On June 2, 2022, the Massachusetts Supreme Judicial Court issued the first appellate decision interpreting the limited exemption for solar energy systems provided in Section 3 of the Massachusetts Zoning Act (MGL c. 40A, § 3, ¶ 9). In Tracer Lane II Realty, LLC v. City of Waltham, the Court determined that the City of Waltham’s prohibition of solar energy systems from the vast majority of its land area violated Section 3’s bar against unreasonable regulation of solar energy systems. Below, we provide a brief overview of the facts of the case, then flag the key takeaways of which solar project developers should be aware.
Background
At issue in Tracer Lane was the extent to which Section 3 preempts municipal land use regulation restricting the construction of solar energy systems. Section 3 prohibits municipal zoning regulations from unreasonably regulating or prohibiting religious uses, nonprofit educational uses, agricultural uses, childcare facilities and congregate housing for disabled persons. The ninth paragraph of Section 3 provides that “[n]o 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.”
Tracer Lane II Realty, LLC owns two neighboring parcels on which it seeks to construct a one-megawatt ground-mounted solar energy system with an access road. While the parcels abut one another, the parcel on which the solar equipment will be installed is located in a commercial district in Lexington, and the parcel on which the access road will be installed is located in a residential district in the City of Waltham. In 2019, the Waltham building inspector informed Tracer Lane that Waltham’s zoning code did not allow commercial uses in residential districts, and that the proposed access road would therefore be prohibited. Under Waltham’s zoning code, there are no alternative means — such as a special permit or a use variance — by which Tracer Lane could obtain permission to construct the proposed access road.
The Land Court Case
Tracer Lane sued the City, contending that it should be entitled to build and use the proposed access road over its Waltham property to access the proposed solar energy facility on its neighboring Lexington property, notwithstanding Waltham’s prohibition against commercial uses in residential districts. Tracer Lane argued that the Waltham zoning code violates Section 3 on two grounds: (1) it does not allow solar energy facilities in any zoning district as a matter of right, even in the City’s industrial zoning districts; and (2) even if it were construed to allow solar energy facilities as of right in the City’s industrial zoning districts, the fact that such facilities are barred from all other zoning districts in Waltham runs afoul of Section 3. The City responded that municipalities may prohibit solar energy facilities in some areas so long as it allows them in others, without infringing on Section 3’s protection for such facilities.
In March 2021, the Land Court found that Waltham’s prohibition against the proposed solar energy facility access road in all but the city’s industrial zoning districts “runs afoul of the protections afforded to such facilities” by Section 3. Accordingly, the Land Court granted Tracer Lane’s motion and denied Waltham’s cross-motion for summary judgment.
The Land Court found that, even if Waltham had correctly asserted that solar energy facilities are allowed as a matter of right in its four industrial zoning districts despite being prohibited in the remaining districts, solar energy facilities would still only be allowed as a matter of right in less than 2% of the City’s approximately 13.6 square mile area. Concluding that Waltham had not shown its “near-total ban” on solar energy facilities was “necessary to protect the public health, safety or welfare,” the Land Court determined that the proposed access road is a protected exempt use under Section 3 (although “one that under certain circumstances is subject to ‘reasonable regulation’”). Waltham and its building inspector were ordered to allow the construction of the proposed access road.
The Parties’ Arguments to the SJC
The City appealed the Land Court’s decision, and the SJC sua sponte transferred the case from the Appeals Court. The question presented to the SJC was whether Section 3’s limited solar energy exemption allows a municipality to prohibit commercial solar energy facilities in some areas (e.g., the single-family residential district at issue here) if it permits them in other areas, or whether this constitutes unreasonable regulation in contravention of the Zoning Act.
The City argued that the Land Court incorrectly barred it from prohibiting commercial solar use in a residential district. The City also argued that it neither prohibits nor unreasonably regulates solar energy facilities in violation of Section 3 because it has allowed solar installations both throughout the City’s industrial districts and as accessory uses in its commercial and residential districts. (According to the City’s appellate brief, “[a] stroll around Waltham establishes that solar arrays on residential properties are common and thus permitted in the city.”) Finally, the City argued that Section 3 only bars it from “directly” prohibiting solar energy facilities, and that in this case the City was simply enforcing its ban on commercial uses in residential districts, which has nothing to do with solar energy. The City also noted that its enforcement of its zoning code would not prevent the solar project from getting built because Tracer Lane could use an alternative access route through Lexington.
Tracer Lane argued in response that the limited solar energy exemption in Section 3 authorizes the use of residentially zoned land for access to the solar energy facility on commercially zoned land, because the proposed access road is an integral part of the facility. In addition, Tracer Lane argued that under Section 3, “[a] municipality may impose reasonable regulations applicable to the installation of solar energy systems, but only in so far as necessary to protect the public health, safety, or welfare.” Here, according to Tracer Lane, not only does Waltham’s zoning code “not contain any provision purporting to regulate the installation of solar energy systems to protect public health, safety or welfare,” but the City’s decision barring Tracer Lane from using its Waltham property for access “was not predicated upon a health, safety, or welfare concern, but rather upon the proposition that commercial use of a residentially zoned property is not permitted.” In the end, Tracer Lane asked the SJC to uphold the Land Court’s finding that “’[a]n outright prohibition’” of solar energy systems from “’98% of the municipality . . . without a showing that the prohibition is ‘necessary to protect public health, safety or welfare,’ runs afoul of’” the protections provided by Section 3.
The SJC Decision
The SJC affirmed the Land Court decision on two grounds. First, it rejected Waltham’s argument that an access road is not part of a “solar energy system” for the purposes of Section 3’s limited solar energy exemption. It explained that “[g]iven the access road’s importance to the primary solar energy collection system in Lexington — it will facilitate the primary system’s construction, maintenance, and connection to the electrical grid — we conclude that the access road is part of the solar energy system.”
Second, while acknowledging the legitimacy of Waltham’s interest in preserving each zoning district’s “unique characteristics,” the SJC squarely concluded that Waltham’s zoning code “unduly restricts solar energy systems.” Quoting from the Massachusetts 2050 Decarbonization Plan issued in 2020 by the Commonwealth’s Executive Office of Energy and Environmental Affairs, the Court took notice that "the amount of solar power needed by 2050 exceeds the full technical potential in the Commonwealth for rooftop solar, indicating that substantial deployment of ground-mounted solar is needed under any circumstance in order to achieve [n]et [z]ero [greenhouse gas emissions by 2050].” The Court concluded firmly that “stand-alone, large scale systems [like the one proposed by Tracer Lane], not ancillary to any residential or commercial use, are key to promoting solar energy in the Commonwealth.” In light of that strong state need, the Court found that nothing in the record supported Waltham’s assertion that restricting such solar energy systems to “at most” 1-2% of the city’s 13.6 square mile land area was “necessary to protect the public health, safety or welfare.” The SJC confirmed that “[l]ike all municipalities, Waltham maintains the discretion to reasonably restrict the magnitude and placement of solar energy systems.” It ultimately concluded, however, that “[a]n outright ban of large-scale solar energy systems in all but one to two percent of a municipality's land area . . . restricts rather than promotes the legislative goal of promoting solar energy. In the absence of a reasonable basis grounded in public health, safety, or welfare, such a prohibition is impermissible” under Section 3.
The SJC made no mention of, and so implicitly rejected, the City’s argument that there was no actual prohibition of Tracer Lane’s project because of the existence of an alternative access route. This suggests that the Court believed the Section 3 analysis should be limited to the question of whether prohibiting commercial solar use on the Waltham parcel was “necessary to protect the public health, safety or welfare,” and the possibility of constructing the proposed solar project in another manner was not relevant to that inquiry.
Takeaways from the SJC’s Decision
The SJC’s Tracer Lane decision underscores what multiple lower courts had already determined: namely, that Section 3’s limited zoning exemption for solar energy facilities really does prohibit municipalities from exercising zoning power to prohibit or otherwise regulate solar energy facilities in a manner not “necessary to protect the public health, safety or welfare.” Other possible observations about the implications of Tracer Lane include:
- The need for municipal restrictions on solar energy facilities will apparently have to be particularly strong to justify frustrating the pressing need to foster the development of solar energy facilities — including standalone, large-scale solar energy facilities — to achieve the Commonwealth’s decarbonization goals. However legitimate, a mere desire to preserve the residential character of a district will not suffice.
- A municipality cannot comply with Section 3 by allowing solar energy facilities in some zoning districts and not others; prohibiting solar energy use in any one district remains subject to scrutiny under Section 3 even if solar energy use is allowed in other districts.
- A municipality’s prohibition or regulation of standalone, large-scale solar energy facilities must independently comply with Section 3; such prohibition or regulation may be preempted by Section 3 even if the municipality allows rooftop solar and standalone small-scale solar energy facilities.
- A municipality’s prohibition or regulation of a solar energy facility should be evaluated under Section 3 based on the project as proposed to the municipality without forcing the proponent to undertake alternatives to the proposed project.
- Given the potential for future examination, at the point of a local zoning board decision or an appeal from that decision, of whether the exercise of local zoning power is “necessary to protect the public health, safety or welfare,” a developer may benefit from attempting to build an evidentiary record showing that prohibiting the proposed solar energy project or imposing certain restrictions on the project is not necessary to protect public health, safety or welfare.
- As some municipalities have been adopting zoning changes that attempt to make it more difficult, if not impossible, to construct large-scale solar energy facilities, and such zoning changes may now be accompanied by self-serving statements about protecting public health, safety or welfare, developers should remain vigilant about such zoning changes and avail themselves of opportunities to argue for reasonable regulation and, if necessary, for rejection of impermissible zoning changes by the Massachusetts Attorney General or a court.
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.
ACKNOWLEDGMENTS
We wish to acknowledge the valuable contributions of Jack Robey in the research for and drafting of this article.
DISCLAIMER
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