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

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.

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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