by Courtney Simmons
On June 2, 2022, the Supreme Judicial Court (“SJC”) issued an important decision interpreting the application of G.L. c. 40A, § 3 (the “Dover Amendment”) to solar energy systems. The Dover Amendment, enacted in 1950, prevents municipalities from implementing zoning regulations that prohibit or interfere with certain uses the Legislature has determined are valuable as a matter of public policy and deserve protection from local community prohibition, such as religious, educational and agricultural uses. In 1985, G.L. c. 40A, § 3 was amended to include solar energy systems as an additional protected use, providing in relevant part: “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.” G.L. c. 40A, § 3, ninth par.
In Tracer Lane II Realty, LLC v. City of Waltham, 489 Mass. 775 (2022) (“Tracer Lane”), the SJC addressed for the first time the Dover Amendment’s protection of solar energy facilities and their ancillary structures—here, an access road. In deciding that the proposed access road was part of the protected solar energy system, the SJC highlighted the road’s significance to facilitating the system’s construction, maintenance, and connection to the electrical grid. However, the SJC did not establish a clear standard for evaluating when a zoning ordinance or by-law has prohibited or unreasonably regulated the installation of solar energy systems when the protected use is otherwise permitted in certain areas of the municipality.
Tracer Lane Facts and Procedural History
In Tracer Lane, a developer sought to build a road on its Waltham property to access its 9.5-acre property in neighboring Lexington, where it planned to install a ground-mounted solar array with approximately 4,000 solar panels. While its Lexington property is zoned for commercial use and allows ground-mounted solar arrays, its Waltham property is zoned only for residential uses. As a result, the Waltham building inspector informally advised the developer that the proposed access road would not be permitted, since it would constitute a commercial use in a residential zoning district. In response, the developer filed suit in Land Court seeking a declaratory judgment that an access road serving a solar energy facility is a protected use under the Dover Amendment and Waltham could not prohibit construction of the access road through its zoning code.
The parties cross-moved for summary judgment, disputing the extent to which Waltham’s zoning code permits solar energy systems. Waltham contended solar facilities were not unreasonably restricted because they are allowed in the industrial zones which permit power generation establishments. Waltham also noted its code allows “accessory use” solar energy systems in residential and commercial zones. The developer argued that insofar as Waltham’s zoning code specified any use “not expressly permitted . . . is hereby prohibited,” and the zoning code does not specifically cover solar energy systems, such use is prohibited in all zoning districts. The developer further argued that even if such facilities were allowed in Waltham’s industrial districts, the regulation was nevertheless unreasonable since industrial districts comprise less than two percent of the land in Waltham.
The Land Court’s summary judgment decision found the proposed access road to be ancillary to the solar energy system and, thus, a protected use pursuant to the Dover Amendment. The Land Court judge did not determine whether solar energy systems are prohibited in Waltham but ruled that even if they are permitted in industrial districts, the exclusion of such use in more than ninety-eight percent of Waltham was “unquestionably” an unreasonable regulation. The Land Court judge noted that as compared to religious and educational uses, which may be subject only to reasonable dimensional regulations, a municipality has more discretion to regulate solar facilities “where necessary to protect the public health, safety or welfare,” but there was no such showing made here.
The Land Court ordered Waltham to allow construction of the access road, and Waltham appealed. The SJC, sua sponte, transferred the case for direct appellate review. Prior to Tracer Lane, no appellate decision had addressed the extent to which a municipality can regulate solar energy facilities without running afoul of the Dover Amendment.
Tracer Lane Reasoning and Holding
In deciding Tracer Lane, the SJC reviewed the history and intent behind the Dover Amendment’s enactment. The SJC recognized that although originally passed to prevent municipalities from restricting educational and religious uses, the scope of the Dover Amendment’s protection was expanded to “help promote solar energy generation throughout the Commonwealth.” Id. at 779. The Court cited cases interpreting other protected uses under G.L. c. 40A, § 3 which were “considered ancillary structures to be a part of the protected use at issue” and “reach[ed] the same conclusion here” to hold: “Given the access road’s importance to the primary solar energy collection system in Lexington . . . the access road is part of the solar energy system.” Id. at 779-780. The SJC also found that Waltham’s zoning code unduly restricted solar energy systems. Agreeing with the Land Court, the SJC concluded:
“An outright ban of large-scale solar energy systems in all but one to two percent of a municipality’s land area… restricts rather than promotes the legislative goal of promoting solar energy. In the absence of a reasonable basis grounded in public health, safety or welfare, such a prohibition is impermissible under the provision.” Id. at 782.
Notably, the SJC did not take the opportunity presented in Tracer Lane to determine whether G.L. c. 40A, § 3 limits a municipality from prohibiting the installation of solar energy systems or other protected uses in certain zoning districts, while allowing such uses in other districts (provided more than two percent of the land area in a municipality permits the protected use).
Implications to the Dover Amendment and Local Zoning Authority
Tracer Lane is consistent with prior SJC decisions extending the scope of protected uses under the Dover Amendment to ancillary components. However, the decision did not establish any standard or set of criteria for analyzing whether ancillary components should be recognized as part of a protected use and subject to treatment under the Dover Amendment.
Likewise, Tracer Lane did not establish any bright-line rule regarding the municipal regulation of protected uses under the Dover Amendment. In particular, the SJC could have determined the language of G.L. c. 40A, § 3, ninth par. meant solar energy systems must be allowed in every part of a municipality, regardless of zoning district limitations, unless it can be shown that a particular location was not suitable based on public health, safety or welfare grounds. Consequently, the decision leaves unanswered whether allowing Dover Amendment uses in a certain percentage of land in a municipality operates as a safe harbor against legal challenges, and, if it does, what percentage of land area would be reasonable. Ten percent? Twenty percent? The lack of a controlling standard on the limits of a municipality’s discretion in restricting solar energy systems and other uses protected by the Dover Amendment perpetuates uncertainty and invites more litigation.
For now, Tracer Lane sends a clear message that municipalities must be more cautious in regulating uses specifically protected under G.L. c. 40A, § 3. Further, as applied to solar facilities, municipalities must be prepared to make a showing that any restriction is “necessary to protect the public health, safety or welfare” for the ordinance or by-law to survive judicial review. The municipal response to Tracer Lane and how courts apply its reasoning will impact the development of solar energy facilities in Massachusetts and whether the Commonwealth can reach its climate goals.
Courtney Simmons is a litigator at the Boston law firm of Davis Malm, assisting clients in commercial litigation and real estate disputes. She counsels clients involved in business, land use, zoning and permitting issues and often addresses environmental issues affecting developers, landlords and tenants. Prior to joining Davis Malm, Courtney served as Law Clerk to the Honorable Mark V. Green, Chief Justice of the Massachusetts Appeals Court, and the Honorable Robert B. Foster and Honorable Howard P. Speicher, both of the Massachusetts Land Court.