AG Treatment of Zoning Bylaws of Solar Energy and Battery Storage Systems Since Tracer Lane
We summarized in our June newsletter the SJC’s decision in Tracer Lane II Realty, LLC v. Waltham, 489 Mass. 775 (2022), which dealt with permissible regulation of solar energy systems under M.G.L. c.40A, §3. The relevant paragraph of Section 3 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.” In Tracer Lane, the SJC affirmed a Land Court judge’s determination that the city of Waltham could not prohibit a developer from constructing an access road in a residential zoning district to serve the solar energy system located in the town of Lexington.
Since the SJC’s decision, the Attorney General’s Municipal Law Unit (MLU) has reviewed amendments to zoning bylaws regulating both solar energy systems and battery energy storage systems (BESS). These decisions provide insight into what constitutes permissible regulation. In a decision reviewing a bylaw amendment adopted by the Town of Tewksbury, the MLU noted that “burdens placed on solar energy [must] be reasonable and justified by a sufficiently strong legitimate municipal interest grounded in public health, safety or welfare.” In that decision, the MLU approved requirements for a special permit and site plan approval to construct a large-scale ground-mounted solar installations facility on a minimum of five acres. Because the bylaw allows solar in all districts—whether by right or by special permit—the MLU determined that the bylaw was designed to promote and not limit the development of solar energy. Notably, the bylaw was silent on roof-mounted and small-scale solar installations and did not include those uses in its table of uses. The MLU nevertheless concluded that, based on solar uses protected by G.L. c. 40A, § 3, roof-mounted and small-scale solar installations were allowed by right in all districts. It is important when contemplating amendments to zoning bylaws regulating solar uses to include all forms of solar, as failing to do so may lead to the unintended consequence of certain solar uses being permitted without any regulatory oversight.
In a decision reviewing a bylaw of the Town of Carver, the MLU approved amendments to a town’s zoning bylaw that exempted small-scale and building- and roof-mounted solar energy facilities from certain provisions of the zoning bylaw. The MLU explained that the amendments were reasonable and served to enhance the development of these facilities. The decision closed with a caution that the bylaw cannot be applied in ways that “make it impracticable or uneconomical to build solar energy systems.” In a separate decision of the MLU reviewing further action at Carver’s Annual Town Meeting, where a town provided no justifications based in public health, safety, and welfare for a moratorium on new large-scale solar facilities, the MLU rejected the moratorium for violating G.L. c. 40A, § 3.
Regulation of battery energy storage systems has had mixed success with the MLU. The MLU approved Oxford’s bylaw that requires a special permit and site plan approval for BESS placement in two zoning districts, but cautioned that amendments to the State Building Code that may be published in the future may preempt local regulation of BESS. It also cautioned that the bylaw cannot be applied so as to interfere with the jurisdiction of the Energy Facility Siting Board, which is charged with ensuring that proposed energy facilities will provide a reliable energy supply with minimum environmental impact at the lowest possible cost. G.L. c. 164, § 69H. Accord, MLU decision approving with caution a bylaw of the Town of Montague. Absent preemption, any local regulation of a BESS that is part of a solar energy system must afford BESS the same protections granted to solar uses under G.L. c. 40A, § 3. Finally, in the same decision in which the MLU disapproved a moratorium on large-scale solar facilities, a moratorium in Carver on BESS was disapproved as a violation of G.L. c. 40A, § 3 since it was not supported by any strong legitimate municipal interest grounded in public health, safety, and welfare.