In comparing such a permanent restriction to a temporary moratorium on certain types of growth(see Sturges and Collura)the Court ruled that the bylaw had effectively and wrongly shifted the burdens of growth from the town to its neighbors and as such the bylaw did not serve a permissible public purpose and was unconstitutional. If the time period of the Zuckerman moratorium had been limited, such as the Sturges and Collura courts found, it would have been permissible as giving the"communities breathing room for periods reasonably necessary for the purposes of growth planning generally, or resource problem solving specifically. (See Sturges, 380 Mass. at 257.) Town bylaws are subject to review and approval by the state Attorney General, and, although ordinances in cities are not, it is helpful for cities to see how the AGO has opined to determine the type of regulation that will most likely withstand legal challenge. It is therefore instructive to note that the AGO has upheld several solar moratorium bylaws,including one discussed herein. The AGO has opined that municipalities may adopt temporary moratoria on solar installations in their zoning bylaws provided they have the intention and procedure to analyze their concerns and needs to develop an ordinance during the moratorium period. (See November 4, 2019 letter from the MA AGO to the Town of Athol). To determine the criteria a municipality must meet to support a temporary moratorium we look to available case law as the AGO has done in its review letters. Bylaws and ordinances are fact-specific,typically to the particular municipality, and while a proposed amendment or ordinance may appear valid,upon challenge a court might find differently. In its letter to the Town of Athol approving a solar moratorium zoning bylaw, the AGO provides a helpful analysis of the criteria needed to support a solar development moratorium based on concerns being analyzed and the reasonable amount of time that should be needed to study those concerns and states: [z]oning by-laws intended to limit growth for periods of time reasonably necessary for growth planning and resource problem-solving serve a permissible public purpose and are not necessarily unconstitutional. W.R. Grace, 56 Mass. App. Ct. at 568-569. Rather, the applicable case law requires an analysis of whether the"rapid growth" of ground- mounted solar installation in the Town, as well as the Town's need to address deficiencies and limitations of the current regulations raised in the study entitled"Athol Solar Bylaw Assessment,"constitutes a new or complex land issue that justifies the Town adopting a temporary moratorium, See Id. (a temporary moratorium is within a town's zoning power when there is a stated need for"study, reflection and decision on a subject matter of(some) complexity..."). The text of[Athol's moratorium bylaw] expressly states that the Town intends to engage in a comprehensive planning process that will include reviewing and addressing multiple issues and concerns related to ground- mounted solar photovoltaic installations and the Town's regulation of same. Based on this information it appears that the Town is utilizing the moratorium for the proper purpose of"resource problem solving specifically." Zuckerman, 442 Mass. at 520-521. The moratorium is limited in time (maximum of fifteen-months) and scope (permits for the use of land for ground-mounted solar installation), and thus does not present the problem of a rate-of-development by-law of unlimited duration which the Zuckerman court determined was unconstitutional. Id. Moreover, [Athol's bylaw] as an amendment to the Town's zoning by-laws,must be accorded deference. W.R. Grace & Co., 56 Mass. App. Ct. at 566. The Attorney General may only disapprove a zoning by- law if it"violates State law or constitutional provisions, is arbitrary or unreasonable, or is substantially unrelated to the public health, safety or general welfare." Durand, 440 Mass. at 57." (See Nov. 4, 2019 letter from AGO to Town of Athol.) As the AGO further notes in its letter to the Town of Athol approving its solar moratorium zoning bylaw: ...the Town should consult with town counsel to ensure that the planning efforts are carried out in a timely way so that the moratorium time period is used for its intended purpose: "to give communities breathing room for periods reasonable necessary for the purposes of growth planning generally, or resource problem solving specifically, as determined by the specific circumstances of each case." citing Zuckerman, 442 Mass. At 520-521. (See Nov. 4,2019 letter from AGO to Town of Athol.) As you know,the Planning Board has been analyzing the need for health, safety and welfare controls with respect to regulation of solar installations and a temporary moratorium could provide the board with the necessary time to propose reasonable regulations to address these health, safety and welfare concerns. However, as written, the petition contains some provisions that are unenforceable or so vague as to be void. While the petition sets forth some valid reasons for instituting a temporary delay in siting large-scale, ground-mounted solar photovoltaic systems (e.g., studying its effects on the environmental fragility of a sole source aquifer), it contains other provisions that are void for vagueness. For example, section b) Moratorium of the petition provides in part that: "No building permit, special permit or site plan approval may be issued in connection to or for the construction of any large scale ground mounted solar photovoltaic system in size of more than 150% of the documented average use of a residential, commercial, business,municipal or agricultural application for any property for which such system is proposed, and not to exceed 35 kilowatts,for 11.5 months after the approval of said moratorium, or until sufficient deliberations by the Town have been completed...."Whatever is meant by"more than 150% of the documented average use... is unclear and needs an explanation and cannot be adopted as written. Finally, because the petition seeks to establish a moratorium for"11.5 months ... or until sufficient deliberations by the Town have been completed for the determination of its bylaws ......the moratorium period is essentially open-ended and without a defined limit. Based on the cases discussed above, an open-ended moratorium is highly unlikely to withstand legal challenge. Therefore, I recommend that the Planning Board reject the citizens' petition as proposed and consider whether a moratorium would benefit the Town. If the Planning Board is interested in recommending a moratorium to the Town, I recommend it first determine if there is a sufficient basis for a moratorium, based on.needed studies of health, safety and welfare impacts, including environmental effects of a solar installation,battery storage and impacts therefrom, etc. If the Planning Board determines that there is a basis for a moratorium, it should then determine a means of evaluating the extent and effect of the solar health and safety concerns. It should then recommend a specific moratorium period based on a reasonable time frame needed for the Planning Board to complete its research and analysis and develop a zoning regulation that addresses those concerns.