On Friday, the Attorney General’s office issued its approval for zoning bylaw changes that voters approved at Annual Town Meeting.1
The approval letter from an Assistant AG included several warnings to the Town about details under the changes for Industrial Park District/Data Centers that may pose legal issues. The Town was advised to consider making revisions at a future Town Meeting.
The warnings appear to range from an unfortunate typo to a concern that the some aspects of the bylaws might be vulnerable to lawsuits as too restrictive based on recent case law. The AG’s office recommends consulting with Town Counsel, especially on the restrictions for bylaws related to uses for energy/utility infrastructure. There were also caveats related to Data Centers.
The AG approved other zoning revisions, including for Accessory Dwelling Units (ADUs), MBTA Communities Overlay District, and Sign Bylaws. The sign bylaw change will specifically allow the Tricentennial Committee to work with the Select Board on putting up banners to promote the Town’s 300th anniversary.
The AG’s Office vetting is intended to ensure that Town bylaws don’t illegally conflict with state laws. Assistant AG Nicole B. Caprioli wrote that they couldn’t determine that the bylaws were ” inconsistent with state law”. And yet there were several potential legal issues she flagged as ones that the Town should consult with Town Counsel about.
All of the zoning revisions are considered effective as of April 11th, even though they aren’t yet reflected in the Town Code posted online.2
Caprioli also included a reminder that the Town is required to submit the changes to the dimensional table for the MBTA zoning needs to the EOHLC (Executive Office of Housing and Livable Communities).
That shouldn’t prompt a challenge since the zoning change to the table was simply to replace a reference table that had inaccurately summarized the dimensional requirements that were outlined in the preceding text of the bylaw.
Issues flagged under IP/Data Center Zoning
The first issue flagged is an apparent “typo” mislabeling a referenced section in the bylaw. Based on a bylaw passed in March 2023 , the Town Clerk may be authorized to fix that as scrivener/formatting error:
The Town Clerk is authorized to correct typographical, grammatical, numbering and punctuation errors, as necessary, in the Town Code; and the Town Clerk is authorized to make formatting changes as needed for purposes of clarity, form, and consistency. These changes shall not in any way alter the language/intent of the bylaw.
The AAG expressed some confusion about the Town’s intent under a section on siting and permitting for the allowed use of Small Clean Energy Infrastructure, as long as it meets “requirements of any applicable Massachusetts regulation”. The letter updates on the current regulatory situation and states:
although we approve these provisions, it is not clear whether these provisions apply only when a developer elects to use the Consolidated Local Permit process as provided in Chapter 239 of the Acts of 2024, or whether the Town intends to incorporate the provisions from DOER’s Regulations and Guidelines into the Town’s local by-laws to be used when a developer elects to proceed under the Town’s local bylaws rather than under the Consolidated Local Permit process.
The AAG suggested consulting with Town Counsel about whether to make clarifying amendments to the bylaw.
The letter also appears to warn of a serious risk that the courts might not side with the Town if an applicant for installing an SCEI (for solar projects or battery energy storage) claims that the Town’s setback requirements are unreasonable.
Under state law, Town zoning can’t:
prohibit or unreasonably regulate the installation of solar energy systems or the building of structures that facilitate the collection of solar energy, except where necessary to protect the public health, safety or welfare.
On lots that abuts parcels zoned as Residential or Conservation Districts, the Town’s new minimum setback requirements greatly exceed the setbacks recommended by the state Dept of Energy (DOER). Instead of 10 to 75 feet, the minimum setbacks (even on the sides of parcels that abut commercial/IP zones) is set at 1,000 feet.
The AAG notes that courts will seek to find a balance related to the use based on the state’s law “enacted to help promote solar energy generation throughout the Commonwealth”. She cites a case where the Supreme Judicial Court reaffirmed:
a town must provide reasonable opportunities to build solar energy systems and may not deny a special permit for such project unless doing so is necessary to protected public health, safety, or welfare.
The letter recommends:
We strongly encourage the Town to consult with Town Counsel to ensure the Town’s by-law provisions, including the by-law’s setback requirements, are applied consistent with G.L. c. 40A, § 3.
Referring to the bylaw’s requirement that applicants comply with providing annual “Fire Department training”, the AAG warns that the the owner can’t be forced to pay for that. Again, the Town is urged to consider amending that for clarification.
The letter also points out that a requirement for a special permit for “Major public utility
infrastructure (e.g. substations or transmission facilities)” could be overriden by either the Department of Telecommunications and Cable or the Energy Facilities Siting Board. Both authorities have the ability to exempt public service corporations building major public utility infrastructures from complying with local zoning.
The letter also directs the Town to check in with the Mass Dept of Transportation on the section on a special permit for a heliport or landing place for helicopter:
The Town should discuss with Town Counsel . . . to determine whether this provision needs approval from MassDOT before it becomes effective.
Under the section on Data Centers, the Town is advised to ensure that the Planning Board’s rules and regs comply with (and stay up to date with) state laws. Only one requirement of the bylaw was flagged as a potential problem:
Under Section 174-9 (K) (4), the applicant for a Data Center special permit must schedule
and attend two neighborhood meetings that the Planning Board shall be invited to and must notify residents and homeowners associations within 0.5-mile radius at least fifteen days before the meetings and before the Planning Board special permit hearing
According to the AAG, that doesn’t necessarily conflict with state law. However, it must be applied carefully to be consistent with state laws. That means it:
cannot condition an applicant’s right to file a special permit application upon first having neighborhood meetings.
The board also can’t violate the deadlines for holding a hearing within 65 days of the application being filed. And The board must also take final action within 90 days. (Applicants frequently allow extending the 90 days. If they don’t the board could deny permit approvals if they don’t feel they’ve been provided enough information to justify the permit. But if they don’t act, the project would be “constructively approved” under state law.)
You can read the full letter from the AAG here.
For a reminder of the IP zoning bylaws that voters approved at Annual Town Meeting in April, click here for my overview and here for details on the debate and vote at Town Meeting on April 11th.
For the other zoning changes, you can read about the approved changes for ADUs here and here, and the other zoning articles here.
In a follow up after Town Meeting, I sought and got some additional clarifications from Planning member Marnie Hoolahan (who led the initiative) about the 1,000 foot setback situation for Data Centers and SCEI projects:
If an IP zoned parcel is closer than 1,000 feet from a residential/conservation zoned parcel, but doesn’t directly border it, the 1,000 foot setback doesn’t apply.
That does mean that if the owner of a large IP parcel is able to legally break it up into smaller parcels (creating buffers), there could be opportunities to do that. But there are requirements that include having at least 20 feet of “frontage” on a public way, and lot sizes that are at least 20,000 square feet.
- Anyone who wants to claim the bylaw revisions are invalid has 90 days from the August 28th posting date to file an appeal.
- According to Town Clerk Jim Hegarty, it will take approximately 8-10 weeks for the Town’s vendor to update the online Town Code to incorporate the lates changes. In the meantime, a note will be added to the Town Code this weeks notifying readers that the approved changes are in process of being added.
