Town counsel cautions ZAC on commercial solar restrictions; discussion to continue

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The Zoning Advisory Committee’s discussion on how to better control commercial ground-mounted solar developments took a turn Monday night, following input from town counsel.

During its previous discussions, ZAC had suggesting wording limiting commercial solar photovoltaic installations to previously disturbed land, among other things.

Bryan Bertram, an attorney with Miyares & Harrington LLP, advised against that approach.

“I think you would have a problem if you targeted this just at solar,” he told committee members at Monday’s meeting.

Bertram suggested a general bylaw, not specific to solar, that covers all types of developments in the town. Because while there has not been an appellate court decision on similar bylaws, he said, there have been indications that it would be difficult to defend.

“There have been I think three land court decisions now that have either directly or indirectly grappled with the idea of either creating an overlay district or restricting solar commercial installations to certain districts and not other districts,” he explained. “The results and the outcomes are kind of decidedly mixed. The most recent decision was in 2019. It was sort of an odd decision. … It was entered on the docket as a rationale by the chief justice of the land court. He basically rejected the idea altogether that one can prohibit solar in some districts and allow it in others.

“Now the discussion that he gave did acknowledge that there’s at least one other land court decision that seems to suggest something different. So where we’re left is we’ve had several judges in the land court directly or indirectly weigh in on this to different results. And as a lawyer, what I can tell you is is that none of those bind you or any other court.”

Some ZAC members suggested limiting commercial ground-mounted solar to Industrial A and B zones — or even just Industrial B. Industrial A is primarily located on South Street, while there is a very limited number if parcels zoned Industrial B — most notably the E.L. Harvey facility on the Westborough border.

“To me, there’s nothing aesthetic about these things,” member Curtis Smithson said. “They want to mow down every tree. It’s a steel structure with glass panels on it. It’s not anything that’s going to go through an architectural review or anything that’s going to look nice when it’s done.”

Bertram again pushed back against that approach.

“I won’t guarantee no, but I think that it would be a very difficult reach,” he said. “I really hear you about the concerns, about the impacts of these facilities and why you think they’re better suited to industrial. The problem that we run headlong into is that the legislature of the commonwealth has put this provision in the general laws that treats these facilities sort of specially in a section about subjects which zoning may not regulate. So they’ve sort of told us what their policy prerogatives are, if you will. We really just can’t be so restrictive as to these types of facilities. In my opinion, I don’t think that a court — it’s always possible, but I think you’d have a hard time getting a court to agree with that.”

Last year’s approach was to create a zoning overlay map, and the one the Planning Board selected had a small number of parcels approved for commercial solar. It ended up getting shelved due to the pandemic forcing an abbreviated Town Meeting.

Bertram suggested adding more availability if the ZAC and Planning Board want to go with an overlay map.

“The reason that we gave the advice during the last Town Meeting cycle that we did, which was, we’re not really sure, but if you do it, the more land that’s in the overlay district or I suppose the more zoning districts that you allow the better, is because we’re not entirely confident that if the courts were to address the issue they’d uphold it even on the general principle,” he said. “But if they did, the more you allow, the more reasonable.

“So I’m not going to tell you you can’t take that approach, but you do do it with some peril, that a land court judge or if it gets to an appellate level they would tell you, ‘Well, you can’t do this at all.’ And even if you clear that hurdle, then you have to be careful that you allow this in enough of the town that any reviewing judge is going to say this is reasonable and that there’s a principle for allowing it in certain districts and not others based on the characteristics of these facilities.”

Added Bertram: “A lot of this is totally by gut because we don’t have a lot of guidance on this.”

Another suggestion was to limit the size of the parcels where solar could be located. Bertram again noted that if the bylaw was specific to solar it would be concerning to him. He suggested focusing on shoring up the screening requirements.

“You may need multiple solutions,” he said. “I would encourage you, if it’s visual or something like that, maybe to think less about restricting it to certain districts.”

ZAC chair Mary Larson-Marlowe, who also sits on the Planning Board, suggested ZAC take one more crack at coming up with a proposed bylaw to send to the Planning Board so that it can be placed on the warrant for Annual Town Meeting. ZAC scheduled another meeting for next Tuesday night in hopes of finalizing it. Time is getting tight, as in order for this to get on the Town Meeting warrant, it needs to be submitted to Town Hall by Feb. 2.

Bertram said he would be available to assist, although he said it does not appear there are many other options to consider.

“This is an important issue in Hopkinton that’s come up a number of times, and it’s forced me to look at [other towns’] bylaws a number of times,” he said. “If we had seen a lot of great options that you all weren’t coming up with, we probably would have already zoomed in on them. We can take another look, but I wouldn’t hold out hope that there’s too many better solutions out there that others have done. You all have done a pretty good job of identifying those for yourselves already.”

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