BOSTON – June 14, 2022 – In a much anticipated and closely watched case, global law firm Greenberg Traurig, LLP, led by Boston office attorneys John F. (Jay) Farraher, Jr., David C. Fixler, and John J. Griffin, Jr., with assistance from Courtney R. Foley, secured a victory on behalf of a solar developer in a case of first impression before the Massachusetts Supreme Judicial Court (SJC).
In Tracer Lane II Realty, LLC v. City of Waltham, & another, SJC-1395, the SJC, in affirming the Massachusetts Land Court’s summary judgment ruling in favor of Greenberg Traurig client Tracer Lane II Realty, LLC (Tracer Lane), interpreted, for the first time, the scope of Massachusetts General Laws Chapter 40A, § 3, ninth par., which states that “no zoning ordinance or bylaw 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.” The SJC’s decision makes clear that stand alone, large-scale solar energy systems are a protected land use in Massachusetts and that such large-scale systems are key to promoting solar energy in Massachusetts.
Tracer Lane is developing a 1 MW ground mounted solar energy system on land it owns that straddles the boundary between the City of Waltham, Massachusetts, where the land is zoned residential, and the town of Lexington, Massachusetts, where the land is zoned commercial. While the solar array will be located entirely on the Lexington parcel, Tracer Lane proposes to construct an access road on a portion of the Waltham parcel to access the Lexington site during construction and thereafter to perform the minimal maintenance on the system. Waltham officials informed Tracer Lane that construction of the road is prohibited because it constitutes a commercial use in a residential zone.
In support of its argument to the SJC, the city asserted that (i) the access road is not part of the proposed solar energy system and therefore is not subject to the protection provided by Chapter 40A, § 3, ninth par., and (ii) even if it is deemed to be part of the solar energy system, construction of the access road is still precluded because Waltham’s zoning code (which prohibits large-scale solar energy systems in residential districts while allowing them in industrial districts) is consistent with Chapter 40A, § 3, ninth par.
The SJC disagreed. First, the court held that the access road is part of the solar energy system because the access road will facilitate the system’s construction, maintenance, and connection to the electrical grid. The court then held that even though Waltham allows large-scale solar energy systems in certain zoning districts, its outright ban on such large-scale systems in all of its other zoning districts violates the statute as there is nothing in the record that even suggests that this stringent limitation is "necessary to protect the public health, safety or welfare" as required by the statute.
Over the past few years, certain municipalities have adopted zoning by-laws specifically designed to thwart the construction of large-scale solar energy systems. Because the SJC’s decision clearly tells municipalities that a zoning bylaw that purports to prohibit/restrict the size and location of a large-scale solar energy system in any zoning district will pass legal muster if, and only if, the zoning regulation is “necessary to protect the public health, safety and welfare,” its decision should open the door for more reasonable municipal regulation, thereby leading to faster and greater development of the large-scale solar energy systems that are critical for Massachusetts to achieve its legally binding greenhouse gas emissions reductions goals.
Farraher is a shareholder in the firm’s Litigation Practice. He is a commercial litigator and a skilled trial and appellate attorney with more than twenty-five years of experience in state and federal courts throughout the United States. He concentrates his practice in the area of complex litigation, which includes contract litigation, general business and employment disputes, construction litigation, and franchise and partnership disputes. Farraher also has a wide range of experience representing developers, property owners, landlords, and tenants in real estate disputes involving commercial leases, purchase and sales agreements, construction agreements, land use, and property valuation.
Fixler is of counsel in the firm’s Energy & Natural Resources Practice. His practice focuses on assisting energy companies with navigating the complex regulatory landscape that, together with sweeping technological changes, is changing the manner in which electricity is generated, distributed, sold, managed, stored, and consumed in the United States. Fixler has wide-ranging experience representing developers of renewable and traditional energy facilities in permitting, siting, interconnection, zoning, property tax, and other matters in front of regulatory agencies and courts.
Griffin is a practice group attorney in the firm’s Real Estate Practice and focuses his practice on real estate matters, where he represents developers, lending institutions, and educational institutions.
Foley is an associate in the Litigation Practice.
About Greenberg Traurig’s Boston Office: Established in 1999, Greenberg Traurig’s Boston office is home to more than 80 attorneys practicing in the areas of bankruptcy and restructuring, corporate, emerging technology, energy, environmental, financial services, gaming, governmental affairs, intellectual property, labor and employment, life sciences and medical technology, litigation, public finance, real estate, and tax. An important contributor to the firm's international platform, the Boston office includes a team of nationally recognized attorneys with both public and private sector experience. The team offers clients the value of decades of helping clients in complex legal matters and hands-on knowledge of the local business community, supported by the firm's vast network of global resources.
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