Local zoning and home rule: the threat of industrial solar projects

Massachusetts municipalities can use zoning authority and home rule powers to try to ensure appropriate siting of large industrial solar energy facilities and battery storage.

The Massachusetts Zoning Enabling Act, Chapter 40A, Section 3, paragraph 9 contains a provision that solar developers are using to intimidate municipalities into approving large solar projects. This section of the law from the 1990s was never intended to apply to the large industrial scale generating stations or battery storage facilities that are being forced on communities.

Section 3 states: “No 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.”

When is the prohibition or reasonable regulation of solar “collection” necessary to protect the public health, safety or welfare? Unfortunately, that has been the subject of innumerable legal appeals and cases from the courts. In October, 2021, the Massachusetts Supreme Judicial Court announced that it is accepting amicus briefs (‘friends of the court’) on a case in which the Land Court found that the Town of Waltham, by enforcing its zoning laws that prohibits the use of residential land for an access road for a commercial use, was violating Section 3. A large industrial scale solar project was proposed for residential land, which (unfortunately) would be allowed under town zoning. But to get to the site, the developer needed an access road over residentially zoned land. The town said this use was not allowed so the solar project could not be built. The solar company sued the Town. The SJC will decide the case in 2022.

What municipalities can do

Chapter 40A, Section 3 does not tie a municipalities hands completely. There are things that can be done. Here are some ideas.

Find resources on the website of Citizens for Responsible Solar in Virginia where 4,500 acres are threatened by industrial solar. https://www.citizensforresponsiblesolar.org/solar-ordinance They say solar ordinances protect rural counties:

“As the demand for renewable energy increases, solar developers are aggressively seeking to build more industrial-scale solar power plants on agricultural land, as opposed to using appropriate land already zoned for industrial use. Rural counties are a prime target. More agricultural land is being threatened.”

To protect your county and its residents, a solar ordinance is an important piece of legislation that clearly outlines the provisions of an acceptable application and the construction of a solar power plant.

Counties that do not have a solar ordinance in place are disadvantaged given the complexities of large-scale construction and potential environmental dangers, and small rural counties, in particular, do not have the resources or the expertise to manage and monitor these projects. “

Adopt a strong zoning law like the Town of Buckland, MA available here (Section XIV, page 75)

Include a section on Habitat and Hazardous Material like Buckland to try to protect forested landscapes. Don’t rely on DOER’s non-enforceable siting “guidelines” that refer to BioMap 2 to protect anything!

Include a section on”Hazardous Materials” like Buckland that recognizes the potential of hazardous waste in the solar projects and provides some guidance for safety regarding the hazardous waste.

Address battery storage. Lithium ion batteries now being installed at an industrial scale a solar sites pose a risk to the public health, safety and welfare as documented in numerous studes.

Another strong bylaw is here: Town of Shrewsbury, MA bylaw, Section VII (R), click here.

Enact a moratorium on industrial solar in your town

Faced with an onslaught of solar, Buckland passed a moratorium. State law allows ten residents, in most cases, to submit a petition. Write the petition to propose a moratorium

https://malegislature.gov/Laws/GeneralLaws/PartI/TitleVII/Chapter40A/Section5

Mass. General Laws, Chapter 40A, Section 5: Adoption or change of zoning ordinances or by-laws; procedure

Section 5. Zoning ordinances or by-laws may be adopted and from time to time changed by amendment, addition or repeal, but only in the manner hereinafter provided. Adoption or change of zoning ordinances or by-laws may be initiated by the submission to the city council or board of selectmen of a proposed zoning ordinance or by-law by a city council, a board of selectmen, a board of appeals, by an individual owning land to be affected by change or adoption, by request of registered voters of a town pursuant to section ten of chapter thirty-nine, by ten registered voters in a city, by a planning board, by a regional planning agency or by other methods provided by municipal charter. The board of selectmen or city council shall within fourteen days of receipt of such zoning ordinance or by-law submit it to the planning board for review.

Sample Moratorium Petition:

Buckland Solar Moratorium Petition (passed in order to give the town a chance to write a solar bylaw)

PETITION TO INCLUDE ONE ARTICLE ON THE WARRANT FOR THE ANNUAL TOWN MEETING OF THE TOWN OF BUCKLAND:

The undersigned petitioners request that the following articles be placed on the warrant for the annual town meeting:

         To see if the Town will vote to amend the Town’s Zoning Bylaw by adding a new section, XII-1 a) and b), Temporary Moratorium on the Construction Large Scale Photovoltaic Systems, that would provide as follows;

         a)  Purpose.

The average size of a solar system that would provide electricity for residential use in Massachusetts is 5 kilowatts. The average size of a solar system to provide electricity for a barn or a sugar house is 35 kilowatts. The Town of Buckland contains very rural and undeveloped areas.  There are currently no large scale photovoltaic energy systems in the Town.  The Town of, or residents of, Buckland may be approached to develop large solar in the near future. Larger systems potentially could affect the Town as a whole. There is an identifiable community need to establish long-term zoning regulations to ensure that such uses and developments will be consistent with the Town’s long term planning interests.  It is crucial that the Town establish a temporary moratorium on the use of land and the construction of structures related to such large scale photovoltaic systems and the issuance of building permits in connection with the same.

            b) Moratorium

 No building permit may be issued for the construction of any large scale photovoltaic system in size of more than 150% of the documented average annual use of a residential, commercial, business, municipal or agricultural application, and not to exceed 35 kilowatts, until June 15, 2013. The purpose of this temporary moratorium is to allow sufficient time to engage in a planning process to address the effects of such structures and uses in the Town and to enact bylaws in a manner consistent with sound land use planning goals and objectives, or take any action related thereto.

Submitted by

Name – PrintedName – SignedResidence Address with street number