- 1. Sustainable Communities ConferenceLocal Solar Energy
Challenges and Solutions4/24/2013Kurt GaertnerMA Executive Office
of Energy & Environmental [email protected](617)
626-1154
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
facilitiesConcentrate growth & mix uses torealize energy and
emissions benefitsImplement green building practicesEnhance energy
efficiencyWhy is the permitting of solar energy systems such an
important topic? 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. 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. 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. Has review of town zoning
by the Attorney Generals 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. 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. 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 states 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. 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. DOER
strongly discourages designating locations that requiresignificant
tree cutting or that lead to the unnecessary loss ofagricultural
landDOER 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. 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:DefinitionsAllowable UsesDimensional RequirementsSite
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. 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 reviewThis is the most predictable and
easiestpermitting methodDevelopments must abide by other local
andstate regulations but cannot be prohibitedCommonly administered
by the BuildingInspector via issuance of a building permitBuilding
permits issue quickly; within 30 daysProposals not in compliance
with zoning, orsubject to a higher level of review, will be
referredApplicants can appeal to the Zoning Board ofAppeals via a
process outlined in the Zoning Act 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 communityslocal 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:
the-gadgeteer.com 14. Option 2) Site Plan Approval (or Review)
RequiredCould be associated with a by-right use, a userequiring a
special permit, or bothNot addressed in the Zoning Act; though
there arecourt cases regarding site plan reviewWhen associated with
a by-right useoThe reviewing authority cant deny the use;though
conditions may be imposed to further theintent of the zoning,
andoSite plan review should be thought of asinformation gathering
and provision of guidanceto a developer on a use that the community
iscomfortable withCommon site plan subjects include
access/egress,drainage, buffer zones, & site featuresAppeals of
denied site plans associated with a by-right use tend to favor the
applicant 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 DOERs large-scale
groundmounted model zoning for details and citations] 16.
Zoning:Option 3) Special Permit Required:Discretionary, requires a
supermajority, & can be denied, approved, or approved
withconditionsStatute says a decision must be made within 90 days
or the project is constructivelyapproved; however, it also provides
for an extension by written agreementSite Plan Review is often used
as the special permit mechanismReviewed by the Zoning Board of
Appeals, Planning Board, Selectmen, or City CouncilLocal
governments can adopt rules and regulationsSpecial 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. 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. 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 communitys 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. 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. What
other matters are covered by DOERs 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. Green Communities Meeting Criterion One via
Solar ZoningMashpeeMedwayMendonMiddlefieldMonsonNew
SalemScituateSherbornShutesburyTruroTyngsboroWinchesterArlingtonBecketBrooklineCarlisleDedhamDeerfieldGreenfieldHamiltonHarvardHollandKingstonLexingtonLincolnPhoto:
purelysolarpower.com 22.
https://sites.google.com/site/massdgic/Massachusetts DG and
InterconnectionMain Pagehttp://www.masscec.com/MA Clean Energy
Centerhttp://www.mass.gov/eea/energy-utilities-clean-tech/renewable-energy/rps-aps/Renewable
Energy Portfolio Standard & Alternative Energy
PortfolioStandard ProgramsFurther
Information:http://www.mass.gov/eea/energy-utilities-clean-tech/green-communities/gc-grant-program/criterion-1.htmlMassachusetts
Smart Growth / Smart Energy Toolkitwww.mass.gov/envirDOER Model
Zoning and other information:Clean Energy Results:Ground-Mounted
Solar Photovoltaic Systems Questions &
Answershttp://www.mass.gov/eea/docs/doer/renewables/solar/solar-pv-guide.pdf
23. Sustainable Communities ConferenceLocal Solar Energy Challenges
and Solutions4/24/2013Kurt GaertnerMA Executive Office of Energy
& Environmental [email protected](617)
626-1154
