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Massachusetts Residents Challenge Decision to Lease Town Property to Solar Company

Massachusetts state and local zoning laws generally have the most direct impact on how land can be used, but in some cases, constitutional issues may arise.  An October 18, 2017 case illustrates a Massachusetts land use matter challenged by town residents on the basis of the Massachusetts Constitution.  The local planning board had granted site plan approval to a company for the construction of a solar panel facility on a portion of the town’s property, which the company leased from the town.  The plaintiffs alleged that the property at issue was protected by the state constitution, and, therefore, a two-thirds vote in the Massachusetts Legislature was required before it could lease out the land.  The main issue in the case, therefore, was whether the town violated the Massachusetts Constitution by leasing town-owned land for use as a solar-powered electricity generation facility.solar panels

Article 97 of the Massachusetts Constitution protects the right of the people to the conservation, development, and utilization of the agricultural, mineral, forest, water, air, and other natural resources.  Lands and easements taken or acquired for these purposes cannot be used for other purposes, or otherwise disposed of except by laws enacted by a two-thirds vote of the Massachusetts Legislature.  The question for the court in such cases is whether the land was taken for a purpose consistent with Article 97, or later designated as such.  If land was taken for more than one use, or just incidentally serves the purposes enumerated in Article 97, the requirements of Article 97 do not apply.

In the case, the town had originally taken title to the property at issue pursuant to a deed, which provided that the land was conveyed to the town for the purposes of protection of water resources and other compatible purposes, including conservation and recreation.  The plaintiffs contended this language triggered the protections of Article 97.  The town argued that the language did not designate the property solely for the purposes protected by Article 97 because it may be used for “other compatible purposes.”

The court concluded that there was a broad array of uses that do not meet the purposes of Article 97 but that are compatible with the water protection purposes for which the property was acquired, including commercial and industrial uses.  The court interpreted the words “including conservation and recreation” in the deed as examples of compatible uses, but not an exhaustive list.  Finally, the court explained that the language of “other compatible purposes” was intended to give flexibility to the town in utilizing the property, while still protecting water resources.  Accordingly, the court held that the property was not subject to the constitutional protections of Article 97, and it did not require a legislative vote for approval.

At Pulgini & Norton, our real estate attorneys provide trustworthy legal guidance to residential homeowners in Massachusetts.  We can advise people in matters such as zoning laws and local regulations, FHA loans and reverse mortgages, condominium conversions, and more.  Call Pulgini & Norton at (781) 843-2200 or contact us online to set up your free consultation with an experienced real estate lawyer.

More Blog Posts:

Massachusetts Property Owner Appeals After Zoning Board Denies Building Permit, Massachusetts Real Estate Lawyer Blog, published May 15, 2017

Neighbors Appeal Modification of Subdivision Plan in Massachusetts Land Use Case, Massachusetts Real Estate Lawyer Blog, published August 7, 2017

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