Tag: land use

DOER Finalizes SMART Program Emergency Regulations

The Department of Energy Resources (DOER) has finished the required Solar Massachusetts Renewable Target (SMART) Program 400MW review and emergency rulemaking and published its final regulations. Several revisions and adjustments have been made to the final regulations, including an extension to the COVID-19 extension for new applications received through December 31, 2020.

Revisions have been made to previously published land-use exceptions. Projects that meet the below criteria will now be assessed under the former land-use regulations:

  • Have applied for the Interconnection Service Agreement (ISA) 135 business days prior to April 15, 2020, or have obtained a fully executed ISA by October 15, 2020; and
  • Have obtained a sufficient interest in real estate or other contractual rights to construct the Solar Tariff Generation Unit at the location specified in the ISA as of April 15, 2020.

Additionally, the DOER distinguished eligible land use between projects qualifying for capacity as part of the original 1600MW versus projects qualifying under the new 1600MW. Projects qualifying under the original 1600MW will be eligible for the SMART Program even if located on land designated as Critical Natural Landscape, while projects qualifying under the new 1600MW will be ineligible if the project is sited in a Priority Habitat, Core Habitat, or Critical Natural Landscape.

The final regulations also allow for single-axis trackers to be eligible for the Tracker Adder, and behind-the-meter systems to receive Alternative On-Bill Credits.

The DOER also made modifications to the Statement of Qualification Reservation Period Guideline. In addition to continuing the COVID-19 extension for new applications, the DOER has done the following:

  • Eliminated the requirement that projects obtaining an indefinite extension, pending the authorization to interconnect, must submit a claim within 10 business days of receiving the authorization to interconnect;
  • Granted eligible Public Entity Off-taker Adder Solar Tariff Generation Units an initial Reservation Period of 18 months;
  • Clarified that projects qualified as Community Shared Solar that do not submit a claim with the CSS Adder will have their base compensation rate decreased to the value in the lowest available Capacity Block, but will not be at risk of losing their Statement of Qualification outright: and
  • Established a process by which DOER will queue project applications if there is a rush of applications submitted following the issuance of ISAs by a Distribution Company upon the completion of an ASO study.

Several other Guidelines related to the SMART Program are still being revised, and the DOER is expected to release these updates in the coming weeks. Publication of the regulations is just the beginning phase for resuming the SMART Program. Changes to the regulations that affect the tariff will now need to be implemented into each Electric Distribution Companies’ tariffs and undergo administrative review of the Department of Public Utilities.

© 2020 SHERIN AND LODGEN LLP

For more on solar renewable energy, see the National Law Review Environmental, Energy & Resources law section.

The Zoning and Land Use Handbook

The ABA presents The Zoning and Land Use Handbook by Ronald Cope.

zoning land useZoning law has a major impact on the development of our cities and villages, and where we live and work; it also plays a major role in numerous business and real estate transactions. The Zoning and Land Use Handbook is a reference guide for zoning and related land use issues.

This book will help the busy general practitioner answer the most frequently asked questions and provide guidance on basic zoning procedures, property rights, and the nature of zoning litigation. In addition, this handbook provides an introduction to zoning law for land use practitioners, and will be helpful to laypersons and professionals not familiar with land use or zoning law.

Click here to purchase the book.

About the author:

“Ron Cope is the most authoritative and impressive source of knowledge about the legal aspects of land use, urban planning, and zoning. During my 45 years of planning practice, he has remained my go-to expert for every complex issue I have had regarding land use, planning, and zoning law. The Zoning and Land Use Handbook is a must-have resource that condenses Ron’s practical knowledge into a comprehensive guide.”
— Allen L. Kracower, Chairman, Allen L. Kracower & Associates, Inc.

“Ron Cope is the dean of Illinois zoning lawyers. He is legally erudite and knowledgeable in all areas of real estate law and combines those with practical common sense.”
— J. Samuel Tenenbaum, Director, Investor Protection Center, Bluhm Legal Clinic, Northwestern University School of Law

Hey Wait, What About North Carolina's Fancy New Quasi-Judicial Statute?

Poyner Spruill

 

In 2009, the North Carolina General Assembly adopted Senate Bill 44, an act that codified the case law regarding quasi-judicial land use proceedings, including the proper standards and procedures for judicial review. See N.C. Gen. Stat. § 160A-393. Quasi-judicial land use decisions include, among other things, decisions involving variances, special and conditional use permits, and appeals of administrative decisions. See N.C. Gen. Stat. § 160A-393(b)(3).  The adoption of this new statute took the effort of many accomplished land use attorneys and interested stakeholders.  In fact, discussions regarding the need for this legislation originated before my legal career even began. So, when I read a recent Court of Appeals decision involving the denial of a special use permit by a quasi-judicial body, I was befuddled as to why the opinion did not contain a single citation to G.S. § 160A-393.

In Blair Investments, LLC v. Roanoke Rapids City Council, et al. (filed December 17, 2013), the petitioner sought a special use permit to construct a cell phone tower.  After considering the evidence presented by the applicant, planning department and concerned neighbors, the Roanoke Rapids City Council denied the special use permit on the grounds that the proposed tower would “endanger the public or safety” and would “not be in harmony with the surrounding area.”  The Superior Court affirmed the Council’s decision.  On appeal, however, the Court of Appeals reversed the Council’s decision on the grounds that the applicant had met its burden of making a prima facie showing of entitlement to the special use permit and the testimony of the concerned neighbors were speculative opinions, unsupported by any documentary or testimonial evidence.  Therefore, the Court held the Council’s decision was not supported by substantial, competent, and material evidence and remanded the case with instructions that the special use permit be granted.  

To be clear, I take no issue with the Court’s ultimate decision in Blair.  The Court appropriately reviewed the record and made the correct determination based on the facts and evidence that were before the Council.  I also take no issue with the overall legal principles and case law cited by the Court in Blair.  I do find it perplexing, however, that in discussing the appeal procedure, scope of review and its ultimate disposition of the case, the Court cited to a number of cases decided prior to the adoption of G.S. § 160A-393, but did not cite to or discuss 160A-393 at all.  As already discussed, the purpose of adopting 160A-393 was to codify prior case law and establish the black letter law governing the review of quasi-judicial decisions.  Perhaps the failure to recognize or cite to 160A-393 was an oversight by the lawyers who argued the case or perhaps it simply slipped by the law clerks working on the opinion.  I can’t imagine, however, the statutory framework for reviewing quasi-judicial decisions was completely ignored by the Court intentionally.

Many might consider this article to be a technical assault on an otherwise good appellate opinion.  While I believe it to be a substantive omission, my true reason for writing this article is to hopefully ensure that this fancy new statute at least gets dropped in a future footnote. Too many people worked too hard for it not to.

Article by:

Chad W. Essick

Of:

Poyner Spruill LLP