The judge presiding over the case of a Marion couple suing the Marion Zoning Board of Appeals for denying them a permit to build a solar farm has issued a decision ordering the ZBA to define “light manufacturing,” the foundation for the board’s denial of the permit.
Judge Alexander H. Sands wrote in his February 6 decision that “…the ZBA decision [to deny the permit] did not describe how a solar farm would fall under the category of ‘light manufacturing.’”
Light manufacturing is described in the Town’s zoning bylaw as “fabrication, assembly, processing, finishing work or packaging.”
The ZBA denied the permit because light manufacturing is not permitted in residential zones.
“…Provided that the ZBA can justify that a solar energy farm is ‘light manufacturing’ under the Bylaws,” wrote Judge Sands, “I find that the ZBA Decision, which maintains the division between commercial solar energy systems and residential accessory solar energy uses, is reasonable and does not violate [the law].” After the remand, Judge Sands will make a final judgment on the case.
Dale and Laura Briggs own 512 County Road and reside at the abutting property. On September 4, 2012, Building Commissioner Scott Shippey denied the Briggs’ application to construct a 3,520 panel “solar energy system” on the 5.93 acre lot because the bylaw at the time only provided for an accessory use of a solar installation within a residential zone.
“I cannot approve something not in the bylaw,” said Shippey during an interview on March 7. “If it’s not in the bylaw it’s not allowed.”
When the Briggs appealed Shippey’s decision to the ZBA, on February 22, 2013 the board denied the appeal and upheld Shippey’s decision, citing that the bylaw only permits solar energy facilities as an “accessory use to otherwise permitted residential and non-residential uses.”
The board’s decision stated, “The development of a commercial solar energy facility is, accordingly, prohibited within the Town’s Residential Zoning Districts.”
Subsequent amendments to the bylaw regulating solar energy facilities were approved by Town Meeting back in October 2013, and received approval by the Attorney General’s office, with recommendations, according to Shippey.
Shippey said the Attorney General cited Massachusetts General Law Chapter 40A Section 3, which prohibits the “unreasonable regulation” of solar energy installations.
“That’s where it gets sketchy,” said Shippey. “But our bylaw is not really unreasonable.”
Section 16.11 of the amended bylaw specifically states that a ground-mounted solar farm is allowed in a residential district with a minimum of three contiguous acres, complies with the required setbacks, including 100 feet from the nearest property line, with a maximum structure height of eight feet. The Planning Board is the special permit-granting authority for solar energy facilities, as stated in the amended bylaw.
As to whether or not there could ever be a solar farm at 512 County Road, Shippey said that only if the plans meet the requirements under the bylaw could it ever come to fruition.
“We really won’t know if they’ll be allowed until it goes back to the court and they make a ruling,” said Shippey. “I can’t speak for the board. I can’t speak for the judge.”
The Briggs property where they planned to construct the solar facility is described in the judge’s decision as “a wooded area and [also] partially screened in areas that will be visible.”
The Wanderer made several attempts by phone to reach Dale Briggs for a comment, but he did not return our calls.
The ZBA was set to discuss the judge’s remand during its meeting on March 6, but the attorney for the Briggs requested a continuance until April 3.
By Jean Perry