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Date Filed 2/7/2024 1:15 PM
Superior Court - Middlesex
Docket Number
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, ss. Superior Court Department
No.
THOMAS KEEFE, MARK HALSTEAD, and
THOMAS GILBERT,
Plaintiffs,
V.
KAREN APUZZO LANGTON, DAVID 2/7124 te
THORN, JASON SANTOS, SCOTT RECEIVED
FERKLER, and BARBARA PEATIE as they
are the members of the HOLLISTON
PLANNING BOARD, and BARTZAK PV I,
LLC,
Defendants.
COMPLAINT
1 This is a zoning appeal pursuant to G.L. c. 40A, § 17 from a decision of the defendant
Holliston Planning Board (“Board”) filed in the Holliston Town Clerk’s Office on
January 19, 2024, granting a special permit and site plan approval to Bartzak PV I, LLC
(“Applicant”), to develop a Large-Scale Solar Power Generation System (the “Project”)
at 103 Bartzak Drive, previously identified as 0 Bartzak Drive on the Applicant’s special
permit and site plan review application (the “Application”), which is identified by the
Town Assessor as Map 14, Block 4, Lot 21.4 (the “Site’”). A true copy of the Board’s
decision approving the Applicant’s request for a special permit is attached hereto as
Exhibit A (the “Decision”).
Pursuant to G.L. c. 30A, § 23(f), the above-listed three individual plaintiffs, who are
registered voters of the Commonwealth of Massachusetts, further seek redress from
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violations of the Massachusetts Open Meeting Law, G.L. c. 30A, § 23, arising from
actions of the Board occurring on October 26, 2023 and November 16, 2023, whereby the
Board improperly convened executive sessions without legal basis, and without required
record keeping, thereby depriving the Plaintiffs of legally-protected participation in the
deliberation process.
The Parties
The Plaintiff Thomas Keefe owns and resides at 5 Mohawk Path, Holliston,
Massachusetts, which directly abuts the Site, and is aggrieved by the Board’s Decision.
As such, he is a “party in interest” who is presumed to be aggrieved by the Decision. G.L.
c. 40A, § 11. Thomas Keefe is a registered voter in Massachusetts for the purposes of
GL. c. 30A, § 23(f).
The Plaintiff Mark Halstead owns and resides at 17 Mohawk Path, Holliston,
Massachusetts, which directly abuts the Site, and is aggrieved by the Board’s Decision.
As such, he is a “party in interest” who is presumed to be aggrieved by the Decision. G.L.
c. 40A, § 11. Mark Halstead is a registered voter in Massachusetts for the purposes of
GL. c. 30A, § 23(f).
The Plaintiff Thomas Gilbert owns and resides at 105 Bullard Street, Holliston,
Massachusetts, and is aggrieved by the Board’s Decision. Thomas Gilbert is a registered
voter in Massachusetts for the purposes of G.L. c. 30A, § 23(f).
Defendant Karen Apuzzo Langton is a member of the Holliston Planning Board and
voted to grant the Special Permit that is embodied in the Decision. Karen Apuzzo
Langton resides at 100 Woodland Street, Holliston, Massachusetts.
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7. Defendant David Thorn is a member of the Holliston Planning Board and voted to grant
the Special Permit that is embodied in the Decision. David Thorn resides at 20 Hollis
Street, Holliston, Massachusetts.
Defendant Jason Santos is a member of the Holliston Planning Board and voted to grant
the Special Permit that is embodied in the Decision. Jason Santos resides at 183 Marshall
Street, Holliston, Massachusetts.
Defendant Scott Ferkler is a member of the Holliston Planning Board and voted to grant
the Special Permit that is embodied in the Decision. Scott Ferkler resides at 30 Briarcliff
Lane, Holliston, Massachusetts.
10. Defendant Barbara Peatie is a member of the Holliston Planning Board and voted to grant
the Special Permit that is embodied in the Decision. Barbara Peatie resides at 166 Union
Street, Holliston, Massachusetts.
11 Defendant Holliston Planning Board is an agency of the Town of Holliston, with a
principal place of business at Holliston Town Hall, 703 Washington Street, Holliston,
Massachusetts.
12. Defendant Bartzak PV I, LLC, is a Delaware Limited Liability Company, registered in
the state of Massachusetts, with a principal place of business at 1 Lincoln Street, Suite
2400, Boston, Massachusetts.
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The Project Site
13 The Site consists of 2.9 predominantly forested acres located in the northeast corner
region of Holliston Massachusetts, to the east of the terminus of Bartzak Drive and to the
west of the intersection of Praying Indian Way and Mohawk Path.
14 The Site is identified as Parcel 14-04-21.4 by the Town Assessor Database, and shown as
“Parcel A” on a plan of land recorded with the Middlesex South District Registry of
Deeds as Plan 972 of 2008 (“2008 Plan”).
1S The Site is a so-called “split lot,” meaning that the lot straddles a zoning district boundary
under the Holliston Zoning By-Laws (the “Zoning By-Laws”).
16. Specifically, the western portion of the property, comprising the majority of the Site, is
located within an Industrial zoning district.
17. The remaining land, comprising the eastern portion of the property within 100 feet of the
layout of the discontinued Jennings Road, is located within an Agricultural-Residential
District B (“AR-2”) zoning district.
18. The 2008 Plan also depicts a 30-foot right-of-way, that starts at the Bartzak Drive cul-de-
sac, and runs easterly though the northern portion of the Site, cutting across both
Industrial and AR-2 zoned portions of the Site.
19. The right-of-way ends at the boundary of Jennings Road, which was a public way until
1998, when it was discontinued by town meeting.
The Project
20. The Project is a “Large-Scale Solar Energy Generation System,” which is defined by the
Zoning By-Laws, Section I-E, as a “roof or ground-mounted solar power generation
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system which has a rated nameplate capacity of 250 kilowatt or more (i.e. the maximum
rated output of electric power production of the solar energy system in Direct Current).”
21 The Project is estimated to generate approximately 499 kilowatts of energy.
22. The Project will consist of solar panels installed on a fixed frame in rows of two, and
oriented generally in an east/west direction, covering most of the Site, with the proposed
layout consisting of sixteen such rows.
23 The Project’s equipment and appurtenances include a transformer, inverters, metering,
disconnect, and recloser, which will be located on a concrete pad in the northwest corner
of the Project Site.
24. The Project will involve clearing the Site of trees and vegetation.
25 The Project will involve the disturbance of approximately 95,000 square feet of land on
the Site.
26. The Applicant asserts that it has an appurtenant easement to use the right-of-way
terminating at Bartzak Drive for access to and from the Site.
27 The Applicant has not asserted any easement rights to access the Site from Jennings
Road.
Legal Framework
28, Under the state Zoning Act, G.L. c. 40A, § 3 (the so-called “Dover Amendment”),
municipalities may regulate solar energy systems “where necessary to protect the public
health, safety or welfare.”
29. The solar energy provision of the Dover Amendment, G.L. c. 40A, § 3, | 9 was added in
1987 to promote solar energy generation throughout the Commonwealth. The paragraph
states:
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No zoning ordinance or by-law shall 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.
30. The statute has been interpreted as precluding municipalities from prohibiting solar
facilities, but allowing reasonable regulation that is related to public health, safety or
welfare. See, Tracer Lane Realty II, LLC v. City of Waltham, 489 Mass. 775 (2022).
31 Under Section III of the Zoning By-Laws, large-scale solar energy generation systems are
only allowed in Industrial and Commercial zoning districts, and only by special permit.
32. Under the Zoning By-Laws, large-scale solar energy generation systems are not permitted
in an AR-2 zoning district, even by special permit.
33 Holliston's Industrial and Commercial districts comprise 1,585 acres, roughly 13% of the
Town’s total land area.
34 As such, large-scale solar energy generations systems are allowed by special permit on
approximately 13% of the land in Holliston.
35 Nothing in G.L. c. 40A, § 3, J] 9, or subsequent appellate-level decisions suggest that a
town must allow large-scale facilities on land more than 13% of its overall land area.
36. Additionally, under the Zoning By-Laws, small-scale solar energy generation systems
(capacity of less than 250 kilowatts) are allowed by right in the AR-1 and Industrial
zoning districts, and in all other districts by special permit.
37 Smaller solar energy systems, such as those attached to residential and commercial
buildings are considered “accessory structures and uses,” and are allowed as of right
anywhere in Holliston under the Zoning By-Laws. See Zoning By-Laws, § V-A.
38, The Zoning By-Laws require lots to maintain a minimum of 180 feet of legal frontage in
the AR-2 zoning district, and 40 feet of legal frontage in the Industrial zoning district.
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39. The Zoning By-Laws also cap lot “coverage” to 25% in the AR-2 district, and 40% in
the Industrial district.
40. As defined in the Schedule of Intensity Regulations (§ IV-B), lot coverage applies to
buildings and structures. “Structure” is defined as: “Three (3) dimensional permanent
improvements to real estate made with building materials which improvements include,
but are not limited to swimming pools, tennis courts, basketball courts and accessory
buildings...”
The Board’s Public Hearing and Decision
4l The Applicant filed its Application with the Board and the Town Clerk on July 27, 2022
42 The Board opened a public hearing on the Application on August 18, 2022.
43 The Board received numerous written submissions, including from the Plaintiffs, setting
forth the legal deficiencies of the Application and violations of the Project as designed.
44 The Project was not eligible for a special permit under the Zoning By-Laws because the
Project would be partly located in the AR-2 zoning district, where such large-scale solar
projects are forbidden.
45 The Zoning By-Laws provide no exception which could allow the use of the Project, or
any accessory components thereof, in an AR-2 zoning district.
46 Even if the Project were a permitted use in the AR-2 district, it still does not comply with
the Zoning By-Laws’ dimensional regulations.
47 The Site has 132.83 feet of frontage on Praying Indian Way.
48. A minimum of 180-feet of frontage is required in the AR-2 zoning district.
49 The Applicant never addressed, and the Board did not compel the Applicant to address,
this patent violation of the frontage requirements.
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50. Similarly, the Project violates the maximum lot coverage provision in the Schedule of
Intensity Regulations in the Zoning By-Laws.
Sl The proposed solar array, consisting of rows of three-dimensional, permanent, ground-
mounted solar panels, covering the majority of the Site, is a “structure” for purposes of
the Zoning By-Laws.
52. The proposed solar array covers more than 25% of the Site that is located in the AR-2
district.
53 The proposed solar array covers more than 40% of the Site that is located in the Industrial
district.
54. The Decision fails to address whether the Project satisfies the Zoning By-Laws’
permitted use and dimensional requirements.
55 On October 26, 2023, a quorum of the Board met behind closed doors, where the public
was not invited, to discuss the Applicant, Project, and/or the Application.
56. The “minutes” of the Boards’s public meeting held on October 26, 2023 indicate that the
Board convened in what is known as “executive session” under the state Open Meeting
Law, to discuss the Applicant. The meeting minutes cite “Exception 3” of the Open
Meeting Law in reference to this executive session.
57 “Exception 3” under the statute provides that an executive session may be called to
“discuss strategy with respect to collective bargaining or litigation if an open meeting
may have a detrimental effect on the bargaining or litigating position of the public body
”
58. In order to invoke Exception 3 to justify holding an executive session that is closed to the
public, there must be actual or threatened litigation, not the mere possibility of litigation.
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59, A public board cannot convene in executive session to have a private discussion about a
pending land use application simply because an applicant, or other aggrieved parties,
might appeal its decision.
60. The October 26, 2023 minutes do not indicate whether the chair stated in open session the
purpose for the executive session, “stating all subjects that may be revealed without
compromising the purpose for which the executive session was called.” G.L. c. 30A, §
21(b)(3).
61 The October 26, 2023 meeting minutes do not indicate that the Board identified a
litigation position to protect, and/or declared that open session would have a detrimental
impact on such position.
62. At the time that the executive session was convened on October 26, 2023, there was no
pending litigation relating to the Applicant or the Project.
63 The Board closed the public hearing on the Application on October 26, 2023.
64. The Board convened a second executive session of the Board on November 16, 2023 to
discuss “Bartzak solar.”
65 The minutes of the Board’s public meeting on November 16, 2023 indicate that the
session was convened pursuant to “Exception 3.”
66. The November 16, 2023 minutes do not indicate whether the chair stated in open session
the purpose for the executive session, “stating all subjects that may be revealed without
compromising the purpose for which the executive session was called.” G.L. c. 30A, §
21(b)(3).
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67. The November 16, 2023 meeting minutes do not indicate that the Board identified a
litigation position to protect, and/or declared that open session would have a detrimental
impact on such position.
68. At the time that the executive session was convened on November 16, 2023, there was no
pending litigation relating to “Bartzak solar”.
69. The Open Meeting Law, G.L. c. 30A, § 21(b)(5), requires that “accurate records of the
executive session shall be maintained pursuant to section 23.”
70. In response to a public record request filed by the Plaintiffs on January 29, 2024,
Assistant Town Clerk to the Town of Holliston reported that “There are no separate
minute of the Executive Session(s) on this matter as there were no related votes taken.”
COUNT I - Zoning Appeal
(GL. c. 40A, § 17)
71 Paragraphs 1 — 71 are re-alleged.
72. The Superior Court has jurisdiction to review the Board’s Decision under G.L. ¢. 40A, §
17.
73 The Plaintiffs, Thomas Keefe, Mark Halstead, and Thomas Gilbert seek judicial review
of the Decision.
74 The Decision permits a Project that demonstrably does not conform to the mandatory
requirements of the Zoning By-Laws.
75 Specifically, the Decision permits the use of a large-scale solar energy system, and
accessories thereto, on land located in the Town’s AR-2 zoning district, where such uses
are prohibited.
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76. Additionally, the Project violates the Zoning By-Laws’ minimum lot frontage
requirements, where the Site fails to meet the 180-foot requirement, as set forth in
Section IV-B, Schedule of Intensity Regulations.
77 The Project also violates the Zoning By-Laws’ lot coverage requirements, set forth at
Section IV-B.
78. The Plaintiffs put the Board on notice of these nonconformities in writing on March 9,
2023, more than seven months before it closed its public hearing.
79. The Applicant never addressed these nonconformities, and the Board never explained to
the public what authority it had to grant the requested zoning relief in light of the
nonconformities.
80. The Board’s granting of site plan approval and the special permit embodied in its
Decision is arbitrary, capricious, an abuse of discussion, and in excess of the Board’s
legal authority.
81 The Board’s discussion of the Applicant, Application and the Project behind closed doors
on October 26, 2023 and/or November 16, 2023, and out of view of the public
contravenes the public hearing requirements of the state Zoning Act, G.L. c. 40A, § 11,
and constitutes an unlawful procedure that infects the validity of the Board’s Decision.
82. The Board’s invocation of “Exception 3” of the Open Meeting Law was a sham to justify
meeting in private to discuss the Application, to thwart the public hearing requirements of
the Zoning Act.
83 The Board’s Decision should be annulled.
COUNT II - OPEN MEETING LAW
(G.L. c. 30A, § 23)
84. . Paragraph 1-84 are realleged.
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85 The Superior Court has jurisdiction to enforce and resolve complaints of violations of the
state Open Meeting Law brought by any three registered voters, pursuant to G.L. c. 30A,
§ 23(f).
86. The Plaintiffs are all registered voters in the Town of Holliston.
87. The Board violated the Open Meeting Law by convening executive sessions on October
26, 2023 and/or November 16, 2023, at which the Board apparently discussed the
proposed Applicant, Project, and/or the Application.
88. The Board violated the Open Meeting Law by improperly convening both sessions based
upon “Exception 3,” at a time when there was no litigation pending or threatened against
the Board relating to the Applicant, Project, and/or the Application.
89. The Board’s invocation of “Exception 3” of the Open Meeting Law was a sham, to
falsely justify meeting in private to discuss the Applicant, Application, and/or Project,
and to thwart the Open Meeting Law’s requirement that meetings of the Board be
conducted in the open, where the public has the opportunity and means to watch and
listen.
90. The Board failed to identify and declare the litigation position the Board sought to
protect, because there was no litigation pending or position to protect at that time relating
to the Applicant, the Application, or the Project.
91 The Board violated the Open Meeting Law by failing to meet the requirement that it keep
“accurate records of the executive session.”
92. The violative executive sessions deprived the Plaintiffs and the public from their right to
participate in the public discourse regarding the proposed Project.
12
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Prayers For Relief
WHEREFORE, the Plaintiffs requests that this Court:
1 Annul the Decision;
2. Enforce the Open Meeting Law by imposing the following penalties as proscribed by
GL. c. 30A, § 23(c):
a compel Board member attendance at a training session authorized by the attorney
general;
nullify the Decision;
impose a civil penalty upon the Planning Board of $1,000 for each illegal
executive session; and
d. compel that the minutes from the executive sessions be made public.
3. Award the Plaintiffs their costs (including fees of expert witnesses) and attorneys’ fees in
the action; and
4. Grant the Plaintiffs such other relief as it deems just and proper.
13
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PLAINTIFFS,
By their attorneys,
/s/ Daniel C. Hill
Daniel C. Hill (BBO #644885)
Hale B. McAnulty (BBO #705628)
HILL LAW
6 Beacon Street, Suite 600
Boston, MA 02108
(617) 494-8300
dhill@danhilllaw.com
Dated: February 7, 2024
14
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EXHIBIT A
15
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TOWN OF HOLLISTON
PLANNING BOARD
Town Hall — 703 Washington Street
Holliston, MA 01746
(508) 429-0635
SITE PLAN REVIEW, STORMWATER AND LAND DISTURBANCE
PERMIT, AND SPECIAL PERMIT
CERTIFICATE OF ACTION
BARTZAK PV I, LLC - 103 BARTZAK DRIVE
Date of Decision: January 18, 2024
Applicant: Bartzak PV I, LLC
Applicant’s Address: 200 Portland Street, 5 Floor
Boston, MA 02114
Owner: Bartzak Land, LLC
Subject Property: 103 Bartzak Drive
Assessor’s Identification: Map 14, Block 4, Lot 21.4
Zoning District: Industrial (1) and Agricultural-Residential B (AR-2)
Administrative Record:
The Applicant filed an application for Site Plan Review and Special Permit with the Planning Board
and Town Clerk on July 27, 2022.
Hearing notice under the requirements of MGL, c. 40A and the Planning Board Rules and
Regulations included the following:
1 Publication of the hearing notice in the Metrowest Daily News on August 3, 2022
and August 10, 2022;
2. Posting of the hearing notice in the Town Clerk’s Office on August 1, 2022;
3 Notification to abutters (including surrounding towns and Applicant) by mail on
August 1, 2022.
The following documents were entered into the public record in support of the application and
were presented and discussed in detail:
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Site Plan Review/Special Permit Certificate of Action
Bartzak PV I, LLC. - 103 Bartzak Drive
e The plan of record entitled “Large-Scale Solar Power Generation System, 0 Bartzak Drive,
Holliston, Ma.” prepared by Beals Associates, Inc., (dated July 27, 2022 and revised on
November 10, 2022, Apri! 25, 2023, May 10, 2023, and October 10, 2023).
Presentation titled “Site Plan Review and Special Permit, (dated November 3, 2022),
prepared by Beals Associates Inc.
Stormwater Management Report — 0 Bartzak Drive, Holliston, Ma.”, (dated July 2022,
revised October 11, 2022)
Stormwater Operation and Maintenance Control Plan — 0 Bartzak Drive, Holliston, Ma.,
prepared by Beals Associates Inc., (dated July 2022),
Comment/Response Letter Stormwater Design Engineering Peer Review #1 “Large Scale
Solar Power Generation System” prepared by Beals Associates Inc., (dated 10/11/22).
Correspondence titled “MGL 40A Section 3 — Solar Bartzak PV I, LLC (“Applicant”) 0
Bartzak Drive (the “Property”) from David Berson, Attorney (dated March 8, 2023).
Correspondence titled “Submittal Items to Planning Board: Bartzak Drive Solar Project”,
from Bryan Sutherlin of Beals Associates, Inc. (dated March 9, 2023) with the following
attachments:
a.
Revised design plan, 0 Bartzak Drive, Holliston, (revised 12/19/22).
b.
Sungrow SG125HV, string Inverter for 1500 Vde System.
c.
Correspondence between Town Planner Karen Sherman and Lucas Faria of
Galehead Developers, (dated May 17, 2021).
Correspondence titled “Responses to Hearing #4 Questions/Comments 0 Bartzak Drive”
from Patrick Connolly, Beals Associates, Inc. (dated March 8, 2023).
Correspondence titled “Environmental Sound Evaluation” from Bradley Dunkin, Associate
Principal Consultant of Cavanaugh Tocci (dated March 8, 2023).
Correspondence titled “MGL 40A Section 3 — Solar Bartzak PV I, LLC (“Applicant”) 0
Bartzak Drive (the “Property”) from David Berson, Attorney (dated March 8, 2023).
Correspondence titled “Submittal Items to Planning Board: Bartzak Drive Solar Project”,
from Bryan Sutherlin of Beals Associates, Inc. (dated March 9, 2023) with the following
attachments
a, Revised design plan, 0 Bartzak Drive, Holliston, (revised 12/19/22).
b. Sungrow SG125HV, string Inverter for 1500 Vde System.
c. Correspondence between Karen Sherman and Lucas Faria of Galehead Developers,
(dated May 17, 2021).
Correspondence from Devin Howe, PE, Beals Associates, Inc., titled “Holliston Planning
Board October 26, dated October 24, 2023.
Correspondence titled “Responses to Hearing #4 Questions/Comments 0 Bartzak Drive”
from Patrick Connolly, Beals Associates, Inc. (dated March 8, 2023).
Correspondence titled “Environmental Sound Evaluation” from Bradley Dunkin, Associate
Principal Consultant of Cavanaugh Tocci (dated March 8, 2023)
Correspondence from Bradley M. Dunkin, Associate Principal Consultant, Cavanaugh
Tocci, concerning Planning Board Meeting June 8, 2023 — Response to Questions Bartzak
PV Solar Generating Facility, (dated September 7, 2023).
Correspondence from Devin P. Howe, Beals Associates, Inc. Professional Engineer,
concerning Conservation Commission Decision Supplemental Information Proposed Large
Scale Solar Power Generation System 0 Bartzak Drive, dated October 19, 2023 including
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Site Plan Review/Special Permit Certificate of Action
Bartzak PV I, LLC. - 103 Bartzak Drive
Town of Holliston, Conservation Commission, Denial Order of Conditions, Holliston.
Wetlands Administration Bylaw, Article XXXI, (dated September 25, 2023).
Peer Review: The board employed the services of several peer review consultants using the
provisions of MGL c.44, s.53G and Article VII Regulations for Special Permits and Site Plan
Review Appendix C ~— Project Review Fees. The following correspondence was entered into the
record from the peer reviewers:
Civil Engineering - David Faist , PE of CMG Environmental and Robert Lussier,
Project Engineer of CMG Environmental (dated August 18, 2022 and October 14, 2022).
Noise — Christopher Menge. Sr. Vice President/Principal Consultant of Harris, Miller,
Miller & Hanson (dated June 1, 2023 and September 18, 2023).
Correspondence from the following individuals was received and entered into the record:
e Memorandum of Law, prepared for Tom Keefe, 5 Mohawk Path, Holliston, by Daniel C.
Hill, Esq, (dated March 9, 2023)
Mark Halstead, 17 Mohawk Path (dated August 11, 2022)
Melissa Halstead of 17 Mohawk Path (dated January 11, 2023)
Thomas Gilbert of 105 Bullard St. (dated September 19, 2022, October 26, 2022, January 5
2023, January 17, 2023 and September 7, 2023)
Thomas Keefe and Zhuo Yang, 5 Mohawk Path, (dated October 1, 2022, October 26, 2022,
March 9, 2023, September 4, 2023, and September 14, 2023)
Dr. Zhenmin Liang and Dr. Victoria Wei, 32 Praying Indian Way, not dated.
Tara D’Amato, 24 Praying Indian Way, (dated October 5, 2022)
Letter of Opposition Petition, Highland Community Participation (September 8, 2022 .pdf),
171 signatures.
Public Hearing: The public hearing was opened on August 18, 2022 and continued to
September 8, 2022, October 13, 2022, January 12, 2023, March 16, 2023, June 8, 2023,
September 14, 2023, and October 26, 2023 at which time the hearing was closed.
The Board deliberated on the matter on November 16, 2023 and January 18, 2024. .
During the hearing, the following individuals were present for the applicant: Devin Howe, PE,
Bryan Sutherlin, and Patrick Connolly of Beals Assoc. along with Adam Maynard, Alex Toupal
and Lucas Faria of Galehead (aka Bartzak PV I, LLC), Atty. David Berson of S. David White,
P.C., and Bradley Dunkin, Associate Principal Consultant of Cavanaugh Tocci.
Mr. Howe and Mr. Dunkin both provided a PowerPoint presentation, including an overview of
the requested waivers and mitigation. Mr. Howe provided a status of the design.
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Site Plan Review/Special Permit Certificate of Action
Bartzak PV I, LLC. — 103 Bartzak Drive
Findings:
In accordance with the provisions of Holliston Zoning By-Laws Section VI-E Special Permit
Granting Authority (SPGA), the Planning Board (acting as SPGA) has considered the proposed
use in relation to the site as well as the adjacent uses and structures and finds that there will be no
significant adverse effects to the neighborhood and the Town as proposed, considering the
following criteria:
Zoning Bylaw Section VI-E(5):
a. The degree to which the proposed use complies with the dimensional requirements of the by-
law, is in an appropriate location and does not significantly alter the character of the
neighborhood; the project is compatible with existing uses and other uses allowed by-right in the
district and is designed to be compatible with the character and the scale of neighboring
properties.
b. To the extent feasible, the proposal has been integrated into the existing terrain and
surrounding landscape, minimizing the impacts to the aquifer and/or recharge area, wetlands,
steep slopes, and floodplains.
c. Adequate and appropriate facilities shall be provided for the proper operation of the proposed
use, including screening and provisions for convenient and safe vehicular and pedestrian
circulation within the site and in relation to adjacent streets and properties.
d. The proposed project shall not create any significant emission of noise, dust, fumes, noxious
gases or any other adverse environmental impact including stormwater, erosion and
sedimentation.
e. There shall be no unreasonable glare from lighting, whether direct or reflected, onto ways, the
night sky or onto adjacent properties.
Zoning Bylaw Section VII(5)(a-h):
5. General
Venera Conditions
VOonditon: for raApproval. In considering a site plan application under this Section, the
Planning Board shall ensure, to a degree consistent with a reasonable use of the site for the purposes
permitted or permissible by the regulations of the district in which located, that there is:
a. protection of adjoining premises against seriously detrimental or offensive uses on the site;
b. convenience and safety of vehicular and pedestrian movement within and without the site,
and in relation to adjacent streets, property or improvements;
Cc. adequacy of the methods of disposal for sewage, refuse and other wastes resulting from the
uses on the site, and the methods of drainage for surface water from its parking spaces and
driveways;
adequacy and safety of storage facilities/methods for fuel, refuse, vehicles and other material
and equipment incidental to the use of the site;
provision for emergency access and operations within the site;
provision for off-street loading, unloading and parking of vehicles incidental to the normal
operation of the establishment;
& development that to the extent reasonably possible harmonizes with neighboring land uses
and structures; and
h compliance with the Board’s adopted design guidelines.
Throughout its deliberations, the Planning Board has been mindful of the statements of the
Applicant all as made during the public hearing. More specifically, and based upon the
Date Filed 2/7/2024 1:15 PM
Superior Court - Middlesex
Docket Number
Site Plan Review/Special Permit Certificate of Action
Bartzak PV I, LLC. — 103 Bartzak Drive
testimony and evidence at the public hearing as detailed above, the proposed project meets all
dimensional requirements of zoning.
Section VI-E(5)(a). All project components are located more than 50 feet away from the
perimeter of the lots. The project is located more than 400 feet from any residential property.
This proximity to a single residential abutter will provide effective mitigation of any noise
(sound pressure level) and electromagnetic field (EMF) emissions from the solar installation
components, namely the inverters, photovoltaic array and other equipment. The lot benefits from
a Variance from the provisions of Section IV-A(12) and I-E allowing for the use of an access
easement rather than its legal frontage on Praying Indian Way. The Planning Board endorsed an
Approval Not Required Subdivision Plan creating the lot.
Section VI-E(5)(d). A series of best management practices including grassed channels and
detention basins will provide for effective stormwater management. Only emergency lighting is
proposed. Construction and operation mitigation has been developed with community input. The
construction period will last approximately 3 ~ 4 months. Modest facility management is needed
over the minimum 20-year operational period. Solar system performance will be monitored 24
hours per day.
Section VI-E(5)(c)&(e). It is also noted that the project was scaled back somewhat during the
public hearing primarily to address issues related to wetlands (the Conservation Commission
issued an Order of Conditions denying the project during the Planning Board’s public hearing).
The resulting reduced project is more in harmony with the existing terrain and landscape.
Furthermore, the Board specifically considered the criteria in Section VII(5)(a-h) and found,
based upon the foregoing, that each were addressed by the applicant and the Board through the
conditions imposed here such that the project is a reasonable use of the site for the purposes
permitted.
General Bylaw Section XLI: Stormwater Management and Land Disturbance Permit
In accordance with the provisions of Holliston By-Laws Section XLI, the Project is a “Major Land
Disturbance” in that it proposes activities which will result in the disturbance of 40,000 square feet
or more of land (95,000 s.f. of disturbance is proposed.). As such, the Planning Board (acting as
permit granting authority) must:
a. Approve the application upon finding that the proposed plan will protect water
resources and meets the objectives and requirements of this bylaw;
b Approve the permit with conditions, modifications or restriction that are required to
ensure that the project will protect water resources and meets the objectives and
requirements of this bylaw;
Disapprove the application if the proposed plan will not protect water resources or
fails to meet the objectives or requirements of this bylaw.
Under Section 11.6.5 of the Board’s regulations, the Board is empowered to deny a permit for
failure to meet the requirements of the bylaw; for failure to submit necessary information or
plans requested by the Board; for failure to avoid or prevent unacceptable adverse or cumulative
effects upon the resources protected by the by-law; or if in the Board’s final judgment such
Date Filed 2/7/2024 1:15 PM
Superior Court - Middlesex
Docket Number
Site Plan Review/Special Permit Certificate of Action
Bartzak PV I, LLC. — 103 Bartzak Drive
denial is necessary to preserve the quality of the surface water or groundwaters of the
Commonwealth and/or the storm drainage system of the Town of Holliston. In the event a permit
is denied, the Planning Board shall put its reasons for denial in writing as part of issuance.
After carefully weighing the testimony and evidence at the public hearing and upon careful
consideration of the public comments and professional opinions given by the Applicant’s
representatives and the Board’s peer review consultants, and based upon all of the above
referenced records and the above finding
Preview
Date Filed 2/7/2024 1:15 PM Superior Court - Middlesex Docket Number COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. Superior Court Department No. THOMAS KEEFE, MARK HALSTEAD, and THOMAS GILBERT, Plaintiffs, V. KAREN APUZZO LANGTON, DAVID 2/7124 te THORN, JASON SANTOS, SCOTT RECEIVED FERKLER, and BARBARA PEATIE as they are the members of the HOLLISTON PLANNING BOARD, and BARTZAK PV I, LLC, Defendants. COMPLAINT 1 This is a zoning appeal pursuant to G.L. c. 40A, § 17 from a decision of the defendant Holliston Planning Board (“Board”) filed in the Holliston Town Clerk’s Office on January 19, 2024, granting a special permit and site plan approval to Bartzak PV I, LLC (“Applicant”), to develop a Large-Scale Solar Power Generation System (the “Project”) at 103 Bartzak Drive, previously identified as 0 Bartzak Drive on the Applicant’s special permit and site plan review application (the “Application”), which is identified by the Town Assessor as Map 14, Block 4, Lot 21.4 (the “Site’”). A true copy of the Board’s decision approving the Applicant’s request for a special permit is attached hereto as Exhibit A (the “Decision”). Pursuant to G.L. c. 30A, § 23(f), the above-listed three individual plaintiffs, who are registered voters of the Commonwealth of Massachusetts, further seek redress from Date Filed 2/7/2024 1:15 PM Superior Court - Middlesex Docket Number violations of the Massachusetts Open Meeting Law, G.L. c. 30A, § 23, arising from actions of the Board occurring on October 26, 2023 and November 16, 2023, whereby the Board improperly convened executive sessions without legal basis, and without required record keeping, thereby depriving the Plaintiffs of legally-protected participation in the deliberation process. The Parties The Plaintiff Thomas Keefe owns and resides at 5 Mohawk Path, Holliston, Massachusetts, which directly abuts the Site, and is aggrieved by the Board’s Decision. As such, he is a “party in interest” who is presumed to be aggrieved by the Decision. G.L. c. 40A, § 11. Thomas Keefe is a registered voter in Massachusetts for the purposes of GL. c. 30A, § 23(f). The Plaintiff Mark Halstead owns and resides at 17 Mohawk Path, Holliston, Massachusetts, which directly abuts the Site, and is aggrieved by the Board’s Decision. As such, he is a “party in interest” who is presumed to be aggrieved by the Decision. G.L. c. 40A, § 11. Mark Halstead is a registered voter in Massachusetts for the purposes of GL. c. 30A, § 23(f). The Plaintiff Thomas Gilbert owns and resides at 105 Bullard Street, Holliston, Massachusetts, and is aggrieved by the Board’s Decision. Thomas Gilbert is a registered voter in Massachusetts for the purposes of G.L. c. 30A, § 23(f). Defendant Karen Apuzzo Langton is a member of the Holliston Planning Board and voted to grant the Special Permit that is embodied in the Decision. Karen Apuzzo Langton resides at 100 Woodland Street, Holliston, Massachusetts. Date Filed 2/7/2024 1:15 PM Superior Court - Middlesex Docket Number 7. Defendant David Thorn is a member of the Holliston Planning Board and voted to grant the Special Permit that is embodied in the Decision. David Thorn resides at 20 Hollis Street, Holliston, Massachusetts. Defendant Jason Santos is a member of the Holliston Planning Board and voted to grant the Special Permit that is embodied in the Decision. Jason Santos resides at 183 Marshall Street, Holliston, Massachusetts. Defendant Scott Ferkler is a member of the Holliston Planning Board and voted to grant the Special Permit that is embodied in the Decision. Scott Ferkler resides at 30 Briarcliff Lane, Holliston, Massachusetts. 10. Defendant Barbara Peatie is a member of the Holliston Planning Board and voted to grant the Special Permit that is embodied in the Decision. Barbara Peatie resides at 166 Union Street, Holliston, Massachusetts. 11 Defendant Holliston Planning Board is an agency of the Town of Holliston, with a principal place of business at Holliston Town Hall, 703 Washington Street, Holliston, Massachusetts. 12. Defendant Bartzak PV I, LLC, is a Delaware Limited Liability Company, registered in the state of Massachusetts, with a principal place of business at 1 Lincoln Street, Suite 2400, Boston, Massachusetts. Date Filed 2/7/2024 1:15 PM Superior Court - Middlesex Docket Number The Project Site 13 The Site consists of 2.9 predominantly forested acres located in the northeast corner region of Holliston Massachusetts, to the east of the terminus of Bartzak Drive and to the west of the intersection of Praying Indian Way and Mohawk Path. 14 The Site is identified as Parcel 14-04-21.4 by the Town Assessor Database, and shown as “Parcel A” on a plan of land recorded with the Middlesex South District Registry of Deeds as Plan 972 of 2008 (“2008 Plan”). 1S The Site is a so-called “split lot,” meaning that the lot straddles a zoning district boundary under the Holliston Zoning By-Laws (the “Zoning By-Laws”). 16. Specifically, the western portion of the property, comprising the majority of the Site, is located within an Industrial zoning district. 17. The remaining land, comprising the eastern portion of the property within 100 feet of the layout of the discontinued Jennings Road, is located within an Agricultural-Residential District B (“AR-2”) zoning district. 18. The 2008 Plan also depicts a 30-foot right-of-way, that starts at the Bartzak Drive cul-de- sac, and runs easterly though the northern portion of the Site, cutting across both Industrial and AR-2 zoned portions of the Site. 19. The right-of-way ends at the boundary of Jennings Road, which was a public way until 1998, when it was discontinued by town meeting. The Project 20. The Project is a “Large-Scale Solar Energy Generation System,” which is defined by the Zoning By-Laws, Section I-E, as a “roof or ground-mounted solar power generation Date Filed 2/7/2024 1:15 PM Superior Court - Middlesex Docket Number system which has a rated nameplate capacity of 250 kilowatt or more (i.e. the maximum rated output of electric power production of the solar energy system in Direct Current).” 21 The Project is estimated to generate approximately 499 kilowatts of energy. 22. The Project will consist of solar panels installed on a fixed frame in rows of two, and oriented generally in an east/west direction, covering most of the Site, with the proposed layout consisting of sixteen such rows. 23 The Project’s equipment and appurtenances include a transformer, inverters, metering, disconnect, and recloser, which will be located on a concrete pad in the northwest corner of the Project Site. 24. The Project will involve clearing the Site of trees and vegetation. 25 The Project will involve the disturbance of approximately 95,000 square feet of land on the Site. 26. The Applicant asserts that it has an appurtenant easement to use the right-of-way terminating at Bartzak Drive for access to and from the Site. 27 The Applicant has not asserted any easement rights to access the Site from Jennings Road. Legal Framework 28, Under the state Zoning Act, G.L. c. 40A, § 3 (the so-called “Dover Amendment”), municipalities may regulate solar energy systems “where necessary to protect the public health, safety or welfare.” 29. The solar energy provision of the Dover Amendment, G.L. c. 40A, § 3, | 9 was added in 1987 to promote solar energy generation throughout the Commonwealth. The paragraph states: Date Filed 2/7/2024 1:15 PM Superior Court - Middlesex Docket Number No zoning ordinance or by-law shall 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. 30. The statute has been interpreted as precluding municipalities from prohibiting solar facilities, but allowing reasonable regulation that is related to public health, safety or welfare. See, Tracer Lane Realty II, LLC v. City of Waltham, 489 Mass. 775 (2022). 31 Under Section III of the Zoning By-Laws, large-scale solar energy generation systems are only allowed in Industrial and Commercial zoning districts, and only by special permit. 32. Under the Zoning By-Laws, large-scale solar energy generation systems are not permitted in an AR-2 zoning district, even by special permit. 33 Holliston's Industrial and Commercial districts comprise 1,585 acres, roughly 13% of the Town’s total land area. 34 As such, large-scale solar energy generations systems are allowed by special permit on approximately 13% of the land in Holliston. 35 Nothing in G.L. c. 40A, § 3, J] 9, or subsequent appellate-level decisions suggest that a town must allow large-scale facilities on land more than 13% of its overall land area. 36. Additionally, under the Zoning By-Laws, small-scale solar energy generation systems (capacity of less than 250 kilowatts) are allowed by right in the AR-1 and Industrial zoning districts, and in all other districts by special permit. 37 Smaller solar energy systems, such as those attached to residential and commercial buildings are considered “accessory structures and uses,” and are allowed as of right anywhere in Holliston under the Zoning By-Laws. See Zoning By-Laws, § V-A. 38, The Zoning By-Laws require lots to maintain a minimum of 180 feet of legal frontage in the AR-2 zoning district, and 40 feet of legal frontage in the Industrial zoning district. Date Filed 2/7/2024 1:15 PM Superior Court - Middlesex Docket Number 39. The Zoning By-Laws also cap lot “coverage” to 25% in the AR-2 district, and 40% in the Industrial district. 40. As defined in the Schedule of Intensity Regulations (§ IV-B), lot coverage applies to buildings and structures. “Structure” is defined as: “Three (3) dimensional permanent improvements to real estate made with building materials which improvements include, but are not limited to swimming pools, tennis courts, basketball courts and accessory buildings...” The Board’s Public Hearing and Decision 4l The Applicant filed its Application with the Board and the Town Clerk on July 27, 2022 42 The Board opened a public hearing on the Application on August 18, 2022. 43 The Board received numerous written submissions, including from the Plaintiffs, setting forth the legal deficiencies of the Application and violations of the Project as designed. 44 The Project was not eligible for a special permit under the Zoning By-Laws because the Project would be partly located in the AR-2 zoning district, where such large-scale solar projects are forbidden. 45 The Zoning By-Laws provide no exception which could allow the use of the Project, or any accessory components thereof, in an AR-2 zoning district. 46 Even if the Project were a permitted use in the AR-2 district, it still does not comply with the Zoning By-Laws’ dimensional regulations. 47 The Site has 132.83 feet of frontage on Praying Indian Way. 48. A minimum of 180-feet of frontage is required in the AR-2 zoning district. 49 The Applicant never addressed, and the Board did not compel the Applicant to address, this patent violation of the frontage requirements. Date Filed 2/7/2024 1:15 PM Superior Court - Middlesex Docket Number 50. Similarly, the Project violates the maximum lot coverage provision in the Schedule of Intensity Regulations in the Zoning By-Laws. Sl The proposed solar array, consisting of rows of three-dimensional, permanent, ground- mounted solar panels, covering the majority of the Site, is a “structure” for purposes of the Zoning By-Laws. 52. The proposed solar array covers more than 25% of the Site that is located in the AR-2 district. 53 The proposed solar array covers more than 40% of the Site that is located in the Industrial district. 54. The Decision fails to address whether the Project satisfies the Zoning By-Laws’ permitted use and dimensional requirements. 55 On October 26, 2023, a quorum of the Board met behind closed doors, where the public was not invited, to discuss the Applicant, Project, and/or the Application. 56. The “minutes” of the Boards’s public meeting held on October 26, 2023 indicate that the Board convened in what is known as “executive session” under the state Open Meeting Law, to discuss the Applicant. The meeting minutes cite “Exception 3” of the Open Meeting Law in reference to this executive session. 57 “Exception 3” under the statute provides that an executive session may be called to “discuss strategy with respect to collective bargaining or litigation if an open meeting may have a detrimental effect on the bargaining or litigating position of the public body ” 58. In order to invoke Exception 3 to justify holding an executive session that is closed to the public, there must be actual or threatened litigation, not the mere possibility of litigation. Date Filed 2/7/2024 1:15 PM Superior Court - Middlesex Docket Number 59, A public board cannot convene in executive session to have a private discussion about a pending land use application simply because an applicant, or other aggrieved parties, might appeal its decision. 60. The October 26, 2023 minutes do not indicate whether the chair stated in open session the purpose for the executive session, “stating all subjects that may be revealed without compromising the purpose for which the executive session was called.” G.L. c. 30A, § 21(b)(3). 61 The October 26, 2023 meeting minutes do not indicate that the Board identified a litigation position to protect, and/or declared that open session would have a detrimental impact on such position. 62. At the time that the executive session was convened on October 26, 2023, there was no pending litigation relating to the Applicant or the Project. 63 The Board closed the public hearing on the Application on October 26, 2023. 64. The Board convened a second executive session of the Board on November 16, 2023 to discuss “Bartzak solar.” 65 The minutes of the Board’s public meeting on November 16, 2023 indicate that the session was convened pursuant to “Exception 3.” 66. The November 16, 2023 minutes do not indicate whether the chair stated in open session the purpose for the executive session, “stating all subjects that may be revealed without compromising the purpose for which the executive session was called.” G.L. c. 30A, § 21(b)(3). Date Filed 2/7/2024 1:15 PM Superior Court - Middlesex Docket Number 67. The November 16, 2023 meeting minutes do not indicate that the Board identified a litigation position to protect, and/or declared that open session would have a detrimental impact on such position. 68. At the time that the executive session was convened on November 16, 2023, there was no pending litigation relating to “Bartzak solar”. 69. The Open Meeting Law, G.L. c. 30A, § 21(b)(5), requires that “accurate records of the executive session shall be maintained pursuant to section 23.” 70. In response to a public record request filed by the Plaintiffs on January 29, 2024, Assistant Town Clerk to the Town of Holliston reported that “There are no separate minute of the Executive Session(s) on this matter as there were no related votes taken.” COUNT I - Zoning Appeal (GL. c. 40A, § 17) 71 Paragraphs 1 — 71 are re-alleged. 72. The Superior Court has jurisdiction to review the Board’s Decision under G.L. ¢. 40A, § 17. 73 The Plaintiffs, Thomas Keefe, Mark Halstead, and Thomas Gilbert seek judicial review of the Decision. 74 The Decision permits a Project that demonstrably does not conform to the mandatory requirements of the Zoning By-Laws. 75 Specifically, the Decision permits the use of a large-scale solar energy system, and accessories thereto, on land located in the Town’s AR-2 zoning district, where such uses are prohibited. 10 Date Filed 2/7/2024 1:15 PM Superior Court - Middlesex Docket Number 76. Additionally, the Project violates the Zoning By-Laws’ minimum lot frontage requirements, where the Site fails to meet the 180-foot requirement, as set forth in Section IV-B, Schedule of Intensity Regulations. 77 The Project also violates the Zoning By-Laws’ lot coverage requirements, set forth at Section IV-B. 78. The Plaintiffs put the Board on notice of these nonconformities in writing on March 9, 2023, more than seven months before it closed its public hearing. 79. The Applicant never addressed these nonconformities, and the Board never explained to the public what authority it had to grant the requested zoning relief in light of the nonconformities. 80. The Board’s granting of site plan approval and the special permit embodied in its Decision is arbitrary, capricious, an abuse of discussion, and in excess of the Board’s legal authority. 81 The Board’s discussion of the Applicant, Application and the Project behind closed doors on October 26, 2023 and/or November 16, 2023, and out of view of the public contravenes the public hearing requirements of the state Zoning Act, G.L. c. 40A, § 11, and constitutes an unlawful procedure that infects the validity of the Board’s Decision. 82. The Board’s invocation of “Exception 3” of the Open Meeting Law was a sham to justify meeting in private to discuss the Application, to thwart the public hearing requirements of the Zoning Act. 83 The Board’s Decision should be annulled. COUNT II - OPEN MEETING LAW (G.L. c. 30A, § 23) 84. . Paragraph 1-84 are realleged. 11 Date Filed 2/7/2024 1:15 PM Superior Court - Middlesex Docket Number 85 The Superior Court has jurisdiction to enforce and resolve complaints of violations of the state Open Meeting Law brought by any three registered voters, pursuant to G.L. c. 30A, § 23(f). 86. The Plaintiffs are all registered voters in the Town of Holliston. 87. The Board violated the Open Meeting Law by convening executive sessions on October 26, 2023 and/or November 16, 2023, at which the Board apparently discussed the proposed Applicant, Project, and/or the Application. 88. The Board violated the Open Meeting Law by improperly convening both sessions based upon “Exception 3,” at a time when there was no litigation pending or threatened against the Board relating to the Applicant, Project, and/or the Application. 89. The Board’s invocation of “Exception 3” of the Open Meeting Law was a sham, to falsely justify meeting in private to discuss the Applicant, Application, and/or Project, and to thwart the Open Meeting Law’s requirement that meetings of the Board be conducted in the open, where the public has the opportunity and means to watch and listen. 90. The Board failed to identify and declare the litigation position the Board sought to protect, because there was no litigation pending or position to protect at that time relating to the Applicant, the Application, or the Project. 91 The Board violated the Open Meeting Law by failing to meet the requirement that it keep “accurate records of the executive session.” 92. The violative executive sessions deprived the Plaintiffs and the public from their right to participate in the public discourse regarding the proposed Project. 12 Date Filed 2/7/2024 1:15 PM Superior Court - Middlesex Docket Number Prayers For Relief WHEREFORE, the Plaintiffs requests that this Court: 1 Annul the Decision; 2. Enforce the Open Meeting Law by imposing the following penalties as proscribed by GL. c. 30A, § 23(c): a compel Board member attendance at a training session authorized by the attorney general; nullify the Decision; impose a civil penalty upon the Planning Board of $1,000 for each illegal executive session; and d. compel that the minutes from the executive sessions be made public. 3. Award the Plaintiffs their costs (including fees of expert witnesses) and attorneys’ fees in the action; and 4. Grant the Plaintiffs such other relief as it deems just and proper. 13 Date Filed 2/7/2024 1:15 PM Superior Court - Middlesex Docket Number PLAINTIFFS, By their attorneys, /s/ Daniel C. Hill Daniel C. Hill (BBO #644885) Hale B. McAnulty (BBO #705628) HILL LAW 6 Beacon Street, Suite 600 Boston, MA 02108 (617) 494-8300 dhill@danhilllaw.com Dated: February 7, 2024 14 Date Filed 2/7/2024 1:15 PM Superior Court - Middlesex Docket Number EXHIBIT A 15 Date Filed 2/7/2024 1:15 PM Superior Court - Middlesex Docket Number TOWN OF HOLLISTON PLANNING BOARD Town Hall — 703 Washington Street Holliston, MA 01746 (508) 429-0635 SITE PLAN REVIEW, STORMWATER AND LAND DISTURBANCE PERMIT, AND SPECIAL PERMIT CERTIFICATE OF ACTION BARTZAK PV I, LLC - 103 BARTZAK DRIVE Date of Decision: January 18, 2024 Applicant: Bartzak PV I, LLC Applicant’s Address: 200 Portland Street, 5 Floor Boston, MA 02114 Owner: Bartzak Land, LLC Subject Property: 103 Bartzak Drive Assessor’s Identification: Map 14, Block 4, Lot 21.4 Zoning District: Industrial (1) and Agricultural-Residential B (AR-2) Administrative Record: The Applicant filed an application for Site Plan Review and Special Permit with the Planning Board and Town Clerk on July 27, 2022. Hearing notice under the requirements of MGL, c. 40A and the Planning Board Rules and Regulations included the following: 1 Publication of the hearing notice in the Metrowest Daily News on August 3, 2022 and August 10, 2022; 2. Posting of the hearing notice in the Town Clerk’s Office on August 1, 2022; 3 Notification to abutters (including surrounding towns and Applicant) by mail on August 1, 2022. The following documents were entered into the public record in support of the application and were presented and discussed in detail: Date Filed 2/7/2024 1:15 PM Superior Court - Middlesex Docket Number Site Plan Review/Special Permit Certificate of Action Bartzak PV I, LLC. - 103 Bartzak Drive e The plan of record entitled “Large-Scale Solar Power Generation System, 0 Bartzak Drive, Holliston, Ma.” prepared by Beals Associates, Inc., (dated July 27, 2022 and revised on November 10, 2022, Apri! 25, 2023, May 10, 2023, and October 10, 2023). Presentation titled “Site Plan Review and Special Permit, (dated November 3, 2022), prepared by Beals Associates Inc. Stormwater Management Report — 0 Bartzak Drive, Holliston, Ma.”, (dated July 2022, revised October 11, 2022) Stormwater Operation and Maintenance Control Plan — 0 Bartzak Drive, Holliston, Ma., prepared by Beals Associates Inc., (dated July 2022), Comment/Response Letter Stormwater Design Engineering Peer Review #1 “Large Scale Solar Power Generation System” prepared by Beals Associates Inc., (dated 10/11/22). Correspondence titled “MGL 40A Section 3 — Solar Bartzak PV I, LLC (“Applicant”) 0 Bartzak Drive (the “Property”) from David Berson, Attorney (dated March 8, 2023). Correspondence titled “Submittal Items to Planning Board: Bartzak Drive Solar Project”, from Bryan Sutherlin of Beals Associates, Inc. (dated March 9, 2023) with the following attachments: a. Revised design plan, 0 Bartzak Drive, Holliston, (revised 12/19/22). b. Sungrow SG125HV, string Inverter for 1500 Vde System. c. Correspondence between Town Planner Karen Sherman and Lucas Faria of Galehead Developers, (dated May 17, 2021). Correspondence titled “Responses to Hearing #4 Questions/Comments 0 Bartzak Drive” from Patrick Connolly, Beals Associates, Inc. (dated March 8, 2023). Correspondence titled “Environmental Sound Evaluation” from Bradley Dunkin, Associate Principal Consultant of Cavanaugh Tocci (dated March 8, 2023). Correspondence titled “MGL 40A Section 3 — Solar Bartzak PV I, LLC (“Applicant”) 0 Bartzak Drive (the “Property”) from David Berson, Attorney (dated March 8, 2023). Correspondence titled “Submittal Items to Planning Board: Bartzak Drive Solar Project”, from Bryan Sutherlin of Beals Associates, Inc. (dated March 9, 2023) with the following attachments a, Revised design plan, 0 Bartzak Drive, Holliston, (revised 12/19/22). b. Sungrow SG125HV, string Inverter for 1500 Vde System. c. Correspondence between Karen Sherman and Lucas Faria of Galehead Developers, (dated May 17, 2021). Correspondence from Devin Howe, PE, Beals Associates, Inc., titled “Holliston Planning Board October 26, dated October 24, 2023. Correspondence titled “Responses to Hearing #4 Questions/Comments 0 Bartzak Drive” from Patrick Connolly, Beals Associates, Inc. (dated March 8, 2023). Correspondence titled “Environmental Sound Evaluation” from Bradley Dunkin, Associate Principal Consultant of Cavanaugh Tocci (dated March 8, 2023) Correspondence from Bradley M. Dunkin, Associate Principal Consultant, Cavanaugh Tocci, concerning Planning Board Meeting June 8, 2023 — Response to Questions Bartzak PV Solar Generating Facility, (dated September 7, 2023). Correspondence from Devin P. Howe, Beals Associates, Inc. Professional Engineer, concerning Conservation Commission Decision Supplemental Information Proposed Large Scale Solar Power Generation System 0 Bartzak Drive, dated October 19, 2023 including Date Filed 2/7/2024 1:15 PM Superior Court - Middlesex Docket Number Site Plan Review/Special Permit Certificate of Action Bartzak PV I, LLC. - 103 Bartzak Drive Town of Holliston, Conservation Commission, Denial Order of Conditions, Holliston. Wetlands Administration Bylaw, Article XXXI, (dated September 25, 2023). Peer Review: The board employed the services of several peer review consultants using the provisions of MGL c.44, s.53G and Article VII Regulations for Special Permits and Site Plan Review Appendix C ~— Project Review Fees. The following correspondence was entered into the record from the peer reviewers: Civil Engineering - David Faist , PE of CMG Environmental and Robert Lussier, Project Engineer of CMG Environmental (dated August 18, 2022 and October 14, 2022). Noise — Christopher Menge. Sr. Vice President/Principal Consultant of Harris, Miller, Miller & Hanson (dated June 1, 2023 and September 18, 2023). Correspondence from the following individuals was received and entered into the record: e Memorandum of Law, prepared for Tom Keefe, 5 Mohawk Path, Holliston, by Daniel C. Hill, Esq, (dated March 9, 2023) Mark Halstead, 17 Mohawk Path (dated August 11, 2022) Melissa Halstead of 17 Mohawk Path (dated January 11, 2023) Thomas Gilbert of 105 Bullard St. (dated September 19, 2022, October 26, 2022, January 5 2023, January 17, 2023 and September 7, 2023) Thomas Keefe and Zhuo Yang, 5 Mohawk Path, (dated October 1, 2022, October 26, 2022, March 9, 2023, September 4, 2023, and September 14, 2023) Dr. Zhenmin Liang and Dr. Victoria Wei, 32 Praying Indian Way, not dated. Tara D’Amato, 24 Praying Indian Way, (dated October 5, 2022) Letter of Opposition Petition, Highland Community Participation (September 8, 2022 .pdf), 171 signatures. Public Hearing: The public hearing was opened on August 18, 2022 and continued to September 8, 2022, October 13, 2022, January 12, 2023, March 16, 2023, June 8, 2023, September 14, 2023, and October 26, 2023 at which time the hearing was closed. The Board deliberated on the matter on November 16, 2023 and January 18, 2024. . During the hearing, the following individuals were present for the applicant: Devin Howe, PE, Bryan Sutherlin, and Patrick Connolly of Beals Assoc. along with Adam Maynard, Alex Toupal and Lucas Faria of Galehead (aka Bartzak PV I, LLC), Atty. David Berson of S. David White, P.C., and Bradley Dunkin, Associate Principal Consultant of Cavanaugh Tocci. Mr. Howe and Mr. Dunkin both provided a PowerPoint presentation, including an overview of the requested waivers and mitigation. Mr. Howe provided a status of the design. Date Filed 2/7/2024 1:15 PM Superior Court - Middlesex Docket Number Site Plan Review/Special Permit Certificate of Action Bartzak PV I, LLC. — 103 Bartzak Drive Findings: In accordance with the provisions of Holliston Zoning By-Laws Section VI-E Special Permit Granting Authority (SPGA), the Planning Board (acting as SPGA) has considered the proposed use in relation to the site as well as the adjacent uses and structures and finds that there will be no significant adverse effects to the neighborhood and the Town as proposed, considering the following criteria: Zoning Bylaw Section VI-E(5): a. The degree to which the proposed use complies with the dimensional requirements of the by- law, is in an appropriate location and does not significantly alter the character of the neighborhood; the project is compatible with existing uses and other uses allowed by-right in the district and is designed to be compatible with the character and the scale of neighboring properties. b. To the extent feasible, the proposal has been integrated into the existing terrain and surrounding landscape, minimizing the impacts to the aquifer and/or recharge area, wetlands, steep slopes, and floodplains. c. Adequate and appropriate facilities shall be provided for the proper operation of the proposed use, including screening and provisions for convenient and safe vehicular and pedestrian circulation within the site and in relation to adjacent streets and properties. d. The proposed project shall not create any significant emission of noise, dust, fumes, noxious gases or any other adverse environmental impact including stormwater, erosion and sedimentation. e. There shall be no unreasonable glare from lighting, whether direct or reflected, onto ways, the night sky or onto adjacent properties. Zoning Bylaw Section VII(5)(a-h): 5. General Venera Conditions VOonditon: for raApproval. In considering a site plan application under this Section, the Planning Board shall ensure, to a degree consistent with a reasonable use of the site for the purposes permitted or permissible by the regulations of the district in which located, that there is: a. protection of adjoining premises against seriously detrimental or offensive uses on the site; b. convenience and safety of vehicular and pedestrian movement within and without the site, and in relation to adjacent streets, property or improvements; Cc. adequacy of the methods of disposal for sewage, refuse and other wastes resulting from the uses on the site, and the methods of drainage for surface water from its parking spaces and driveways; adequacy and safety of storage facilities/methods for fuel, refuse, vehicles and other material and equipment incidental to the use of the site; provision for emergency access and operations within the site; provision for off-street loading, unloading and parking of vehicles incidental to the normal operation of the establishment; & development that to the extent reasonably possible harmonizes with neighboring land uses and structures; and h compliance with the Board’s adopted design guidelines. Throughout its deliberations, the Planning Board has been mindful of the statements of the Applicant all as made during the public hearing. More specifically, and based upon the Date Filed 2/7/2024 1:15 PM Superior Court - Middlesex Docket Number Site Plan Review/Special Permit Certificate of Action Bartzak PV I, LLC. — 103 Bartzak Drive testimony and evidence at the public hearing as detailed above, the proposed project meets all dimensional requirements of zoning. Section VI-E(5)(a). All project components are located more than 50 feet away from the perimeter of the lots. The project is located more than 400 feet from any residential property. This proximity to a single residential abutter will provide effective mitigation of any noise (sound pressure level) and electromagnetic field (EMF) emissions from the solar installation components, namely the inverters, photovoltaic array and other equipment. The lot benefits from a Variance from the provisions of Section IV-A(12) and I-E allowing for the use of an access easement rather than its legal frontage on Praying Indian Way. The Planning Board endorsed an Approval Not Required Subdivision Plan creating the lot. Section VI-E(5)(d). A series of best management practices including grassed channels and detention basins will provide for effective stormwater management. Only emergency lighting is proposed. Construction and operation mitigation has been developed with community input. The construction period will last approximately 3 ~ 4 months. Modest facility management is needed over the minimum 20-year operational period. Solar system performance will be monitored 24 hours per day. Section VI-E(5)(c)&(e). It is also noted that the project was scaled back somewhat during the public hearing primarily to address issues related to wetlands (the Conservation Commission issued an Order of Conditions denying the project during the Planning Board’s public hearing). The resulting reduced project is more in harmony with the existing terrain and landscape. Furthermore, the Board specifically considered the criteria in Section VII(5)(a-h) and found, based upon the foregoing, that each were addressed by the applicant and the Board through the conditions imposed here such that the project is a reasonable use of the site for the purposes permitted. General Bylaw Section XLI: Stormwater Management and Land Disturbance Permit In accordance with the provisions of Holliston By-Laws Section XLI, the Project is a “Major Land Disturbance” in that it proposes activities which will result in the disturbance of 40,000 square feet or more of land (95,000 s.f. of disturbance is proposed.). As such, the Planning Board (acting as permit granting authority) must: a. Approve the application upon finding that the proposed plan will protect water resources and meets the objectives and requirements of this bylaw; b Approve the permit with conditions, modifications or restriction that are required to ensure that the project will protect water resources and meets the objectives and requirements of this bylaw; Disapprove the application if the proposed plan will not protect water resources or fails to meet the objectives or requirements of this bylaw. Under Section 11.6.5 of the Board’s regulations, the Board is empowered to deny a permit for failure to meet the requirements of the bylaw; for failure to submit necessary information or plans requested by the Board; for failure to avoid or prevent unacceptable adverse or cumulative effects upon the resources protected by the by-law; or if in the Board’s final judgment such Date Filed 2/7/2024 1:15 PM Superior Court - Middlesex Docket Number Site Plan Review/Special Permit Certificate of Action Bartzak PV I, LLC. — 103 Bartzak Drive denial is necessary to preserve the quality of the surface water or groundwaters of the Commonwealth and/or the storm drainage system of the Town of Holliston. In the event a permit is denied, the Planning Board shall put its reasons for denial in writing as part of issuance. After carefully weighing the testimony and evidence at the public hearing and upon careful consideration of the public comments and professional opinions given by the Applicant’s representatives and the Board’s peer review consultants, and based upon all of the above referenced records and the above finding