On August 11, 2022, Governor Baker signed into law Chapter 179 of the Acts of 2022, An Act Driving Clean Energy and Offshore Wind (the “Clean Energy Act” or the “Act”). The Clean Energy Act builds upon the 2021 climate act, which set forth the Commonwealth’s climate goals including net zero emissions by 2050. One significant feature of the Act is its prioritization of agrivoltaic projects as an integral part of the Commonwealth’s renewable energy and climate change policy. Agrivoltaic projects, often referred to as “dual use” projects, involve installing elevated solar panels on farmland to enable the land under and around the panels to be farmed. The Act clarifies that an agrivoltaic project is to be treated as an agricultural use, meaning that the land can continue to be classified as agricultural land for property tax purposes and that the project is exempt from special permit requirements. The Act also creates a new commission to identify obstacles to agrivoltaic projects and strategies to overcome those obstacles.
Agrivoltaic Project Sites Can Remain in Chapter 61A
Prior to adoption of the Act, Massachusetts farmers and solar developers wanting to install agrivoltaic projects on Massachusetts farmland faced significant hurdles related to the common practice among farmers of registering farmland as agricultural or horticultural land under MGL c. 61A (“Chapter 61A”) to reduce their local property tax burden. By providing a statutory process for farmers to enroll their land as Chapter 61A farmland, this statute serves the dual purpose of helping to insulate farmers and their production from increased assessed values on their farmland while also helping to preserve Massachusetts farmland from other types of development.
Until passage of the Act, most municipalities required developers and farmers planning to install an agrivoltaic project on farmland enrolled in Chapter 61A to remove the farmland from Chapter 61A before installing the solar project. Removal of farmland from Chapter 61A requires a farmer to notify the host municipality of the farmer’s intent to remove the land from classification and to pay the municipality so-called “roll-back taxes” in connection with this removal. In addition, the notification requirement triggers the local municipality’s option or right of first refusal to purchase the farmland. The Chapter 61A removal process can be cumbersome, time consuming and expensive for developers and farmers wanting to install agrivoltaic projects on Massachusetts farmland and also challenging from a timing perspective because of the need to decide when notice should be provided to the municipality and waiver of the municipality’s option rights requested. Occasionally local residents wishing to derail development of an agrivoltaic project have persuaded the municipality to exercise its option rights, forcing farmers to withdraw their notices of intent and delaying and sometimes preventing agrivoltaic projects from moving forward.
Section 42 of the Act amends Section 2A of Chapter 61A by specifically naming agrivoltaic projects as a permissible use on Chapter 61A land. Subsection (b) of Section 2A now states that land used “primarily and directly” for agricultural or horticultural purposes may, “in addition to being used primarily and directly for agricultural or horticultural, be used to site a renewable energy generating source . . . that qualifies in accordance with a solar incentive program for agriculture or horticulture sectors developed by the department of energy resources [(“DOER”)], if such renewable energy generating source does not impede the continued use of the land for agricultural or horticultural purposes.” And subsection (c) of Section 2A now confirms that land that is used for agricultural or horticultural purposes shall remain so designated even if “used to simultaneously site a renewable energy generating source.”
As part of its Solar Massachusetts Renewable Target (SMART) program, DOER developed a special incentive for agrivoltaic projects, which are called “Agricultural Solar Tariff Generation Units” (“ASTGUs”) within the SMART program. Under DOER’s SMART regulations, qualification as an ASTGU requires a determination by DOER that, among other things, the generation facility “will not interfere with the continued use of the land beneath the [solar] canopy for agricultural purposes.” In other words, qualifying as an ASTGU should be one easy way to satisfy the use requirements of the revised Section 2A of Chapter 61A, enabling land on which they are constructed to remain enrolled in Chapter 61A. It is important to note that Section 2A does not require that the renewable energy generating source be a SMART ASTGU and could apply to a renewable energy facility (including a facility other than a solar energy facility) that qualifies for some other relevant incentive.
In addition, in our view, Section 2A of Chapter 61A continues to serves as a “safe harbor” provision, meaning that the site of solar facilities covered by Section 2A can remain in Chapter 61A but that doesn’t preclude a landowner from arguing that the site of solar facilities not expressly covered by Section 2A can likewise remain in Chapter 61A. For example, even before the Act, we advanced the argument that, as long as the site of an agrivoltaic project continues to be farmed, the land should remain eligible for enrollment in Chapter 61A. That argument should still have merit for agrivoltaic projects that, for one reason or another, are not specifically qualified as SMART ASTGUs.
The creation of a safe harbor for SMART ASTGUs will enable farmland on which agrivoltaic projects will be installed to remain enrolled in Chapter 61A, resulting in a significant cost and time savings for farmers and developers wishing to operate such projects on farmland.
Agrivoltaic Projects Are Exempt from Special Permit Requirements
The Act also adds a new subsection (d) to Section 2A of Chapter 61A to ease the permitting path of agrivoltaic projects on farmland. The added subsection provides that renewable energy generating sources located on land used primarily and directly for agricultural or horticultural purposes pursuant to Chapter 61A shall be subject to the provisions afforded to agricultural uses and structures under MGL c. 40A, § 3. This means that, among other things, municipalities should not be able to require special permits for agrivoltaic projects, nor can local zoning be used to regulate agrivoltaic projects in ways that would not be allowed for other agricultural uses and structures. This change in law further illustrates the legislature’s intent to help farmers continue their farming operations by utilizing renewable energy, and particularly solar energy, as a means of maintaining their land in agricultural use.
New Commission Charged With Identifying Ways to Remove Barriers to Agrivoltaic Projects
Further cementing the legislative intent to enable more agrivoltaic projects in the Commonwealth, the Act also creates a collaborative approach to pursue the Commonwealth’s policy goals by creating a forward-looking commission to encourage the development of agrivoltaic projects.
Section 69 of the Act creates a commission “to investigate and make recommendations to remove barriers to the further development of agrivoltaic projects,” which are defined as “the dual operation of a solar photovoltaic facility and agriculture on a single parcel of land.”
The commission will consist of a broad array of representatives from government, the agricultural community, the land conservation community and the solar industry.
The commission will be responsible for reviewing research and data “on the effects of dual operation of solar photovoltaic facilities and agriculture on single pieces of land, solicit and consider relevant stakeholder comments and develop recommendations for legislative and regulatory changes to facilitate the installation of agrivoltaic projects in the commonwealth with due consideration given to land use impacts and categorizations, water quality, soil health and food production.” The commission will also review best practices for third party certification and “carbon accounting or other methods for quantifying the greenhouse gas emissions sequestered with respect to agricultural land.”
The commission will also work to quantify how agrivoltaic projects can contribute to meeting the greenhouse gas emission reductions requirements contained in MGL c. 21N.
Having worked diligently for the creation of this commission, we are excited for the future of agrivoltaic projects in the Commonwealth and are pleased with the legislature’s recognition of the value of such projects to both farmers and the clean energy sector. We believe these provisions of the Act will aid in progress toward Massachusetts’ climate policy goals.
A New Day for Agrivoltaic Projects in Massachusetts
Taken together, the provisions of the Act discussed above represent a significant victory to farmers and proponents of solar energy in Massachusetts. Allowing land on which agrivoltaic projects are installed to remain classified under Chapter 61A, and allowing agrivoltaic facilities to benefit from zoning protections provided to agricultural uses and structures, will enable Massachusetts farmers to increase the revenues they are able to realize from their farmland, thereby helping them to preserve their farms, while simultaneously helping the Commonwealth achieve its climate policy goals. The new commission should also help to identify and overcome remaining obstacles to development of agrivoltaic projects in Massachusetts.
While climate change and the necessary responses to address it, including policy decisions around land use and renewable energy resources, require creative solutions like agrivoltaics, we note that it may not be the solution in all instances. Not all agricultural uses and farms may be suitable for agrivoltaic projects, but KLG believes that those are decisions that should be made by each farmer and solar developer partner. The provisions included in the Act provide the necessary regulatory and legal foundations to remove barriers so that farmers can make the best decision for themselves and their land.
FURTHER INFORMATION
For further information about these matters, please contact Courtney Feeley Karp at cfeeleykarp@klavenslawgroup.com or 617-502-683, Sarah Matthews at smatthews@klavenslawgroup.com or 617-502-6282 or Jonathan Klavens at jklavens@klavenslawgroup.com or 617-502-6281.
ACKNOWLEDGMENTS
We wish to acknowledge the valuable contributions of Jack Robey in the research for and drafting of this article.
DISCLAIMER
This document, which may be considered advertising under the ethical rules of certain jurisdictions, is provided with the understanding that it does not constitute the rendering of legal advice or other professional advice by Klavens Law Group, P.C. or its attorneys. Please seek the services of a competent professional if you need legal or other professional assistance.
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