The Marion Zoning Board of Appeals on February 26 denied the Planning Board’s request to rescind the building permit Building Inspector Scott Shippey already issued for the Briggs’ solar farm slated for County Road.

Referencing a decision written by Town Counsel Jon Witten for the ZBA, Chairman Eric Pierce said a minor site plan review was not required because the square footage of the solar energy facility is less than 500 feet and there is no need for 10 or more parking spaces, the two triggers for site plan review.

The majority of Planning Board members voted last December to appeal the building permit to force the project to undergo a site plan review before the Planning Board.

“Robert Lane (Planning Board member) gave a compelling argument,” said Pierce. Some members of the Planning Board implored the ZBA to overturn the building inspector’s decision, arguing that the square footage of the project exceeded the threshold if one counts the solar arrays as gross floor area, contrary to town counsel’s finding.

In his decision, Witten addressed Section 9.1 of the Zoning Bylaw pertaining to total gross floor area, calling for 500 square feet as the threshold for minor site plan review. He underlined the section of the bylaw where ‘gross floor area’ is defined as the sum of the horizontal areas of the “floors of a building.”

“An additional issue,” reads Witten’s letter, “is whether the Planning Board has the standing … to maintain this appeal.” Witten wrote that, without waiving its right to raise lack of standing, the ZBA believes that the Planning Board “brought the appeal in good faith” and is entitled to a decision from the ZBA “on the merits of the appeal.”

Pierce said the board entertained the appeal “because we do want to be as cooperative as we can.”

Lane, during the January 22 meeting, was concerned the ZBA would be setting a precedent if it did not rescind the building permit and allow for site plan review. Pierce asserted that the ZBA makes no precedents.

“We don’t set precedents,” said Pierce. “And this one was unique in its own way.”

Pierce made the motion to accept Witten’s letter as the official decision of the board, and the vote was unanimous.

“I think they had to rattle their sabers,” said Pierce.

The next meeting of the Marion Zoning Board of Appeals is scheduled for March 12 at 7:30 pm at the Marion Town House.

By Jean Perry

The March 2 public hearing for Saltworks Marine was continued on a discouraging note for owner Dan Crete and his engineer David Davignon of N. Douglas Schneider & Associates after the Marion Planning Board hesitated to approve their request to waive a groundwater mounding analysis – a waiver Davignon asserted was legitimate based on precedent.

Groundwater mounding occurs beneath a stormwater management system resulting in a possible negative impact on underground water flow.

Davignon said, during the site plan review of the old Frigate property at 806 Mill Street, the board years ago granted a waiver for the groundwater mounding analysis at the request of the engineer for that project, Bill Madden of G.A.F. Engineering.

“Most of the waivers are consistent with what was granted for that project,” said Davignon. He was seeking approval that night for the waiver, Davignon said, “Because it is consistent with what you did in the past.”

Now, as the engineering consultant to the board for the Saltworks project, Madden advised the board in his report not to waive the groundwater mounding analysis.

Davignon argued that the scenarios of the two projects were similar, although the soil conditions at the Saltworks site were better and with deeper water tables. He urged the board to follow the precedent set by the board with the Frigate project and grant the waiver. Chairman Stephen Kokkins and board member Norman Hills disagreed with Davignon’s point.

“Just because we’ve done something in the past doesn’t mean it’s right in this case,” said Hills.

Kokkins said, “We’re not in the position to make a judgment on something like that. Unfortunately, this hearing will probably be continued.”

Davignon said the groundwater mounding analysis was “troublesome” on their part.

“We’re really a little perplexed that there’s not consistency in what’s being presented,” said Davignon. “We’re being asked to do something that somebody (Madden) didn’t do in the first place.”

“I don’t see a method for deciding that on the spot,” said Kokkins. After some discussion, Kokkins told Davignon, “We don’t want to be micromanaging every detail, but…”

What’s with this ‘we,’ board member Rico Ferrari asked Kokkins.

“If you’re speaking for the board, you’re not speaking for me,” said Ferrari. “So that’s an ‘I.’”

Ferrari argued that demanding the analysis would unnecessarily drive up the cost for Crete, saying he felt Crete was already “spending way too much money” on items “that could be bypassed.”

“His argument is right on the money,” said Ferrari. “If you’re going to do it for one property, you have to be consistent with other properties.”

Ferrari said the board should understand that Madden’s report is simply guidance and the board does not have to accept it.

“It’s not our intent to weight this project down with something that doesn’t need to be done,” said Kokkins. “It’s only to make sure things get done right in the end.”

Davignon said he had a “productive” conference call with G.A.F., but when he asked what the difference was between the Frigate property and the Saltworks property, he said he never got a straight answer.

“To me, it doesn’t seem fair that the reviewing engineer is mandating that … you should not grant any waivers … until the groundwater stuff is done,” said Davignon.

Board member Eileen Marum chimed in.

“All properties have different characteristics,” said Marum, “…so we can’t have cookie cutter engineering…. This is not the Frigate property.”

Kokkins said Davignon and Crete should return to the table with G.A.F. and try to come to an understanding, offering to attend the meeting on behalf of the board.

Crete said he understood both properties are not exactly the same, but he noted that they were abiding by the regulations and rainwater analysis guidelines.

“All that data…” said Crete. “It’s not a guess or a stamp…. Our tables and our groundwater levels and our perc tests are far better than at the Frigate site. Much better.”

Crete continued, “I really am struggling with the added expense…. It’s not black magic. It’s all science. And this is getting very, very expensive.”

Previously, Hills commented that the board pays an engineer to advise the board, and Crete emphasized that the board does not pay the consultant, Crete does.

“I am paying the consultant. This isn’t all free,” said Crete. He said he wanted to do this right, pointing out that he has been forthcoming with the Town pertaining to the two phases of development of the property.

“Small business is not the easiest thing to accomplish these days and this thing is getting really expensive. It’s making it almost impossible,” said Crete, again stressing that he is paying the consultant fee. “And we have precedent. It’s a great site for what we want to do.”

Again, Kokkins said there was not enough information to make the decision that night.

“All I know is the engineer said it was crucial,” said Marum.

So much for common sense, stated board member Steve Gonsalves in Crete’s defense, adding that the cost to perform the analysis would cost Crete about $5,000 more in costs.

“We’re not trying to be anti-small business,” said Hills. “But you’re here to talk to us about how this is going to fit in with the bylaws of the Town.”

Crete wondered if the board had ever mandated groundwater mounding testing for any project in the past, stumping all the board members who did not know the answer.

“I’d be really interested to know, with all the building and construction that has been done within our town’s borders,” said Crete. He then asked if it was unusual for the board to receive a 64-bullet point report, like the one Madden submitted, on a project the size of the Saltworks project. He asked if it was “overkill.”

“There are some items in there that are a little beyond ridiculous,” said Crete.

Kokkins wanted to move on in the discussion, but Ferrari stayed put.

“What is overkill and what are our expectations for engineers?” asked Ferrari. “More is less, less is more…. Get to the point, keep it simple … be consistent.”

Crete made the point again that the Frigate property enjoyed the waiver of the groundwater mounding analysis asked for by Madden, now the reviewing engineer.

The matter was continued until the next meeting of the Marion Planning Board on March 16 at 7:00 pm at the Marion Town House. The Saltworks Marine public hearing will be scheduled for 7:30 pm that night.

By Jean Perry