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In an effort to promote renewable energy within Michigan, the Legislature passed Public Act 342 in 2016. This Act amended Michigan’s Clean and Renewable Energy and Waste Reduction Act, originally passed in 2008. The Amendment promoted growth in Michigan’s renewable energy industry. Wind farms were developed throughout the state. More recently, townships are seeing a trend in solar farm projects. Although many Michigan townships have addressed wind farms with local police power or zoning regulations, very few townships have developed ordinances regulating solar farms. This E-Letter explores the reasons to consider adopting a solar ordinance, as well as a number of specific provisions that should be considered when doing so.

What Has Caused a Growth in Renewable Energy?

The recent growth of renewable energy in Michigan is at least partially due to Public Act 295 of 2008 and Public Act 342 of 2016. The 2008 Act required Michigan’s energy providers to maintain at least 10% of their energy portfolio from renewable energy sources, including wind energy, geothermal energy, and solar energy. The 2016 Act increases this requirement, mandating that an energy provider’s portfolio be 12.5% renewable energy by 2019, with a later increase to 15% in 2021. The ultimate goal of the 2016 Act is to have 35% of Michigan’s electric needs met through energy waste reduction and renewable energy by 2025. To meet these requirements, utility companies have undertaken a rapid expansion in developing Michigan’s renewable energy sources, including solar power.

What Is A Solar Ordinance?

A solar ordinance is an extensive amendment to a township’s existing ordinances. In general, a solar ordinance is a comprehensive regulation of a solar energy within the township, including what types of solar energy systems are permitted, where they may be located, and what limitations apply to them. A well-drafted solar ordinance will protect a township’s interests while also ensuring that it does not run into exclusionary zoning issues. A solar ordinance will also establish review procedures for solar projects, as well as the framework that will be used when applying for this type of project. Depending on whether a township has zoning, a solar ordinance can be a standalone ordinance or incorporated into a township’s zoning ordinance.

Does a Township Need A Solar Ordinance?

The renewable energy industry has grown rapidly since 2008, and is likely to continue to grow given the increased requirements of Public Act 342. As energy providers are required to rely more extensively on renewable energy, it is highly likely that many Michigan townships will face increased interest, and possibly even pressure, to approve renewable energy projects. Having a solar ordinance in place, even if your township has not been approached, will allow you to respond to these requests in a way that will help to avoid future legal challenges and prevent your township from rushing to adopt an ordinance after the fact.

How Can A Solar Ordinance Benefit My Township?

A well-drafted solar ordinance will do the following:

• Promotes sustainable energy production;
• Increases a township’s tax base;
• Promotes jobs growth;
• Encourages the rental or sale of unused or underused land;
• Ensures that solar energy production is harmonious with surrounding land uses and the township in general; and
• Lessens the chance of nuisance issues arising in the future.

What Are The Disadvantages Of A Solar Ordinance?

There is little downside to a well-drafted solar ordinance. A poorly-prepared ordinance, on the other hand, can discourage economic development, overlook the needs of surrounding land owners, lead to issues related to glare or other visual distractions, and, if the ordinance completely bans solar development, lead to exclusionary zoning challenges. Most, if not all of these concerns can be addressed by a well-written and comprehensive solar ordinance.

What Types of Systems are Regulated by a Solar Ordinance?

In general, a solar ordinance will regulate photovoltaic devices, which are a system of components designed to capture and process solar energy. When multiple photovoltaic devices are connected together they become a solar array, which provides a single output of energy from multiple devices. A solar ordinance should also regulate structures associated with these devices, including transmission lines, substations, and maintenance buildings.

Typically, a solar ordinance will regulate larger systems different than smaller systems. Because the definition of a photovoltaic device is broad, it contains anything from a single solar roof panel on a resident’s home to a much larger panel connected to a multi-acre solar array. Naturally, the regulations that apply to a personal-use solar array are not well suited to large, commercial solar arrays, and the reverse is also true. Thus, a good solar ordinance will regulate these systems differently, with more extensive regulations on larger arrays. This is typically accomplished by allowing certain small-scale solar energy systems to be accessory or permitted uses in all of a township’s zoning districts, subject only to administrative site-plan review by a township’s zoning administrator. Large, utility-grade, commercial solar arrays, on the other hand, can be addressed as a special use and are regularly limited to only certain zoning districts. One of the key elements of a solar ordinance is that it provides appropriate regulations for each type of solar array, based on the scale of the proposed use.

What Terms Should be Included in a Solar Ordinance?

A good solar ordinance will be a complete statement of a township’s regulation of solar energy production within its borders. Generally, a solar ordinance’s requirements can be divided into the following categories:

1. Dimensional: These regulations deal with the physical location of solar energy structures within a certain parcel or parcels, as well as the relationship between those structures and neighboring properties. Examples of these regulations include restricting solar energy systems to certain zoning districts, creating setbacks, height restrictions, lot-coverage restrictions, restrictions on access drives, screening requirements, and environmental requirements.
2. Operational: These regulations address the day-to-day operations of a solar energy system, and are designed to ensure that a system operates not only efficiently, but in a manner that is neither unsafe nor a nuisance. Examples of these regulations include glare restrictions, maintenance requirements, security requirements, signage limitations, noise limitations, and lighting restrictions. 
3. Administrative. These regulations describe the process needed to establish a solar energy system, as well as ensuring that energy producers provide the township with the information it needs to ensure compliance with the requirements of the ordinance. Examples of these regulations include permitting requirements, periodic inspections and reviews, the submission of quarterly reports, the requirement for regular meetings with township officials, the submission of written construction plans, and the submission of a decommissioning plan, agreement, and bond.

What Terms Should Not Be Included In A Solar Ordinance?

Other than a term specifically excluding the possibility of solar energy systems within a township, no specific terms are impermissible. It is important, however, that townships carefully consider balancing concerns about solar energy production with the interests of those residents who wish to see more solar energy within the township. An ordinance that is too restrictive will discourage the establishment of solar energy systems within a township, while an ordinance that is too permissive could lead to disputes between a solar energy producer and neighboring property owners. It is important that the terms of a solar ordinance fully consider the interests on both sides of the solar energy question, and to carefully balance these interests.

— Stephen A. Delie

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Fahey Schultz Burzych Rhodes PLC, Your Township Attorneys, is a Michigan law firm specializing in the representation of Michigan townships. Our lawyers have more than 150 years of experience in township law, and have represented more than 150 townships across the state of Michigan. This publication is intended for our clients and friends. This communication highlights specific areas of law, and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.