Citizen Planners Training Collaborative Zoning for Solar & Update on Solar Industry 3/16/2013

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1 Citizen Planners Training Collaborative Zoning for Solar & Update on Solar Industry 3/16/2013 Kurt Gaertner MA Executive Office of Energy & Environmental Affairs (617)

2 Promote Clean Energy: Reduce greenhouse gas emissions and consumption of fossil fuels. Maximize energy efficiency and renewable energy opportunities. Support energy conservation strategies, local clean power generation, distributed generation technologies, and innovative industries. Ask of Municipalities: Site renewable and other clean energy facilities Concentrate growth & mix uses to realize energy and emissions benefits Implement green building practices Enhance energy efficiency

3 What is the best place to begin drafting solar zoning? In the context of a plan - Master plans seldom address energy, however a small but growing number of communities have completed climate action or other energy plans.

4 What is the ideal local regulatory approach? A Master Plan that addresses energy, AND Zoning, consistent with the plan, that facilities the siting of renewables and advances other energy goals

5 What does state law have to say about the siting of solar energy facilities? Existing Massachusetts law limits the ability for local governments to regulate solar facilities. Massachusetts General Laws Chapter 40A Section 3 reads: No zoning ordinance or by-law shall prohibit or unreasonably regulate the installation of solar energy systems or the building of structures that facilitate the collection of solar energy, except where 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 General s Office helped define reasonable? Not really. Every presumption is given that a bylaw is valid unless it clearly conflicts with the Constitution or the enabling statute. Where the reasonableness of a zoning bylaw is fairly debatable, then the judgment of the local legislative body is accepted. Many communities have been warned that their zoning might not withstand a court challenge, but no solar zoning has yet been found to be in clear conflict with Chapter 40A Sec. 3. What is the relationship between as of right solar zoning and Green Community status? The legislation that created Green Communities established the criteria to be Green. Criterion One explicitly states that zoning must be by right, which is consistent with Administration policy. (Note: this zoning could be for renewable energy generation, or clean energy related R & D or Manufacturing.

7 Why is it important that a community zone for solar energy facilities? Of course, to facilitate the siting of solar systems. But also to avoid the problems that come with a solar proposal in the absence of zoning. Struggling with what reasonable regulation means now is far better than dealing with an application for a solar facility in the absence of zoning. Can local zoning treat varying sizes and types of solar facilities differently? Yes, common means of differentiating between facilities are by type (roof vs. ground mounted) and size (square feet of surface area or generating capacity)

8 Can a general bylaw/ordinance [rather than zoning] be used to regulate solar energy systems? Since language relative to solar energy systems is primarily found in Chapter 40A zoning is the appropriate tool to regulate these systems. Are there any concerns about the intersection between zoning regulations that pertain to solar energy systems and building code? Chapter 30A Section 3 includes the following exemption language No zoning ordinance or bylaw shall regulate or restrict the use of materials, or methods of construction of structures regulated by the state building code... The state s model zoning has been carefully drafted to abide by this provision of state statute. Communities adapting the model zoning should be similarly cautious to avoid adopting requirements that are precluded by statute as they are already addressed in the Building Code.

9 Can a community restrict large-scale ground mounted solar facilities to certain zones? Require a special permit for these facilities? Some have. But, is this reasonable & necessary to protect public health, 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 or burdens a property [generally a small one] differently than similar nearby properties. Can solar energy systems be prohibited in local Historic Districts? No, solar system installations must be considered individually & with regard to Chapter 40C.

10 Does DOER have any guidance in regard to the proper siting of large-scale ground mounted facilities? DOER strongly discourages designating locations that require significant tree cutting DOER encourages designating locations in industrial and commercial districts, or on vacant, disturbed land.

11 What is a good way for a community to approach incorporation of solar 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 Regulations As necessary develop local zoning language

12 What are the permitting options available? Option 1) As of Right Use "By-right" or "as-of-right" refers to uses allowed in a district without discretionary review This is the most predictable and easiest permitting method Developments must abide by other local and state regulations but cannot be prohibited Commonly administered by the Building Inspector via issuance of a building permit Building permits issue quickly; within 30 days Proposals not in compliance with zoning, or subject to a higher level of review, will be referred Applicants can appeal to the Zoning Board of Appeals 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 need for a special permit, variance, amendment, waiver, or other discretionary approval. As-of-right development may be subject to site plan review to determine conformance with local zoning ordinances or bylaws. Projects cannot be prohibited, but can be reasonably regulated by the inspector of buildings, 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 s local legislative body], in accordance with Massachusetts General Laws Chapter 40A, section 5, where ground - mounted large scale solar photovoltaic installations may be sited as-of right. Said location[s] [is/are] shown on a Zoning Map [insert title of map] pursuant to Massachusetts General Laws Chapter 40A Section 4. This map is hereby made a part of this Zoning Bylaw and is on file in the Office of the [Town/City] Clerk. Photo: the-gadgeteer.com

14 Option 2) Site Plan Approval (or Review) Required Could be associated with a by-right use, a use requiring a special permit, or both Not addressed in the Zoning Act; though there are court cases regarding site plan review When associated with a by-right use othe reviewing authority can t deny the use;; though conditions may be imposed to further the intent of the zoning, and o Site plan review should be thought of as information gathering and provision of guidance to a developer on a use that the community is comfortable with Common site plan subjects include access/egress, drainage, buffer zones, & site features Appeals of denied site plans associated with a byright 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 a method 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 plan application, but it may impose reasonable conditions. When a site plan application is submitted for an as-of-right use, a planning board is obligated to grant an approval with reasonable conditions unless, despite best efforts, no form of reasonable conditions [can] be devised to satisfy the problem with the plan... [summary of several court cases;; see DOER s large-scale ground mounted model zoning for details and citations]

16 Zoning: Option 3) Special Permit Required: Discretionary, requires a supermajority, & can be denied, approved, or approved with conditions Statute says a decision must be made within 90 days or the project is constructively approved; 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 for approval, permit duration (max 2 years), applicability (when is a SP required), and authority (who reviews the permit application). Special permit language should outline the process, plan requirements, standards, & decision. Local governments tend to be upheld on appeal

17 Resources Model Bylaws Three Step Process for New Local Bylaw 1. Model bylaw provides a framework for local zoning regulation 2. Blue commentary sections highlight questions local decision makers should answer to tailor the model to local circumstances 3. Review customized bylaw with legal counsel RECOMMENDATION: The minimum setback for a side yard shall be zero feet. Where deemed appropriate by the Planning Board, alleys between buildings may be encouraged for the provision of beneficial public connections between buildings, open spaces and streets. The maximum side setback shall be determined by the Planning Board, and shall not exceed 25 feet. ALTERNATIVE: In smaller town centers or rural locations, it may be more appropriate to have side yard setbacks of up to 15 feet. In town centers or urban areas with substantial vehicle traffic, side setbacks may need to be up to 30 feet to allow for two-way traffic to rear parking & loading areas. 17

18 Model As-of-Right Zoning Bylaw: Large-Scale Ground-Mounted Solar Photovoltaic Installations Qualifying as a Green Community: In order to satisfy the Green Communities Act as-of-right zoning requirement a community s zoning must permit the development of a ground mounted solar system of at least one acre in size (a rated name plate capacity of about 250 kw (DC) or more). Smaller installations (under 250 kw): The above requirement for qualification as a Green Community is not intended to discourage construction of solar photovoltaic installations that are smaller than an acre or 250 kw, but rather to ensure that in designated locations local regulatory barriers that may adversely affect large-scale ground-mounted projects are minimized. NOTE: Small-Scale Solar Zoning Bylaw Under Development

19 What does the Model Zoning suggest regarding dimensional regulations? For large - scale ground mounted solar photovoltaic installations, front, side and 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 or Residential 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 or Residential 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 or Residential district, the rear yard shall not be less than 50 feet. Photo: LandTech

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 Green Communities Meeting Criterion One via Solar Zoning Arlington Becket Brookline Carlisle Dedham Deerfield Greenfield Hamilton Harvard Holland Kingston Lexington Lincoln Mashpee Medway Mendon Middlefield Monson New Salem Scituate Sherborn Shutesbury Truro Tyngsboro Winchester Photo: purelysolarpower.com

22 Further Information: DOER Model Zoning and other information: Massachusetts Smart Growth / Smart Energy Toolkit Clean Energy Results: Ground-Mounted Solar Photovoltaic Systems Questions & Answers Massachusetts DG and Interconnection Main Page MA Clean Energy Center Renewable Energy Portfolio Standard & Alternative Energy Portfolio Standard Programs

23 Citizen Planners Training Collaborative Zoning for Solar & Update on Solar Industry 3/16/2013 Kurt Gaertner MA Executive Office of Energy & Environmental Affairs (617)