We are still getting used to the change
The allure of free, clean, unlimited energy from the sun has always been tantalizing. Seemingly for decades, we have been on the cusp of the big breakthrough that would remake our energy industry. From a policy perspective, New Hampshire has been getting ready for it for more than 40 years.
Since 1975, New Hampshire has permitted municipalities to adopt tax exemptions under RSA 72:61 for solar-thermal installations. Net metering under RSA 362-A began in 1978. New Hampshire created real estate rights in “Solar Sky Space Easements” in 1985 through RSA 477:49-51, and encouraged their use in real estate development through municipal planning and zoning (RSA 672 and RSA 674). Since 2002, encouragement of solar energy development has been required in municipal planning regulations and zoning ordinances adopted under RSA 674. Beginning in 2010, municipalities could adopt “Energy Efficiency and Clean Energy Districts” under RSA 53-F. Solar energy was incorporated into the state’s renewable energy standards (RSA 362-F) beginning in 2013. Starting this year, RSA 362-F encourages the development of solar installations that benefit low to moderate-income families and municipalities are authorized to adopt tax exemptions under newly amended RSA 72:61 for solar-electric installations.
The challenge (until recently) has been that solar technology hasn’t been up to the task of taking advantage of the various public policies embedded in our state statutes. In spite of all the statutes encouraging it, meaningful solar installations have been too costly and inefficient to gain widespread acceptance. Now that technology has started to catch up with policy, meaningful solar installations are beginning to become a reality. Residential solar panels are becoming commonplace in New Hampshire with 8,195 residential installations as of 2019, according to the Solar Energy Industries Association. Solar energy can provide a solution that gets us to a new, cleaner, efficient and more environmentally friendly energy supply. The advances in battery storage are exponential and provide solutions that allow solar energy to be there for us all the time – even when the sun is not shining. It can provide lower energy costs and provide sustainable and formidable power for our manufacturing plants.
In addition, commercial power generation is beginning to get a foothold in New Hampshire, and that’s a change that we’ve been slow to embrace. Municipal planning and zoning boards are facing numerous questions about commercial installations.
- Is a commercial solar panel installation suited for the industrial zone, the commercial zone or the rural agricultural zone?
- Are they a primary use, or an ancillary accessory feature?
- Should they go on top of landfills? What about on top of public buildings?
- Are they impervious surfaces?
- Do they make noise, pose a risk to wildlife, cause a nuisance, generate traffic, or concentrate erosion?
- Do they affect abutters’ property values, do they obstruct views, do they require overhead power lines, or giant batteries to store power?
- Do they leak chemicals, or leach metals, and do they cost a lot to remove at the end of their useful life?
- Do the virtues of solar power counterbalance any of the possible planning and zoning, or environmental concerns?
The industry is prepared with good answers to these questions; however, each municipality arrives at a comfort level on its own pace.
In practice, municipalities are challenged in evaluating solar projects under current zoning ordinances and site plan regulations that are not written with solar in mind. By default, solar power is often lumped in with other energy utilities, like a large scale gas-fired power plant. That could relegate solar to the industrial zone, sometimes only by conditional use permit, even though solar is a passive, unobtrusive, quiet land use. Some towns don’t allow or encourage power generating utilities at all, which means that local regulation could be at odds with state statutes and policies that encourage solar development. Nevertheless, until something changes in that municipality, commercial solar cannot be built under the existing ordinances absent a difficult to obtain a variance. These obstacles often stifle commercial solar development.
Other municipalities are further ahead with solar. For example, Conway and Loudon have each developed an ordinance that allows solar in all districts under a special exception, which can be granted by the Zoning Board under criteria that are often easier to achieve than a variance. In general, a special exception is granted if the applicant can demonstrate that the use meets the special exception criteria in the zoning ordinance. Franklin takes a different approach and relies on statute for its review of solar installations.
The New Hampshire Department of Environmental Services (NHDES) is also adapting to the potential for solar development. Most commercial solar array projects require a minimum of 5 acres to achieve a 1-megawatt array. Development of that size will often require an Alteration of Terrain (AoT) permit (Details can be found Here), and potentially a wetland permit if it is near wetlands. NHDES developed a set of guidelines specifically for large solar arrays in January 2019, and recently updated the guidance in February 2020. The guidance establishes design recommendations and best management practices for erosion and runoff mitigation. The guidance outlines criteria based upon the land cover change (i.e., clearing wooded areas and creating a grass meadow) and slope.
The level of detail in the AoT regulations, and some of the new municipal ordinances, begin to address many of those questions related to the commercial development of solar panels. As more municipalities work through the process of adopting solar ordinances, solar will continue to grow and flourish as an alternative energy source in New Hampshire. There’s a significant way to go yet, but important progress is moving forward.
Robert Best is an attorney and partner at Sulloway & Hollis. His practice focuses on business and healthcare clients, including real estate and land use practice.
Michael Redding is a civil engineer, and Director of Engineering and Operations at New England Solar Garden in Portsmouth, New Hampshire