Representatives for the Clean Energy Initiatives solar farm project proposed for the Clemishaw property off Tucker Lane expressed confusion and frustration on August 3 at the seemingly esoteric nature of a part of the town’s solar bylaw, as interpreted by Marion Planning Board Chairman Robert Lane.
The main issue that contributed to miscommunication between Bob Rogers of G.A.F. Engineering, Greg Carey of Clean Energy Collective, and Lane, was the withdrawal of Chapter 61A land to change the use of the land and how that would affect setbacks to any possible future houses that “could” be built within the 100-foot setback from the solar energy system, should any surrounding lots later be subdivided and developed. There was also the issue of whether the 35-foot setback surrounding the solar energy facility would need to be taken out of Chapter 61A as well.
Rogers and Carey were visually perplexed by Lane’s request to demonstrate that any possible future houses that could be developed would not lie within the 100-foot setback, and Lane told the gentlemen that he had already requested the information at the previous meeting. Lane told them, if there could one day be a residence within 100 feet of the solar arrays, then the project would need a 100-foot setback from the actual property line.
“You have to demonstrate that there won’t be a residence,” said Lane. Lane pointed out that the solar bylaw uses the word “could,” pertaining to possible houses within 100 feet of the solar energy facility itself.
Lane also said the 35-foot setback surrounding the solar farm would need to be taken out of Chapter 61A for the purpose of using the land as a solar farm, not just the 6.59 acres on which the arrays would stand.
Rogers said the Board of Selectmen would be hearing the matter of the Chapter 61A land and the property owners’ intent to remove the land from agricultural use to the use of the solar farm during the selectmen’s meeting the following night. Lane said the Planning Board should not form or release a decision on the solar farm application until the Chapter 61A status was addressed. Lane added that he was not satisfied with the applicants’ plan, insisting that the setbacks as-is do not meet the requirements of the bylaw.
“And only the Planning Board can make that determination, not town counsel or the Board of Selectmen,” said Lane. Lane later said town counsel determined that the 35-foot setback buffer zone surrounding the solar farm would have to be taken out of Chapter 61A status as well in order to satisfy the bylaw’s required setbacks. Lane began to raise his voice at this point in the back and forth discussion between Lane and Rogers and Carey. He continued, “You have to demonstrate to us that it’s impossible to build a house on these (surrounding) lots.”
“There are already houses on them,” said Rogers.
But you haven’t demonstrated that, Lane replied.
“But we have, sir,” said Rogers.
“No you haven’t,” Lane said. “You have to show the whole lot.”
“We have shown the whole lot,” said Rogers. “So, essentially, you’re taking the extreme position (interpreting the bylaw),” Rogers suggested to Lane.
Lane proposed getting abutting property owners – the Marion Trustees of Reservations – to sign a letter stating they would never use the lands to build houses. Because, don’t forget, Lane said, the word “could” within the bylaw means “it’s not impossible.”
“You’re projecting into the future,” said Rogers.
“If you say that it’s not possible, then you have to demonstrate that it’s not possible,” said Lane. “I didn’t draft the bylaw. That’s what the bylaw says.”
Rogers conceded at that point that he would need to consult with legal counsel.
And that’s the setback issue as it is connected to the Chapter 61A issue, Lane told him.
The misunderstandings continued, and Carey asked Lane to provide him with a memorandum or an outline detailing exactly what Lane wanted to know, and Planning Board member Norman Hills supported Carey’s request.
Carey suggested the selectmen the following night would make the determination on the Chapter 61A status, which would affect the Special Permit for the project. “It’s within their jurisdiction to make any decision subject to any action the board takes,” said Carey.
“Wait, wait, wait,” said Lane. “They (the selectmen) can’t act on the 61A until we say the land area is necessary,” said Lane. “It’s our job to decide what is the proper area that they have to make that decision on.”
Carey argued that the Chapter 61A matter was separate from the Special Permit application.
“If you want to shrink this so that you meet all of the setback requirements…” said Lane, knocking his hand onto the plans on the easel.
Until the plan meets the setback requirements, said Lane, the Chapter 61A matter cannot move forward to the selectmen. Just prove to the board that abutting neighbors will not sell and subdivide their land to build houses.
“It’s completely subjective to say that [the neighbors] could put a house…” said Carey. Theoretically, yes. Neighbors could subdivide their land.
Hills interjected.
“It’s highly unlikely that anything would be built in that area,” said Hills, also Chairman of the Conservation Commission. Hills said the surrounding areas are rife with wetlands and no development can occur on wetlands.
Lane said he was happy with that explanation, but the applicants would have to prove that. Planning Board member Michael Popitz agreed with Lane, asking the applicant to include details of the possible scenarios of neighbors building future houses on surrounding lots.
“We’re not in the business of doing hypotheticals,” said Hills. “Everything has to be realistic. We’re not into science fiction here.”
“I agree with you,” said Lane. “If it’s wetlands, it doesn’t make any sense to use that parcel.” But prove it.
The board then engaged Rogers in a discussion on a request to waive the two-foot separation from high groundwater level regarding stormwater management, stating its case for the waiver since the solar farm will not generate any additional drainage issues. The engineer doing the peer review on behalf of the Planning Board said the Mass DEP would not accept anything less than two feet. Several members of the board were comfortable with the 12-inch waiver, but no action was taken. Lane said no vote would be taken separately apart from the whole package.
Lane then went deep into the minutiae of the escrow agreement, and asked Carey to look more in depth at the language of the agreement so that the Town of Marion would not lose its rights to access the monies in the future should the project be improperly decommissioned.
The matter was continued until the next meeting of the Marion Planning Board at 7:00 pm on August 17 at the Marion Town House.
By Jean Perry
