Solar developer NextGrid, Inc., doing business as Next Grid Bowman, LLC, filed a civil complaint with the Massachusetts Land Court on December 9 against the Mattapoisett Zoning Board of Appeals that voted 4-1 to deny the applicant a special permit to construct a one-megawatt solar farm off Bowman Road.

            The company known as Next Grid Patriots, LLC of San Francisco, California purchased the 19.4-acre property to develop four of those acres for a large-scale, ground-mounted solar array field.

            In its complaint, NextGrid asserts that the ZBA acted in an “arbitrary and capricious manner,” and that the board’s denial was based on “legally untenable grounds”, and is “unreasonable, whimsical, capricious, and arbitrary.”

            The solar developer argues that the ZBA voted to deny the project during the first and only night it opened the public hearing, despite having previously approved two other solar farms in town that are even larger in scale and “in the exact same residential zone.”

            Mattapoisett has no bylaw that regulates solar developments or restricts solar farms to any particular zone.

            The complaint alleges that one or more ZBA members “acted in gross negligence (and) in bad faith.” As a result of the denial, NextGrid says the company will suffer over $132,000 in direct damages by losing a tax credit if the project is not approved before the end of 2019.

            NextGrid asserts that it presented uncontested evidence that the project would be entirely screened from pubic view, although not required by Mattapoisett law, and noted in its complaint that ZBA Chairman Susan Akin commented that the site “was not more historic or any different than several other solar farms which were approved…”

            According to the complaint, the largest abutter to the project, Mattapoisett Land Trust, voted not to oppose the project in exchange for certain conditions that NextGrid was willing to provide, but other abutters made comments such as “’[A]lthough you will not see it or hear it, you will feel it when you walk by because you would know it was there.”

            The Conservation Commission had approved Next Grid Bowman’s Notice of Intent application back on October 2.

            The only ZBA member to vote in favor of the special permit was Chairman Susan Akin.

            NextGrid is seeking monetary compensation for its losses, as well as costs incurred as a result of litigation.

By Jean Perry

            Engineer Phil Cordeiro and developer Ken Steen on December 17 gave the Rochester Conservation Commission its first introduction to the 208-unit 40R residential and commercial development slated for 22 Cranberry Highway.

            On behalf of Steen Realty & Development Corp., Cordeiro presented the Notice of Intent that includes work proposed entirely within the 100-foot wetlands buffer zone.

            “Clearly, we have a long road ahead of us in the Town of Rochester with the different steps,” said Cordeiro.

            He briefly led the commission through the corners of the site and the areas of the wetlands border that has been flagged and accepted, and focused on where the proposed infrastructure encroaches the 100-foot buffer.

            There are about 86,000 square feet of wetlands on the site, said Cordeiro, and roughly

132,000 square feet of buffer zone area. Cordeiro said he would eventually be asking for the opportunity to grade within approximately 59,000 square feet of that buffer zone.

            No vertical structures, though, are planned for placement within the buffer zone.

            Commission member Kevin Thompson wondered why one enclosed dumpster area could not be moved farther away from the buffer zone to avoid toxic spills contaminating the wetlands, and Conservation Agent later echoed Thompson’s suggestion.

            Cordeiro acknowledged that the Town’s bylaw recognizes buffer zones as equally important as the wetlands resource areas, but asserted that the proposed work would not adversely degrade the wetland system.

            Furthermore, Cordeiro said, the project must file with the Environmental Protection Agency due to the size of its stormwater discharge system and therefore, further oversight will take place on top of the commission’s oversight.

            Chairman Michael Conway asked Cordeiro when the project would be through with the Planning Board permitting process. Cordeiro explained that he and Steen have already held several technical review meetings with the Planning Board chairman and town planner, and the board has already authorized peer-review to begin at the site. However, there is no date yet for a formal appearance before the Planning Board, which he said is due to coordination challenges between the state and the town.

            “So,” said Cordeiro answering Conway’s question, “the short answer is I don’t know. We don’t have a finish line yet; our target is to be in front of [the Planning Board] at their February 13 meeting.” Cordeiro said he thinks the application will be formally submitted to the Planning Board before the end of 2019, saying, “But at this point, it’s just administrative.”

            The commission voted to hire a peer-review consultant, set the fee at $4,500, scheduled a site visit for 9:00 am on January 18, and continued the public hearing until January 21.

            Also during the meeting, engineer Evan Watson on behalf of REpurpose Properties, LLC came before the commission to report on the changes to the plan for an age-restricted residential development proposed for Rounseville Road beside the Plumb Corner Mall.

            According to Watson, the footprint of various units has been decreased in order to increase the setback to the nearby wetlands and away from the 100-foot buffer zone and 25-foot no-touch zone.

            Watson stated that for the application before the Planning Board, he used larger footprints in order to fit in first-floor master bedrooms and decks/porches on some units, but has now changed the plan after seeing how close to the wetlands some of those footprints would bring a number the units.

            Another change entails the implementation of a tree removal schedule for trees slated for felling within the 25-foot no-touch zone and the riverfront area. About 30 tall pines and a few oaks, Watson said, have been flagged for the commission’s inspection during the next site visit.

            “[We’re] putting in an effort to be clear about what we want to do at this particular time and hear what the commission has to say…” said Watson.

            Conway asked Watson if the Planning Board would be requesting any further changes to plan, to which Watson replied, no, except for some possible minor changes to floor plans based on any potential Rochester Historic District Commission comments.

            The project will be a three-phase project, and Watson expects its completion come 2024.

            At the applicant’s request, the hearing was continued until January 21.

            Also during the meeting, the commission refrained from taking a vote on the Town of Rochester’s Request for Determination of Applicability to add dense-grade gravel and re-grade the parking lot and an eroding canoe/boat access path to Leonard’s Pond at the Leonard’s Pond Recreational Area off Mary’s Pond Road. The commission needs further information before it can sign off on the project. The hearing was continued until January 21.

            The public hearing for the Notice of Intent filed by Pedro Rodriguez on behalf of Solar MA Project Management, LLC was continued until January 21 at the request of the applicant.

            The next meeting of the Rochester Conservation Commission is scheduled for January 21 at 7:00 pm at the Rochester Town Hall.

Rochester Conservation Commission

By Jean Perry

            Marion residents will have additional time to submit comments on Tabor Academy’s request to add lights to a playing field, Marion Zoning Board of Appeals members ruled on December 12.

            Administrators at Tabor have been trying to add light poles to the playing field, located along Spring Street, for several years. The current application seeks to add four 90-foot light poles to the playing field located between Front and Spring Streets. During the hearing, Tabor Headmaster John Quirk stated his intentions to work very closely with the Town of Marion, as board members and community members further scrutinized the lighting plans.

            Quirk clarified that he expected no more than 16 to 18 events on the lighted fields per year.

            “I expect no more than six to eight games in the fall and spring seasons,” he explained. 

            Nearby residents could also expect the field to be used for two weeks of lit practice, as well as two “community events” per season. Quirk defined community events as use of the field by Old Rochester Regional High School sports teams, as has happened in the past, as well as possible third-party events like festivals.

            “It’s important to note that we actually expect fewer events,” he added, “but six to eight games per season is the absolute maximum we would have, as well as possibly two community events per season.”

            The lights of the fields will never be on past 9:30 pm, barring any “unpredictable events,” such as a medical emergency or an exceptionally late game start, Quirk added.

            “In all honesty, night games are rare,” said Quirk. “I’ve coached in our league for 20 years and in that time my team played four night games. But athletic participation is required by our curriculum, and a lot of the lower-level teams lack time for practice when the nights get shorter. Those two weeks of practice under the lights would be beneficial for them.”

            “Would you be willing to share the technology with the emergency departments?” asked ZBA Chairman Marc LeBlanc. “I mean, they wouldn’t be cutting your lights at 9:35 pm, but, say if someone needed to be airlifted to the hospital in an emergency; the responders could just flip the switch themselves.”

            Quirk confirmed that Tabor shares all such technology that they have with the town, and that he would be happy to add the lights to the list.

            “How does the town know that you’re sticking to these limits you’ve set?” asked ZBA member Margie Baldwin. “Will you be alerting anyone in advance?”

            According to Quirk, Tabor circulates a schedule for anyone who would like to review it. He added that neighbors are often notified if there’s a change in schedule.

            One of the biggest concerns brought up by the ZBA, as well as nearby residents, was the issue of parking, and the tight quarters of Ryder Lane, which neighbors the field. Quirk clarified that Tabor would forbid parking on the street or on Ryder Lane, and would work with the town to curb parking at Island Wharf.

            “We would restrict and direct parking to the Spring Street lot, the parking spots near Wickenden Chapel, and the lot at the ice rink,” Quirk said.

            When asked if he needed anything further from the ZBA, Quirk asked for patience and feedback.

            “We’ve tried hard to think about everything, but I’m sure that there’s something we haven’t anticipated,” said Quirk. “If there’s an issue, I want to hear about it, I want to address it, I want to fix it very quickly. I really want the feedback.”

            Tabor administrators have filed with the Zoning Board of Appeals for either a special permit to allow the lighting poles on the field, or an exemption under the Dover Amendment, which exempts educational institutions from certain zoning restrictions, to do the same thing.

            Approving the special permit request would require a supermajority of four ‘yes’ votes from the ZBA members; members would need satisfactory evidence that the lights are “a legitimate public need.”

            If the special permit is denied by the ZBA, members can then debate allowing an exemption under the Dover Amendment. For an exception under the amendment, at least three ZBA members would need to agree that there is an “educational need” for the lights. 

            Marion Town Counsel Jon Witten advised ZBA members to consider the special permit first, and only turn to the Dover Amendment if the special permit cannot be approved.

            “It’s much cleaner for the town in the long run,” Witten explained. “Approving something under the Dover Amendment sort of opens the door for more requests… Not that Tabor would do that, but it just gets messier after the approval is given in the first place.”

            Although the ZBA closed the public hearing, they sought a way to ask for additional comments if necessary. ZBA members amended the closure to allow for additional comments from the public and from different Town departments. Written comments will be accepted until January 9, 2020. Currently, board members expect to announce a decision on Tabor’s application on January 16, 2020.

            With the hearing closed, ZBA members have 90 days to deliberate before issuing their final approval on Tabor’s request.

            The next meeting of the Marion ZBA will be held on January 9 at 7:00 pm. at the Marion Town House.

Marion Zoning Board of Appeals

By Andrea Ray