MECHANIC FALLS — The town’s attorney has advised the town councilors and Town Manager Vic Hodgkins that they have authority to inspect solar array energy systems annually, contrary to assertions made by three solar companies.
Days after the Town Council approved final language in the town’s solar ordinances in May, Hodgkins received a letter threatening court action by three solar array energy system developers that are planning to build solar farms in Mechanic Falls.
Next Grid Renewable Energy, New England Solar Garden and Green Lantern Solar claim that a recently adopted article in the municipal Solar Array Energy Systems Ordinance that requires annual inspections of solar arrays is “an overreach of the town’s Home Rule Authority, is in conflict with and contrary to state law, and bears no rational relationship to the land use activity it is seeking to regulate.”
According to Elizabeth A. Boepple, the attorney who drafted the May 6 letter, the developers “hope this letter will serve as an explanation of the legal basis for the Town Council to rescind all of Article 7. We hope the town follows that course rather than try to defend the imposition of Article 7 to a Superior Court judge.”
Boepple wrote, “We believe Article 7 would be found to be unconstitutional under unambiguous longstanding Maine judicial precedent.” She pointed out two areas where her clients believe the state has, “both by clear implication and expressly, denied local control with respect to solar projects of the type defined in Mechanic Falls.”
In addition, Boepple notes that the town “purports to assert this ‘annual inspection and permit’ fee as somehow connected to its land use regulatory control. However, regardless of the town’s characterization, this inspection fee is more accurately described as an annual license fee for an energy related project,” which she claims exceeds the town’s authority because they are regulated by the Public Utilities Commission.
In an effort to relieve any concerns the town may have about the projects, Boepple wrote “from a practical perspective the town can rest assured that there is no person or entity more motivated to ensure that a solar array is properly inspected, maintained and secure than the project owner, based on the simple fact that if a solar array is not functioning, the project owner is not generating electricity, and is therefore not generating revenue.”
Councilors held an executive session during their regular meeting Monday to consult with their attorney, Kristen Collins of Preti Flaherty, on the assertions by Boepple.
Collins also provided a memorandum on the issue, which the council reviewed with her and Hodgkins. The memorandum was released to the Sun Journal on Thursday.
It reviewed the arguments in Boepple’s letter and concluded “they are without merit.”
“The letter does not point to any specific provisions of state law or (Maine Public Utilities Commission) regulations that preempt or conflict with Article 7,” Collins wrote. “Based on a review of the state laws governing the MPUC and MPUC regulations, there is no indication that municipalities are prohibited from enacting ordinances addressing the development and operation of solar energy facilities.”
Noting that Article 7 of the solar ordinance was validly enacted by the Town Council for the purpose of protecting the public health and safety, that the requirement that all solar array energy systems “be annually inspected is a valid exercise of the town’s home rule authority and is not apparently preempted, either explicitly or implicitly, by state law or regulation,” Collins wrote.
And “the fees imposed under Article 7 are reasonably related to the cost that will be incurred by the town in inspecting the (solar array energy systems) and ensuring compliance with the ordinance, and are therefore permissible,” Collins concluded.
She said it was unlikely Article 7 would be declared invalid or unconstitutional in any legal challenge brought by the energy systems.
Boepple’s letter was sent just days after a Town Council meeting when it voted to approve some minor text changes in the solar ordinances. The ordinances, which were drawn up by the Planning Board, were originally approved by the council in February. No one from the solar energy firms voiced any objection at that meeting.
Two public hearings were held before the vote to approve the ordinances, including one on May 2 during which Jeff Sparrow of Green Lantern Solar spoke against the fees and the need for the town to undertake annual inspections. He strongly urged that Article 7 be removed from the ordinance, claiming the ordinance was in conflict with and contrary to state law while inhibiting the purpose of the Maine Solar Energy Act.
The ordinances were drafted by the Planning Board in response to public outcry about the amount of land being utilized for solar farm projects, and the town’s legal counsel reviewed and endorsed the ordinances before they were put to a vote.
The three energy developers challenging Article 7 have each had their projects approved in the past two years.
In 2020, the Planning Board approved a $5.1 million array on nearly 20 of 37 acres off South Main Street by NextGrid, headquartered in San Francisco.
In June 2021, New England Solar Garden of Portsmouth, New Hampshire, was approved for a $3.7 million solar farm with 9,288 panels at 90 North St.
And, on Jan. 18, Green Lantern Solar of Waterbury, Vermont, was granted approval for a $2.7 million solar farm on 12 acres on Lewiston Street.
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