JOSEPH D. COGLIANO, JR., & Others v. PLANNING BOARD OF NORTON & Others (And a Consolidated Case).

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-1450

JOSEPH D. COGLIANO, JR.,1 & others2

vs.

PLANNING BOARD OF NORTON & others3 (and a consolidated case).4

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This is the second appeal brought by Joseph D. Cogliano,

Jr., and four other abutters (collectively, abutters) in this

litigation involving a large solar photovoltaic installation

(solar installation) that NextSun Energy LLC (NextSun) has

proposed locating in the town of Norton. The proposed

installation includes approximately 10,540 tracking solar panels

1Individually and as trustee of the Joseph D. Cogliano
Realty Trust and the Eleanor E. Cogliano Realty Trust.

2Charles Gallagher, Kelly Gallagher, Marianne Johnson, and
Joel P. Johnson.

3 Town of Norton and NextSun Energy LLC.

4NextSun Energy LLC & another vs. Planning Bd. of Norton &
another.
and a lithium-ion battery energy storage system and will be

built on approximately twenty-three acres of upland cranberry

bogs. The installation was also the subject of a prior appeal

by the abutters. In an unpublished memorandum and order issued

in their first appeal, a different panel of this court upheld

certain amendments to the town's zoning bylaw that make it

easier to obtain approval of solar installations, including on

cranberry bogs. See Cogliano v. Planning Bd. of Norton, 101

Mass. App. Ct. 1114 (2022) (Cogliano I). In this second appeal,

the abutters challenge several rulings issued by the Land Court

judge at different points in the litigation, including his 2021

summary judgment order directing the planning board of the town

of Norton (board) to issue NextSun a floodplain special permit,

his decision following trial in 2023 that the energy storage

system is a necessary and integral part of the solar

installation and therefore within the scope of uses allowed

under the amended zoning bylaw, and his removal of two

conditions of the board's site plan decision relating to water

quantity and quality testing. In its cross-appeal, NextSun

contends that the abutters do not have standing to challenge the

planning board's decisions based on the risk of fire in the

energy storage system, and that the judge abused his discretion

in allowing into evidence a diagram prepared by the abutters'

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hydrology expert. We affirm the amended judgment in all

respects.

Background. In 2018, NextSun applied to the board for site

plan approval and a floodplain special permit to build its

proposed solar installation. As we summarized in our earlier

decision, the board initially denied NextSun's requests for site

plan approval and a floodplain special permit. In May 2019,

NextSun initiated the first of the Land Court actions by

appealing the denial under G. L. c. 40A, § 17, and G. L. c. 240,

§ 14A. In June 2019, the abutters moved to intervene in the

action, arguing that the municipal entities sued by NextSun

would not adequately represent their interests. The judge

denied the abutters' motion. After NextSun reduced the size of

the solar panel installation, the parties agreed to a remand so

that the board could consider the amended plan. On remand, the

board granted site plan approval subject to sixty-four

conditions, but again denied the floodplain special permit.

NextSun amended its complaint to add a count challenging the

board's remand decision. In June 2019, the abutters filed the

second lawsuit in the Land Court challenging Norton's solar

bylaw amendments and the notice provided for the board hearing.

The abutters then filed a third lawsuit in November 2019

appealing the board's approval of the amended site plan.

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In 2020, NextSun and the municipal parties cross-moved for

summary judgment in all three cases. In February 2021, the

judge issued a summary judgment order that, in part, dismissed

the abutters' challenge to the amended zoning bylaw and

concluded that the board erred in denying the floodplain special

permit. The judge reserved for trial whether NextSun's

inclusion of battery storage in the installation was within the

scope of uses allowed under the amended zoning bylaw. Following

his summary judgment order, the judge issued a separate and

final judgment under Mass. R. Civ. P. 54 (b), 365 Mass. 820

(1974), ordering the board to issue the special permit, and

stating that "[t]his will allow the issuance of the floodplain

special permit . . . , while at the same time allowing the

[abutters] to appeal the judgment . . . so that all the

questions decided in [the summary judgment decision] can be

addressed at once." The abutters appealed from this judgment as

well as the judge's order denying their motion to intervene in

the first action, and this court affirmed both. See Cogliano I,

101 Mass. App. Ct. 1114.

In April 2021, while the abutters' first appeal was

pending, the board granted NextSun a floodplain special permit,

and the abutters amended their complaint to challenge it. After

a trial in May 2022, the judge issued a thoughtful and detailed

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decision setting forth his findings and conclusions. The judge

concluded that the abutters are "aggrieved" persons within the

meaning of G. L. c. 40A, § 17, and the floodplain special permit

was properly issued. The judge further concluded that the

board's site plan approval satisfies the requirements of the

zoning bylaw, but remanded two of the conditions imposed by the

board for further consideration. The judge initially upheld two

other conditions involving the surveying and monitoring of water

impacts, conditions 19 and 56, but reconsidered after NextSun

moved to alter or amend the judgment under Mass. R. Civ. P.

59 (e), 365 Mass. 827 (1974). In an amended judgment, the judge

remanded conditions 19 and 56 for reconsideration by the board

also.

Discussion. 1. Waiver of the abutters' challenges to the

2021 summary judgment decision. In the present appeal, the

abutters make various arguments challenging the judge's decision

in 2021 to order the planning board to issue a floodplain

special permit. They argue, for example, that the judge erred

by purportedly applying the Dover Amendment, G. L. c. 40A, § 3,

to override the planning board's decision, and that the board

acted within its authority by denying the floodplain special

permit in order to protect the public health, safety, and

welfare. The abutters waived these issues, however, by failing

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to raise them in their first appeal. See Gutierrez v.

Massachusetts Bay Transp. Auth., 442 Mass. 1041, 1042-1043

(2004); City Coal Co. of Springfield v. Noonan, 424 Mass. 693,

695 (1997) (City Coal Co.). In City Coal Co., the defendant

argued for the first time in his second appeal that prejudgment

interest on an award of damages in the judgment should have been

calculated at a lower rate. City Coal Co., supra. The Supreme

Judicial Court held that, "[w]hatever the merits of that

argument, it is too late to make it. The point could have been

raised, but was not, on [the defendant's] appeal to the Appeals

Court because the issue was apparent on the face of the

judgment." Id., citing Frank D. Wayne Assocs., Inc. v. Lussier,

394 Mass. 619, 621-623 (1985). See Levenson v. Brockton Taunton

Gas Co., 5 Mass. App. Ct. 883, 884 (1977) (noting "a regrettable

tendency to attempt belated or successive bites at the appellate

apple").

Following the judge's summary judgment order in 2021, a

separate and final judgment issued under rule 54 (b) annulling

the board's decision denying NextSun's application for a

floodplain special permit and ordering it to issue a permit

within thirty days. The judge explained that entry of this

final judgment would allow the abutters to appeal from the

judgment so that "all the questions" in the order could be

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"addressed at once." The abutters did appeal from the judgment

and raised a variety of issues, including the validity of the

applicable zoning bylaw amendments and asserted procedural

errors.

The abutters now argue that they could not have challenged

in their first appeal the judge's order compelling the board to

issue the floodplain special permit because the judge denied

their motion to intervene in the action brought by NextSun. As

we explained in our earlier decision, however, "intervention in

the NextSun action was not required in order for [the abutters]

to protect their interests as a practical matter" because the

only specific harm cited by the abutters was the absence of

standing to appeal "the portion of the . . . separate and final

judgment in which the [floodplain special permit] decision was

annulled," and "the abutters have raised this same issue and

challenge the issuance of the floodplain special permit in the

third lawsuit, the abutter remand action." Cogliano I, 101

Mass. App. Ct. 1114. NextSun and the municipal parties cross-

moved for summary judgment in all three cases, and the abutters

acknowledged that "they were allowed to engage in discovery,

participate in hearings, and engage in summary judgment

briefing." Id. at n.12. Nor are we persuaded by the abutters'

argument that the town's decision not to appeal the judge's

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decision prevented them "from taking up the appeal themselves."

Because the bases for the judge's decision ordering the board to

issue the floodplain special permit were "apparent on the face

of the judgment" from which the abutters initially appealed,

they are precluded from challenging them in this second appeal.

City Coal Co., 424 Mass. at 695.5

2. The 2023 posttrial decision and amended judgment.

a. The abutters' standing. In its cross-appeal, NextSun

contends that the abutters lacked standing to challenge the

planning board's decisions based on the risk of fire in the

energy storage system. To have standing, the abutters must be

"person[s] aggrieved" by the decisions. G. L. c. 40A, § 17.

"Abutters entitled to notice of zoning board hearings enjoy a

rebuttable presumption they are 'persons aggrieved.'"

Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass.

719, 721 (1996). "However, an adverse party can challenge an

abutter's presumption of standing by offering evidence

'warranting a finding contrary to the presumed fact.'" 81

5 As discussed below, the abutters may address a discrete
issue that the judge did not resolve in his summary judgment
order: whether NextSun's inclusion of an energy storage system
in the solar installation falls within the scope of uses allowed
under the zoning bylaw and the solar bylaw amendments. On that
issue, the judge concluded that trial was required to resolve
"facts in dispute as to the nature of the batteries to be used
and the regulatory regime with respect to those batteries."

8
Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461

Mass. 692, 700 (2012), quoting Marinelli v. Board of Appeals of

Stoughton, 440 Mass. 255, 258 (2003). "The plaintiff always

bears the burden of proving aggrievement necessary to confer

standing; an abutter's presumption of standing simply places on

the adverse party the initial burden of going forward with

evidence." 81 Spooner Rd., LLC, supra at 701.

Because the judge found that NextSun presented sufficient

evidence to refute the abutters' presumed fact of aggrievement,

the abutters had to "prove standing by putting forth credible

evidence to substantiate the allegations." 81 Spooner Rd., LLC,

461 Mass. at 701. They were required to "establish -- by direct

facts and not by speculative personal opinion -- that [their

injuries are] special and different from the concerns of the

rest of the community." Barvenik v. Aldermen of Newton, 33

Mass. App. Ct. 129, 132 (1992). Following trial, the judge

concluded that all the abutters "presented sufficient evidence

to support standing based on fire risk," and that Cogliano also

had standing "based on potential contamination of his private

wells" resulting from runoff from firefighting in the event of a

thermal runaway fire in the energy storage system.

Although NextSun argues that the risk of fire is too

speculative to confer standing on any of the abutters, standing

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is "a question of fact for the judge," and the judge's "ultimate

findings on this issue will not be overturned unless shown to be

clearly erroneous." Kenner v. Zoning Bd. of Appeals of Chatham,

459 Mass. 115, 119 (2011), citing Marashlian, 421 Mass. at 722.

A plaintiff's aggrievement must be more than "minimal or

slightly appreciable," Murchison v. Zoning Bd. of Appeals of

Sherborn, 485 Mass. 209, 213 (2020), and the plaintiff may not

rest on "unsubstantiated claims or speculative personal

opinions," Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass.

App. Ct. 208, 212 (2003), citing Monks v. Zoning Bd. of Appeals

of Plymouth, 37 Mass. App. Ct. 685, 688 (1994). See Kenner,

supra at 120. The judge found that the abutters presented

sufficient evidence of the risk that a fire in the energy

storage system could require them to evacuate, due to toxic

gasses being vented into the atmosphere, and also could lead to

contamination of Cogliano's wells as the result of toxic

compounds in the firefighting water. NextSun contends that a

thermal runaway fire will occur only if all the safety and

design systems incorporated in the energy storage system fail,

but its witnesses acknowledged a one- to two-percent annual

incidence rate of fire in the energy storage system even when

the safeguards are in place. In light of this evidence, the

judge did not err in concluding that the risk to the abutters

10
was more than "minimal or slightly appreciable." Murchison,

supra.

b. Admission of pumping diagram. NextSun also contends

that the judge erred in allowing the abutters to introduce a

diagram prepared by their hydrology expert showing the distance

from which Cogliano's wells can draw groundwater. The abutters

did not produce this diagram until two weeks before trial, but

argued that it was consistent with their expert's prior

disclosures and deposition testimony. At trial, NextSun's

expert testified about the asserted flaws of the diagram and the

assumptions upon which it was based. Given these circumstances,

the judge did not abuse his discretion in allowing the diagram

into evidence. See N.E. Physical Therapy Plus, Inc. v. Liberty

Mut. Ins. Co., 466 Mass. 358, 363 (2013).

c. The energy storage system is an integrated part of the

solar installation. In his 2021 summary judgment order, the

judge concluded that a trial was required to decide whether

NextSun's inclusion of an energy storage system in the solar

installation is within the scope of uses allowed under the

zoning bylaw and solar bylaw amendments. After hearing evidence

at trial, the judge concluded that the energy storage system is

a necessary and integral part of the installation and regulated

as part of a single "as of right" use under the amended zoning

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bylaw. We agree. In Tracer Lane II Realty, LLC v. Waltham, 489

Mass. 775, 780 (2022) (Tracer Lane), the Supreme Judicial Court

concluded that protections afforded to solar energy systems by

the Dover Amendment applied to an access road that was needed to

"facilitate the primary system's construction, maintenance, and

connection to the electrical grid." Here, the judge found that

the energy storage system "stores the power produced from the

solar system and dispatches it to the electric grid in a stable

manner, leading to consistent and reliable output from the

project throughout the day regardless of the instant intensity

of sunlight hitting the panel." In light of this finding, we

reject the abutters' contention that the energy storage system

"is neither necessary nor important to the generation of solar

energy."

d. The board's grant of a floodplain special permit. The

abutters argue that the judge erred in upholding the board's

grant of a floodplain special permit.

"In an appeal from a trial court's review of a decision of
a municipal board under G. L. c. 40A, 'we defer to the
factual findings of the trial judge unless they are clearly
erroneous. We review the judge's determinations of law,
including interpretations of zoning by-laws, de novo, but
we remain highly deferential to a board's interpretation of
its own ordinances.'"

Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, 87 Mass.

App. Ct. 871, 873 (2015), quoting Grady v. Zoning Bd. of Appeals

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of Peabody, 465 Mass. 725, 728-729 (2013). "[T]he decision of

the board can only be disturbed 'if it is based "on a legally

untenable ground" . . . or is "unreasonable, whimsical,

capricious or arbitrary."'" Subaru of New England, Inc. v.

Board of Appeals of Canton, 8 Mass. App. Ct. 483, 486 (1979),

quoting Gulf Oil Corp. v. Board of Appeals of Framingham, 355

Mass. 275, 277-278 (1969).

Under § 175-13.4.C of Norton's zoning bylaw, to grant the

floodplain special permit, the board was required to find that

NextSun's solar installation (1) will not fill or excavate,

build a new structure, or substantially improve an existing

structure in the floodway, and (2) will not increase the water

surface elevation of a one-hundred-year flood. A "floodway" is

defined in the zoning bylaw as "[t]he channel of a river or

other watercourse and the adjacent land areas that shall be

reserved in order to discharge the base flood without

cumulatively increasing the water surface elevation." While

there is no regulatory floodway designated for Mulberry Meadow

Brook, a watercourse close to the planned solar installation, a

professional wetland scientist retained by NextSun testified

that the floodway covers an area around the brook that is

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smaller than (or a subset of) the floodplain district.6

Crediting this testimony, the judge found that the floodway

constitutes "an area around" Mulberry Meadow Brook "that is

smaller than the floodplain." The judge did not credit the

testimony of the floodplain specialist called by the abutters

who testified that the edge of the floodplain is the edge of the

regulatory floodway.

In its decision, the board made both findings required

under § 175-13.4.C, and the judge concluded that those findings

were reasonably supported by the evidence. The abutters argue

that NextSun's plans show that certain components of the solar

installation will encroach not only on the land adjacent to

Mulberry Meadow Brook but on the brook itself. The judge found,

6 The zoning bylaw defines the floodplain overlay district
as "all special flood hazard areas within the Town of Norton
designated as Zone A or AE on the [map] issued by the Federal
Emergency Management Agency (FEMA) for the administration of the
National Flood Insurance Program." § 175-13.1(1). The judge
found that the floodplain district is coterminous with FEMA Zone
A. Even though NextSun's application for a floodplain special
permit assessed the impact on a larger floodplain, which its
wetland scientists mapped using their own calculation of base
flood elevation, the judge concluded that "the proper review was
based on the smaller FEMA floodplain." In addition, even though
the abutters argue that NextSun should have conducted a more
detailed study of the base flood elevation to "definitively
identif[y] the boundaries of the floodway," we agree with the
judge that there is "no requirement that NextSun engage FEMA to
update their flood maps as a prerequisite to applying for a
floodplain special permit."

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however, that most of the installation's components, including

the energy storage system and a planned area of regrading, are

located outside of the floodplain overlay district and far from

the brook. The few components located within the floodplain

overlay district, including utility poles and electrical conduit

trenches in elevated dike roads, do not encroach on the

floodway. Based on those findings, the judge concluded that

"the project does not include any plans to build a new

structure, or substantially improve an existing structure in the

floodway." The facts found by the judge were amply supported by

the record, and we do not discern any error in his

interpretation of the zoning bylaw or other determinations of

law.

e. The site plan conditions on surveying and monitoring of

water impacts. Lastly, the abutters contend that the judge

erred in effectively annulling two conditions of the board's

site plan decision that would have obligated NextSun to perform

boundary surveying and annual monitoring of water impacts.

Under the zoning bylaw, the board may require conditions or

modifications to a proposed site plan to ensure that certain

objectives are fulfilled. Condition 19 of the site plan

decision required NextSun, as a condition of proceeding with

construction, to produce and provide a report establishing a

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baseline quality and quantity of water serving the property and

the abutting property, along with "a finding that the proposed

construction of the solar facility will not adversely impact

water quality and quantity above the established baseline."

Condition 56 required NextSun to annually "monitor for water

quality and quantity impacts and demonstrate that the solar

facility does not cause adverse impacts to wells of abutters who

have agreed to allow [NextSun] and its successors access to

private wells."

The judge initially found that conditions 19 and 56 were

reasonable in light of evidence showing "the possibility of

contamination of wells in the vicinity of the project in the

event of a fire in the [energy storage system]." After NextSun

moved to alter or amend the judgment, the judge remanded the

imposition of these two conditions to the board for

reconsideration, concluding that they "exceed the scope of what

should be required" in the absence of a finding that the solar

installation will "impact well water yield for private wells" or

pose a risk of well water contamination except in the event of a

fire. The abutters argue that the surveying and monitoring are

required because large amounts of water may be needed to respond

to a thermal fire in the energy storage system. However,

condition 43 of the site plan decision, which remains intact

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after the judge's decision, requires that an adequate water

supply for fire suppression be "provided and maintained."

Again, we do not discern any error in the judge's decision.

Evidence at trial established that there is an adequate supply

of water to respond to a thermal fire, and under condition 43,

NextSun will be required to make "offsite improvements" in the

event the town determines that the supply is inadequate.

Amended judgment entered June
23, 2023, affirmed.

By the Court (Desmond,
Walsh & Toone, JJ.7),

Clerk

Entered: February 28, 2025.

7 The panelists are listed in order of seniority.

17