The denial of a Special Permit for a solar array field at 78 Wareham Street still stands, but on December 10 the Marion Planning Board gathered to review the language of a draft decision letter while two dissenting board members (and one Finance Committee member) voiced their disappointment with the decision.

Although Planning Board member Chris Collings was absent for the final vote on December 3 that resulted on a 5-1 denial, Collings wanted the record to reflect his regret that, not only did the Town walk away from what he said was $600,000 in solar power income, but also an offer from solar developer ZPT Energy Solutions to have a connection to the grid installed for a future solar energy project at the Town’s capped landfill as a courtesy.

“For the record, this was a miss for the Town,” Collings said at one point during the meeting.

Planning Board member Eileen Marum, the one dissenting vote last Monday, argued that some language contained in the decision was inappropriate, such as where it states that it is the Planning Board’s “opinion” that the proposed 86 percent of the lot “is decidedly ‘large scale.’”

“An opinion is not based on something that is absolute certainty or positive knowledge, it’s just something that’s possible,” said Marum.

Where Marum differs from the rest of the board is in the interpretation of the phrase “large scale” clearing of a forested area contained within Marion’s solar bylaw.

“There’s no way to quantify large scale,” Marum said. “We don’t have anything that quantifies that.”

Planning Board member Norm Hills, who is also chairman of the Board of Selectmen, suggested using “consensus” instead of opinion, while Planning Board member Stephen Kokkins suggested further clarification by replacing where the decision stated “the proposed clearing of 86 percent of a lot is decidedly ‘large scale’” with “the proposed clearing of 86 percent of a 22-acre lot is decidedly ‘large scale.’”

The board further debated striking other words, such as “social” as suggested by Hills where the decision referenced the “social, economic, or community benefits” which are served by the proposal. Hills suggested omitting other words, but Chairman Will Saltonstall preferred that each finding in the decision echo the language of the solar bylaw, which does mention economic and community benefits.

Finance Committee member Alan Minard raised his hand to speak and was at first denied the chance because the meeting was not a public hearing, but was eventually allowed to address the board. He lamented the denial of the solar farm, saying, “The economic benefit of a solar farm … is the school bus does not pull up next to it.” He called having a solar farm at the site “a major economic benefit by avoiding lots of houses, 40Bs, condos, whatever ends up being there.”

Board member Andrew Daniel argued that solar farms might not actually be helping some towns, rather some towns might feel solar farms are hurting them.

Throughout the meeting, Collings silently shook his head as other members made comments, biding his time as the board suggested edits until after when he could speak his mind.

Hills asked to reword the phrase environmental “assessment” in the findings section pertaining to the project’s impacts on the natural environment because the assessment ZPT provided fell short of what Hills considers a comprehensive environmental assessment. The board quibbled over the wording, with some suggesting environmental “discussion” or “report;” however, Saltonstall preferred to leave the language as it was since ZPT did submit in its Site Plan Review application a document titled “environmental assessment report;” although, because of the board’s denial of the Special Permit, the project did not advance to the Site Plan Review stage.

As the board reached the decision section of the draft document, Marum objected to the statement that says the project “is in direct conflict with the intent of Section 230-16.3, which is to protect the character of the residential neighborhoods from the large scale clearing of forested areas for the installation of solar farms.”

“Intent,” Marum emphasized. “This has not been strongly resolved, in my opinion, because we do not have a definition of ‘large scale.’” Furthermore, she added, “[The site] is far from being a ‘forested area,’” which, to her, would be a “dense growth of trees and underbrush.” Marum said the site was more like a place where older trees had fallen during prior winter storms.

Collings found this to be a good time to speak out.

“I don’t know what it is,” said Collings. “I don’t look at it as a forested area: I certainly don’t look at is as valuable.” Collings continued, “I’m sorry I missed the meeting. … I’m frustrated here because we’ve been picking way at specific details … and there’s an absolute refusal to acknowledge that they (ZPT) were … willing to provide a solar connection for the dump…”

Was Marum correct, Collings challenged the board. “Was it actually in our purview to look at our definition of ‘forest?’”

A debate ensued, with Daniel arguing that it was not the board’s job to look past sections of the bylaw, rather to determine if a project fits within them. Saltonstall told Collings he should propose changes to the solar bylaw if he saw it appropriate.

In the end, Kokkins appreciated Marum’s objection to the word “intent,” and Marum liked Kokkins’ suggestion of eliminating it and rewording “in direct conflict” to simply “in conflict.”

Town Planner cautioned the board that the decision, as written, should result in a decision that could be “defensible” if appealed, and Kokkins included his own caution, saying, “We’re starting to inject a lot of extremes of which we’re not all in agreement with.”

Daniel made the motion to accept the decision with edits, resulting in a 5-2 vote to accept, with Collings and Marum maintaining their dissent.

“I’m sorry that this decision has come down this way,” said Collings. “There are troubles with this bylaw.” He waved away the decision that was passed to him for his signature, saying, “I’m not gonna put my name on that.” He further lamented, “It’s not really about the solar farm itself: it’s about the opportunities in the other side of town that were presented to us, and I’m sorry that it didn’t have more sway when it was presented to us.”

Daniel agreed that the bylaw should be revisited, and Marum added that she supported the bylaw as it was written, but she would support adding a definition for “forest.”

“Because that is absolutely not a forest,” said Marum.

The special meeting was held in order to have the final draft of the decision ready, signed, and sent to the applicant by deadline. ZPT will then have 20 days to file an appeal.

The next regular meeting of the Marion Planning Board is scheduled for December 17 at 7:00 pm at the Marion Town House.

Marion Planning Board

By Jean Perry

Rather than have the Marion Conservation Commission possibly issue a Positive determination on November 28, Sippican Lands Trust (SLT) Executive Director Jim Bride requested a continuance so that he may rework his Request for Determination of Applicability proposal.

At issue is a path from Delano Road to Brainard Marsh, which the SLT owns and maintains for public access to the beach.

Bride proposed to the commission that the SLT install .5-inch to .75-inch gravel to the existing 3-foot wide path for approximately 320 feet of its length. This would make the path more reliably useable for the many members of the public who walk this path, Bride said.

The contractor is donating his labor to the project.

Commission Chairman Jeff Doubrava expressed his concern that the SLT would be filling wetlands, and that the wetland line had not been delineated. Doubrava also suggested using woodchips instead of gravel.

Bride countered that the stone would be permanent and make the path more user-friendly.

While Doubrava acknowledged that the property was well-used and the project well-intentioned, he said he would be more in favor of a temporary solution, that if left alone “would heal itself.”

Commission member Shaun Walsh inquired whether the SLT had considered a raised path or boardwalk. Bride thought the tides and weather could wash the structures away, and said he felt the water would pass through gravel better. Walsh noted the lack of a site plan describing the project, which he said “gives me pause.”

“If we don’t have something in writing, then in the future we won’t know if it’s gone beyond,” said Walsh. “It sets a precedent, and as fine as Sippican Lands Trust is, we can’t treat the land trust different than a private landowner.”

Member Joel Hartley observed that any project that fills a wetland requires a Notice of Intent, and questioned if this was a good project in any case.

Walsh suggested the land trust consider designing boardwalks for the wettest spots, which would be less impactful to the wetlands.

Member Cynthia Callow said she believed in the public access provided by the path, but hesitated allowing the SLT to permanently alter wetlands when there were possible alternatives.

Doubrava summarized his feelings, saying, “Rules have to apply to everybody, or they apply to nobody.”

Bride requested a continuance to explore alternative solutions.

David Davignon, of N. Douglas Schneider & Associates presented a Request for Determination of Applicability for a parcel on Oakdale Avenue. Davignon was seeking a determination that the parcel, owned by William Knight, did not contain any jurisdictional wetlands. Davignon asked that the commission refer to a report he provided by LEC Environmental which stated that the parcel was a jurisdictional resource area, “land subject to coastal storm flowage,” but there was no other jurisdictional wetland.

There was a brief discussion regarding a pipe that may connect the isolated wetland on the parcel to a retention pond off the property, which Hartley thought could make it a jurisdictional wetland. It was unclear where the pipe, which the commission did not see but was mentioned in the report, drained.

Davignon assured the commission that the new structure contemplated on the parcel, which was not part of this application, would be pushed back out of the V-zone and that a Notice of Intent would be filed for any work on the parcel.

As the commission contemplated their determination for this proposal, Walsh stumbled over the semantics of the request. The report by the applicant’s consultant stated there was a jurisdictional resource area, “land subject to coastal storm flowage,” which covers the whole parcel. But Davignon was making the case that there were no jurisdictional wetlands, since land subject to storm flowage is not a wetland per se.

After some back and forth, the commission issued a Positive determination that the entire parcel was subject to the Wetlands Protection Act due to the wetland resource area, but that there were indeed no other jurisdictional wetlands on the property.

In other matters, at Doubrava’s urging, the commission decided to lift the Enforcement Order with the Town at the Washburn Park skating park, which has “healed itself,” Doubrava said.

The commission also decided to reach out to the Massachusetts Department of Environmental Protection to ask someone to visit the site at Indian Cove Road to sort out the discrepancies in the Chapter 91 license. They are attempting to determine if a Chapter 91 license exists for the stone revetment and floats and ramps that exist at the site, both in Marion and Mattapoisett.

Doubrava also suggested the commission issue an Enforcement Order to Mark Ross at 195C Converse Road for the mowing in the wetland area that Ross admitted to doing, and his intention to continue to do. Walsh was hesitant to do so, with no direct knowledge that the area had been recently mowed. He suggested that instead the commission issue a letter putting Ross on notice and that the commission should monitor the property.

In other business, the commission issued a Negative determination to the work proposed by Bret and Deborah Bokelkamp to upgrade their existing septic system at 50 Old Knoll Road. However, the commission issued a Positive determination regarding the wetland line, saying the line must be reevaluated if there is future work contemplated on this parcel.

The commission issued a Negative determination for the proposal by Mark Rodriques at 1 Holly Pond Road to replace a failed septic system, provided the proponents install siltation barriers along the edge of the road.

Michael Variejka, represented by Brian Grady at GAF Engineering, filed a Notice of Intent to remove trees and shrubs in preparation for future work on the parcel at 122 Register Road. Depending on the location of the mature trees to be removed, the commission may ask the stumps to be ground down instead of removed. The hearing was continued due to a lack of a DEP file number.

            The next meeting of the Marion Conservation Commission is scheduled for December 12 at 7:00 pm at the Marion Town House.

Marion Conservation Commission

By Sarah French Storer

The Marion Board of Selectmen took its first steps towards filling two top town positions on November 28, but still have some decisions to make when it comes to qualifications for a Department of Public Works director, and job description for a new town administrator that may or may not require a bylaw change.

An October report issued by the UMASS Dartmouth Edward J. Collins, Jr. Center for Public Management on the organizational structure of the DPW indicated several areas where the Town could improve on efficiency and cohesiveness in several key areas of the DPW.

This study, funded by a grant, was initiated after the DPW superintendent of 33 years officially retired in December 2017. Former selectman Jonathan Henry was hired as the interim DPW superintendent, a temporary position of six months that now stretches closer to a full year.

The selectmen had five broad findings to consider before advertising to fill the superintendent position, which the Collins Center recommended restructuring as a DPW director while recommending that the Facilities Department be combined with grounds keeping and reintegrated back into the DPW, and the elected position of tree warden be eliminated and absorbed into the DPW.

“[T]he responsibilities, functions, services, and budgets related to public works are highly decentralized,” the report reads, “[and] take steps to develop and improve communications among boards, committees, and departments connected to public works.”

The report further states, “The Town has no charter, few recent special acts affecting its organizational structure, and bylaws that are well‐organized but light on structure‐related detail. To address this, the project team proposes creating a study committee and codifying the public works‐related boards and committees to clarify their responsiblities [sic]and missions (and then dissolving any redundant boards and committees).”

“The whole staff at the DPW has sort of been wondering how this is going to play out,” said Town Administrator Paul Dawson. The Collins Center report took several months longer than anticipated to be released, and employees have worked under an interim superintendent “with no certainty.”

And while the selectmen aim to post the position as soon as possible, Dawson will be working with the Collins Center to draft a concise job description.

“I don’t know how long Mr. Henry is going to sit there smiling at us,” said Selectmen Chairman Norm Hills, as Henry sat there and was indeed smiling albeit slightly.

For Henry, the target is one year maximum; however, it is unlikely that a new director would be hired before March. He did agree to stay on to assist with the transition.

As for those other recommendations in the report, Hills said he disagreed with the reintegration of the Facilities Department into the DPW, and the other selectmen concurred.

“I think we worked hard to make a stepping stone,” said Selectman Randy Parker. “[It] saves the Town a ton of money.”

“That was sort of the driving force behind having facilities become its own separate entity,” said Dawson. “The DPW was always operating shorthanded.”

Facilities, while under the DPW, used to be called the Carpentry Division. Dawson said those employees were often being pulled away for other DPW duties like trash collection among others. “I think we worked too hard to separate that,” Dawson stated. “To reverse direction, we would have to go backwards and start that all over again.”

And given all the “moving parts” of the DPW, added Henry, “That’s one that I wouldn’t mess with at this stage.”

The selectmen did look favorably in passing the tree warden’s responsibilities onto the DPW as Henry has been acting as appointed tree warden for some months now. Still, within the job posting it may need mentioning “subject to bylaw change.”

The new DPW director will require engineering experience, a Class A license, and preferably 10 years – suggested by Hills, but could ultimately be a 5 to 7-year minimum. The report cites a need for familiarity with critical DPW management software systems like work orders systems, computerized maintenance management systems, and pavement management systems.

“Another important skill … will be a comfort with data and budgets,” the report recommends. “These will be critical in making the case for sufficient resources to get the work done, both locally and in getting state funding and other grants … [and] the need to be experience [sic] with long‐term planning and strategic thinking, given the number of major challenges facing the Department and the Town in coming years.

“Connected to that will be a need for very strong communications skills … critical to the future success of the Department,” the report also suggests. “This includes ensuring that all of the various departments, boards, and committees are on the same page, as well as communicating the challenges the Department and the Town are facing to internal and external stakeholders.”

In addition to the aforementioned recommendations, the report also suggests the DPW’s Highway Division lacks a clearly-defined mission and responsibilities “leading to mission creep and to a major disconnect between the appearance of the staffing and resources and actual capacity,” the report states. It recommends clarifying its mission and employees’ duties, analyzing the finances and operations of waste collection and disposal and recycling to devise a program to recapture and redirect labor hours to reduce a backlog of DPW work, and review services Highway provides the Carver Marion Wareham Regional Refuse Disposal District to ensure the Town is properly reimbursed.

The report lists other findings outside the scope of organizational structure, including the need for more modern technology over on Benson Brook Road where the facility is located – for example, an electronic time-tracking system. Also, the DPW needs a pavement management plan, its own capital improvement plan to include vehicle and facility replacement, and an annual work plan for each functional area.

“[Another] finding is that purchasing and procurement procedures have been relatively informal historically in the DPW,” the report states. “To address this the Town [should] formalize purchasing and procurement procedures within the DPW, consider joining a regional purchasing group, such as the Southeastern Regional Services Group, and periodically consider advertising engineering consulting contracts to ensure competitive pricing and reduce complacency.”

Also, snow and ice removal practices should be evaluated with an emphasis on increased education and training around snow and ice operations, the study found.

One other recommendation selectmen liked was for a DPW office manager position.

“An office manager makes an awful lot of sense,” said Dawson. “I see it as sort of a non-union position, almost like a managerial position.”

The study group also reviewed Town bylaws, visited the facilities, and researched best practices, finding some of the Town’s bylaws are “well‐organized but light on structure‐related information,” most notably the absence of any mention of a town administrator except for once for a “trivial role in consultation with the Town Clerk on the codification of the bylaws themselves.”

According to the report, the town administrator’s authority is derived from Chapter 41, Section 23a of the Massachusetts General Laws, which provides the authority for the Board of Selectmen to delegate responsibilities to an executive secretary or town administrator.

The bylaws also do not mention a tree warden, cemetery commission, parks and trees committee, or water commission.

“The same minimal statutory framework that may have been well‐suited to the operations in the past is now partially responsible for a lack of clarity among various boards, committees, and officials who is responsible for what and who reports to whom,” states the report. “This leads to confusion, miscommunication, and frustration about where responsibility lies and why particular work does not get done in a timely manner or at all.”

As the board, with the help of a professional recruiter, prepares to advertise for Dawson’s position as he retires in March, the board must consider if a bylaw change is appropriate to specify the scope of the authority and expectations of a new town administrator. That, however, would require a Town Meeting vote in May, two months after Dawson leaves. In the meantime, the board may choose language from Mattapoisett’s town administrator bylaw in its job description advertisement.

“I’m not in favor of changing any bylaws at this point,” said Parker.

“I don’t think the timing works for the bylaw,” said Selectman Jon Waterman.

“I think what you’re talking about can pretty much be done in a job description,” said Dawson.

The board will advertise for a seven-member hiring subcommittee for Dawson’s position, comprised of one selectman, one department head, a town employee, one town committee/board member, and three residents.

A regular meeting of the selectmen was scheduled for Tuesday, December 4, at 11:30 am before press time.

Marion Board of Selectmen

By Jean Perry

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