Introduction
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...
