Developer challenges Massachusetts town on solar zoning restrictions

Solar developer PureSky Energy, previously known as Amp Energy, has taken legal action against the town of Shutesbury, Massachusetts. The developer alleges that the town’s current land zoning regulations are excessively restrictive, jeopardizing five of their proposed projects. In a recent move, the town made an effort to have the lawsuit dismissed.

At the heart of the lawsuit, filed in Massachusetts Land Court under the landowner’s name, W.D. Cowls Inc, is the state law M.G.L. 0.40A,§3. The relevant relevant provision of this law 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.

Source: Shutesbury.org

Drawing from a prior legal case where the above legislation was referenced, Tracer Lane II Realty, LLC v. City of Waltham, the presiding judge declared, “An outright ban of large-scale solar energy systems in all but one to two percent of a municipality’s land area, however, restricts rather than promotes the legislative goal of promoting solar energy.” Based on this, the court found the local township’s zoning regulations to be in violation of M.G.L. 0.40A,§3.

PureSky’s filing contends that seven regulations, when combined, render the development of large-scale ground solar projects within the township unfeasible. The company argues that these regulations are inconsistent with the Tracer Lane ruling. Earlier in 2023, Schutesbury indicated that they would amend their zoning laws to align them with the Tracer Lane decision.

W.D. Cowls presented a table in the filing that highlights how the town did not make substantial modifications to its key zoning provisions. Despite the presented evidence, the town subsequently declined W.D. Cowl’s solar projects.

Shutesbury’s bylaws notably restrict solar power plants to under 15 acres, equivalent to 3 to 4 MWdc of solar, and place further limitations on solar arrays exceeding 1.5 acres. Construction vehicles must use paved roads only, a stipulation made challenging by the fact that, as the filing notes, “only 26% of the roadways within the Town are paved.” Additionally, the regulations require the solar developer to designate a protected area four times the size of any deforestation caused by the installation. The protected area must exist on the same parcel of land.

The suit pertains to the development of five solar facilities under development:

• 5 MWac/12 MWdc – 793.82 acres – Lot ZG-2
• 5 MWac/12 MWdc – 263.0 acres – Lot ZD-37
• 2 MWac/4 MWdc – 296.8 acres – Lot ZF-15
• 5 MWac/12 MWdc – 140.18 acres – Lot ZU-2
• 3 MWac/5 MWdc – 389.0 acres – Lot ZW-6

The proposed solar facilities, spanning 190 acres with a total capacity of 20 MWac/45 MWdc and situated on lots totalling 1,882 acres, would generate $450,000 in annual taxes.

A local organization opposed to clear-cutting forest land, Smart Solar Amherst, posted the plans for one of these facilities on its website. The coalition, consisting of Amherst residents, supports the development of renewable energy sources while emphasizing the protection of forests, native habitats, water, and biodiversity. 

Highlighting the need for better siting of large solar facilities, they point out that the site is situated among various wetlands and streams. While the facility is thoughtfully designed to skirt the wetland areas, clearing the surrounding forests could alter the site’s water retention characteristics.

M.G.L. c. 40A, § 3. has been pivotal in Massachusetts approving 800 MWh of energy storage. Then-Attorney General Muara Healey, now the state’s Governor, cited it to challenge the City of Carter’s moratorium on solar and battery projects. She argued they unjustly constrained solar initiatives without valid public interest reasons, thus breaching the law. She also stressed that such restrictions impeded the state’s solar energy policy, suggesting the city’s justification for further impact studies did not sufficiently justify their actions.