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Kurt Gaertner 2013 masccc


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MA Sustainable Development - Solar Siting & Bylaws

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Kurt Gaertner 2013 masccc

  1. 1. Sustainable Communities ConferenceLocal Solar Energy Challenges and Solutions4/24/2013Kurt GaertnerMA Executive Office of Energy & Environmental 626-1154
  2. 2. Promote Clean Energy:•  Reduce greenhouse gas emissionsand consumption of fossil fuels.•  Maximize energyefficiency and renewableenergy opportunities.•  Support energy conservationstrategies, local clean powergeneration, distributed generationtechnologies, and innovativeindustries.“Ask” of Municipalities:• Site renewable and other cleanenergy facilities• Concentrate growth & mix uses torealize energy and emissions benefits• Implement green building practices• Enhance energy efficiencyWhy is the permitting of solar energy systems such an important topic?
  3. 3. What is the best place to begin draftingsolar zoning?In the context of a plan - Master plansseldom address energy, however a smallbut growing number of communities havecompleted climate action or other energyplans.
  4. 4. A Master Plan thataddresses energy, ANDZoning, consistent with the plan, thatfacilities the siting of renewables andadvances other energy goalsWhat is the ideal local regulatory approach?
  5. 5. What does state law have to say about the siting of solar energyfacilities?Existing Massachusetts law limits the ability for local governmentsto regulate solar facilities. Massachusetts General Laws Chapter40A Section 3 reads:No zoning ordinance or by-law shall prohibit or unreasonablyregulate the installation of solar energy systems or the buildingof structures that facilitate the collection of solar energy, exceptwhere necessary to protect the public health, safety or welfare.Are there any court cases interpreting this vague language?No.
  6. 6. Has review of town zoning by the Attorney General’s Office helpeddefine “reasonable”?Not really. Every presumption is given that a bylaw is valid unless itclearly conflicts with the Constitution or the enabling statute. Where thereasonableness of a zoning bylaw is fairly debatable, then the judgmentof the local legislative body is accepted. Many communities have beenwarned that their zoning might not withstand a court challenge, but nosolar zoning has yet been found to be in clear conflict with Chapter 40ASec. 3.What is the relationship between as of right solar zoning and GreenCommunity status?The legislation that created Green Communities established the criteriato be “Green”. Criterion One explicitly states that zoning must be byright, which is consistent with Administration policy. (Note: this zoningcould be for renewable energy generation, or clean energy related R &D or Manufacturing.
  7. 7. Why is it important that a community zone for solar energyfacilities?Of course, to facilitate the siting of solar systems. But also toavoid the problems that come with a solar proposal in the absenceof zoning. Struggling with what reasonable regulation means nowis far better than dealing with an application for a solar facility inthe absence of zoning.Can local zoning treat varying sizes and types of solar facilitiesdifferently?Yes, common means of differentiating between facilities are bytype (roof vs. ground mounted) and size (square feet of surfacearea or generating capacity)
  8. 8. Can a general bylaw/ordinance [rather than zoning] be used to regulatesolar energy systems?Since language relative to solar energy systems is primarily found inChapter 40A zoning is the appropriate tool to regulate these systems.Are there any concerns about the intersection between zoningregulations that pertain to solar energy systems and building code?Chapter 30A Section 3 includes the following exemption language “Nozoning ordinance or bylaw shall regulate or restrict the use of materials,or methods of construction of structures regulated by the state buildingcode...” The state’s model zoning has been carefully drafted to abide bythis provision of state statute. Communities adapting the model zoningshould be similarly cautious to avoid adopting requirements that areprecluded by statute as they are already addressed in the BuildingCode.
  9. 9. Can a community restrict large-scale ground mounted solar facilities tocertain zones? Require a special permit for these facilities?Some have. But, is this “reasonable” & necessary to protect publichealth, safety, or welfare?Does a community lose control when it institutes as of right siting?No. It exercises its authority at a different point.Is spot zoning a concern relative to the siting of solar facilities?Not a significant one. Spot zoning occurs when zoning benefits orburdens a property [generally a small one] differently than similar nearbyproperties.Can solar energy systems be prohibited in local Historic Districts?No, solar system installations must be considered individually & withregard to Chapter 40C.
  10. 10. • DOER strongly discourages designating locations that requiresignificant tree cutting or that lead to the unnecessary loss ofagricultural land• DOER encourages designating locations in industrial andcommercial districts, or on vacant, disturbed land.Does DOER have any guidance in regard to the propersiting of large-scale ground mounted facilities?
  11. 11. What is a good way for a community to approach incorporation ofsolar energy systems into the local zoning bylaw/ordinance?Begin with an audit, with particular attention to:• Definitions• Allowable Uses• Dimensional Requirements• Site Plan or Design Review RegulationsAs necessary develop local zoning languageShould ground mounted solar systems count toward lot coveragerequirements? Impervious surface?It is recommended that pole mounted solar systems beexempt from lot coverage and impervious surfacerequirements, but considered under applicable stormwaterbylaws, unless the surface underneath is paved.
  12. 12. What are the permitting optionsavailable?Option 1) As of Right Use• "By-right" or "as-of-right" refers to uses allowedin a district without discretionary review• This is the most predictable and easiestpermitting method• Developments must abide by other local andstate regulations but cannot be prohibited• Commonly administered by the BuildingInspector via issuance of a building permit• Building permits issue quickly; within 30 days• Proposals not in compliance with zoning, orsubject to a higher level of review, will be referred• Applicants can appeal to the Zoning Board ofAppeals via a process outlined in the Zoning Act
  13. 13. How do Green Communities & the model zoning define By-Right Siting?As-of-Right Siting shall mean that development may proceed without the needfor a special permit, variance, amendment, waiver, or other discretionaryapproval. As-of-right development may be subject to site plan review todetermine conformance with local zoning ordinances or bylaws. Projectscannot be prohibited, but can be reasonably regulated by the inspector ofbuildings, building commissioner or local inspector, or if there is none in a town,the board of selectmen, or person or board designated by the ordinance/bylaw.How about Designated Location?The location[s] designated by [the community’slocal legislative body], in accordance withMassachusetts General Laws Chapter 40A,section 5, where ground - mounted large scalesolar photovoltaic installations may be sited as-ofright. Said location[s] [is/are] shown on a ZoningMap [insert title of map] pursuant to MassachusettsGeneral Laws Chapter 40A Section 4. This map ishereby made a part of this Zoning Bylaw and is onfile in the Office of the [Town/City] Clerk. Photo:
  14. 14. Option 2) Site Plan Approval (or Review) Required• Could be associated with a by-right use, a userequiring a special permit, or both• Not addressed in the Zoning Act; though there arecourt cases regarding site plan review• When associated with a by-right useo The reviewing authority can’t deny the use;though conditions may be imposed to further theintent of the zoning, ando Site plan review should be thought of asinformation gathering and provision of guidanceto a developer on a use that the community iscomfortable with• Common site plan subjects include access/egress,drainage, buffer zones, & site features• Appeals of denied site plans associated with a by-right use tend to favor the applicant
  15. 15. What conditions can a local government place on site plan review?:•  When associated with a by-right use site plan approval acts as amethod for regulating as-of-right uses rather than prohibiting them.Be cautious about the inclusion and use of subjective criteria.•  The Planning Board may not unconditionally deny a site planapplication, but it may impose reasonable conditions.•  When a site plan application is submitted for an as-of-right use, aplanning board is obligated to grant an approval with reasonableconditions unless, “despite best efforts, no form of reasonableconditions [can] be devised to satisfy the problem with the plan....”[summary of several court cases; see DOER’s large-scale groundmounted model zoning for details and citations]
  16. 16. Zoning:Option 3) Special Permit Required:• Discretionary, requires a supermajority, & can be denied, approved, or approved withconditions• Statute says a decision must be made within 90 days or the project is constructivelyapproved; however, it also provides for an extension by written agreement• Site Plan Review is often used as the special permit mechanism• Reviewed by the Zoning Board of Appeals, Planning Board, Selectmen, or City Council• Local governments can adopt rules and regulations• Special permit language must include criteria forapproval, permit duration (max 2 years), applicability(when is a SP required), and authority (who reviewsthe permit application).• Special permit language should outline the process,plan requirements, standards, & decision.• Local governments tend to be upheld on appeal
  17. 17. 171.  Model bylaw provides a framework for local zoningregulation2.  Blue commentary sections highlight questions localdecision makers should answer to tailor the model tolocal circumstances3.  Review customized bylaw with legal counselResources – Model BylawsThree Step Process for New Local BylawRECOMMENDATION: The minimum setback for a side yard shall be zero feet. Wheredeemed appropriate by the Planning Board, alleys between buildings may be encouragedfor the provision of beneficial public connections between buildings, open spaces andstreets. The maximum side setback shall be determined by the Planning Board, and shallnot exceed 25 feet.ALTERNATIVE: In smaller town centers or rural locations, it may be more appropriate tohave side yard setbacks of up to 15 feet. In town centers or urban areas with substantialvehicle traffic, side setbacks may need to be up to 30 feet to allow for two-way traffic torear parking & loading areas.
  18. 18. Model As-of-Right Zoning Bylaw:Large-Scale Ground-Mounted Solar Photovoltaic InstallationsQualifying as a Green Community: In order to satisfythe Green Communities Act as-of-right zoningrequirement a community’s zoning must permit thedevelopment of a ground mounted solar system of atleast one acre in size (a rated name plate capacity ofabout 250 kW (DC) or more).Smaller installations (under 250 kW): The aboverequirement for qualification as a Green Community is notintended to discourage construction of solar photovoltaicinstallations that are smaller than an acre or 250 kW, butrather to ensure that in designated locations localregulatory barriers that may adversely affect large-scaleground-mounted projects are minimized.NOTE: Small-Scale Solar Zoning Bylaw Under Development
  19. 19. For large - scale ground mounted solar photovoltaic installations, front, sideand rear setbacks shall be as follows:• Front yard: The front yard depth shall be at least 10 feet; provided,however, that where the lot abuts a Conservation-Recreation orResidential district, the front yard shall not be less than 50 feet.• Side yard. Each side yard shall have a depth at least 15 feet; provided,however, that where the lot abuts a Conservation-Recreation orResidential district, the side yard shall not be less than 50 feet.• Rear yard. The rear yard depth shall be at least 25 feet; provided,however, that where the lot abuts a Conservation-Recreation orResidential district, the rear yard shall not be less than 50 feet.Photo: LandTechWhat does the Model Zoning suggest regardingdimensional regulations?
  20. 20. What other matters are covered by DOER’s Model Zoning for Large-Scale systems?•  Specifics regarding site plan review, such as required documents•  Operation and Maintenance Plan•  Design Standards•  Safety and Environmental Standards•  Monitoring and Maintenance•  Abandonment and Decommissioning
  21. 21. Green Communities Meeting Criterion One via Solar ZoningMashpeeMedwayMendonMiddlefieldMonsonNew SalemScituateSherbornShutesburyTruroTyngsboroWinchesterArlingtonBecketBrooklineCarlisleDedhamDeerfieldGreenfieldHamiltonHarvardHollandKingstonLexingtonLincolnPhoto:
  22. 22. DG and InterconnectionMain Page Clean Energy Center Energy Portfolio Standard & Alternative Energy PortfolioStandard ProgramsFurther Information: Smart Growth / Smart Energy Model Zoning and other information:Clean Energy Results:Ground-Mounted Solar Photovoltaic Systems – Questions & Answers
  23. 23. Sustainable Communities ConferenceLocal Solar Energy Challenges and Solutions4/24/2013Kurt GaertnerMA Executive Office of Energy & Environmental 626-1154