Plaintiffs Settle on Solar Lawsuit

The residents who appealed the Rochester Planning Board’s approval of a solar farm on Mendell Road have settled with solar developer Borrego Solar Systems and agreed to drop their appeal and lawsuit against Borrego, the Planning Board, and each individual member of the board. However, that agreement was tied to a plan modification the board was asked to approve on September 11, and one board member was displeased with the manner in which it was presented.

Caryl and David Vermilya of 20 Mendell Road, the plaintiffs in the complaint, agreed to drop the suit if the Planning Board approved some landscaping and screening changes to the plan as “minor modifications” that evening.

Changes to the plan deemed significant enough would require reopening the public hearing.

Borrego representative Steve Long described the changes that call for additional grass and shrub plantings and some changes to the original species and height of selected plantings.

“We’re hiding the fence and the berm, so now it doesn’t look like a dirt hill,” said Long. “It’ll look more wild and, like, natural, I think.”

“Modified landscaping?” asked board member Ben Bailey. “Nothing else?”

Attorney Peter Paul explained that the lawsuit would be dismissed with prejudice against all defendants if the board would grant this minor modification. “I’ve seen the stipulation of dismissal,” said Paul.

“Shouldn’t we see the settlement document?” Bailey asked.

But the board was not provided a copy, although Planning Board Chairman Arnie Johnson said he’d seen it, as has the board’s attorney, Town Counsel Blair Bailey.

Ben Bailey was not happy about being left out of the loop and refused to vote on the matter until he’d seen it. Still, the board proceeded with its discussion and considered the at face value instead of as an appeal request.

“Sounds pretty minor,” said board member Chris Silveira.

“If this is something that’ll appease the neighbors,” said board member Gary Florindo, “who are we to sit here and try to make the design different? I think the Planning Board … should just go along with them. They have to live there.”

But that lawsuit was serious, said Bailey. The plaintiffs charged each individual member and sought monetary damages, he added. He wasn’t about to take anyone’s word over reading the document himself.

“I’m sorry,” said Bailey. “Once bitten, twice shy. … Show me a piece of paper and I’ll be satisfied.”

Johnson said safeguards were in place, and no changes to the plan would take effect until the lawsuit was dropped.

“All that aside,” commented Silveira, “it’s still a minor change. It’s still just grass.”

Board member Mike Murphy added, “Putting the lawsuits aside … in front of us is a plan. In my opinion, it’s a minor modification and … that’s what he’s here asking us about.”

“I’m okay with this if I see the documents,” Bailey insisted. Johnson told him the lawsuit would be dropped within five days of the decision, but Bailey insisted on holding out.

Then Florindo whipped out his flip phone and called Town Counsel Bailey.

Bailey chatted with Attorney Bailey for a few minutes as the board continued its discussion. When he was through, Bailey announced that he was not allowed to see the document because it was not yet made public.

“It’s not a public document yet,” said Bailey, “so there’s more to it than this [modification request].”

Bailey wanted to seek counsel from his own attorney at this point and refused to vote to approve that night.

“I’ve seen it,” Johnson said. “They can’t enact the change that they’ve all agreed to …”

“Until we OK this plan,” said Florindo finishing Johnson’s sentence.

“If it helps move things forward,” said Murphy as he made the motion to approve the modification as minor.

The vote was 6-1, with Bailey staying true to his word.

Johnson said Town Counsel Bailey would certify the board’s vote the next day.

Also during the meeting, REpurpose Properties, applicant for a proposed 55+ 22-duplex housing development for the land beside Plumb Corner, was back to tell the board that it is close to reaching an agreement with the owner of Plumb Corner and will be back at the next meeting to discuss the plan.

“I finally think we’ve been making some progress,” said Attorney Peter Paul on behalf of REpurpose. “I think we’re very close to an agreement on fixing that drainage problem over there at Plumb Corner.”

The parties attended a settlement hearing the prior week, Paul said, but they need more input from the owner before making it official. Johnson advised Paul that the Town should take a look at that settlement agreement before it’s signed.

There is still the matter of the playground, which the daycare at Plumb Corner has been using, and the Planning Board is not interested in any easements in the conditions of approval.

According to Paul, the daycare is considering moving its location to Cranberry Highway, but not for some months, so this issue might continue to alter progress. And Paul’s suggestion that the property owner issue a license for use of the playground that would not be transferrable was not received well by the board.

“I’m not real warm and fuzzy about that,” said Johnson. “It either gets carved out, or it gets torn down as a condition for approval.”

Johnson said the homeowners’ association for the proposed development wouldn’t want the risk; and at that, Johnson said the board could not proceed with the project until the playground gets squared away.

The matter was continued until September 25.

In other business, the board approved the Special Permit for a Back Lot for Nancy Fuller, Trustee, Fuller Real Estate Trust, for 356 Neck Road. The board placed a condition on the approval prohibiting any further subdivision on the property.

The board also voted to recommend to the Board of Selectmen that the selectmen forego its right of first refusal for 0 Mary’s Pond Road.

The next meeting of the Rochester Planning Board will be September 25 at 7:00 pm at the Rochester Town Hall.

Rochester Planning Board

By Jean Perry


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