http://holliston.patch.com/articles/holliston-residents-fight-against-bullard-solar-plant
One of the main points that several residents tried to bring up is the fact that the project does not belong in site plan review. It has not been adequately determined if this facility is an "allowed" use in this zone. If town council does not intervene and correct this mistake, the Planning Board will not have the power to deny this project, and would only be able to put restrictions and limitations on it - WHAT A TRAVESTY! This is a zoning issue and should be debated in a public forum in regards to that.
I
believe the site plan review is premature, and the developer is averting what
should be a careful and well-thought public process.
The
site plan review appears to be required only when a project is clearly
permitted within the zone in which it is being proposed (as opposed to a
special permit hearing or a variance). I do not believe that the applicant for the
Bullard Farm solar power plant has adequately proven that the use intended is
allowed within the Schedule of Use regulations found in Holliston’s zoning bylaws.
The
applicant has cited Massachusetts General Law (MGL) 40A Section 3, and declared
that they do not need to do more to prove that the project can be placed
anywhere they would like within the town of Holliston. This argument is invalid on its face. The law states,
No
zoning ordinance or by-law 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.
Requiring the applicant to define an appropriate use in
accordance with the town bylaws does not prohibit nor unreasonably regulate the
facility and therefore, does not violate MGL 40A Section 3. Further, if the board were to find that the
project is not permitted within a residential zone according to the use table,
this is also not a violation of the law as it is not an outright prohibition of
the facility within the town, nor does it unreasonably regulate the facility.
This law does
not state, as the applicant would lead you to believe, that we must allow
this facility anywhere in our town. It
is not an “unreasonable regulation” to require that industrial facilities operate
in industrial areas only. This is not,
and should not be considered a prohibition of the facility; rather, it is an
appropriate zoning activity.
As evidence that this is the intended reading of MGL
40A Section 3, a quick search of bylaws of towns across the Commonwealth shows
that many of those that have created
specific by laws in regards to solar energy generating facilities have restricted these facilities to
industrial and commercial areas (and often landfills using an overlay
district). These by laws have been
approved by the Attorney General. If it
was the intent of this law to allow these facilities “as-of-right” in any zone, these by laws would not have
passed through the Attorney General’s office.[i]
The Department of Energy Resources (DOER) is
responsible for the Green Communities Act (MGL 25A, Section 10). In consultation with the DOER, it is clear
that a town should not have to accept large scale solar facilities in all zones
or locations. The DOER feels so strongly
about this that they go so far as to state in documents, “it is not clear
whether M.G.L. ch. 40A § 3 applies to the construction of large scale
ground-mounted systems.”[ii] In fact, the first criterion to become a
green community is to designate locations where these facilities are
as-of-right. If indeed, MGL 40A Section
3 were meant to indicate that they were as-of-right everywhere, why would this
even be necessary? Further, the DOER
along with the National Department of Energy (DOE) crafted a model zoning bylaw
to help towns govern this type of project. The DOE notes that even instances of
as-of-right siting of such facilities the right only exists within designated
locations as noted by local zoning by laws.
An
essential part of “as-of-right” siting is the establishment of designated
locations. Once the location(s) is (are) designated within a local jurisdiction,
a solar development may proceed without the need for any special permits. A
standard building permit and compliance with local zoning bylaws would be
required.[iii]
Absence of a specific bylaw that indicates where these
facilities may be built as of right clearly does not mean they are as-of-right
in all locations; therefore, existing provisions within current town zoning
bylaws would be applicable. While it
does not appear to be within the power of town officials to deny solar energy
facilities in all zones, as this would prohibit or unreasonably regulate a
facility; towns do have the power to indicate
which zones in which they feel solar power plants are appropriate.
Therefore, it is my contention that using the Site Plan
Review process for this application is premature. The applicant must first prove that the
proposed power plant is an appropriate use pursuant to the Town of Holliston
Zoning by laws Section III Schedule of Use Regulations. If the applicant is unable to do so, the
Planning Board should require the applicant to withdraw the application, or
file for a variance.
[i]
Note: as-of-right, meaning the facility may proceed to site plan review without
the need for special permit or variance.
[ii] Model As-of-Right Zoning Bylaw: Allowing Use
of Large-Scale Ground-Mounted Solar Photovoltaic Installations
Prepared by: Department of Energy Resources
Massachusetts Executive Office of Environmental Affairs. December 2010.
[iii]
http://www.doe.gov/savings/model-right-zoning-ordinance-or-bylaw-allowing-use-large-scale-solar-energy-facilities. January 2, 2012
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