Approving a definition of ‘light manufacturing’ under the Marion’s zoning by-law was the final step that the Zoning Board of Appeals needed to win in a Land Court lawsuit against the Town by two residents who were denied a building permit to construct a solar facility.
Laura and Dale Briggs, owners of a parcel of land on County Road, filed their application before the Town had a solar by-law, and their application was denied because solar production is not regulated under the zoning by-law, and light manufacturing is not allowed in a residential zone.
The Briggses were present on May 15 when Town Counsel Jon Whitten read the approved definition for light manufacturing relative to solar energy production.
The zoning by-law defines light manufacturing as “fabrication, assembly, processing, finishing work, or packaging.”
When Judge Alexander Sands found in favor of the Town in his decision rendered on February 6, 2014, he ordered the Town to relate the definition of light manufacturing to solar energy production before he could find in favor of the Town, which is what Whitten read aloud during the meeting.
“Solar facilities utilize ‘solar cells’ … to convert sunlight to electricity for commercial sale. The conversion of sunlight to electricity for commercial sale entails ‘processing’ as that term is used in the by-law definition of ‘light manufacturing,” said Whitten.
“That’s just totally not true,” said Norman Hills, a member of the Planning Board and Conservation Commission, and who was present that evening. “There is no production involved.”
“But you’re producing energy,” replied Chairman Eric Pierce. He added that it was a commercial activity in a residential zone, as well.
“We’ve got plenty of businesses in residential areas,” said Hills, “so it’s not unheard of.”
Resident Jennifer Francis used cranberry bogs as an analogy of allowed commercial uses within residential zones under the zoning by-law. She said in cranberry bogs, the growing and the harvesting is more of a complex production.
“Whereas solar panels just sit there,” said Francis. “They make no sound.”
Francis then questioned the board’s motive for the initial denial of the permit.
“Why are you so bent on disallowing this use?” asked Francis. “You’re just pulling at straws to find some way to call this light manufacturing so you can shut it down.”
She said Town Meeting just approved a solar by-law, so clearly the Town is “OK with solar.”
“You’re not representing the sentiment or the spirit of the Town,” said Francis.
Whitten fired back, saying the board was upholding the law, and the zoning by-law did not allow this type of use.
“I don’t think anybody’s opposed to this project,” said Whitten. “And the analogy of the cranberry bogs to solar farms is not a helpful one.”
He said the Briggses could have applied with the Planning Board under the zoning by-law, but they chose not to do that, probably, he said, because it would trigger a site plan review and special permit process.
“As your attorney, I’m trying to uphold the rule of law,” said Whitten. He said if the Town should arbitrarily allow certain projects that it liked, in spite of the zoning by-laws, it would be “a world of anarchy.”
Whitten told the residents that if the Briggses acted now, “This project could be up and running … by the end of June, first week of July.”
Another resident chastised the board for the delay and costs accrued in fighting the building permit application.
“And it just raises the blood pressure of this town,” he said.
“I agree with you,” said Pierce. “We should’ve had a solar by-law … years ago.”
After the meeting, in a follow-up interview, the Briggs said they will move forward with applying for a variance with the ZBA under the new solar by-law, and they will do it promptly.
By Jean Perry
