NEW ENGLAND LEGAL FOUNDATION FILES AMICUS BRIEF IN IMPORTANT SOLAR ENERGY CASE BEFORE MASSACHUSETTS SUPREME JUDICIAL COURT THAT WILL DECIDE WHETHER LOCAL GOVERNMENT CAN ARBITRARILY PROHIBIT SOLAR ENERGY STRUCTURES ON A PROPERTY OWNER’S LAND
On February 9, 2022, the New England Legal Foundation filed an amicus brief in the Massachusetts Supreme Court in Tracer Lane II Realty, LLC v. City of Waltham & another, responding to the Court’s request for amicus briefs on the important issue of whether a local government can arbitrarily prohibit a solar energy structure on a property owner’s land, and on virtually all other available land within its borders. The Massachusetts Zoning Act provides special protection for a property owner who, like Tracer Lane, wishes to use its land for solar energy purposes: “[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.” G. L. c. 40A, § 3, ¶ 9 (emphasis added). In this case, the city of Waltham arbitrarily denied Tracer Lane’s request to build an access road on its residential property, for the purpose of building and maintaining a proposed solar power facility in the bordering town of Lexington. To make matters worse, the city has also categorically barred the use of virtually all other private property within its borders for solar energy structures. NELF argues in its brief that the city has violated Tracer Lane’s rights under the Zoning Act when it arbitrarily prevented Tracer Lane from building the access road on its residential property. This is contrary to what the Legislature intended when it established solar energy as a protected use of land under the Zoning Act. A property owner should be free to use its land for solar energy purposes, unless the local government can make a strong showing that such use would harm the public interest. NELF also argues that, contrary to the city’s position, it is legally irrelevant that the city may have allowed Tracer Lane to build an access road somewhere else in the city (where Tracer Lane doesn’t even own land, and where the access road would have made no sense). All that matters under the Zoning Act is that Tracer Lane wanted to build a solar energy structure on its land, and that the city arbitrarily denied Tracer Lane the right to do so. Any other reading of the Zoning Act would allow the city to commit unlawful local discrimination against the protected use, such as by restricting that use to the smallest and most remote zoned districts within its borders–precisely what the city has done in this case. Finally, NELF argues that its interpretation of the Zoning Act is bolstered by the many other measures that the Massachusetts Legislature and administrative agencies have undertaken to protect and encourage the development of solar energy in the Commonwealth. The city’s actions in this case not only violated Tracer Lane’s property rights but also harmed the compelling public interest in combating climate change, by thwarting the development of a clean and renewable source of energy.