Download PDF
Co-Author Joshua Millikin
The New Hampshire Supreme Court (“Supreme Court”) in its April 9, 2024 Opinion addressed a problem arising from a proposal to put in a photo voltaic panel array. See Mojalaki Holdings v. City of Franklin2024 NH 17 (2024).
Questions thought-about embrace:
- when the positioning plan software was correctly denied because of the photo voltaic panel array’s utility poles creating an “industrial look and character misplaced within the neighborhood.”
- if the chopping of mature bushes to supply daylight is in opposition to RSA 672:1, III-a, which inspires the usage of photo voltaic vitality and different renewable types of vitality.
Mojalaki Holdings, LLC (“Mojalaki”) and GSSG New Hampshire, LLC (“GSSG”) utilized for website plan approval to assemble a photo voltaic panel array. The photo voltaic panel array requires the set up of latest utility poles. In addition, mature bushes have to be eliminated to ensure that the photo voltaic panels to obtain adequate daylight.
The website for the challenge is described as protecting about six and a half hectares of the roughly 96 hectares of land owned by Mojalaki. The land is generally open house and was as soon as a golf course.
The City of Franklin holds public hearings.
After closing the general public hearings, the City Planner drafted two selections — one to grant the applying with 14 situations and one to disclaim it. He despatched each to the City Planning Board (“Board”) for its overview and vote.
The Board denied the positioning plan software by a vote of seven to 1. A partial foundation for denial is the 2 issues beforehand mentioned.
The trial court docket upheld the Board’s choice.
The City of Franklin doesn’t have an ordinance that addresses photo voltaic arrays. However, the relevant ordinance states:
… Appropriate rules encourage energy-efficient improvement requirements, the usage of photo voltaic vitality, together with satisfactory entry to direct daylight for the usage of photo voltaic vitality, and the usage of different renewable types of vitality, and vitality conservation. Therefore, the set up of photo voltaic, wind, or different renewable vitality methods or the development of buildings that facilitate the gathering of renewable vitality shouldn’t be restricted by way of municipal zoning powers or by an unreasonable interpretation of such powers until crucial to guard. the well being, security, and welfare of the general public.
See RSA 672:1, III-a (2016).
The Supreme Court agreed that the trial court docket erred in affirming the Board’s choice to disclaim the plaintiffs’ website plan software primarily based solely on the supposed software of the provisions of the positioning plan rules. Site plan overview is designed to make sure that the makes use of permitted by a zoning ordinance are performed in a secure and enticing method and in a way that doesn’t contain a hazard or harm to the well being, security, or prosperity of the group. property homeowners or typically. public.
However, website plan overview is proscribed. A challenge can’t be denied just because the Board “doesn’t really feel that the proposed use is an applicable use of the land.”
When a planning board adopts website plan rules, they have to, amongst different issues, outline the targets of the positioning plan overview and specify the final requirements and necessities by which the proposed progress have to be adopted. If an software complies with the zoning and the particular technical necessities of the positioning plan rules, making an advert hoc choice with out adequate evidentiary help doesn’t justify a denial primarily based on a provision of goal
The photo voltaic panel array builders had been additionally given a builder’s treatment to finish the proposed challenge. The report reveals that, besides with respect to the intent provisions relied upon by the Board, there isn’t a dispute that the applying meets the particular, relevant website plan rules.
A replica of the Opinion may be downloaded right here.
