Written by Madison Gaffney
Tracer Lane II Realty, LLC v. City of Waltham, decided by the Massachusetts Supreme Judicial Court on June 2, 2022, was eagerly awaited by municipalities and solar project sponsors alike. The citation is Tracer Lane II Realty, LLC v. City of Waltham, No. SJC-13195 (Mass. Jun. 2, 2022). Real estate, environmental and energy attorneys and their clients take note.
The State’s Zoning Act, M.G.L. c. 40A, § 3, protects solar energy systems from local regulation that is not “necessary to protect the public health, safety or welfare.” The SJC was faced with the issue of whether an ancillary structure was a part of the zoning code’s legally protected solar use.
In the Town of Lexington and City of Waltham, solar developer Tracer Lane owned two properties. The Lexington land is located in a commercial and manufacturing use zoning district. The Waltham land is located in a residential use zoning district.
Tracer Lane proposed to build a “one-megawatt solar energy system centered on the Lexington property that will cover an area of approximately 413,600 square feet and contribute solar energy to the electrical grid.”
In addition, to this solar energy system, Tracer Lane intended to construct an access road through its Waltham property. Tracer Lane anticipated that construction vehicles and maintenance trucks would utilize the access road during the solar energy system’s assembly and lifetime.
Waltham officials informed Tracer Lane that it could not construct the access road as a road for commercial use was “not permitted in a residential zone.” Tracer Lane then brought a complaint in Land Court against Waltham pursuant to M.G.L. c.240, §14A (portions of which are called the Dover Amendment). Tracer Lane sought a declaration that Waltham could not prohibit Tracer Lane from constructing the access road.
Both parties cross-moved for summary judgment and the Land Court granted Tracer Lane’s motion. The Land Court cited the statute’s language that “no zoning ordinance or bylaw 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.”
Waltham appealed the Land Court decision and the case was transferred from the Massachusetts Appeals Court to the SJC.
Both parties argued whether Waltham’s zoning code permitted or prohibited solar energy systems. Tracer Lane insisted that it does not because the zoning code does not mention solar energy systems, so, therefore, solar energy systems are prohibited. Waltham, however, argued that the zoning code “expressly permits solar energy systems in industrial zones, which encompass approximately one or two percent of Waltham’s total area.”
Waltham pointed out that the zoning code’s definition of industrial zones could include “establishments for the generation of power for public or private consumption purposes that are further regulated by Mass. General Laws.” Further, Waltham asserted that “accessory solar energy systems” are permitted in residential and commercial zones.
The Supreme Judicial Court looked to governing case law to interpret the statute’s intention as to whether the access road must be governed by M.G.L. c. 40A, §3, ninth paragraph. From those cases, ancillary structures are a protected use. Here, the Court reasoned that the access road is imperative to the proposed solar energy system’s construction and therefore is “part of the solar energy system.” Therefore, the statute protects the access road.
The SJC then asked whether the statute barred Waltham’s action. Again, the SJC turned to the case law which addresses other protected uses. The Court conducted a balancing test between the interest that the bylaw advances and the impact on the protected use and concluded that the zoning code’s interest does not outweigh the benefits of the proposed energy system.
The Court added that “these standalone, large-scale systems, not ancillary to any residential or commercial use, are key to promoting solar energy in the Commonwealth” and limiting solar energy development directly conflicts with the statute’s purpose. The SJC then affirmed the Land Court’s judgment.
The Tracer Lane case confirms that large-scale solar generation systems are protected under M.G.L. c. 40A, §3. The unanimous SJC decision clarifies that a municipality cannot justify “zoning out” such solar developments just because of the uses or features ancillary to the solar facility.
This decision is welcomed by solar developers like Tracer Lane confronted with a myriad zoning bylaws and ordinances (not to mention non-zoning codes and regulations) across Massachusetts. Effectively, solar energy developers cannot be stopped from using residential zones for all or some of their project facilities except on a “very site-specific basis, use-by-use, parcel-by-parcel, neighborhood-by-neighborhood.”
Other environmental law and land use attorneys have stated that “[t]he outcome of Tracer Lane should encourage municipalities that now ban large scale solar facilities from most or all of their territory, to adopt reasonable regulations that permit these kinds of facilities with site plan or special permit review.”
The Court’s directive about the statute will yield local solar facility evaluations on a “site-by-site” basis. This will necessitate more land use planning, public participation and specific project consideration, but likely will result in meeting the statute’s purpose of “protecting the public health, safety, [and] welfare” while also promoting climate actions.
Madison Gaffney is a rising 3L at Vermont Law School where she is pursuing her J.D. and Master’s in Environmental Law and Policy.