Is Solar Compatible with A Conservation Restriction? The Superior Court Weighs In.

Land conservation has come a long way since it was introduced in New Hampshire in the 1970s. Early conservation restrictions were typically short, simple documents that did little more than facilitate the conveyance. Conversely, conservation restrictions and easements today are generally robust, complex instruments that incorporate lessons learned along the way, addressing everything from waste dumping to mining to timber harvesting to subdividing.

One clear example of this evolution is solar. Many modern conservation restrictions and easements have provisions pertaining to solar, specifying whether it is permissible on the conserved land and, if so, to what extent. Most early conservation restrictions, however, are silent as to solar and other renewables. Unfortunately, this means that it is often unclear whether land burdened by older conservation restrictions can permissibly host renewables like solar. Further, because conservation restrictions typically last in perpetuity and are difficult to amend, parties must work within the confines of the existing language of a restriction; amending a restriction to incorporate solar provisions may not be a viable option. While every conservation restriction is different, the Superior Court recently provided some guidance on this issue.

In Jennifer and Bruce Wooster v. Commissioner, New Hampshire Department of Agriculture, Markets and Food (No. 213-2021-CV-00161), the Plaintiffs, farmers, had installed part of a solar array on a portion of their farm protected by an Agricultural Preservation Restriction (“APR”) held by the State of New Hampshire and administered by the Department of Agriculture, Markets and Food (the “Department”). The APR, dated November 16, 1987, did not contain provisions directly related to solar. After the Department advised the Plaintiffs that their solar array violated the APR and RSA chapter 432, the Plaintiffs sought a declaratory judgment that the installation and location of the array were consistent with the APR and applicable law.

The pertinent provisions of the APR provided that the APR site had to be retained “predominantly in its agricultural use” and that any structures or buildings had to be used for “agricultural purposes.” As to the latter, the State argued that “agricultural use” and “agricultural purpose” were synonymous and included only the list of agricultural uses contained in RSA 432:18, II–III (i.e., the production of plants and animals). In the Department’s view, because a solar array would not fall under the list of agricultural uses in RSA 432:18, II–III, the APR did not permit it. Conversely, the Plaintiffs argued that “agricultural use” and “agricultural purpose” are distinct terms; a structure used for “agricultural purposes” is one that supports the property’s “agricultural use.”

The Court determined that “purpose” and “use” are related but distinct terms; the particular purpose of a structure is different from, and subordinate to, the “generality” of the agricultural use of the APR site. Therefore, a structure could have an “agricultural purpose” within the terms of the APR even if it was not explicitly listed in the “agricultural uses” set forth in RSA 432:18 (the definitions section of the Acquisition of Agricultural Land Development Rights statute). Ultimately, the Court concluded the solar array could serve an agricultural purpose within the meaning of the APR and RSA chapter 432.

For the predominant purpose prong, the Court noted that neither the APR nor RSA chapter 432 required the underlying land to be used specifically for crop or animal production. However, the Court did not reach the ultimate issue of the APR site’s predominant use because there were genuine issues of material fact between the parties. Specifically, whether the solar array at issue actually served an agricultural purpose and, if so, to what extent it contributed to retaining the APR site predominately in its agricultural use (e.g., how much power the solar array generated, how much of the power was used to power farm uses, etc.).

Although conservation restrictions have evolved to tackle renewables head on, older restrictions already on the books are not going anywhere. As such, tricky issues of interpretation will continue to crop up as farms with restrictions look to modernize. Of course, every conservation restriction is different, so results may vary from case to case. Still, many early conservation restrictions relied heavily on the statutory language from RSA chapter 432, so it is foreseeable that they would be interpreted similarly. At the very least, the Wooster case reveals that it is possible for a structure, such as a solar array, to serve an agricultural purpose even if it is not itself a traditional agricultural use like animal and crop production. Thus, solar and other renewables may be workable on conservation restrictions, even older restrictions that do not mention renewables directly.

Jason Reimers and Timothy Kopczynski are attorneys at BCM Environmental and Land Law, PLLC. The legal team at BCM practices environmental, conservation, and land law throughout New Hampshire, Maine, and Vermont.  Jason Reimers and Michael Atkins, Esq. (of Shaheen & Gordon, PA) represented the plaintiffs in the Wooster matter.