IN A VICTORY FOR NELF AND FOR THE SOLAR ENERGY INDUSTRY IN THE COMMONWEALTH, THE MASSACHUSETTS SUPREME JUDICIAL AGREES WITH NELF THAT A LOCAL ZONING AUTHORITY VIOLATED A SOLAR ENERGY DEVELOPER’S STATUTORY RIGHTS WHEN IT PROHIBITED THE DEVELOPER FROM BUILDING AN ACCESS ROAD ON ITS RESIDENTIAL PROPERTY, FOR THE PURPOSE OF CONSTRUCTING AND MAINTAINING A PROPOSED SOLAR PANEL ARRAY IN A BORDERING TOWN
Boston On June 2, 2022, the Massachusetts Supreme Court (SJC) issued a victorious decision for NELF and for the solar energy industry in the Commonwealth, in Tracer Lane II Realty, LLC v. City of Waltham & another. As NELF had argued, in response to the Court’s amicus announcement on the issue, the Court held that Waltham’s zoning authority had violated Tracer Lane’s rights under the Massachusetts Zoning Act, G. L. c. 40A, § 3, ¶ 9 (establishing solar energy systems as a protected land use), when it summarily prohibited Tracer Lane from building an access road on its residential property, for the purpose of constructing and maintaining a proposed solar panel array on land that it owns in the bordering town of Lexington. Moreover, Waltham prohibited the construction of solar energy systems throughout the city, except for its industrial zones, which entail less than 2% of the city’s total area.
In particular, that Zoning Act bars local government from “prohibit[ing] or unreasonably regulat[ing] 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 failed to show in any way how the prohibition on Tracer Lane’s property, let alone the prohibition on virtually all of the city’s available land, was “necessary to protect the public health, safety or welfare,” as required by the Act. On this essential point the Court agreed with NELF and therefore affirmed the Land Court’s decision permitting Tracer Lane to proceed with its access road.
However, the Court lost sight of the plain meaning of the term “prohibit” and, as a result, weakend the clear language of the Act. In particular, the Court failed to reject on its face Waltham’s argument that it was not “prohibiting” the protected use because it would have permitted Tracer Lane to build the access road in the city’s industrial districts (which entail less than 2% of the city’s land area, and in which the access road would have made no sense). NELF had argued that Waltham’s argument was patently invalid because the unlawful prohibition occurred when the city summarily barred Tracer Lane from building the access road on its own land, regardless of the theoretical availability of other land in the city for the protected use. It should be legally irrelevant under the Act that the city would have allowed Tracer Lane to build the 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).
But the Court did not reject the city’s argument on its face, as a matter of law under the plain language of the Act. Instead, the Court entertained the city’s argument in light of the particular facts on this case and, therefore, narrowed its decision to those facts. Specifically, the Court emphasized that Waltham permitted solar energy structures on less than 2% of its available land (in the industrial districts), and that this small percentage of available land rendered the city’s decision unreasonable. In so doing, the Court diluted the stringent, statutorily required showing of a necessary basis to protect the public interest. “In the absence of a reasonable basis grounded in public health, safety, or welfare, such a prohibition is impermissible under the provision.” (Emphasis added). To the contrary, the Legislature has required a strict showing that the prohibition is necessary to protect the public interest. This is a far cry from a “reasonable basis.”
As a result, the Court’s decision leaves open the possibility that another local government in the Commonwealth could outright prohibit a landowner’s use of its own land for solar energy purposes, so long as that local government allowed the use of a sufficient percentage of its available land elsewhere for the purpose. This result is not what the Legislature ever intended under the plain language of the Act.
The Court’s decision is flawed for the additional reason that the Court conflated the clear statutory distinction between the terms “prohibit” and “unreasonably regulate,” as the Court itself had reinforced in its own precedent interpreting those same terms in other, similarly worded protected-use provisions in the Act. As NELF had argued, a prohibition occurs when, as here, local government has barred the landowner from pursuing the protected use on its own land, residential or otherwise. By contrast, an unreasonable regulation is the imposition of unduly burdensome dimensional requirements on the protected land use, once the local government has allowed the protected use to proceed. The Court’s own precedent makes these distinctions crystal clear.
However, in its opinion the Court engaged in the balancing of competing public and private interests that the Court itself has reserved only for the “unreasonably regulate” prong, not the “prohibit” prong. In particular, the Court stated that, “[w]hen evaluating an ordinance or by-law’s facial validity under other sections of G. L. c. 40A, § 3, we have balanced the interest that the ordinance or by-law advances and the impact on the protected use.” (Emphasis added). Even more troubling, the Court also stated that, “[l]ike all municipalities, Waltham maintains the discretion to reasonably restrict the magnitude and placement of solar energy systems.” (Emphasis added). To the contrary, the Legislature has expressly limited local government’s exercise of discretion by requiring it to show that the prohibition of the placement of a protected use on the developer’s own land is “necessary to protect the public health, safety or welfare.” Since the city failed to make any such showing whatsoever, its summary prohibition should have disposed of the case in Tracer Lane’s favor, without any further analysis.
In short, while the outcome in this case is indeed favorable for Tracer Lane, the decision creates a dangerously porous precedent that conflicts with the bright-line language of the Act. That language allows a landowner to use its own land for solar structures, unless local government can show that an outright prohibition is necessary to protect the public interest.