Item No. 2022-034
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B. NEW BUSINESS (First Reading) (Refer to Planning Board)
BARNSTABLE TOWN COUNCIL
ITEM# 2022-034
INTRO: 10/07/2021
2022-034 AMENDING THE CODE OF THE TOWN OF BARNSTABLE, PART I,
GENERAL ORDINANCES, CHAPTER 240 ZONING BY EXPANDING THE
GROUND-MOUNTED SOLAR PHOTOVOLTAIC OVERLAY DISTRICT TO
INCLUDE THE PROPERTY LOCATED AT 810 WAKEBY ROAD, MARSTONS
A SPECIAL PERMIT FOR LARGE-SCALE GROUND-MOUNTED SOLAR
PHOTOVOLTAIC INSTALLATIONS LOCATED WTIHIN ANY RESIDENTIAL
DISTRICT LOCATED WITHIN THE OVERLAY DISTRICT
ORDERED: That the Code of the Town of Barnstable, Part I General Ordinances, Chapter 240 Zoning
be amended as follows:
SECTION 1
That Chapter 240, Article II, Section 6, The Zoning Map of the Town of Barnstable Massachusetts is
hereby amended to expand the Ground-Mounted Solar Photovoltaic Overlay District to include the
Photovoltaic Overl
Each dated October 1, 2021, as prepared by the Town of Barnstable Geographical Information System
(GIS) Unit.
SECTION 2
(1) By amending the definition of AS-OF-RIGHT-SITING in Section D of Article V, Section 240-
44.2, Ground-Mounted Solar Photovoltaic Overlay District, by deleting the first sentence and
inserting the following new sentence in place thereof:
-mounted solar photovoltaic installation may proceed without the need for a special
permit, variance, amendment, waiver or other local discretionary approval, except that a special
permit shall be required when located in a res
(2) By inserting the following definition of HAZARDOUS PRODUCT in said Section D immediately
after the definition of GROUND-MOUNTED SOLAR PHOTOVOLTAIC INSTALLATION:
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Any chemical or combination of chemicals which, in any form, is listed by trade name, chemical
name, formula or otherwise as a product which is a hazard to public drinking water supplies if
any product for which there is any listing, declaration, or announcement in any form issued by the
Unites States Environmental Agency, the Massachusetts Department of Environmental Protection, or
by any other government agency having direct or indirect jurisdiction over public water supplies that
SECTION 3
By amending Subsection (1) of Section E of Article V, Section 240-44.2 by adding the following
sentence to the end of such subsection:
-mounted, large-scale solar photovoltaic installation with 250 kw or larger of rated
nameplate capacity located in a residential zoning district shall also be required to obtain a special
permit f
SECTION 4
By further amending Section E of Article V, Section 240-44.2 by adding the following new Subsection
(3):
A Special Permit shall be granted by the Planning Board if the Planning Board determines the following
criteria have been met.
(a) Site Plan Approval in accordance with subsections (1) and (2).
(b) Adequate measures to contain and suppress noise and sound as deemed appropriate by the
Planning Board, including, but not limited to, minimum 75-foot setback from all residential
abutter property lines to the Ground-Mounted Solar Photovoltaic Installation.
(c) Vegetative and/or hardscape screening with coniferous planting and earth berms of sufficient
height, as determined by the Building Commissioner, to screen adjoining residential properties
from the Ground-Mounted Solar Photovoltaic Installation.
(d) Federal Aviation Administration (FAA) approval of Solar Glare Study, if such a study is deemed
necessary by the FAA.
(e) Cape Cod Commission approval as required.
(f) Full disclosure of all hazardous products proposed to be used at any time at a project site shall be
provided in writing to the Planning Board with the Special Permit application; no application for
a special permit shall be considered complete until such disclosure is submitted to the Planning
Board. No such hazardous materials shall be deployed or used at any time at a project site
without approval of the Special Permit by the Planning Board.
(g) Use, storage and containment of hazardous materials shall comply with all Federal, State,
Regional, and local codes and regulations, including building, fire, and health codes.
(h) Compliance with any other criteria found by the Planning Board as necessary to protect the
public health, safety or welfare, which may include, without limitation, the revocation of any
SECTION 5
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By amending Section I of Article V, Section 240-44.2 by deleting Section I in its entirety and inserting
the following new Section I in its place:
Dimensional requirements. Ground-mounted solar photovoltaic installations are subject to the front,
side and rear yard setbacks as set forth in the underlying zoning district(s), except that any ground-
mounted, large-scale solar photovoltaic installation with 250 kw or larger of rated nameplate
capacity located in a residential zoning district shall maintain a minimum 75-foot setback from all
abutting residential property lines to contain noise as sound, as required by Subsection (3) (
SECTION 6
By amending Section L of Article V, Section 240-44.2 by adding the following subsections after
subsection 2(c):
Study is deemed necessary by the FAA.
(4) The project proponent shall provide full disclosure of all hazardous products proposed to be used
at any time at a project site shall be provided in writing to the Building Commissioner with the
Site Plan Review application; no application for Site Plan Review shall be considered complete
until such disclosure is submitted to the Building Commissioner. No such hazardous materials
shall be deployed or used at any time at a project site without Site Plan approval.
(5) Use, storage and containment of hazardous materials shall comply with all Federal, State,
Regional, and local codes and regulations, including building, fire, and health codes.
(6) The project shall demonstrate compliance with any other criteria found by the Building
Commissioner as necessary to protect the public health, safety or welfare, which may include,
without limitation, the revocation of any prior permits and previous uses that benefit the project
SPONSOR: Mark S. Ells, Town Manager
DATE ACTION TAKEN
_________ _________________________________________
_________ _________________________________________
____ Read Item
____ Motion to Open Public Hearing
____ Rationale
____ Public Hearing
____ Close Public Hearing
____ Council Discussion
____ Vote
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BARNSTABLE TOWN COUNCIL
SUMMARY
ITEM# 2022-034
INTRO: 10/07/2021
TO: Town Council
FROM: Mark S. Ells, Town Manager
THROUGH: Elizabeth Jenkins, Director, Planning & Development Department;
Charles S. McLaughlin, Jr., Senior Town Attorney
DATE: October 7, 2021
SUBJECT: Amending the Code of the Town of Barnstable, Part I, General Ordinances, Chapter 240
Zoning by expanding the Ground-Mounted Solar Photovoltaic Overlay District to include
the property located at 810 Wakeby Road, Marstons Mills (arcels
004, 005, 052) and by requiring a special permit for large-scale Ground-Mounted Solar
Photovoltaic installations located within any residential district located within the overlay
district
BACKGROUND: Since 1975, Section 3 of Massachusetts General Laws, Chapter 40A, the state
Zoning Act, has allowed solar projects as of right in all zoning districts, subject only to regulations to
protect public health, safety, and welfare. It 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.
In 2010, pursuant to the state Green Communities Act, the Town created a Ground-Mounted Solar
Photovoltaic Overlay District (Section 240-44.2 of the Town Code), which governs where large-scale
solar projects may be constructed in the Town.
PROPOSED ZONING AMENDMENT: TJA Clean Energy is now seeking to construct a solar energy
project at 810 Wakeby Road in a residential district that is not within the Ground-Mounted Solar
s Overlay District is unduly restrictive and not
in compliance with M.G.L Chapter 40A and has filed a lawsuit seeking a permanent injunction ordering
the Town to issue a building permit to TJA for the project. A similar lawsuit involving the Town of
Waltham resulted in a decision by the Land Court that the Town of Waltham was not in compliance with
M.G.L Chapter 40A, and that case is now pending in the Appeals Court.
narrowly
tailored to apply only to the three parcels at 810 Wakeby Road. The proposed zoning amendment
creates a special permit process that would allow the TJA project to proceed after ensuring that public
health, safety and welfare issues are addressed. Under the proposed zoning amendment, the Planning
Board would be designated as the body to administer the special permit process in order to provide for
public notice and input on these issues. For TJA to receive a special permit, it would have to meet
specified criteria, including the revocation of all other existing permits for the property. The proposed
zoning amendment identifies a number of issues that TJA must address in public before the Planning
Board and standards that it must meet. If TJA is able to meet all of those standards, as determined by the
Planning Board, it would be entitled to receive a special permit.
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FISCAL IMPACT: The proposed zoning amendment, if adopted, would avoid protracted litigation and
expense.
TOWN MANAGER RECOMMENDATION:Mark S. Ells, Town Manager, supports this item.
STAFF SUPPORT: Planning & Development Department; Legal Department