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tedwards

Tess Edwards

This author Tess Edwards has created 4 entries.

  • March 12, 2024

Mass. SJC adopts “totality of the circumstances” test to determine whether municipal land is held for a specific purpose

Article 97, Prior Public Use Doctrine, Real Estate
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In its recent decision in Carroll v. Select Board of Norwell (pdf), the Massachusetts Supreme Judicial Court (SJC) reaffirmed that where town-owned land is held for a specific purpose, M.G.L. c. 40, § 15A dictates that it cannot be diverted to another inconsistent use until the “board or officer having charge” of the land determines it is no longer needed for that specific purpose. In so ruling the SJC added a test to determine whether such land is being held for a specific purpose. While past cases indicated that, in addition to a legislative act, a recorded instrument restricting the parcel’s use was required, Carroll clarifies that courts must examine the “totality of the circumstances” to determine if land has been held for a specific purpose.

In Carroll, residents of Norwell (the Town) – lobbied by neighbors of the Town land at issue – voted at the 2021 Town Meeting to transfer a Town-owned parcel to the

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  • April 18, 2023

New Mass. AG continues hard line against local bylaws that hinder battery energy storage systems

Environmental, Renewable Energy, Zoning
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On March 1, 2023, Massachusetts Attorney General Andrea Joy Campbell’s Municipal Law Department issued a decision (pdf) disapproving two sections of the Town of Wendell’s amended zoning bylaw, one of which prohibited stand-alone battery energy storage facilities in all districts. As previewed in our blog post last month, based on a footnote in the former AG’s disapproval of the Town of Carver’s zoning moratoria on battery storage systems, Attorney General Campbell has taken the position that M.G.L. c. 40A, § 3 (colloquially known as the Dover Amendment) protects battery storage systems as “structures that facilitate the collection of solar energy”– even as stand-alone systems.

In the case of Wendell, the proposed bylaw amendment, which allowed battery storage in conjunction with solar installations but prohibited commercial or industrial-scale battery storage, was not, in the Attorney General’s view, “grounded in articulated evidence of public health, safety or welfare concerns sufficient to justify the prohibition.” There was no evidence in the record

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  • March 02, 2023

Mass. AG Clamps Down on Local Solar and Battery Storage Moratoria

Environmental, Renewable Energy
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Late last year, pursuant to her review authority under M.G.L. c. 40, § 32, then-Attorney General (now Governor) Maura Healey (the AG) issued a decision disapproving the Town of Carver’s moratoria on large-scale solar projects and battery storage systems. The grounds for the decision were straightforward and well-supported: citing the Supreme Judicial Court’s June, 2022 decision in Tracer Lane II Realty, LLC v. City of Waltham (see our blog post on that important opinion), and case law disfavoring moratoria generally, the AG determined that Carver’s moratoria violated M.G.L. c. 40A, § 3 (Section 3) by unlawfully restricting solar and battery storage systems “with no articulated evidence of an important municipal interest, grounded in protecting the public health, safety, or welfare […] sufficient to outweigh the public need for solar energy systems.” The AG found that instead of promoting the policy behind Section 3, the moratoria “undermined the state policy favoring solar energy” and that the town’s interest

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  • January 10, 2023

And Environmental Justice for All? Mass. High Court Clarifies Application of EJ Policy

Environmental Justice, Land Use
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In GreenRoots, Inc. v. Energy Facilities Siting Board, the Massachusetts Supreme Judicial Court (SJC), for only the second time, had an opportunity to interpret the Environmental Justice Policy (EJ Policy) promulgated by the Executive Office of Energy and Environmental Affairs (EOEEA). The first time, in the 2014 case City of Brockton v. Energy Facilities Siting Board, the SJC decided, first, that the Energy Facilities Siting Board’s (EFSB) application of the EJ Policy was subject to judicial review, despite the EJ Policy’s express disclaimer that it doesn’t create any right to judicial review, and second, that agencies must provide greater public participation and increased scrutiny for projects near EJ populations that exceed certain environmental thresholds.

In GreenRoots the SJC clarified the second takeaway from City of Brockton, holding that the EFSB and other agencies under EOEEA’s purview must provide “enhanced public participation” and “enhanced analysis of impacts and mitigation” for projects that

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