This document provides information from a presentation given by Kurt Gaertner of the Massachusetts Executive Office of Energy and Environmental Affairs at the Sustainable Communities Conference on April 24, 2013. The presentation addressed local solar energy challenges and solutions in Massachusetts. It promoted reducing greenhouse gas emissions through clean energy generation, energy efficiency, and conservation. It asked municipalities to site renewable energy facilities and implement green building practices. The document provided guidance on solar zoning best practices including designating as-of-right solar locations and considering solar regulations in master plans. It also addressed legal considerations and permitting options for solar energy systems.

1. Sustainable Communities Conference
Local Solar Energy Challenges and Solutions
4/24/2013
Kurt Gaertner
MA Executive Office of Energy & Environmental Affairs
Kurt.Gaertner@state.ma.us
(617) 626-1154

2. Promote Clean Energy:
• Reduce greenhouse gas emissions
and consumption of fossil fuels.
• Maximize energy
efficiency and renewable
energy opportunities.
• Support energy conservation
strategies, local clean power
generation, distributed generation
technologies, and innovative
industries.
“Ask” of Municipalities:
• Site renewable and other clean
energy facilities
• Concentrate growth & mix uses to
realize energy and emissions benefits
• Implement green building practices
• Enhance energy efficiency
Why is the permitting of solar energy systems such an important topic?

3. What is the best place to begin drafting
solar zoning?
In the context of a plan - Master plans
seldom address energy, however a small
but growing number of communities have
completed climate action or other energy
plans.

4. A Master Plan that
addresses energy, AND
Zoning, consistent with the plan, that
facilities the siting of renewables and
advances other energy goals
What is the ideal local regulatory approach?

5. What does state law have to say about the siting of solar energy
facilities?
Existing Massachusetts law limits the ability for local governments
to regulate solar facilities. Massachusetts General Laws Chapter
40A Section 3 reads:
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.
Are there any court cases interpreting this vague language?
No.

6. Has review of town zoning by the Attorney General’s Office helped
define “reasonable”?
Not really. Every presumption is given that a bylaw is valid unless it
clearly conflicts with the Constitution or the enabling statute. Where the
reasonableness of a zoning bylaw is fairly debatable, then the judgment
of the local legislative body is accepted. Many communities have been
warned that their zoning might not withstand a court challenge, but no
solar zoning has yet been found to be in clear conflict with Chapter 40A
Sec. 3.
What is the relationship between as of right solar zoning and Green
Community status?
The legislation that created Green Communities established the criteria
to be “Green”. Criterion One explicitly states that zoning must be by
right, which is consistent with Administration policy. (Note: this zoning
could be for renewable energy generation, or clean energy related R &
D or Manufacturing.

7. Why is it important that a community zone for solar energy
facilities?
Of course, to facilitate the siting of solar systems. But also to
avoid the problems that come with a solar proposal in the absence
of zoning. Struggling with what reasonable regulation means now
is far better than dealing with an application for a solar facility in
the absence of zoning.
Can local zoning treat varying sizes and types of solar facilities
differently?
Yes, common means of differentiating between facilities are by
type (roof vs. ground mounted) and size (square feet of surface
area or generating capacity)

8. Can a general bylaw/ordinance [rather than zoning] be used to regulate
solar energy systems?
Since language relative to solar energy systems is primarily found in
Chapter 40A zoning is the appropriate tool to regulate these systems.
Are there any concerns about the intersection between zoning
regulations that pertain to solar energy systems and building code?
Chapter 30A Section 3 includes the following exemption language “No
zoning ordinance or bylaw shall regulate or restrict the use of materials,
or methods of construction of structures regulated by the state building
code...” The state’s model zoning has been carefully drafted to abide by
this provision of state statute. Communities adapting the model zoning
should be similarly cautious to avoid adopting requirements that are
precluded by statute as they are already addressed in the Building
Code.

9. Can a community restrict large-scale ground mounted solar facilities to
certain zones? Require a special permit for these facilities?
Some have. But, is this “reasonable” & necessary to protect public
health, safety, or welfare?
Does a community lose control when it institutes as of right siting?
No. It exercises its authority at a different point.
Is spot zoning a concern relative to the siting of solar facilities?
Not a significant one. Spot zoning occurs when zoning benefits or
burdens a property [generally a small one] differently than similar nearby
properties.
Can solar energy systems be prohibited in local Historic Districts?
No, solar system installations must be considered individually & with
regard to Chapter 40C.

10. • DOER strongly discourages designating locations that require
significant tree cutting or that lead to the unnecessary loss of
agricultural land
• DOER encourages designating locations in industrial and
commercial districts, or on vacant, disturbed land.
Does DOER have any guidance in regard to the proper
siting of large-scale ground mounted facilities?

11. What is a good way for a community to approach incorporation of
solar energy systems into the local zoning bylaw/ordinance?
Begin with an audit, with particular attention to:
• Definitions
• Allowable Uses
• Dimensional Requirements
• Site Plan or Design Review Regulations
As necessary develop local zoning language
Should ground mounted solar systems count toward lot coverage
requirements? Impervious surface?
It is recommended that pole mounted solar systems be
exempt from lot coverage and impervious surface
requirements, but considered under applicable stormwater
bylaws, unless the surface underneath is paved.

12. What are the permitting options
available?
Option 1) As of Right Use
• "By-right" or "as-of-right" refers to uses allowed
in a district without discretionary review
• This is the most predictable and easiest
permitting method
• Developments must abide by other local and
state regulations but cannot be prohibited
• Commonly administered by the Building
Inspector via issuance of a building permit
• Building permits issue quickly; within 30 days
• Proposals not in compliance with zoning, or
subject to a higher level of review, will be referred
• Applicants can appeal to the Zoning Board of
Appeals via a process outlined in the Zoning Act

13. How do Green Communities & the model zoning define By-Right Siting?
As-of-Right Siting shall mean that development may proceed without the need
for a special permit, variance, amendment, waiver, or other discretionary
approval. As-of-right development may be subject to site plan review to
determine conformance with local zoning ordinances or bylaws. Projects
cannot be prohibited, but can be reasonably regulated by the inspector of
buildings, building commissioner or local inspector, or if there is none in a town,
the board of selectmen, or person or board designated by the ordinance/bylaw.
How about Designated Location?
The location[s] designated by [the community’s
local legislative body], in accordance with
Massachusetts General Laws Chapter 40A,
section 5, where ground - mounted large scale
solar photovoltaic installations may be sited as-of
right. Said location[s] [is/are] shown on a Zoning
Map [insert title of map] pursuant to Massachusetts
General Laws Chapter 40A Section 4. This map is
hereby made a part of this Zoning Bylaw and is on
file in the Office of the [Town/City] Clerk. Photo: the-gadgeteer.com

14. Option 2) Site Plan Approval (or Review) Required
• Could be associated with a by-right use, a use
requiring a special permit, or both
• Not addressed in the Zoning Act; though there are
court cases regarding site plan review
• When associated with a by-right use
o The reviewing authority can’t deny the use;
though conditions may be imposed to further the
intent of the zoning, and
o Site plan review should be thought of as
information gathering and provision of guidance
to a developer on a use that the community is
comfortable with
• Common site plan subjects include access/egress,
drainage, buffer zones, & site features
• Appeals of denied site plans associated with a by-
right use tend to favor the applicant

15. What conditions can a local government place on site plan review?:
• When associated with a by-right use site plan approval acts as a
method for regulating as-of-right uses rather than prohibiting them.
Be cautious about the inclusion and use of subjective criteria.
• The Planning Board may not unconditionally deny a site plan
application, but it may impose reasonable conditions.
• When a site plan application is submitted for an as-of-right use, a
planning board is obligated to grant an approval with reasonable
conditions unless, “despite best efforts, no form of reasonable
conditions [can] be devised to satisfy the problem with the plan....”
[summary of several court cases; see DOER’s large-scale ground
mounted model zoning for details and citations]

16. Zoning:
Option 3) Special Permit Required:
• Discretionary, requires a supermajority, & can be denied, approved, or approved with
conditions
• Statute says a decision must be made within 90 days or the project is constructively
approved; however, it also provides for an extension by written agreement
• Site Plan Review is often used as the special permit mechanism
• Reviewed by the Zoning Board of Appeals, Planning Board, Selectmen, or City Council
• Local governments can adopt rules and regulations
• Special permit language must include criteria for
approval, permit duration (max 2 years), applicability
(when is a SP required), and authority (who reviews
the permit application).
• Special permit language should outline the process,
plan requirements, standards, & decision.
• Local governments tend to be upheld on appeal

17. 17
1. Model bylaw provides a framework for local zoning
regulation
2. Blue commentary sections highlight questions local
decision makers should answer to tailor the model to
local circumstances
3. Review customized bylaw with legal counsel
Resources – Model Bylaws
Three Step Process for New Local Bylaw
RECOMMENDATION: The minimum setback for a side yard shall be zero feet. Where
deemed appropriate by the Planning Board, alleys between buildings may be encouraged
for the provision of beneficial public connections between buildings, open spaces and
streets. The maximum side setback shall be determined by the Planning Board, and shall
not exceed 25 feet.
ALTERNATIVE: In smaller town centers or rural locations, it may be more appropriate to
have side yard setbacks of up to 15 feet. In town centers or urban areas with substantial
vehicle traffic, side setbacks may need to be up to 30 feet to allow for two-way traffic to
rear parking & loading areas.

18. Model As-of-Right Zoning Bylaw:
Large-Scale Ground-Mounted Solar Photovoltaic Installations
Qualifying as a Green Community: In order to satisfy
the Green Communities Act as-of-right zoning
requirement a community’s zoning must permit the
development of a ground mounted solar system of at
least one acre in size (a rated name plate capacity of
about 250 kW (DC) or more).
Smaller installations (under 250 kW): The above
requirement for qualification as a Green Community is not
intended to discourage construction of solar photovoltaic
installations that are smaller than an acre or 250 kW, but
rather to ensure that in designated locations local
regulatory barriers that may adversely affect large-scale
ground-mounted projects are minimized.
NOTE: Small-Scale Solar Zoning Bylaw Under Development

19. For large - scale ground mounted solar photovoltaic installations, front, side
and rear setbacks shall be as follows:
• Front yard: The front yard depth shall be at least 10 feet; provided,
however, that where the lot abuts a Conservation-Recreation or
Residential district, the front yard shall not be less than 50 feet.
• Side yard. Each side yard shall have a depth at least 15 feet; provided,
however, that where the lot abuts a Conservation-Recreation or
Residential district, the side yard shall not be less than 50 feet.
• Rear yard. The rear yard depth shall be at least 25 feet; provided,
however, that where the lot abuts a Conservation-Recreation or
Residential district, the rear yard shall not be less than 50 feet.
Photo: LandTech
What does the Model Zoning suggest regarding
dimensional regulations?

20. What other matters are covered by DOER’s Model Zoning for Large-
Scale systems?
• Specifics regarding site plan review, such as required documents
• Operation and Maintenance Plan
• Design Standards
• Safety and Environmental Standards
• Monitoring and Maintenance
• Abandonment and Decommissioning

21. Green Communities Meeting Criterion One via Solar Zoning
Mashpee
Medway
Mendon
Middlefield
Monson
New Salem
Scituate
Sherborn
Shutesbury
Truro
Tyngsboro
Winchester
Arlington
Becket
Brookline
Carlisle
Dedham
Deerfield
Greenfield
Hamilton
Harvard
Holland
Kingston
Lexington
Lincoln
Photo: purelysolarpower.com

22. https://sites.google.com/site/massdgic/
Massachusetts DG and Interconnection
Main Page
http://www.masscec.com/
MA Clean Energy Center
http://www.mass.gov/eea/energy-utilities-clean-tech/renewable-energy/rps-aps/
Renewable Energy Portfolio Standard & Alternative Energy Portfolio
Standard Programs
Further Information:
http://www.mass.gov/eea/energy-utilities-clean-tech/green-
communities/gc-grant-program/criterion-1.html
Massachusetts Smart Growth / Smart Energy Toolkit
www.mass.gov/envir
DOER Model Zoning and other information:
Clean Energy Results:
Ground-Mounted Solar Photovoltaic Systems – Questions & Answers
http://www.mass.gov/eea/docs/doer/renewables/solar/solar-pv-guide.pdf

23. Sustainable Communities Conference
Local Solar Energy Challenges and Solutions
4/24/2013
Kurt Gaertner
MA Executive Office of Energy & Environmental Affairs
Kurt.Gaertner@state.ma.us
(617) 626-1154