In what appears to be a first, and following a concerted effort by Klavens Law Group, the MA Attorney General has rejected elements of a municipal solar bylaw aimed at blocking commercial solar energy projects. In the past, the AG’s office has routinely approved local solar bylaws – often with a stern warning that under paragraph nine of MGL c. 40A, § 3 the municipality can’t apply the bylaw so as to prohibit or unreasonably regulate solar facilities except where necessary to protect public health, safety or welfare. In a March 21, 2022 decision, however, the MA Attorney General flatly rejected the Town of Wareham’s effort to amend its zoning bylaw to place harsh restrictions on the siting of large-scale ground mount solar energy facilities.
The Wareham solar bylaw amendment would have limited such facilities to parcels no more than 10 acres in size, as well as required the array footprint to have been previously cleared of trees for a period of at least five years before the application for special permit or site plan approval. KLG submitted a set of letter briefs to the AG’s Municipal Law Unit on behalf of one of its solar developer clients, challenging the solar bylaw amendment as unlawful on multiple grounds, including that the amendment was inconsistent with MGL c. 40A, s. 3 and that it failed to qualify as a lawful land use moratorium.
In the decision, the AG found that the solar bylaw amendment’s “restrictions on solar facilities amount to an unreasonable regulation of solar uses in violation of MGL c. 40A, § 3 because the record reflects no evidence of an important municipal interest—grounded in protecting the public health, safety or welfare—that is sufficient to outweigh the public need for solar energy systems.” In addition, the AG found that the amendment failed to comply with the requirement that a land use moratorium be limited to only a reasonable time necessary to conduct planning studies.
Needless to say, this is a precedent of great importance for solar developers and municipal planners alike.
FURTHER INFORMATION
For further information about these matters, please contact Betsy Mason at emason@klavenslawgroup.com or 617-502-6286 or Jonathan Klavens at jklavens@klavenslawgroup.com or 617-502-6281.
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