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.
To the Taxpayers: You are paying for this B.S. This is a jumbled, stupidly ridiculous mess that puts the town at legal risk, in legal jeopardy through an obvious lack of due diligence, subpar legal advice and amateur work product that did not fully consider impacts to the neighborhoods and the communities it serves by listening to the very residents who raised legitimate objections and concerns. And the “scrivener error” is a ludicrous example of mistakes that should never happen – it’s called “proofreading” by the authors and Town Counsel. MOVE ON – get new experienced qualified players.
Town counsel is RESPONSIBLE for vetting and clearly articulating proposed bylaws that would be reasonably expected to pass muster at the Attorney General Office level. It’s time for new legal counsel. IMMEDIATELY. What now? For goodness sake, obviously this endeavor ended in a flotsam and jetsam mess – go get some real truly qualified expert legal advice – IMMEDIATELY. What is it going to take to get this contract bid out??? Subpar legal advice creating a mess that puts the town at legal risk???
Well, you did it: this could well be Pandora’s box, opened for no good reason, per the Attorney General putting the town at legal risk, and bringing all the ugly unwanted ramifications and strains.
And PS – who NEEDS A HELICOPTER PAD??? Are you kidding?? Was this made known widely to the homeowners who could be affected? Will the helicopter be flying over abutting homes? Great work. Fix this as best you can, while you can. Here’s a link to one resident’s concern, in addition to those well stated by the overworked, just-catching-up residents trying to be heard at Town Meeting. This entire Data Center matter should have been vetted much more and involved much more citizen input from those who would be affected by these changes. The only thing missing is a clown car and a honking horn. Unbelievable.
Letter: A Data Center: What does it mean for us – My Southborough
To the Taxpayers:
Here is a summary of objections and concerns, as one reminder:
“Southborough town meeting discussions and voter objections regarding data centers (specifically under Article 17 updating Industrial Park zoning) centered around the massive electrical, environmental, and spatial footprint of modern AI-scale facilities compared to older infrastructure. [1, 2, 3]
Key Objections and Concerns
Is this the same lawyer the selectpeople pushed on to the stage to tell the non lawyers sitting at tow nn. meeting that he and not the atty general of the Comm. Felt an audit committee would be illegal under state law?? This town government feels the same as Dracula when he sees the cross and smells the garlic about any kind of audit. The day will come when the books are opened and everyone will say. “WE WERE SHOCKED BY WHAT THE AUDIT UNCOVERED”
Jack
I too was a bit concerned that Town Counsel seemed to be putting his thumb on the scale in this matter.
When it comes to clear matters of the law Town Meeting can rely on the advice of Town Counsel. However, in areas where there may be a significant policy difference between some portion of Town Meeting and the Select Board it is important for Town Meeting Members to remember that Town Counsel is hired by the Select Board. There is nothing sinister about this it is just recognizing reality.
Town Meeting can express it’s displeasure, if indeed it is the case, by modifying the legal budget.
Be that as it may, Town Meeting had no appetite for establishing the Audit Committee that was proposed.
It should be remembered that the powers were proposed already exist in the Advisory Committee’s authorizing legislation.
Here’s the real issue:
The town and surprisingly or is it the new normal Planning Board go on to argue that we should put a 50,000-square-foot buildings and data centers just 500 feet from your neighbors’ kids’ bedroom windows.
You worry about the roof. You worry about the standards in the schools. But somehow this doesn’t bother you?
Yet you act like you’re these people’s friends and that you support them. I understand—you either don’t know what’s happening, or you’re acting like you don’t know.
Pay attention. These changes are being made in the middle of the summer, when many people are away and nobody is paying attention. There’s no official notice to abutters because it’s Town Meeting.
And let’s be honest about Town Meeting: when government officials, town employees, boards and committee members can outnumber the actual residents who show up to vote, it’s pretty hard to call that a level playing field. And when residents do stand up and make comments, you can pretty much count on Pfaff and Uncle Al opposing them anyway.
Shame on the BOS and Planning Board. They used to feel like they were our friends and represented the residents of Southborough. That certainly doesn’t feel like the case anymore.
Sorry, Southborough, but this is the beginning of the end.
And by the way, your taxes have gone up 30% in three years, and we’re continually being asked to say yes without asking questions.
Maybe it’s time we start asking questions—and paying attention to what’s actually happening in our town.
Good luck, Southborough and this site is followed by mostly government members or supporters so enter the usual suspects to tell me I’m wrong.