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SR - SP 810 Wakeby Rd-Updated 5222023Town of Barnstable Planning & Development Department Staff Report Special Permit Application No. 2023-02 TJA Clean Energy 810 Wakeby Road, Marstons Mills, MA Date: April 21, 2023, May 17, 2023, & May 22, 2023 Update To: Stephen Robichaud, Chair, Planning Board From: Planning & Development Department Staff Applicant: TJA Clean Energy Property Address: 810 Wakeby Road, Marstons Mills, MA Assessor’s Map/Parcel: Map 013, Parcel 004, 005 and 052 Zoning District: Residence F (RF), Resource Protection Overlay District, Groundwater Protection Overlay District (GP), Ground Mounted Solar Photovoltaic Overlay District Background The Applicant, TJA Clean Energy, and Owner, Wakeby Road Realty, Inc, seek to construct a large ground mounted solar photovoltaic installation located in the Ground Mounted Solar Photovoltaic Overlay District and an underlying residential district at 810 Wakeby Road, Marstons Mills. The subject property is 19.32 acres, has 94.77 feet of frontage on Wakeby Road and borders the Town of Sandwich to the northwest. Non-residential use of the property began in the 1960’s upon grant of a variance by the Zoning Board of Appeals for use of the property for “salvage of vehicles and storage of used parts.” Subsequently, use of the property expanded to include other non-residential uses, including sand and gravel extraction. Extensive litigation ensued between the Town and former owners with respect to permitted land uses on the property. On October 28, 2002, in Gifford v Zoning Board of Appeals, the Appeals Court found that the use of the property as a gravel pit was not a lawful preexisting nonconforming use under the Town’s zoning bylaw. 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. Beginning in January 2022, the Town initiated a proposal to expand the Ground Mounted Photovoltaic Solar Overlay District to include the subject properties and to amend the overlay district regulations to expand public health safety and welfare provisions, requiring projects in residential districts to receive a Special Permit from the Planning Board. The Planning Board spent several months amending the standards and protections in this district and the Town Council adopted the ordinance with amendments on September 1, 2022. Applicant’s Relief Requested In accordance with the Town of Barnstable Zoning Ordinance §240-44.2 Ground-Mounted Solar Photovoltaic Overlay District, the proposed use at the proposed location requires a Special Permit from the Planning Board. The proposed ground-mounted solar photovoltaic system is proposed to produce ±4.99 MW AC, which will provide electricity to the grid. The project is proposed to encompass ±10.66-acres within a chain-link perimeter security fence. The proposed project equipment includes solar modules, security fencing, stormwater measures, vegetated screening, a gravel access road, transformers, electrical inverters, fixed- Planning & Development Staff Report Special Permit No. 2023-02 – 810 Wakeby Road 2 tilt racking systems, and above and below ground electric infrastructure tied to the existing utility line as well as other associated improvements located adjacent to the site on Wakeby Road. Other Approvals The Applicant filed an application for Site Plan Review and the proposal was considered and found to be approvable with conditions at the March 2, 2023 Formal Site Plan Review meeting. Due to the request for zoning relief, the Building Commissioner conditioned the approval on the receipt of relevant relief from the Planning Board and Zoning Board of Appeals. The Applicant filed an application for a Modification Permit pursuant to §240-8A.3(b), seeking relief from certain provisions of the Solar Photovoltaic Overlay District: §240-44.2(E)(3) Dimensional Requirements and §240-44.2(F)(2) Special Permit Provisions. A Modification Permit allows a qualified applicant to seek relief from certain bulk regulations and/or parking requirements for uses which zoning may not regulate (“exempt uses”) as defined by Mass General Law 40A §3. As noted above, exempt uses include solar energy systems, which are subject only to regulation where necessary to protect the public health, safety, or welfare. The permit granting authority for a Modification Permit is the Zoning Board of Appeals. The property line setbacks for the proposed solar array include a minimum of 16 feet from undeveloped land on the westerly side of the property, where 100 feet is required; and a minimum of 150 feet from the easterly side of the property, where 150 feet is required from residentially developed lots. A portion of the setback on the easterly side will be improved with a 20 foot wide gravel access road. The Zoning Board of Appeals opened a public hearing on March 8, 2023 and continued it to April 12, 2023, at which time the Board found to grant TJA Clean Energy a Modification Permit in a 3-2 vote subject to conditions. Correspondence Email correspondence has been requested for the Department of Public Works, Board of Health, the Centerville-Osterville-Marstons Mills Fire District and the Centerville-Osterville-Marstons Mills Water District. All responses will be provided to the Board in their meeting packet and posted online.  Board of Health, through Site Plan Review provided comments requesting additional information regarding Hazard Materials, dated March 6, 2023.  Department of Public Works has reviewed the proposal and offered comments. Final review of stormwater is ongoing and shall be submitted to the Board when finalized.  COMM Fire has reviewed the proposals and offered comments dated May 12, 2023.  COMM Water has reviewed the proposal and stated through email that they have no comments, dated April 25, 2023.  Town Attorney’s office shall issue a memorandum regarding Modification Permits. The memorandum will be provided to the Board when finalized. Planning & Development Staff Report Special Permit No. 2023-02 – 810 Wakeby Road 3 Staff Comments The Applicant has applied for a Special Permit to allow for a large ground mounted solar photovoltaic installation at 810 Wakeby Road, Marstons Mills. 810 Wakeby Road is a residential zoning district. The Ground-Mounted Solar Photovoltaic Overlay District that was recently amended requires a Special Permit in residential zoning districts. The zoning map amendment recently added 810 Wakeby Road as a location that an applicant may apply for large ground mounted solar photovoltaic installations. The Board shall review the proposal in conformance with §240-44.2(F) Ground-Mounted Solar Photovoltaic Overlay District (attached) as well as standard Special Permit provisions as outlined in §240-125(C):  Whether or not the application falls within the category specifically excepted by this chapter.  An evaluation of all the evidence presented at the public hearing by the petitioner and interested parties as it relates to the fulfillment of the spirit and intent of this chapter without substantial detriment to the public good or the neighborhood affected.  A site plan has been reviewed and found approvable in accordance with Article IX herein subject only to the issuance of a Special Permit. Upon review, if the Board needs additional information for consideration the Board may make a motion to continue SP 2023-002 810 Wakeby Road, Marstons Mills, MA to a date certain at 7:00 PM in the Town Hall James H. Crocker Jr. Hearing Room. If the Board has exhausted their review the Board may close the public hearing. Once closed, the Board may deliberate and make a motion. Motion: To (approve, approve with conditions, or disapprove) Special Permit 2023-002 810 Wakeby Road, Marstons Mills, MA. Prior to second please read all applicable findings. If with conditions, please reference the conditions prior to the second. Draft Findings for Consideration 1. The property location is 810 Wakeby Road, Marstons Mills. 810 Wakeby Road, Marstons Mills is shown on Assessor’s Map 013, Parcel 004, 005 and 052 in the Residence F (RF), Resource Protection Overlay District, Groundwater Protection Overlay District (GP), Ground Mounted Solar Photovoltaic Overlay District. 2. The Applicant, TJA Clean Energy, and Owner, Wakeby Road Realty, Inc, seek to construct a large ground mounted solar photovoltaic installation located in an underlying residential district at 810 Wakeby Road, Marstons Mills. In accordance with the Town of Barnstable Zoning Ordinance §240- 44.2 Ground-Mounted Solar Photovoltaic Overlay District, the proposed use at this location requires a Special Permit from the Planning Board. 3. That the Applicant has requested a Change of Use determination from the Cape Cod Commission, and it has been determined by the Cape Cod Commission that a solar photovoltaic installation is not a change of use and therefore does not require a Development of Regional Impact review. Planning & Development Staff Report Special Permit No. 2023-02 – 810 Wakeby Road 4 4. That the Zoning Board of Appeals granted the Applicant a Modification Permit pursuant to §240- 8A.3(b) allowing relief from the setback requirements of the Ground Mounted Solar Photovoltaic Overlay District as demonstrated on the plan last revised on revised April 21, 2023. 5. That the Applicant has requested the review of the proposed project by the Federal Aviation Administration and it has been determined that the project as proposed is not a hazard to air navigation. 6. The Applicant has not proposed Batteries or Battery Energy Storage Systems for this Site which is in compliance with the Town of Barnstable Zoning Ordinance §240-44.2 Ground-Mounted Solar Photovoltaic Overlay District which states that, “Batteries and Battery Energy Storage Systems are prohibited”. 7. That a Full disclosure of all hazardous products, as defined by the Massachusetts Department of Environmental Protection pursuant to 310 CMR 30.000, proposed to be used at any time at a project site (has or has not) been provided in writing to the Board. The use of hazardous products shall be further conditioned below. 8. That the project proponent has submitted a plan for the operation and maintenance of the ground- mounted solar photovoltaic installation in accordance with §240-44.2(F)8, which includes specific measures for maintaining safe access to the installation, a stormwater management plan, and general procedures for and frequency of operational maintenance of the installation. Said operation and maintenance plan has been reviewed by applicable departments and the Board has determined that the submission (meets or does not meet) §240-44.2(F)8. 9. That the stormwater management proposed has been reviewed by the Town Engineer and shall reduce preexisting runoff from the Site. 10. After an evaluation of all the evidence presented, the proposal (fulfills or does not fullfill) the spirit and intent of the zoning ordinance and (would or would not) represent a substantial detriment to the public good or the neighborhood affected. 11. A Site Plan has been reviewed and approved by the Site Plan Review Committee. The conditions of Informal and Formal Site Plan Review shall be incorporated by reference as conditions of this Special Permit. 12. The proposed use as proposed (is or is not) substantially more detrimental to the surround neighborhood. Planning & Development Staff Report Special Permit No. 2023-02 – 810 Wakeby Road 5 Draft Conditions for Consideration Should the Board find to grant the Special Permit for the requested relief, it may wish to consider the following conditions: 1. This Special Permit shall apply to 810 Wakeby Road, Marstons Mills, Applicant, TJA Clean Energy, and Owner, Wakeby Road Realty Inc, and all successors and assign, Map 13, Parcel 4, 5 and 52. 2. The subject property shall be improved 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 and revised April 21, 2023. 3. Informal and Formal Site Plan Review conditions of approval dated March 6, 2023 are hereby incorporated into this Decision. 4. The proposed redevelopment shall represent full build-out of the lot. Further expansion of the structure is prohibited without prior approval from the Board. Given the size and coverage of the proposed use on the site, all other uses currently enjoyed on the site shall be abandoned. Abandoned uses, such as but not limited to abandon vehicles, auto parts, etc. shall be removed from the Site and that the area of the Site disturbed by the removal of abandoned uses shall be restored to the approved plan condition. 5. No Batteries or Battery Energy Storage Systems shall be installed on the Site. Batteries and Battery Energy Storage Systems are prohibited. 6. No uses shall use, store, generate, treat or dispose of hazardous waste or hazardous materials and shall not generate hazardous waste as defined in the Massachusetts Hazardous Waste Regulations, 310 CMR Section 30.353, except in compliance with all applicable laws. Any hazardous waste or hazardous material on site shall be identified and a comprehensive list shall be provided to the Board of Health and Planning Board prior to a Building Permit for the Site. Any subsequent materials used on the proposed site shall identify any hazardous waste or hazardous material and a comprehensive list shall be provided to the Board of Health and Planning Board prior to installation. 7. The Applicant shall require all manufacturers to attest and certify, or the Applicant shall certify, that all solar panels, solar sheets, batteries and all other materials used on the proposed site shall not contain Per- and Polyfluoroalkyl Substances (PFAS). Such attest and certification shall be submitted to the Building Commissioner and Director of Planning and Development at time of Building Permit. 8. All exterior lighting for the Development shall be dark sky compliant and contained on-site. 9. Commencement of construction shall begin within two years following the date of approval of this decision. “Date of approval” is hereby defined as the date this Decision is certified by the Town Clerk if no appeal is filed, or the date the last appeal is decided or otherwise terminated favorably to the Applicant in the event of an appeal. As used herein, “commencement of construction” is hereby defined as any clearing or preparation of the Site for development of the project approved herein. Planning & Development Staff Report Special Permit No. 2023-02 – 810 Wakeby Road 6 10. The hours of operation for any construction or staging activities on-site shall be Monday through Friday, from 7:00 am to 6:00 pm. Construction activity shall also be permitted on Saturdays from 9:00 am to 6:00 pm. These activities shall include all equipment on site and shall not start up or remain on before or after the hours listed above. No construction activity shall take place outside the specified permitted hours or on Sunday or New Years’ Day, Memorial Day, July Fourth, Labor Day, Thanksgiving, Christmas, or other legal holiday. No idling for longer than 5 minutes, if vehicles and equipment are not in operation. 11. The Board relies on the Barnstable Town Engineer to review and confirm compliance with the Stormwater Regulations. The Barnstable Department of Public Works, through the Town Engineer, has reviewed the stormwater analysis report and confirmed compliance with §240-44.2(F) Special Permit Provisions. However, the Applicant has amended the maintenance roadway and as such, a licensed engineer is required to update the stormwater calculations to reflect the stormwater calculations per §240-44.2(E)(4)(i). Such review shall be completed prior to the commencement of construction and all recommendations by the Department of Public Works shall be implemented in the Approved Plan. 12. The Applicant shall have a source of water on site through either an existing well, water truck, or other method at all times during construction to limit dust concerns to abutting properties. 13. Prior to commencement of construction the project limit of disturbance shall be marked by a highly visible barrier (i.e. snow fence, silt fence, etc.), and reviewed and approved by the Director of Planning and Development or her designee for conformance with the Approved Plan. 14. A representative for the Planning Board ( i.e., DPW inspector and/or engineer) shall be charged with general oversight over the construction activities of the project to confirm compliance with the plan and conditions here in. In this capacity, the representative shall, during periods of active construction, conduct periodic inspections as reasonably necessary to ascertain the status and nature of work at the site and provide reports to the Department of Public Works and Planning Board. In addition, the Applicant shall also provide the representative with any pertinent photographs, logs, data or other information that may be helpful in the monitoring process. 15. During times of construction and post-construction where stormwater generated from the project area may inadvertently enter the public way, the owner shall be responsible for direct costs incurred by the town, including but not limited to stormwater related clean up, sanding, salting, street sweeping or other necessary management when required for the protection of public health and safety. 16. All transformers proposed for the site and any other equipment proposed that may contain hazardous materials shall comply with §240-44.2(F)7 and provide containment to a minimum of 110% of the material volume contained in the equipment. A specification for the containment structure provided by the Town shall be reviewed and approved by the Town Engineer prior to a building permit being issued for the site. 17. A Landscape Plan shall be submitted to the Director of Planning and Development prior to a building permit being issued for the site. The Landscape Plan shall comply with the screening provisions established within §240-44.2. Plantings shall provide a dense vegetative screening with Planning & Development Staff Report Special Permit No. 2023-02 – 810 Wakeby Road 7 diverse plantings native to Cape Cod or New England. Plantings shall be staggered and of varying heights to achieve year-round screening exceeding the height of the solar panels. Evergreen trees shall be at least six (6) feet when planted; canopy trees shall be at least fourteen (14) feet in height or three (3) inches in caliper when planted and understory trees shall be at least ten (10) feet in height or one and half (1.5) inches in caliper when planted. Shrubs shall be at least at least three and a half (3.5) feet in height when planted. 18. Screening, as presented in the landscape plan per condition 17, shall be maintained and replaced if unhealthy by the owner/operator of the installation for the life of the installation in order to effectively screen the installation from view. End of life of installation shall be defined as the proposed date of discontinued operations and plans for removal of the large-scale, ground- mounted solar photovoltaic installation. 19. All landscaping within the development shall be low water use and shall minimize the use of fertilizers and pesticides. 20. All landscaping shall be completed per the approved plan. A security shall be established to confirm the health of the landscaping. The Building Commissioner shall not issue a Certificate of Occupancy until the landscaping has been completed in accordance with the approved plans unless the property owner posts security to the Town of Barnstable for one hundred and fifty percent (150%) of the estimated cost of installation of the landscaping for the duration of three (3) years after planting has been installed and must be provided prior to issuance of any Certificate of Occupancy in a form acceptable to the Town Attorney’s Office. The cost estimate shall be prepared by a qualified professional and submitted to the Director of Planning & Development for approval. Upon completion of planting, the applicant must request an inspection from the Director of Planning & Development. The three year maintenance period commences upon approved inspection of the completed landscape plan. Partial release of the security may be authorized after approved inspection, not to exceed 50 percent (50%). The full security shall be returned to the applicant or their successors after three years upon final inspection by the Director of Planning & Development. The Town reserves the right upon noncompliance with this section to pursue all available legal and equitable remedies to compel compliance. 21. The entrance gate shall be locked at all times. The gate shall have a “Knox Box”. The lock shall be purchased from C-O-MM Fire and installed prior to Certificate of Occupancy. Access to the “Knox Box” shall be provided to emergency services. In addition, the maintenance road is also the emergency response access way. This road shall be continually maintained. In the event of a snow storm, the maintenance road shall be cleared within 24 hours. 22. The Operation and Maintenance Plan shall be continually updated to include a Site Operator contact who has the ability to be onsite at the request of emergency services. Such contact shall be provided to COMM Fire and maintained to include successors. The contact shall respond immediately to emergency services request and have the ability to be on Site within 60 minutes of notice. 23. Abandonment and Decommissioning of Large-Scale Ground Mounted Photovoltaic Installations. a. Removal requirements. Any large-scale, ground-mounted solar photovoltaic installation which has reached the end of its useful life or has been abandoned consistent with this Planning & Development Staff Report Special Permit No. 2023-02 – 810 Wakeby Road 8 section shall be removed. The owner or operator shall physically remove the installation no more than 150 days after the date of discontinued operations. The owner or operator shall notify the Building Commissioner by certified mail of the proposed date of discontinued operations and plans for removal. Decommissioning shall consist of: i. Physical removal of all large-scale, ground-mounted solar photovoltaic installations, structures, equipment, security barriers and transmission lines from the site. ii. Disposal of all solid and hazardous waste in accordance with local, state, and federal waste disposal regulations. iii. Stabilization or revegetation of the site as necessary to minimize erosion. The Building Commissioner may allow the owner or operator to leave landscaping or designated below-grade foundations in order to minimize erosion and disruption to vegetation. b. Abandonment. Absent notice of a proposed date of decommissioning or written notice of extenuating circumstances, the solar photovoltaic installation shall be considered abandoned when it fails to operate at less than 25% of its nameplate capacity for more than one year without the written consent of the Planning Board. If the owner or operator of the large-scale, ground-mounted solar photovoltaic installation fails to remove the installation in accordance with the requirements of this section within 150 days of abandonment or the proposed date of decommissioning, the Town may enter the property and physically remove the installation. c. Financial surety shall be provided prior to the operation of the large ground mounted solar photovoltaic installation at the Site. Proponents of large-scale, ground-mounted solar photovoltaic projects shall provide a form of surety, either through escrow account, bond or otherwise, to cover the cost of removal and disposal in the event the Town must remove the installation and remediate the landscape, in an amount and in a form acceptable to the Town Attorney but in no event to exceed more than 125% of the cost of removal and compliance with the additional requirements set forth herein, as determined by the project proponent. Such surety will not be required for municipally or state-owned facilities. The project proponent shall submit a fully inclusive estimate of the costs associated with removal, prepared by a qualified engineer. The amount shall include a mechanism for pro rating removal costs as they may be affected by inflation or changes to disposal regulations. And shall not include the value of scrap materials that may be realized by a private enterprise. 24. This Decision shall be recorded at the Barnstable County Registry of Deeds and copies submitted to the Planning Board and Building Division prior to the issuance of any building permit and commencement of use. 25. The rights of this Special Permit must be exercised within 2-years from the date it is filed with the Town Clerk’s Office. The development rights granted may be extended however, by written request of the Developer prior to the expiration of said two-year period, the Developer may request an extension to obtain development permits necessary to commence construction, and said extension shall not exceed two years. An extension shall be authorized by the Planning Board at a regularly scheduled meeting of the Board. Planning & Development Staff Report Special Permit No. 2023-02 – 810 Wakeby Road 9 Upon receipt of necessary development permits, construction shall proceed continuously and expeditiously, but in no case shall construction exceed two years from receipt of necessary development permits. The Developer may request an extension of the construction timeframe; said extension shall not exceed two years. An extension shall be authorized by the Planning Board at a regularly scheduled meeting of the Board. In the event that this Decision and/or any necessary development permits for the Project are appealed, the timeframes set forth in this section shall be tolled for the length of any such appeals. 26. Upon completion of all work, a registered engineer or land surveyor shall submit a letter of certification, made upon knowledge and belief in accordance with professional standards that all work has been done in substantial compliance with the approved site plan. This document shall be submitted before the issuance of the final certificate of occupancy. 27. This Decision shall run with the land, and all of the terms, conditions, and obligations contained here in shall be binding on any successor or assignor of the Applicant in perpetuity.