The Marion Planning Board arrived prepared to articulate its definition of “large-scale tree clearing” as it relates to the Town’s solar bylaw. The developer of the proposed solar farm in turn attended the public hearing on December 3 accompanied by his attorney.
Attorney George Kiritsy, on behalf of applicant ZPT Energy, pointed out that he had attempted to meet with Town officials to no avail, and then laid out his client’s case for the controversial solar array field. He made the argument that Massachusetts has declared solar energy development a priority use and; therefore, could not be prohibited or unreasonably restricted. Kiritsy cited the Massachusetts General Law that states “No zoning ordinance or bylaw 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.” Kiritsy maintained that there was nothing about the Town bylaws section regarding large-scale tree clearing that related to public health, safety, or welfare. He stated that the tree clearing on the parcel was reasonable for the project contemplated for the site, and argued that the proposed clearing was the minimum required to create a successful project. Consequently, he contended the board could not deny the project on the basis that the proponent was proposing large-scale clearing.
Board member Norm Hills reminded Kiritsy that the proposal was to clear 18 acres of the 22-acre parcel, not the 65 acres the attorney mentioned. In addition, Hills reminded him that the bylaw had been approved by the Attorney General, and the Town had designated a solar district.
Chairman Will Saltonstall defined the parameters of the board’s work this evening, saying, “Town counsel’s advice was [that] the Planning Board had the authority to determine what [was large-scale] tree clearing.” He went on to say that the board’s job is to react to the proposal before them, not the broader question of what is the definition of large-scale for the bylaw as a whole.
Vice Chairman Stephen Kokkins weighed in, saying that the concept of large-scale is contextual, and a significant motive for the voters approving this bylaw was the paragraph restricting clearing in a residential zone.
Kiritsy responded by saying it is unreasonable to disallow clearing for solar, adding that trees are compatible to residential housing.
Board member Andrew Daniel had spoken with other towns, and noted that 20 acres was large scale, irrespective of the town. Daniel spoke strongly in support of respecting the voter’s decision to approve this bylaw and reminded the applicant that he had warned them early in the process that there was a good chance it would not be approved. Member Kristen Saint Don-Campbell agreed with Daniel, saying she could not “rectify 18 acres of clearing in town, and at that location.”
“I have a lot of thoughts,” began member Eileen Marum, who was the sole member who spoke in favor of the project this evening. Marum acknowledged that the state has made solar energy development a priority. She asserted that a solar farm must be on a site with no trees, illustrating her argument by saying, “It’s like saying you can have a pool, but can’t dig in the ground!”
Don-Campbell countered this argument, observing that there are places in town that have no trees already, such as farmland. She also noted that the idea of protecting the welfare of the community, as stated in the law cited by Marum, can be interpreted many different ways. Marum concluded by saying “I don’t see how we can possibly stop this solar farm from coming in.”
After the board hesitated assigning a number or formula for the definition of large scale, Kiritsy retorted “You leave a landowner guessing.” Saltonstall replied, “We are not even close here.” Kiritsy reiterated that the site could be cleared for houses, to which Saltonstall replied “[That’s] irrelevant – the reason [large-scale clearing] was placed in the bylaw was to protect the character of the residential area.” Kokkins, who was one of the original drafters of the bylaw, said the bylaw laid out a philosophy, and was not intended to prohibit solar development outright. Kokkins went on to say “[We] thought [solar farms] would be more useful and acceptable if they were on land already cleared … mined land, a landfill.”
Dave Davignon, the engineer for the proposal, raised a number of hypothetical questions for the board. He began by saying that the Town bylaws do not prohibit clear cutting in general, and posed a question to the board: If the proposal was withdrawn, and the landowner cleared the land – could he come back then and re-apply? Can the landowner plant corn next spring and then come in and apply? Davignon questioned the board “At what point does your bylaw have teeth?” Kokkins acknowledged the flaws in the bylaw, but asserted that the board must work with the laws as written, and “Do our best to interpret the intent of the bylaw.”
The board closed the public hearing, and voted to deny the Special Permit and Site Plan Review, with Marum as the only dissenting vote, on the basis that it did not comply with the section of the bylaw regarding large-scale tree clearing. Marum defended her vote by saying “Massachusetts law over rules our bylaw.”
In other business, the board considered the request by the ZBA to submit comments on the proposal of Mark Ross and Margot Mims to raze a structure and rebuild on a parcel at 195C Converse Road. Saltonstall observed that the intent of the applicants was reasonable, but that the job of the board was to inform the ZBA that the applicant had used a section of the bylaw that was no longer relevant. The board voted to send a letter to that effect.
The next meeting of the Marion Planning Board is scheduled for Monday, December 17, 2018 at 7:00 pm in the Marion Town House.
Marion Planning Board
By Sarah French Storer