The Rochester Planning Board almost came down hard on Perry’s Lane solar farm developer Jay Myrto of Clean Energy Collective on May 25 after the board questioned whether Myrto proceeded in bad faith in continuing with the construction of the solar farm after the board told him at the last meeting to fix the screening problem before installing the solar panels.
Myrto argued that the panels were not installed as the board specified – only the posts were.
Back on May 10, the board ordered Myrto to address a number of trees the board deemed ineffective in screening the project from view from Mary’s Pond.
Attorney Richard Serkey explained that the developer’s proposed solution was to install a solid wood cedar fence lifted 6 inches off the ground and extended alongside the Mary’s Pond corner about 350 more feet.
Chairman Arnold Johnson said the change was likely minute enough to simply amend the special permit conditions, but insisted the fence had to be installed immediately.
Johnson said he spotted a pile driver at the site the week before and about “95 percent” of the posts driven in. He said he didn’t understand why Myrto went further with the work before the screening issue was rectified.
“We like to learn from all our projects,” said Johnson. “So what we learned here is, from now on … we’re going to get even tighter and the screening will be in until any construction takes place.”
Myrto argued that, just as the board stated at the prior meeting, “The screening, per the plans, was done.” After all, the trees planted were the size the board approved. It wasn’t until after they were installed that the board saw they were too scrawny to screen the project from the outside.
What ensued was a showdown of sorts between the board and the developer, which almost led to the re-opening of the public hearing and the need to re-advertise the hearing and submit an updated plan – not exactly what any developer wants midway through a project.
Town Counsel Blair Bailey voiced concern that the board initially expressed its intent, which was not aligned with the developer’s subsequent actions.
“I suggest the board vote to re-open the permit, post a new hearing, and amend it,” said Attorney Bailey. “If that’s the relationship, then we can do that.”
This “surprised” Myrto, the developer said. He pointed out that, when the board initially brought the matter to his attention two weeks prior, they met with the board that very day.
“We’ve shown, I think, that we work with the board,” said Myrto, “so the idea that we have to stop work seems absurd. There’s no harm here.” He continued, “There’s no safety concern.”
Planning Board member Ben Bailey told Myrto he had some sympathy for him as a businessman.
“But I think you made a mistake if your intention was to ignore us after the meeting…. I really think you should have at least called the chairman,” board member Bailey said. “I think you’ve offended him by doing one thing and saying another.” Bailey then suggested Myrto apologize to Johnson and the board; either that, or possibly follow Attorney Bailey’s advice, which board member Bailey said he found “very harsh.”
Myrto recounted what the board specifically ordered at the last meeting and said, in his own defense, that the board told him: “I don’t want the panels going in.”
“The panels didn’t go in,” said Myrto. (Just the posts).
Board member Bailey objected to Myrto’s defense.
“I just extended you an olive branch and what we got in return was adversarial,” Bailey said. He then made the motion to re-open the public hearing as Attorney Bailey suggested, and it was immediately seconded. Johnson, however, called for further discussion before a vote.
Serkey suggested a five-minute recess to advise his client.
It was already encroaching on the two-and-a-half hour point into the meeting when Serkey and Myrto returned. Serkey told the board that Myrto would order the fence in the morning and have it installed right away to keep from having the hearing re-opened. Attorney Bailey advised the board to re-open the hearing unless it receives the offer in writing from Serkey in the morning.
Board member Bailey amended his motion to re-open the hearing if the fence was not installed by the next Planning Board meeting. Johnson figured it would take about one day to install once the materials were available. The board unanimously voted in favor of the motion.
“I apologize for anything … and misunderstandings,” said Myrto.
Also during the meeting, the board voted to indefinitely postpone a citizen’s petition article on the Annual Town Meeting Warrant calling for prohibiting the conversion of a single-family house into a two-family within a 1,200-foot buffer between the closest residences.
“This would actually prohibit the conversion,” said Johnson.
“Not really,” said Tobias Paulo, the Bradford Estates resident who filed the petition for the article.
Johnson said, if you draw a circle around a proposed two-family conversion property, it would be half-mile radius.
“This is a prohibition,” said Johnson, especially when factoring in the two-acre parcel minimum. “If it happened to pass at Town Meeting, there’s a strong likelihood that the [attorney general] would turn it down. Even if it didn’t,” Johnson continued, “the ZBA would grant variances on this all day.”
Paulo said he just wanted to “protect” the town from two-family houses devaluing the property values of single-family homes.
“But this isn’t protecting them; this is taking away their rights,” said Planning Board member John DeMaggio.
The next meeting of the Rochester Planning Board is scheduled for June 14 at 7:00 pm at the Rochester Town Hall.
By Jean Perry