Federal and state authorities throughout the country have adopted pro-renewable energy policy goals to promote the growth of alternative energy sources using climate-friendly technologies. With the passage of the Inflation Reduction Act, the federal government has encouraged substantial investment in the expansion of renewable energy resources in the United States. On the state level, different jurisdictions have adopted ambitious Renewable Portfolio Standards and sought to facilitate the installation of new resources through various incentives and regulatory reforms.
However, local resistance to the installation of new renewable energy resources frequently interferes with development. Siting large or utility-scale solar projects can be challenging, balancing the availability of land with interconnection costs and local regulations.
Land use laws — most frequently zoning ordinances — are often exploited as an effective tool to impede the growth of renewable energy. Despite an increasingly favorable state and federal regulatory environment, and clear policy goals meant to support the growth of solar energy systems, zoning challenges can effectively undermine those goals.
Solar projects, like any development project, are sensitive to delays. Zoning-enabling statutes and the cases that inform zoning appeals generally grant standing to neighboring property owners to challenge zoning decisions. The appeal process can stretch on for years — an inefficient judicial system can be strategically exploited to attempt to stop projects from moving forward[1]. In addition, the widespread adoption of Anti-SLAPP (and accompanying “SLAPP back”) laws can discourage defendants from bringing countersuits in response to these challenges, even if otherwise merited.
A recent case in Massachusetts illustrates these challenges well. Massachusetts state law substantially restricts a community’s ability to restrict the installation of solar through zoning. Massachusetts General Laws Chapter 40A, 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”[2]. While this limitation on zoning restrictions is not unlimited,[3] it has been used to successfully prevent municipalities from prohibiting solar projects in a number of cases. The Supreme Judicial Court in Massachusetts in a 2022 decision stated clearly that an outright ban on large scale solar energy systems in most of the City of Waltham was impermissible.[4] Other cases decided since then have relied on the Tracer Lane holding to strike down similar efforts in other communities to deny permits to solar projects.[5]
Despite statutes and supporting case law preventing municipalities from denying solar projects from moving forward, courts continue to grant leeway to challengers. In the case of Christopher Kalinowski et al. v. Steve Seredynski et al.[6], the plaintiff filed a complaint challenging the granting of a special use permit to the defendant, BWC Pine Meadow Brook, LLC. The permit in question was granted by the Town of Northfield Planning Board in July 2021, and the initial complaint challenged, among other things, whether the Town of Northfield had the right to approve the project at all.[7] An appeal was filed in September 2021, and then an amended complaint was filed two months later taking a different approach: challenging the procedural grounds upon which the permit was granted.[8]
Like all zoning appeals in Massachusetts, the case was designated for “fast track” consideration, and the defendants further moved for a speedy trial in January 2022 (though the parties ultimately requested the court not rule on that motion). Both parties filed for summary judgement, and a hearing was held on the motions for summary judgment on November 1, 2022.[9] The Court took the matter under advisement and issued a decision about five months later, rejecting the defendant’s motion for summary judgment and granting the plaintiff’s motion only as to the issue of standing for one portion of the property.[10] Overall, the parties’ motions for summary judgment did little, if anything, to bring the matter any closer to resolution without a trial, ensuring that the project remains delayed indefinitely.[11]
Consequently, over two years after filing an initial application for site plan approval and a special use permit, in a town that approved the project, and in a state where it is generally held that the town could not have denied the project even if it wanted to, the future of this project is uncertain. If the court ultimately sides with the plaintiffs, the developer could be forced to restart the application process.
Assuming the developer is forced to start over, it is unlikely the town would reverse itself and fail to issue the permit once it is applied for a second time — state law arguably prohibits them from doing so. However, that approval, like the one before it, could also be appealed. Denying the project from moving forward is not the goal of a plaintiff in a case like this: delay is.
A vigilant developer can try to mitigate against the risk of these suits by monitoring and confirming that all municipal actions taken to approve a project comply with applicable statutes. A developer may insist, for instance, that all decisions are supported by clearly articulated evidence and address requisite findings, that all hearings are properly noticed and conducted, and that decisions are recorded in the correct form. There’s a strong urge to “go along to get along” when developers are appearing in front of a municipality, especially when the community is inclined to approve a project, but careful measures can help limit exposure down the line.
Of course there are practical limitations to those efforts. The strength of a zoning appeal is in its ability to delay a project from moving forward — even if the underlying appeal is unlikely to be successful. This tactic is being used nationwide to stop renewable energy projects — sometimes led by well-organized groups allegedly funded by fossil fuel interests[12].
In the face of that, state-level reforms may be needed to increase the efficiency of the judicial system when reviewing these appeals, and limit the grounds on which they can be raised. If state legislatures are serious about achieving the goals they have set for transitioning to renewable energy, they need to be proactive about removing hurdles in addition to providing incentives. Such reforms could go a long way towards resolving a significant source of uncertainty facing new developments, and encourage a faster transition to clean power.
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[1] See ‘It’s got nasty’: the battle to build the US’s biggest solar power farm. The Guardian. By Oliver Milman. https://www.theguardian.com/environment/2022/oct/30/its-got-nasty-the-battle-to-build-the-uss-biggest-solar-power-farm
[2] See Massachusetts General Laws Ch. 40A, § 3.
[3] For example, the Massachusetts Court of Appeals held that the Town of Ware had the authority to require a special use permit for large ground-mounted solar energy facilities in certain zoning districts. See PLH, LLC v. Town of Ware, 102 Mass.App.Ct 1103.
[4] Tracer Lane II Realty, LLC v. City of Waltham, 789 Mass. 775, 782.
[5] Kearsarge Walpole, LLC v. John Lee, et al., 2022 WL 4938498.
[6] Civil Action No. 2178CV00054.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] See An activist group is spreading misinformation to stop solar projects in rural America. NPR. By Miranda Green, Michael Copley, Ryan Kellman. https://www.npr.org/2023/02/18/1154867064/solar-power-misinformation-activists-rural-america).
