HOPKINTON — Ninety-seven residents have taken legal action against Town Council members Frank Landolfi, Barbara Capalbo, Sylvia Thompson, Scott Bill Hirst and Sharon Davis, the town’s Finance Director Brian Rosso and developers Hopkinton Land I LLC, Skunk Hill Solar LLC, and Gordon Building and Excavating Inc. The complaint is the latest salvo in the ongoing battle between some Hopkinton residents and the town over commercial solar projects in residential zones.
Filed in Washington County Superior Court on Aug.16, the 162-page complaint seeks to reverse the council’s approval on June 10 of comprehensive plan and zoning ordinance amendments to permit the construction of a commercial solar energy facility in a residential zone at 145 Skunk Hill Road.
The action also asks for financial compensation, requesting “money damages for the willful and unlawful interference with their property rights by Defendants Landolfi, Thompson and Capalbo.”
At the heart of the complaint is the assertion that the town did not follow required legal procedures in approving the zoning and comprehensive plan amendments at the request of solar project applicants.
Complainant Eric Bibler said the application process should have ended when the proposal was rejected by the Planning Board in Nov. 2018 on the grounds that it was inconsistent with the town’s comprehensive plan.
“Instead of accepting the Planning Board’s negative advisory recommendation, a determined minority on the Town Council, including the Town Council President, with the assistance of an obsequiously compliant town solicitor, decided to ignore established legal requirements and procedures and to invent an illegal, ad hoc process of review to usurp the proper authority of the Planning Board in a strong armed attempt to implement ‘spot zoning’ for numerous industrial solar projects, including the one on Skunk Hill Road,” he said.
Attorney James Donnelly, who is representing the plaintiffs, said no councilor had sponsored the amendments allowing the solar project to proceed, nor were residents properly notified that proposals for ordinance amendments would be heard.
“They never mentioned the word ‘ordinance,’ and nobody’s ever sponsored anything, and then it’s like ‘we’re going to have a decision on petitions,’ never mentioning an ordinance, and then all of a sudden, a month and a half later, they come up with ordinances,” he said. “They know how to do it. They just chose not to.”
Hopkinton Town Solicitor Kevin McAllister said the town’s position would be fully articulated in its written response, which will be filed by Oct. 18, but he predicted that the complainants would lose their case.
“The complaint document consists of 162 pages and 811 numbered paragraphs of allegations,” he said in a written comment. “Several legal theories are set forth in the complaint, but in essence, the complaint appears to be a statutory zoning appeal of the actions of the Town Council in approving the applications in question… As the Town Solicitor, I am confident that all of the actions taken by the Hopkinton Town Council and being challenged in the complaint will be found by the Court to have been appropriate and legally consistent with the Town’s Comprehensive Plan and that the Town will ultimately prevail on the merits of the case.”
Bibler said the legal action, if it is successful, will moderate what the plaintiffs consider to be overreaching actions by the Town Council.
“Up until now, the Town Council has run all of the legal proceedings, determined who can speak, and for how long, at public hearings, ignored the rules that it doesn’t like, or which disqualify projects, and made up new rules of procedure to further its ends,” he said. “The Town Council has had the luxury of making all of the decisions. Now, the controversy has reached a decisive new stage where the Hopkinton Town Council, at long last, must submit to the judgement of an independent court and the rule of law.”
The complaint, Donnelly said, is about land use, not just solar developments.
“This is not about solar,” he said. “It’s about land planning and land use and land development and who and how and why you regulate it and where your authorities are,” he said. “You’ve got to follow the comp plan. You’ve got to follow the law.”
Donnelly also noted that he had observed an uptick in residents leaving Hopkinton and attributed those departures to the solar controversy.
"The people whose properties are going to be devalued and where it’s going to be unpleasant to live, some people I represent, they’ve already sold their houses and left because they just can’t take it,” he said.
This is the third legal complaint involving a solar development filed by residents against the town. Two complaints pertaining to the Maxson Hill solar project have also been filed, one in November 2018 and another in January. The attorney for the developer has asked that both of those complaints be dismissed and a hearing in Superior Court on Oct. 21 will decide whether they can proceed.