ZBA ruling backs building inspector on solar ruling; solar project on farm not dead, company president says

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By Thursday, Feb 9 News  14 Comments
Heather Bellow
The Zoning Board of Appeals, struggling, just as others have before them, with nonexistent local zoning regulations on solar installations. The board backed the building inspector’s ruling that a commercial solar farm cannot be built in a residential/agricultural zone. The ruling was made before the town has a chance to get new solar amendments passed at town meeting in May. Kearsarge Energy may appeal the board's decision and the company president says he will go forward with the plans. From left, ZBA alternate Kathy Kotleski, vice chair Carolyn Ivory, chair Ron Majdalany, secretary Bernard Drew, member John Katz, Michael Wise, alternate Don Hagberg.

Great Barrington — The Zoning Board of Appeals was put to a hard test this week.

Wednesday’s ZBA hearing (February 8) was overflowing with people wondering whether the board would back the building inspector on his decision not to issue a permit for a large solar development in a residential/agricultural area.

And it did end up backing him, in a 3–2 vote since it takes four votes in favor to overturn a ruling by the building inspector.

A packed Zoning Board of Appeals meeting Wednesday, at which more people listened from the hallway as a resident spoke of her concern about the impact of large commercial solar projects in residential/agricultural areas. Photo: Heather Bellow

A packed Zoning Board of Appeals meeting Wednesday, at which more people listened from the hallway as a resident spoke of her concern about the impact of large commercial solar projects in residential/agricultural areas. Photo: Heather Bellow

Kearsarge Energy president Andrew Bernstein said the company might appeal the board’s ruling.

The issue might not have raised more than a few eyebrows but for the fact that Kearsarge’s 10- to 12-acre array would sit 400 feet from the Great Barrington Rudolf Steiner School’s nursery/kindergarten building off West Plain Road, with an access road that would run right up against the parking lot and playground.

Still, even that didn’t matter last night. All that was on the menu was the law or, in this case, the lack of it.

Mercifully, as board vice chair Carolyn Ivory pointed out, there are two retired lawyers on the board to sort out the tangle that developed from what is missing from the town’s bylaws: solar regulations.

Because there are none in Great Barrington, it means state law kicks in, and that only prohibits solar projects from going in where they might be a threat to the public health, safety or welfare, but calls for a reasonable interpretation of this.

It means solar panels, few or many, can go up pretty much anywhere. That’s why the planning board wrote some solar regulations for voters to approve at Annual Town Meeting in May.

Inspector Edwin May did his job by interpreting what was available on the books. He treated Kearsarge’s project, which is to generate power at discounted rates for three central Massachusetts municipalities, as “light industrial” and so not allowed on the land the company planned to lease from farmer Bob Coons for 20 years before taking it apart and returning the parcel to farmland.

ZBA chair Ron Majdalany and secretary Bernard Drew listen as member John Katz uses his legal reasoning skills. Photo Heather Bellow

ZBA chair Ron Majdalany and secretary Bernard Drew listen as member John Katz uses his legal reasoning skills. Photo Heather Bellow

“We sympathize with the building inspector,” said Kearsarge attorney Peter Puciloski, noting that May was wrong and that town counsel David Doneski was also wrong in his opinion supporting May’s decision.

The project, Puciloski said, “complies in all respects with the proposed amendment,” to the bylaws, which says solar should be encouraged on farms to help farmers make extra income.

Former attorneys John Katz and Michael Wise, both on the board, hashed out the reasoning while everyone in the room was quiet and riveted.

Having studied three previous cases in which courts struggled with similar situations, Katz thought the project did fall within the state’s reasonableness standard. Wise did not.

“I’m struggling myself,” Wise said. “It’s a nice little project and I’d like to say yes to it. But we’re making a determination of law.”

“It is what the law is today,” Katz said, noting that not having regulations in the bylaws means you can put solar anywhere. So then you jump to the state regs, which only say to be safe and reasonable about it.

Both Katz and Wise pointed out that the case law shows “struggling…confused” judges.

The plan at the center of a zoning controversy: The solar array will fit inside the blue and white lines, a 10- to 12-acre parcel. The access road can be seen running alongside the school playground and parking lot. It divides the Coons’ land, right, from the school soccer field, left.

The plan at the center of a zoning controversy: The solar array will fit inside the blue and white lines, a 10- to 12-acre parcel. The access road from West Plain Road can be seen running alongside the school playground and parking lot. It divides the Coons’ land, right, from the school soccer field, left.

Board chair Ron Majdalany said it was all this confusion that prompted him to get a legal opinion from Doneski, who said inspector May was right to stick to treating the panels as light industrial use, which was supported by some case law, Wise said. Katz didn’t think so.

“I’m in favor of having the panels there,” Majdalany said. “I’m not troubled by it…this is a matter of enforcing town zoning law…so you think we should ignore our own town counsel?”

“Town counsel is flat out wrong,” Katz said. “I disagree.”

“And I don’t,” Wise said. “If the fatality is that the word solar does not appear and we can’t make reasonable treatment of solar as light industrial…that’s the position I’m resisting.”

“The way this is written you could put [solar] anywhere,” Katz said.

Selectboard member Ed Abrahams had stood up with this very concern. “If you accept this interpretation of current law, you’re opening up any piece of land anywhere to solar. I could cover my entire front lawn…that could not possibly be what the state had in mind.”

This is likely the last time the town will have to face such a legal solar tangle since the regulations, while not officially in the bylaws yet, have been posted and, by the month of May, will be up for town approval.

Several people told the board it should consider a few things. Amparo Vollert, an architect and Steiner school parent, was concerned about the general impact of large solar installations on property values of homes and land next to them, saying it’s a mix of residential and industrial, “an equation that’s quite dangerous.”

Planning board member Jonathan Hankin, who lives down the road from the Coons farm, said the installation would “preserve farmland,” since the array will have a 20-year lifespan and the “alternative is residential development.”

The Coons farm off of West Plain Road. Photo: Heather Bellow

The Coons farm off of West Plain Road. Photo: Heather Bellow

Coons is struggling to keep his farm afloat, yet is trying not to sell his land off to just anyone for a good price, he has previously said.

Kari Harendorf, a Steiner school parent, said the board should be mindful of how such an installation “changes the beauty of the landscape.”

Bernstein said later that the ZBA’s vote didn’t kill the project. He said, while Kearsarge may appeal the board’s ruling, there is a second route to making the project happen. Last week, the state pushed the solar program deadline from May 8, 2017, to Jan. 1, 2018. It was that May 8 deadline that had added urgency to sorting all this out.

While the extension will cut into the company’s returns because of “financial penalties” imposed by the state, he said, the project is still “viable.”

“We’re committed to going ahead, especially for Bob Coons, who seems to be the person who’s suffering the most.”

Bernstein said he is also committed to working with the school. “We want to try to address their needs and the communities’ needs and we’ve got ways to make things work.

“The alternative for [Coons] is a residential [development] and he doesn’t want to do that.”


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14 Comments   Add Comment

  1. Sam Handel says:

    Thanks for the accurate report and especially for the reasonable headline.

    Unfortunately, one of the comments was edited to exclude the suggestion that the Coons family, who are losing an environmentally beneficial economic opportunity that is explicitly allowed under state law, could instead plant ORGANIC ARUGULA!!! Apparantly because the commenter spends so much on the expensive salad green, farmers can make steep profits if they focus their farming operations upon it. I’m not a farmer myself so I couldn’t say for certain if that’s as perfect a solution as was suggested or if it’s just a new high water mark for self-parodying privilege and socioeconomic myopia.

    Should the Coons family continue to pursue a solar project rather that switch gears toward arugula or residential development, I look forward to the correction of ZBA’s decision to remain out of compliance with state law.

    1. michael cohen says:

      sam, regarding the arugula, that’s cute; you’ve really captured the essence of the thing. perhaps you’d also be willing to provide your perspective on the ZBA’s non-compliance with state law? where did you study the law? since our town counsel feels otherwise. maybe you could school him. and otherwise, since we are discussing residential development as the alternative, perhaps we should also mention the private and state agencies that would be willing to preserve that land at approximately $20k per acre.

      sam, i respect your values, but it seems that you’ve been preyed upon by smart corporate interests. your argument would be strengthened by a more balanced attack.

      1. Sam Handel says:

        Michael, thanks for you comment. I would be happy to answer your questions.

        1. I’m sure you have already taken the time to read Section 3 under Chapter 40A, but just in case you haven’t, it’s available for your perusal here: https://malegislature.gov/Laws/GeneralLaws/PartI/TitleVII/Chapter40a/Section3. You may be interested to learn, if you don’t already know, that this law also exempts the school from zoning regulations and allows it to be there in the first place.

        The relevant portion as I see it is:
        No zoning ordinance or by-law shall prohibit or unreasonably regulate the installation of solar energy systems or the building of structures that facilitate the collection of solar energy, except where necessary to protect the public health, safety or welfare.

        I attended the zoning meeting and didn’t hear anyone suggest any need to protect the public health, safety or welfare concerning this project.

        2. I don’t have a law degree. I don’t know what your point is. Perhaps some time you can review my academic record to determine the value of my opinion.

        Our town council indeed took an incorrect position, but as was clearly explained at the meeting, also did not address the relevant portion of the law. That’s why three of the five voting members of the ZBA did not accept town council’s position. Perhaps they also lack law degrees.

        I don’t know what your assumptions are regarding my values, but I am happy to express them here. I am an energy consumer who would rather pay the virtually negligible cost seeing solar panels on a neighbor’s farm than contribute further to dirty energy production, even though from my privileged perch I can easily avert my eyes. If, thanks to progressive subsidies, tax incentives, and public policy, corporate interests align with mine and allow a farmer to keep his farm, I’m thrilled.

    2. michael cohen says:

      sam, thanks for your thoughtful reply. here is my dissension:

      1. i have read the law, and i attended last night’s planning board meeting where the board and the town discussed that state law and the board’s proposal for local governance. it was really interesting; i wish you had been there. i (and others) believe that the important element is the public “welfare” which has a pretty broad and basic definition. for instance, if great barrington and the berkshires, replaced their rural landscapes with solar farms, then our public welfare would be at great risk. people come here for that. this was discussed at great length last night with a deeper dive into the state’s intention with the law relevant information from public planner’s who understand how dangerous industrial installations in rural and residential neighborhood’s can be to these kinds of communities.

      2. as it relates to your legal experience, your opinion contradicts the town’s attorney, one of the two attorney’s on the ZBA, and the longtime head of the ZBA. i can’t speak to the experience of the other two board members who only asked questions . it seems audacious to think that you know more. your position seems dogmatic.

      3. the next planning board meeting regarding the proposed solar bylaws is feb 23rd at town hall. there are a lot of people more experienced in this than we are. the information shared last night was eye-opening. i hope that you can attend.

      4. this dialogue should be friendlier that it has been. and i apologize for answering with snark. i’m honestly offended by your offense. this is not a simple situation. there are many solutions to save this land and support this former farmer. i believe that this solution is not a good one for our town and sets a legitimately dangerous precedent. all of the people that i know who are against this proposal are highly progressive both socially and politically. i’m not sure everyone in this fight are as well-meaning, democratic, and caring about the overall public benefit as those that are searching for other solutions, despite what seems like very specific personal interest.

      best regards,
      michael

      1. Sam Handel says:

        I disagree with your insistence on framing this as a struggle between our town and energy companies. I know you are upset that there is an economic interest for a 3rd party because I was there when after he left the room at the school meeting, you for accused Henry Barrett of lying about this development at a meeting his parents were attending. An energy company is going to be part of energy solutions, there’s no way around it. That doesn’t make them automatically nefarious. We are talking about a mutually beneficial arrangement. You suggest that I have been victimized and that they are feigning personal interest. Perhaps you are looking at this too emotionally. I don’t know if you have seen any of the news that Jimmy Carter’s peanut farm now has a large solar installation, I hope you wouldn’t suggest he was manipulated by an unscrupulous energy company:

        http://www.ajc.com/news/jimmy-carter-leases-his-land-solar-power-much-plains/XwFS50Kf1wEI9fXxpvSUnM/

        https://www.nytimes.com/video/the-daily-360?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news

        Sadly, what we are really arguing about isn’t a law issue, it’s a class issue. That is why the arugula farm suggestion does in fact perfectly encapsulate this problem. You have suggested a few possible alternatives for someone else’s land that preserves a view you like. I would suggest to you that those suggestions overstep boundaries. You are quick to point out that I don’t have a law degree when I comment on the law, and I would respectfully suggest that you know nothing about the problems a small farm faces, let alone anything about solutions.

        The Coons family has been a steward of the land you would prefer to remain undisturbed for decades. Rather than parcel and sell that land, they have farmed it every single day since about 1950. After considering all of their options to save their farm in a new economic reality, they have settled on a solution that benefits all of the inhabitants of the earth. You can call yourself socially and politically progressive, but a position against this family to preserve the entirety of their farm by allowing a solar field on a small portion of it only because you don’t like the aesthetic speaks louder than words. It’s certainly interesting that with the exception of a vocal group of parents at the school (which did not seem to take any official position) all of the abutting neighbors who spoke were in favor of this project moving forward.

        I have a child at the school. She spends her days in the building and playgrounds closest to this proposed project. Were she to even notice it in the first place, I would be much happier to teach her that we all have to make small sacrifices for clean energy so that communities elsewhere don’t have to pay a huge price to produce energy that destroys our environment than to explain to her how I drum up the courage to drive past Bob Coons on my way to the neighboring school whose community prioritizes a wealthy future guest or resident over an existing family whose daily hard work is directly responsible for all that open land still existing in a residential area.

        One thing we can agree on is that we don’t want ground solar installations blanketing the entirety of Great Barrington. Given that this project is the only one that would have been on schedule to be underway before solutions to that issue can be discussed and implemented at town meeting, that is not really a present concern. Also, I would suggest it would be difficult to find a location with less impact on the overall beauty of the area.

        Lastly, what if I am offended by your offense to my offense? In the context of calling for a friendlier discussion, your comment is hilarious.

  2. Jeff Morse says:

    Two questions:
    1. At what point does a solar array cross the line into “light industry”?
    2. Are the proposed solar bylaws accessible online? If so, where?

    1. Jonathan Hankin says:

      They are not yet available online. They are available for review at the Town Clerk’s office.

      1. Montello says:

        Actually, the proposed by-laws were posted with the latest Planning Board agenda and can be accessed here:

        http://www.townofgb.org/Pages/GBarringtonMA_PublicHearings/Final%20zoning%20for%20Pub%20Hearing%20Feb%209,%202017.pdf

  3. Jeff Morse says:

    Montello, Thanks for the link. Much appreciated.

  4. Julie Anidjar says:

    The board’s decision, as stated in the article, does not ultimately impact the viability of this project.
    The meeting rather illustrates how an energy company impacts the sociopolitical dynamics of a community – relying on a divisive discourse of an “us vs. them” – to forward their agenda through changes in the by-laws to allow their projects to go through while they remain a ‘neutral’ party.
    The community SHOULD support its farmers (high-priced arugula only reflects the high costs of bringing such a product to market, not a windfall for its growers), however the approach here should be one of solidarity in the face of easy land grabs by energy companies. We know landfill/industrial sites are available for these projects. Farmers and the rest of the community should be asking hard questions of Kearsage while opening up a discussion of how to support our local farmers without them having to resort to giving up their lands to light industry.

    1. Joseph Burke says:

      While I certainly agree with you that landfills and unused industrial land are perfect for solar installations, I think your argument here misses the mark. Using these areas is great for our reduced use of fossil fuels, but does little for the communities in which they are located. Instead these fields are only benefiting the energy corporations that in your view are the enemy. Smaller projects such as these are not only limiting our carbon footprint but but bringing in much needed supplimental income to struggling family farms across the country.

      The fact of the matter is that framing the oppositional argument in this case as taking a stand against the corporate strong arming of farms is flat out false. It is very obvious that this is about this specific project and this one only. Had this solar field been proposed on a site within view of any of our local pubic schools, I can guarantee that opposition would be been minimal at best. As I live a mile from the Coons farm I can certainly say that the benfits of this project and the open spaces that it will help preserve far out weigh the minimal visual impact. Sometimes support for our farmers means trusting them to do what’s right for them and our community.

      1. Julie Anidjar says:

        In 2011, a similar proposal for a solar array on 19 acres on Seekonk and Round Hill Roads was denied by the planning board. Nowhere near a school. So it is clearly not ‘obvious that this is about this specific project and this one only’, as you say, and that opposition is coming from a place of privilege vis a vis the private school.

        This issue is about changing local bylaws to allow inappropriately-scaled industrial projects in a residential area. The anticipated changes to those laws will affect more than the West Plain Road property.

        The community deserves time to assess ALL possible solutions to the issues at hand. Had the solar proposal not been available what might the alternatives look like?

  5. Will Conklin says:

    This solar installation is precisely the type of development our nation, state, and towns should support. We have seen a dramatic rise in all variations on the solar theme: rooftop, pedestal, shingle, and more and they all move us closer to a more ethical, sustainable energy future. Many of these installations are right in someone’s backyard, where they chose it to be. I hope to have one in my back yard soon. We should all be so lucky as to have the opportunity to make an informed, safe decision to be part of the energy solution rather than continue contributing to the fossil fueled problem. I believe the Coons’ have made such a decision; they found a solution to keep the farm viable, maintain 90% of their acreage in production, and contribute to a renewable energy system.

    If we want farmers in our backyard, we must not hobble their ability to continue farming. This includes the option to use a small portion of the land they own to create both income and cleaner energy. With this leverage we INCREASE the ability of our area to maintain the pastoral scenes that have drawn so many here. The farmer can remain in business–still able to grow forage for livestock as the Coons’ do, still able to be a vital part of the rural economy and landscape.

    The lawyers will parse things as they must but our community members will shape the bylaws of our towns. If a NIMBY approach prevails then we have succumb to the same thinking that results in trucking our garbage to low income neighborhood landfills and blowing the tops off Appalachian mountains. If we cannot teach children the nuances of why solar panels must be on or next to their schools we have failed to engage their minds in one of the most important debates of our time. We should be moving toward IMBY–What can I do in my backyard that puts us closer to cleaner energy while maintaining public safety? Whatever it is, put it In My BackYard. Otherwise we’ll have many more fights in the future about who gets a pipeline in their backyard.

  6. Josh Fisher says:

    The discussion here has raised many valid points, but I think one perspective is missing…

    While some Steiner School parents have vocally opposed the solar array on Mr. Coons’s land, many have supported it, and they have urged the School to seek a collaborative path forward with Mr. Coons and Kearsage Energy.

    This is what the School has done from the beginning: seek a partnership that helps Mr. Coons continue to farm the rest of his land and addresses the reasonable concerns (both short- and long-term) posed by the project.

    Most importantly, in my viewpoint, the School, Mr. Coons and Kearsage are working to establish an educational connection between the School and the solar installation. With some care and forethought, this array might be transformed from what a few see as a liability (the nearby presence of a large solar array) into an educational asset.

    Solar power and other forms of renewable energy can coexist and thrive within a school environment, particularly one whose pedagogy is centered around the young child’s connection to the natural world. Thoughtfully weaving the landscape of the School’s top-rate farm and garden program into the landscaping around the array and developing hands-on educational opportunities for the School’s students are achievable goals, and many people are actively working toward these goals.

    This is a creative and collaborative solution to the NIMBY dilemma these projects often face. Indeed, it is the very sort of In-My-Backyard approach that another commenter has argued for, and if achieved, I believe it will only compound the benefits of the solar installation. One can imagine how large-scale solar arrays — if thoughtfully connected to their surroundings (be it a nature conservancy, an abandoned lot or a suburban neighborhood) — can become an integral part of those surroundings and draw widespread support. That is sound public planning for any kind of infrastructure.

    Working together toward such solutions is the best way forward here — and not just in the case of the Coons’s project, but also as the town works to establish a set of solar bylaws that will govern such projects in the years to come. I hope we can put differences aside and get in support of that approach.

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