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Home My WebLink AboutItem No. 2022-034 Page 26 of 33 B. NEW BUSINESS (First Reading) (Refer to Planning Board) BARNSTABLE TOWN COUNCIL ITEM# 2022-034 INTRO: 10/07/2021 2022-034 AMENDING THE CODE OF THE TOWN OF BARNSTABLE, PART I, GENERAL ORDINANCES, CHAPTER 240 ZONING BY EXPANDING THE GROUND-MOUNTED SOLAR PHOTOVOLTAIC OVERLAY DISTRICT TO INCLUDE THE PROPERTY LOCATED AT 810 WAKEBY ROAD, MARSTONS A SPECIAL PERMIT FOR LARGE-SCALE GROUND-MOUNTED SOLAR PHOTOVOLTAIC INSTALLATIONS LOCATED WTIHIN ANY RESIDENTIAL DISTRICT LOCATED WITHIN THE OVERLAY DISTRICT ORDERED: That the Code of the Town of Barnstable, Part I General Ordinances, Chapter 240 Zoning be amended as follows: SECTION 1 That Chapter 240, Article II, Section 6, The Zoning Map of the Town of Barnstable Massachusetts is hereby amended to expand the Ground-Mounted Solar Photovoltaic Overlay District to include the Photovoltaic Overl Each dated October 1, 2021, as prepared by the Town of Barnstable Geographical Information System (GIS) Unit. SECTION 2 (1) By amending the definition of AS-OF-RIGHT-SITING in Section D of Article V, Section 240- 44.2, Ground-Mounted Solar Photovoltaic Overlay District, by deleting the first sentence and inserting the following new sentence in place thereof: -mounted solar photovoltaic installation may proceed without the need for a special permit, variance, amendment, waiver or other local discretionary approval, except that a special permit shall be required when located in a res (2) By inserting the following definition of HAZARDOUS PRODUCT in said Section D immediately after the definition of GROUND-MOUNTED SOLAR PHOTOVOLTAIC INSTALLATION: Page 27 of 33 Any chemical or combination of chemicals which, in any form, is listed by trade name, chemical name, formula or otherwise as a product which is a hazard to public drinking water supplies if any product for which there is any listing, declaration, or announcement in any form issued by the Unites States Environmental Agency, the Massachusetts Department of Environmental Protection, or by any other government agency having direct or indirect jurisdiction over public water supplies that SECTION 3 By amending Subsection (1) of Section E of Article V, Section 240-44.2 by adding the following sentence to the end of such subsection: -mounted, large-scale solar photovoltaic installation with 250 kw or larger of rated nameplate capacity located in a residential zoning district shall also be required to obtain a special permit f SECTION 4 By further amending Section E of Article V, Section 240-44.2 by adding the following new Subsection (3): A Special Permit shall be granted by the Planning Board if the Planning Board determines the following criteria have been met. (a) Site Plan Approval in accordance with subsections (1) and (2). (b) Adequate measures to contain and suppress noise and sound as deemed appropriate by the Planning Board, including, but not limited to, minimum 75-foot setback from all residential abutter property lines to the Ground-Mounted Solar Photovoltaic Installation. (c) Vegetative and/or hardscape screening with coniferous planting and earth berms of sufficient height, as determined by the Building Commissioner, to screen adjoining residential properties from the Ground-Mounted Solar Photovoltaic Installation. (d) Federal Aviation Administration (FAA) approval of Solar Glare Study, if such a study is deemed necessary by the FAA. (e) Cape Cod Commission approval as required. (f) Full disclosure of all hazardous products proposed to be used at any time at a project site shall be provided in writing to the Planning Board with the Special Permit application; no application for a special permit shall be considered complete until such disclosure is submitted to the Planning Board. No such hazardous materials shall be deployed or used at any time at a project site without approval of the Special Permit by the Planning Board. (g) Use, storage and containment of hazardous materials shall comply with all Federal, State, Regional, and local codes and regulations, including building, fire, and health codes. (h) Compliance with any other criteria found by the Planning Board as necessary to protect the public health, safety or welfare, which may include, without limitation, the revocation of any SECTION 5 Page 28 of 33 By amending Section I of Article V, Section 240-44.2 by deleting Section I in its entirety and inserting the following new Section I in its place: Dimensional requirements. Ground-mounted solar photovoltaic installations are subject to the front, side and rear yard setbacks as set forth in the underlying zoning district(s), except that any ground- mounted, large-scale solar photovoltaic installation with 250 kw or larger of rated nameplate capacity located in a residential zoning district shall maintain a minimum 75-foot setback from all abutting residential property lines to contain noise as sound, as required by Subsection (3) ( SECTION 6 By amending Section L of Article V, Section 240-44.2 by adding the following subsections after subsection 2(c): Study is deemed necessary by the FAA. (4) The project proponent shall provide full disclosure of all hazardous products proposed to be used at any time at a project site shall be provided in writing to the Building Commissioner with the Site Plan Review application; no application for Site Plan Review shall be considered complete until such disclosure is submitted to the Building Commissioner. No such hazardous materials shall be deployed or used at any time at a project site without Site Plan approval. (5) Use, storage and containment of hazardous materials shall comply with all Federal, State, Regional, and local codes and regulations, including building, fire, and health codes. (6) The project shall demonstrate compliance with any other criteria found by the Building Commissioner as necessary to protect the public health, safety or welfare, which may include, without limitation, the revocation of any prior permits and previous uses that benefit the project SPONSOR: Mark S. Ells, Town Manager DATE ACTION TAKEN _________ _________________________________________ _________ _________________________________________ ____ Read Item ____ Motion to Open Public Hearing ____ Rationale ____ Public Hearing ____ Close Public Hearing ____ Council Discussion ____ Vote Page 29 of 33 BARNSTABLE TOWN COUNCIL SUMMARY ITEM# 2022-034 INTRO: 10/07/2021 TO: Town Council FROM: Mark S. Ells, Town Manager THROUGH: Elizabeth Jenkins, Director, Planning & Development Department; Charles S. McLaughlin, Jr., Senior Town Attorney DATE: October 7, 2021 SUBJECT: Amending the Code of the Town of Barnstable, Part I, General Ordinances, Chapter 240 Zoning by expanding the Ground-Mounted Solar Photovoltaic Overlay District to include the property located at 810 Wakeby Road, Marstons Mills (arcels 004, 005, 052) and by requiring a special permit for large-scale Ground-Mounted Solar Photovoltaic installations located within any residential district located within the overlay district BACKGROUND: Since 1975, Section 3 of Massachusetts General Laws, Chapter 40A, the state Zoning Act, has allowed solar projects as of right in all zoning districts, subject only to regulations to protect public health, safety, and welfare. It reads: 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. In 2010, pursuant to the state Green Communities Act, the Town created a Ground-Mounted Solar Photovoltaic Overlay District (Section 240-44.2 of the Town Code), which governs where large-scale solar projects may be constructed in the Town. PROPOSED ZONING AMENDMENT: TJA Clean Energy is now seeking to construct a solar energy project at 810 Wakeby Road in a residential district that is not within the Ground-Mounted Solar s Overlay District is unduly restrictive and not in compliance with M.G.L Chapter 40A and has filed a lawsuit seeking a permanent injunction ordering the Town to issue a building permit to TJA for the project. A similar lawsuit involving the Town of Waltham resulted in a decision by the Land Court that the Town of Waltham was not in compliance with M.G.L Chapter 40A, and that case is now pending in the Appeals Court. narrowly tailored to apply only to the three parcels at 810 Wakeby Road. The proposed zoning amendment creates a special permit process that would allow the TJA project to proceed after ensuring that public health, safety and welfare issues are addressed. Under the proposed zoning amendment, the Planning Board would be designated as the body to administer the special permit process in order to provide for public notice and input on these issues. For TJA to receive a special permit, it would have to meet specified criteria, including the revocation of all other existing permits for the property. The proposed zoning amendment identifies a number of issues that TJA must address in public before the Planning Board and standards that it must meet. If TJA is able to meet all of those standards, as determined by the Planning Board, it would be entitled to receive a special permit. Page 30 of 33 FISCAL IMPACT: The proposed zoning amendment, if adopted, would avoid protracted litigation and expense. TOWN MANAGER RECOMMENDATION:Mark S. Ells, Town Manager, supports this item. STAFF SUPPORT: Planning & Development Department; Legal Department