SR-2023-005 TJA Clean Energy 810 Wakeby Rd MM SP
Town of Barnstable
Planning and Development Department
Elizabeth Jenkins, Director
Staff Report
Modification Permit No. 2023-005 – TJA Clean Energy
Section 240-8 A. (3) (b) Modification from Section 240-44.2 E. 3. Dimensional Requirements
Section 240-44.2 F. 2. Special Permit Provisions
Installation of a large-scale ground-mounted Solar Photovoltaic Installation pursuant to Section
240-44.2 E (3)
Date: February 23, 2023 **Revised March 1, 2023**
To: Zoning Board of Appeals
From: Anna Brigham, Principal Planner
Applicant: TJA Clean Energy, Leasee
Property Owner: Wakeby Road Realty, Inc.
Property Location: 810 Wakeby Road, Marstons Mills MA
Assessor's Map/Parcels: 13/004, 005, 052
Zoning: Residence F (RF) and Resource Protection Overlay (RPOD) Zoning
District
Filed: February 9, 2023 Hearing: March 8, 2023 Decision Due: May 20, 2023
Copy of Public Notice
TJA Clean Energy, as leasee, has applied for a Modification Permit pursuant to Section 240-8 A. 3
(b) Modification from Section 240-44.2 E. 3. Dimensional Requirements and Section 240-44.2 F. 2.
Special Permit Provisions. The Applicant proposes to construct a large-scale ground-mounted Solar
Photovoltaic Installation pursuant to Section 240-44.2 E (3) of the Zoning Ordinance. The proposed
setback for the solar array is 16 feet from undeveloped land on the westerly side of the property,
where 100 feet is required. The subject property is located at 810 Wakeby Road, Marstons Mills,
MA as shown on Assessor’s Map 013 as Parcels 004, 005, and 052. It is located in the Residence F
(RF) Zoning District.
Background
The property addressed as 810 Wakeby Road is a 16.66 parcel with frontage on Wakeby Road in
Marstons Mills, near the Town of Sandwich border. Currently there is a salvage business operating
on site but the site has a long history dating back to 1961.
In Appeal No. 1961-41, William G. Gifford & Kenneth J. Barthel requested and were denied the
ability to utilize the lot for the storage of used cars and used parts - a salvage yard. In the Boards
decision on this request, it was cited that “Part of the area had been used as a sand pit” and that
“there has been considerable dumping of brush and other debris on an adjoining parcel.”
Again Appeal No. 1964-18, L. Thatcher Gifford requested a use variance to permit the parcel to be
utilized for the “salvage of vehicles and storage of used parts”. That appeal was granted with four
conditions as follows:
1. That the use of the land in the new location be restricted entirely to that area behind the
screen of trees.
2. That only one building may be constructed for the use in connection with the salvage yard
and such building must be located behind the screen of trees.
3. No trees are to be removed.
Town of Barnstable Planning and Development Department Staff Report
Modification Permit No. 2023-005 TJA Clean Energy Inc
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4. That the present location at Santuit be completely cleared of all materials within a
reasonable time.
In the granting of this use variance, it should be noted that the decision cited that the location is in a
gravel pit and that the operations would be located “about 1,000 feet from the road and is located in
a hollow with a screen of trees surrounding the front part of the lot.”
It should also be noted that this relief was a use variance and not a special permit for a non -
conforming situation.
Then in 1969, in Appeal No. 1969-17, William Gifford & Maynard Gifford sought and were granted a
Special Permit for the extension of a non-conforming use by the removal of an existing building and
construction of a new 30’ by 30’ building to include the sale of used auto parts and second hand
vehicles. Within the amended decision, reference was made to the 1964 grant of a Use Variance.
(No. 1964-18). Again it was cited that the salvage yard operations “would be located in the middle
of the parcel surrounded by woods on three sides and the power line on the back.”
The restriction imposed in the amended decision read as follows; “...construction of a building to be
used for the storage and sale of used auto parts and second hand vehicles to William Gifford,
Maynard Gifford and Kenneth Borthel (tenant), to be restricted to that period of time during which
the petitioners or the Tenant retain ownership of the present 16 acres parcel.’
Staffs impressions of this relief is that it was, in reality, a modification of the Use Variance issued in
1964 and not an expansion of a non-conforming use because the use being granted appears to be
related only to the salvage yard use and not the gravel pit use - if that use was indeed still
occurring on site.
Then in 1973, a Special Permit (Appeal No. 1973-5) was requested and was granted with conditions
to permit a home occupation and service use (Section I-6(b)) on the site. That permit was to allow
William Gifford and his brother to operate a snow plowing business in the winter and a bulldozing
business in the summer and to construct a garage for the equipment. In the application for this
permit, under #7 states the present use of the premises was listed “Single Dwelling”.
No mention of the gravel operations was cited in this 1973 permit.
In 1997, Gifford Brother Sand & Gravel Inc. appealed the decision of the Building Commissioner in
accordance with MGL Chapter 40A, Section 8. They appealed the October 22, 1997, issuance of a
Cease and Desist order of the Building Commissioner. In that letter, the Building Commissioner
informed the applicant ”that the use of the property for a gravel pit, processing of fill, screening of
fill, brushes and clippings or any similar use is in violation of Barnstable Zoning Section 3-1.4 -
[Principal Permitted Uses in the RF Zoning District].” In appeal No. 1997-133, the Board upheld the
Building Commissioners Decision.
In 2021, James McDonough of 111 Mockingbird Lane, Marstons Mills, MA has filed an appeal of an
Administrative Official’s Decision. The appeal cites Zoning Ordinance §240-10 Prohibited Uses and
states: “the nature of activity presently is not legal use, request is to end all non “by right” activities
immediately by enforcing Barnstable Zoning bylaw against prohibited uses.” The Building
Commissioner issued a ‘Notice of Zoning Ordinance Request for Enforcement Denial’ to Mr.
McDonough on January 29, 2021. The Building Commissioners decision was upheld.
The history of the property is given for historical purposes. The application before the Board is an
allowed use under the recent rezoning.
Proposal & Relief Requested
Town of Barnstable Planning and Development Department Staff Report
Modification Permit No. 2023-005 TJA Clean Energy Inc
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TJA Clean Energy, as leasee, has applied for a Modification Permit pursuant to Section 240-8 A. 3
(b) Modification from Section 240-44.2 E. 3. Dimensional Requirements and Section 240-44.2 F. 2.
Special Permit Provisions. The Applicant proposes to construct a large-scale ground-mounted Solar
Photovoltaic Installation pursuant to Section 240-44.2 E (3) of the Zoning Ordinance. The proposed
setback for the solar array is 16 feet from undeveloped land on the westerly side of the property,
where 100 feet is required. The subject property is located at 810 Wakeby Road, Marstons Mills,
MA.
Proposed Modification Permit Findings
For all Modification Permits, the Board is required to make general findings pursuant to § 240-
125(C). The Board should review the evidence presented by the Applicant, staff, and members of
the public and, after weighing such evidence, is encouraged to articulate if and how the evidence
contributes to each of the required findings.
1. The application falls within a category specifically excepted in the ordinance for a
grant of a modification permit. Section 240-8 A. (3) allows for alterations for Exempt
Uses.
2. Site Plan Review Committee found the project approvable subject to zoning relief in a
letter dated February 10, 2023.
3. That the proposed use shall cover over 10 acres of land for large ground mounted
solar as well as associated improvements, and together with the required bulk
regulations, this project utilizes nearly 100 percent of the Site.
4. After an evaluation of all the evidence presented, the proposal fulfills the spirit and
intent of the Zoning Ordinance and would not represent a substantial detriment to the
public good or the neighborhood affected.
Suggested Conditions
Should the Board find to grant the Modification Permit No. 2023-005, it may wish to consider the
following conditions:
1. Modification Permit No. 2023-005, a request for a Modification Permit pursuant to Section
240-8 A. 3 (b) Modification from Section 240-44.2 E. 3. Dimensional Requirements and
Section 240-44.2 F. 2. Special Permit Provisions. The Applicant proposes to construct a
large-scale ground-mounted Solar Photovoltaic Installation pursuant to Section 240-44.2 E
(3) of the Zoning Ordinance. The proposed setback for the solar array is 16 feet from
undeveloped land on the westerly side of the property, where 100 feet is required at 810
Wakeby Road, Marstons Mills.
2. The site development shall be constructed in substantial conformance with the plan entitled
“Site Development Plans for 810 Wakeby Solar Project” by Atlantic Design Engineers, Inc.
sheets 1-6 dated February 1, 2023.
3. The above-described development shall represent full build-out of the lots. No further
additions or accessory structures shall be permitted without approval from the Board.
4. Given the size and coverage of the proposed use on the site, all other uses currently
enjoyed on the site shall be abandoned.
5. The decision shall be recorded at the Barnstable County Registry of Deeds and copies of
the recorded decision shall be submitted to the Zoning Board of Appeals Office and the
Building Division prior to issuance building permit. The rights authorized by this Modification
Permit must be exercised within two years, unless extended.
Town of Barnstable Planning and Development Department Staff Report
Modification Permit No. 2023-005 TJA Clean Energy Inc
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Copies: Applicant (Attorney Michael Ford)
Attachments: Application
Site Plan