As many of our readers are aware, the Commonwealth is experiencing a rapid growth in the number of new utility-scale solar energy generating facilities. This new development has presented frequent conflict between municipal zoning requirements and the protection for solar energy systems set forth in Section 3 of The Zoning Act, which provides:
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 solar energy, except where necessary to protect the public health, safety or welfare.
M.G.L. c. 40A, §3, par. ninth. The extent of this protection was recently interpreted for the first time by the Supreme Judicial Court in Tracer Lane II Realty v. City of Waltham.
In Tracer Lane, the SJC was presented with the case of a solar energy facility sited in the Town of Lexington but accessed solely by a proposed road across a residentially zoned parcel in the City of Waltham. The City refused development of the access road on the basis that it was a commercial use prohibited in the residential zone, and appeals followed. Progressing from the Land Court directly to the SJC, the Court relied on existing interpretations of similar protections of favored uses set forth in Section 3 in reaching the conclusion that Waltham’s zoning bylaw—which prohibited large-scale solar facilities in all but one to two percent of its land area—presented an unreasonable regulation of solar energy systems. The Court focused on the stringency of Waltham’s prohibition, finding that there was no reasonable basis grounded in “public health, safety, or welfare” to restrict solar energy systems to such a small portion of the City’s land area. The Court also noted that such a restriction “restricts rather than promotes the legislative goal of promoting solar energy.”
The takeaway for communities considering solar energy bylaws is that, where there is a basis grounded in public health, safety, or welfare, discretion exists to “reasonably” restrict the magnitude and placement of solar energy systems. The SJC has thus blessed the adoption of reasonably sized solar overlay districts, or similar use regulations, to direct the siting of solar energy facilities. To ensure validity, such ordinances or bylaws must balance the local concerns for health safety and welfare against the legislative goal of encouraging solar energy. A successful regulation will be one that is well reasoned, based on a planning process that identifies locations where such solar energy systems would present risks to the public interest, and restricts the systems in a manner proportional to that risk.