NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-128

KEARSARGE WALPOLE LLC & another1

vs.

ZONING BOARD OF APPEALS OF WALPOLE & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This case involves a dispute over whether a large-scale 

solar array may be sited in Walpole outside of overlay districts 

created pursuant to a town of Walpole (Walpole) zoning bylaw. A 

judge of the Land Court determined that a decision of the zoning 

board of appeals of Walpole (board), upholding the denial of a 

building permit to Kearsarge Walpole LLC (Kearsarge) based on 

the bylaw, had to be annulled because the bylaw violates G. L. 

c. 40A, § 3, ninth par., the so-called "solar energy provision." 

On appeal, the board and Walpole (town defendants) seek 

reversal, arguing that summary judgment was improper because 

Walpole's zoning bylaw confining large-scale solar development 

1 Norfolk County. Another plaintiff, Norfolk County 

Agricultural High School, has not joined in this appeal.

2 Town of Walpole.
2

to restricted overlay districts is reasonably grounded in the 

promotion of public health, safety, and welfare and therefore 

does not violate the solar energy provision. We conclude that 

under Tracer Lane II Realty, LLC v. Waltham, 489 Mass. 775, 781 

(2022) (Tracer Lane), the bylaw violates the solar energy 

provision. Accordingly, we affirm.

Background. Norfolk County Agricultural High School 

(Norfolk Aggie) is a regional vocational high school that 

prepares students to enter occupations related to agriculture. 

The campus consists of parcels of land owned by Norfolk County,

with addresses on North Street, Main Street, and Fisher Street

in Walpole's rural residential zoning district. In June of 

2017, the county issued a request for qualifications for the 

installation and operation of solar facilities on the Norfolk 

Aggie campus. Kearsarge bid successfully and entered into 

negotiations with the county for the development of the project. 

Those negotiations resulted in a January 2020 letter of intent 

(LOI) between the county and Kearsarge detailing the agreement

to build and operate approximately ten solar sites across the 

Norfolk Aggie campus.

On January 15, 2021, Kearsarge, Norfolk Aggie, and the 

county entered into an energy management services agreement 

governing the portion of the overall project to be developed on 

the North Street property. Kearsarge agreed to lease the 
3

property on which it would install, own, and operate a solar 

facility. Electricity produced at the facility would be sold to 

the county at a reduced rate.3

On March 24, 2021, Kearsarge applied to the Walpole 

planning board for site plan review of the North Street project, 

which it withdrew when the Walpole building commissioner refused 

to sign the application because the "use [was] not allowed in 

the district." In May of 2021, Kearsarge applied to the 

building commissioner for a building permit for the property; 

the building commissioner denied the application because the 

project was a nonconforming use with no applicable exception, 

among other reasons. Kearsarge appealed the building 

commissioner's decision to the board. The board upheld the 

commissioner's decision after public hearing, finding that the 

proposed use of the property was nonconforming and could not be 

excepted from the overlay district bylaw as an essential 

government function, nor as a project with an educational 

purpose.

Kearsarge appealed to the Land Court pursuant to G. L. 

c. 40A, § 17, arguing that the project is immune from regulation 

3 In accordance with the LOI, Kearsarge already had 

constructed a parking lot canopy solar facility and a rooftop 

solar facility on the campus. Kearsarge obtained "as of right"

building permits from Walpole for both installations between 

September and October 2020, under the essential government 

function zoning exemption.
4

by the zoning bylaw because (1) the county's proposed use is an 

essential government function; (2) the project is exempt from 

regulation under the solar energy provision; and (3) the project 

is exempt from regulation under the education provision of G. L. 

c. 40A, § 3, third par. Acting on cross motions for summary 

judgment, the motion judge annulled the board's decision because

the Walpole zoning bylaw violates G. L. c. 40A, § 3, ninth par. 

The motion judge also concluded that the primary purpose of the 

project was financial with, at best, an incidental educational 

purpose and thus that the project was not protected from 

regulation by the Walpole zoning bylaw as an educational use. 

These cross appeals followed.

Discussion. "Summary judgment is appropriate where there 

are no genuine issues of material fact and the moving party is 

entitled to judgment as a matter of law. We review a decision 

on a motion for summary judgment de novo and, thus, 'accord no 

deference to the decision of the motion judge'" (citations 

omitted). Tracer Lane, 489 Mass. at 778.

The town defendants contend it was error to award summary 

judgment to Kearsarge, as the Walpole zoning bylaw does not 

violate the solar energy provision. Under G. L. c. 40A, § 3, 

ninth par., "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 
5

solar energy, except where necessary to protect the public 

health, safety or welfare." To determine if a zoning bylaw 

comports with the solar energy provision, the pertinent inquiry 

is whether the interest advanced by the ordinance or bylaw 

outweighs the burden placed on the installation of solar energy 

systems. Tracer Lane, 489 Mass. at 781. 

In Tracer Lane, 489 Mass. at 782, the Supreme Judicial 

Court held that "[i]n the absence of a reasonable basis grounded 

in public health, safety, or welfare," a municipality may not 

create "[a]n outright ban of large-scale solar energy systems in 

all but one to two percent of a municipality's land area." To 

do so would violate the solar energy provision contained in 

G. L. c. 40A, § 3. In reaching this conclusion, the court 

presumed that the interest the municipality's code advanced --

"preservation of each zone's unique characteristics" -- was 

legitimate. Id. at 781. Yet because nothing in the record in 

Tracer Lane suggested the "stringent limitation" of one to two 

percent of the land area was "necessary to protect the public 

health, safety or welfare,'" the Supreme Judicial Court 

determined that "the zoning code violate[d] the solar energy 

provision." Id., quoting G. L. c. 40A, § 3, ninth par.
6

Here, Walpole's bylaw establishes large-scale groundmounted solar photovoltaic overlay districts (SPODs).4 Four 

sites in the town are designated as SPODs, covering between 1.85 

and 2.07 percent of the total land area. The parcel at issue 

here is not located in a SPOD.

The town defendants argue that Tracer Lane is 

distinguishable in two important respects. First, unlike the 

bylaw in Tracer Lane, Walpole's zoning bylaw does not explicitly 

prohibit or limit solar installations to any particular zone, 

such that, theoretically, up to 10.14 percent of Walpole's total 

land area could be sited for large-scale solar development.5 

Second, the town defendants argue that the interests advanced by 

its bylaw promote public health, safety, and welfare 

sufficiently to justify the burden placed on solar development. 

Specifically, the bylaw protects agriculture and open space 

values in the rural residential district. We are not persuaded.

4 Smaller-scale solar facilities outside of the SPODs are 

permitted in all zoning districts where they are accessory uses. 

This was true of the bylaw at issue in Tracer Lane as well, 489 

Mass. at 778, but it did not save the bylaw, because large-scale 

solar facilities "are key to promoting solar energy in the 

Commonwealth." Id. at 781.

5 The town defendants suggest that the entirety of the 

industrial or limited manufacturing zoning districts as well as 

other districts such as highway business could conceivably be 

suitable for solar installations.
7

As to the argument that the bylaw allows the expansion of 

the SPODs, requiring every desired expansion of solar use to 

obtain discretionary zoning relief is exactly the local 

interference that G. L. c. 40A, § 3, ninth par., is designed to 

prevent. The issue is whether the bylaw "unduly restricts solar 

energy systems," and as the bylaw currently stands, it does. 

Tracer Lane, 489 Mass. at 781. At any time, applicants 

interested in developing a new large-scale solar installation 

outside of the approximately two percent of land in the existing 

SPODs would have to petition to amend the Walpole zoning bylaws 

pursuant to the amendment process established in G. L. c. 40A, 

§ 5, which essentially requires applicants to submit their 

proposed amendment to a public hearing and town vote. Once the 

bylaws are amended to expand a SPOD, large-scale ground-mounted 

solar projects are subject to "as of right" site plan review. 

Even assuming that this process does not constitute a total 

prohibition on development outside the SPOD and the land area 

available for large-scale solar development reaches ten percent, 

applicants still face a significant hurdle under the bylaw.6

6 Indeed, the portions of the Waltham zoning code 

invalidated in Tracer Lane, which explicitly prohibited solar 

development, were also subject to the statutory amendment 

process. See G. L. c. 40A, § 5 ("Zoning ordinances or by-laws 

may be adopted and from time to time changed by amendment, 

addition or repeal, but only in the manner hereinafter 

provided").
8

As to the argument that the bylaw protects a rural 

residential zone for agriculture, open space, and lower density 

single-family residential land use, the Supreme Judicial Court 

rejected a similar argument in Tracer Lane. In Tracer Lane, 489 

Mass. at 776, the road proposed to service a large-scale solar 

facility in Lexington was to be located in an entirely 

residential zone of Waltham. In other words, the road to 

support the large-scale solar project was going to be a 

commercial use in a residential zone. As the Supreme Judicial 

Court did in Tracer Lane, supra at 781, we presume here that the 

interests Walpole's zoning bylaw advance are "legitimate." See

Rogers v. Norfolk, 432 Mass. 374, 378 (2000) (legitimate 

municipal purposes include preserving character of 

neighborhood). The record, however, does not support a 

conclusion that a bylaw this stringent is necessary to protect 

the public health, safety, or welfare interests that Walpole 

seeks to promote.

Conclusion. Like the bylaw at issue in Tracer Lane, the 

Walpole bylaw here unduly restricts solar energy systems and 

therefore violates G. L. c. 40A, § 3, ninth par. Because we 
9

hold that the bylaw violates the solar energy provision, we need 

not reach the issues raised by the cross appeal.7

Judgment affirmed.

By the Court (Neyman, Henry & 

Ditkoff, JJ.8),

Clerk

Entered: August 22, 2024.

7 Kearsarge argues that the motion judge erred in finding 

that the project is not protected under the essential government 

function doctrine or under the education protections of G. L. 

c. 40A, § 3, third par. 

8 The panelists are listed in order of seniority.