State’s Highest Court to Determine Scope of Dover Amendment Solar Protection in M.G.L. c. 40A

Last week, the SJC heard oral arguments for a case that is anticipated to potentially impact municipal zoning, specifically in the realm of solar energy projects.  The outcome of this case will either aid or inhibit a municipality’s ability to regulate proposed solar projects.  The Firm filed an amicus brief on behalf of the Towns of Charlton and Warren, arguing in favor of the City of Waltham’s position.

Facts:  In Tracer Lane II Realty, LLC v. City of Waltham, Tracer Lane II Realty, LLC (“Plaintiff”) plans to build a solar energy facility on 30 acres in Lexington.  Plaintiff owns an abutting parcel—situated in Waltham (“City”)—which is zoned residential.  Plaintiff proposed constructing an access road over its Waltham property to the solar site in Lexington.  City summarily denied Plaintiff’s request to build the road on the grounds that the parcel is situated within a residential zone.  Plaintiff then filed a declaratory judgment action in the Land Court.  The judge declared the City’s denial invalid under M.G.L. c. 40A, s. 3, which in relevant part 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.”  City appealed and the SJC transferred the case from the Appeals Court. 

Primary Issue Presented:  Whether, under M.G.L. c. 40A,  s. 3, allowing solar energy facilities in certain areas of a municipality but prohibiting them in other areas is permissible or whether it constitutes unreasonable regulation in contravention of the statute?

Potential Ruling:  If the SJC concludes that allowing solar energy facilities in certain areas of a municipality but prohibiting them in other areas is a permissible practice, then municipalities will have a much more involved role in regulating this form of development.  Mirick’s own, Dave McCay, noted that a ruling in favor of Waltham “will allow zoning decisions to take place where they can most thoughtfully be done—which is at the local level.”  On the other hand, if the SJC concludes the opposite, then municipalities will have much less involvement in regulating this process.  Their ability to prohibit—or at the very least limit—large-scale solar developments within their community will be greatly inhibited.

Prediction & Comments:  The City’s brief presents a compelling argument.  They allege that M.G.L. c. 40A s. 3 is not violated because the request was not to construct a solar plant on the subject parcel, but merely to use the property as an access road to its abutting commercial property in Lexington.  The denial, therefore, was not designed to prevent construction of the solar project.  Of particular importance is that this access way is not the only access way to the Lexington property, which weakens Plaintiff’s argument.  Moreover, case precedent states that the statute “should be construed to prohibit only ‘direct’ regulation” of those categories protected, not incidental effects of otherwise reasonable limitations.  81 Spooner Road v. Town of Brookline, 425 Mass. 109, 116 (2008).  If the facts were different (i.e. Plaintiff sought to build the solar project on the subject parcel), then the statute would unquestionably apply, but that is not the case here.  Given the above facts, precedent seems to be on the City’s side and their argument should prevail.  A favorable ruling for the City will preserve a municipality’s ability to regulate large-scale solar development. 

About Erik McHale

Erik is an associate in the Mirick O'Connell’s Real Estate and Environmental Law Group and the Public and Municipal Law Group. Erik represents buyers and sellers in all types of real estate transactions. He also represents both commercial landlords and tenants in lease negotiations.
This entry was posted in Environmental, Zoning and tagged , , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s