As my colleague wrote in a recent blog article called Maine Landowner’s Guide to Solar Leases, recent legislative developments incentivize solar power in Maine. This led to a “land rush” of out-of-state solar developers seeking to obtain interests in land from Maine landowners for potential solar development. With any rush for development, comes concerns from neighbors, landowners, and municipal officials making sure those land uses stay under adequate local control.
At the same time, many municipalities and citizens want to make sure their ordinances encourage renewable energy systems. Whenever a municipality wishes to regulate an industry already regulated at the state and local level, the municipal ordinance or licensing scheme must be crafted carefully. To not be in conflict with or preempted by existing state or national law, it must regulate the same activities and provide both applicants and the municipal officials’ clear standards.
Some things citizens & officials seeking to craft ordinances regarding solar power in Maine should carefully consider:
Maine State Law Limits on Municipal Authority to Regulate Solar Energy Systems on Residential Property
A municipal ordinance, bylaw, or regulation adopted after September 30, 2009, that directly regulates the installation or use of solar energy devices on residential property must not run afoul of certain limits. It may not interfere with the right of a resident to install or use a solar energy device on a residential property owned by a person.
Also, it protects the right of a person to install or use a solar clothes-drying device on residential property they rent. Any restrictions on the installation and use of a solar energy system on residential property must be “reasonable.”
This means it is necessary to protect:
- Public health and safety, including but not limited to ensuring safe access to and rapid evacuation of buildings
- Buildings from damage
- Historic or aesthetic values, when an alternative of reasonably comparable cost and convenience is available
- Shorelands under shoreland zoning provisions
What Regulatory Vehicle to Employ?
While many municipalities may default to a stand-alone ordinance, there are a number of regulatory approaches available to accommodate this land use. This includes creating a specific overlay zone that allows certain solar energy systems.
Classifying certain systems as allowed by conditional use permits enables a municipality to allow the use only under certain conditions. Licensing schemes or site plan regulations may be found in a stand-alone ordinance or as part of the zoning or land use ordinance.
Understand the Different Types of Solar Power Systems
Ordinances should mandate levels of review and performance standards based on the scale and type of solar energy system. Generally, this includes small-, medium-, and large-scale solar energy systems, each of which may be ground-mounted or roof-mounted.
An ordinance should provide a greater level of review depending on the size of the operation. It is typical for a small-scale solar power system that provides energy to the site user to require only a permit from the Code Enforcement Officer. A larger-scale solar energy system that provides energy to the grid requires review by planning staff and the planning board.
Furthermore, roof-mounted and small-scale ground-mounted solar energy systems may not require any permits. It is common to allow such uses “as of right.” As long as certain standards applicable to any principal or accessory structures are met.
Solar systems occupying 20+ acres or impacting certain natural resources require a Site Location of Development permit from the Maine Department of Environmental Protection. Known as a Site Location, it typically coincides with a related Natural Resources Protection Act permit. These permits prohibit significant negative impacts to sensitive wildlife habitat, wetlands, water quality, groundwater, soil erosion, stormwater, noise, and scenic character.
Site Plan Review & Performance Standards
Probably the most significant area of concern for municipalities is the siting of the energy facility. These can be addressed through enacting specific performance standards applicable to energy facilities over a certain size. Standards might require the applicant to prove a proposed project will not have an adverse impact on significant wildlife areas or prevent the utilization of prime agricultural soils.
Maine Audubon and the NRCM created a best practices guide, Model Solar Ordinance that details particular voluntary siting practices. These could be crafted into mandatory performance standards through a solar ordinance or amendment to an existing site plan review regulations.
Careful attention is required to make sure the added language pertaining to solar power systems is consistent with the existing land use ordinance. Standards should be specific and clear to avoid challenges that the standard is so vague it constitutes an unconstitutional delegation of authority to the Planning Board.
Innovative Developments
Some municipalities go beyond merely incentivizing solar power. For instance, Santa Monica recently enacted legislation that requires a new building to have a minimum of 1.5 watts of solar energy capacity as part of the construction process.
While this may appear radical and add some cost to construction, it is not without precedent to require certain building practices to benefit the eventual homeowner. For example, many building codes and ordinances require a minimum level of insulation and a maximum water flow for plumbing fixtures.
