Solar Farm too close for comfort for abutters
By Meghan McPhillips-Jones
Last Monday, the Town Council met with Town Manager Kerry Speidel, Zoning officials, Planning Board Director Marion Benson and members of the Planning Board to discuss the proposed Solar Farm project on Chase Road and discrepancies between town and state solar bylaws.
“I called [Gus Abalo, President of Victus Solar out of Miami Florida] and discussed whether or not they knew that the abutters were not happy. Their engineer stated to me that there might be more review that might make the project more consistent with being farther away from the abutters,” said Planning Board Director, Marion Benson.
“By the standards of the [state] bylaws in place, our solar project meets, and in most placed exceeds the standards,” said Attorney Scott Fenton of Bowditch & Dewey, representing Abalo. “We have been to the board twice, and because the board hasn’t given their opinion within the 45 days, we can go to the zoning and planning departments tomorrow to ask for approval.”
“Our plans meet and exceed the setback for zoning, and in some places we are at 125 feet away with plantings for the abutters,” said Fenton. “According to 40A we have the right to go ahead with this project.”
And with that established, Attorney Fenton and Applicant Abalo left the Public Hearing.
The Massachusetts state As-of Right Solar Bylaw requires that there must be at least 50 feet from the property line as a setback. Some places it is as low as 20 or 30 feet. As-of-Right sitting is defined on the Massachusetts Bylaw Web site as:
“As-of-Right Bylaw shall mean that development may proceed without the need for a special permit, variance, amendment, waiver, or other discretionary approval. As-of-right development may be subject to site plan review to determine conformance with local zoning ordinances or bylaws. Projects cannot be prohibited, but can be reasonably regulated by the inspector of buildings, building commissioner or local inspector, or if there is none in a town, the board of selectmen, or person or board designated by local ordinance or bylaw.”
40A Section 3, in the Massachusetts bylaw allows solar projects to be built on commercial or residential area. In regards to Solar Projects it states, “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.”
“40A is a broad chapter, and it’s not in there and you just let them leave,” said John Whalen of 526 Townsend Road. “The project will be putting industrial and commercial use on residential land, they aren’t allowed to do this because of other bylaws.”
“I’m tired of generalities, and now the 45 days have been burned up and no one has yet shown me the bylaw that is allowing this to occur. It doesn’t exist,” said Whalen.
“Unfortunately statutes trump town bylaws, and section 3 of our solar bylaw enables statute for solar [projects like this]. Our role as a planning board is limited and we don’t have a vote that could change anything at this time,” said Member Thomas Bodkin.
“[Victus Solar] will be looking for a building permit, and because the zoning official now knows that it is technically industrial going on residential land, and he has the right to halt the project,” said Chairman Toby Bakaysa. “That’s how it will work, we as a planning board just do site review, but the zoning board will be able to look at this project differently.”
“Because we were an early adopter of the solar bylaws, based on the information that we had at the time and our conversation with the Town Council, we don’t have the ability to go back now, but we can change it and stop this from happening a second time,” said Bakaysa.
“As a resident of Lunenburg and not as a Selectman member, I truly believe that this is not allowed under residential zoning,” said Selectman Member, Paula Bertram. “This is a commercial enterprise and if this was otherwise, it would not be allowed by zoning standards. Any project must comply with zoning and this project does not. I truly believe that this needs to be looked up and this is not allowed under current solar bylaws.”
In Other News
The Planning Board also held a Public Hearing concerning the Summer Street design bylaw, as well as the Commercial design bylaw.
The Commercial design bylaw has been changed from what was sent out to the public last week. The Planning Board has made the changes as follows,
22.214.171.124 Standards, section A) Occupied Lot Area, “1) The gross floor area of all buildings and structures on a lot shall occupy not more than 40 percent of total lot area” has been eliminated from the bylaw.
Section D has been changed to read, “Flat roofs that are visible from the street level are prohibited unless an appropriate façade is included in the design.”
Section E has been changed to read, “Façade roof colors and signs shall be reviewed for consistency for other uses in the district and reviewed under the Developmental Plan Review.”
Section J under Parking and Loading will be changed to, “1) Parking shall be in the read or side of building and shall not be visible from the street line when possible. Parking will be reviewed under the Developmental Plan Review.”
The Summer Street Design Bylaw saw its first change under Dimensional Standards, section A, part 1 has been eliminated.
Section H, the word “bonus” has been deleted.
Under Additional Standards, Section A, 6) “Lighting signage and architectural style shall be consistent with other uses in the district and reviewed under the Developmental Plan Review.”
Under Waiver, “The Special Permitting Granting Authority may waive any of the standards within this Section provided that such waiver will not substantially derogate from the village style design standard established herein.”
The public hearing for an antenna installation at 2005 Massachusetts Ave. for the Horizon Christian Fellowship at 356 Broad St. in Fitchburg to begin radio broadcasts in January 8 was approved by the Planning Board, however it was pointed out that the tower owner, American Tower, L.P. allowed their FCC licenses to expire in 2009. This not being the fault of the applicant, the Planning Board will be looking to investigate the lapse of these licenses.
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