ADAMS, Mass. — The Zoning Board of Appeals on Tuesday night continued the appeal of a solar energy company to build on East Road when it couldn't determine if its vote would stand. 

 

The five-member board voted 3-2 to uphold the building inspector's denial of a permit for 217 East Road Solar Project Co. LLC to install some 6,500 photovoltaic panels in a residential area. The problem was the board wasn't sure what that vote meant — if it needed a simple majority or supermajority, as is needed for a variance. 

 

"I'm trying to understand what constitutes a passed motion or not," said ZBA member Peter Gutmann as opponents of the project angrily demanded answers. "The zoning board has voted ... since we can't find the case [in the rule book] we're dependent on town counsel to tell us."

 

That wasn't good enough for several in the audience, who called for Town Counsel Edmund St. John III to give an immediate ruling. "He's paid 50 grand a year to get this stuff right," said Edward Driscoll, a former selectman.

 

Abuttors and opponents of the proposed 1.5-megawatt solar farm packed into the Selectmen's meeting room and spilled into the hallway, similar to the turnout at previous Planning Board hearings on the matter. The Planning Board on Sept. 23 denied the site plan application, leading to Tuesday's appeal before the ZBA.

 

But some on the ZBA were leery of determining the legality of the Planning Board's decision. "This is a whole different thing," said Chairman Michael Mach, who's been 25 years on the ZBA and never seen this kind of appeal.

 

Gutmann thought it should have gone to the courts. "Zoning does not get involved with site plan review; that's a Planning Board issue," he said. "I'm uneasy with having this decision thrown to us."

 

The solar company's attorney Adam Filson, speaking after the meeting, said this was the proper route for filing the appeal. There had been some question of the next step after the Planning Board's rejection. 

 

Filson and Apis Energy Group President Seth Ginsberg, the developer, went over the 15 conditions imposed by the Community Development Office dealing with stormwater management, fencing, security, screening, green space and maintenance, and the five criteria for site plan review. They asked the ZBA to overturn the Planning Board's rejection and the building inspector's denial of a permit, which was based on the board's decision.

 

Filson's argument has been that solar is a by-right use according to the state's Chapter 40A, section 3, and that the Planning Board could only put reasonable conditions on during the site plan review. The town's own bylaws lay out the criteria for review, which the project has met, he said. "You cannot use conditions to prohibit, but to shape."

 

Planner Barbara Ziemba, speaking to the ZBA, insisted that 40A was passed to allow homeowners to install roof panels, not to allow thousands of panels in a residential area. She also said planners had rejected the proposal because of potential health concerns, water drainage and the impact on housing values. 

 

"I have nothing against solar I just don't think solar belongs in a residential zone," she said. "Let's say you reverse our decison. What's the ramifications of that? Anyone in town with a couple acres could put up solar panels."

 

She referred to the Holliston Planning Board, which denied a permit based on similar reasoning earlier this year.  

 

(A quick search also finds Westborough agreeing with by-right use, Northborough mulling a moratorium but wondering if it would be legal and Greenfield setting zoning limits for residential areas.)

 

Attorney Andrew Hochberg of Pittsfield, representing several abuttors, said the argument that the array is an essential facility and public utility allowed in all zones was like putting a "pig in a parlor ... it doesn't belong."

 

It's the transmission and distribution lines that are allowed, he said. "That's the essential facility for a public utility. It's not the generation field."

 

Ginsberg said a number of solar arrays had been developed in residential areas, including in Massachusetts, and that the state had found no health issues related to solar farms.

 

In the end, the board determined after nearly 90 minutes of testimony and discussion to vote only on the building inspector's denial of a permit, not the Planning Board's finding. 

 

ZBA member Peter Gutmann tried to explain that the board was in unfamiliar territory.

In voting, board member Joseph Greenbush said the document recording Planning Board's decision only stated it shouldn't be in a residential zone and did not appear to be supported by the bylaws: "That bothers me, it seems arbitrary to me." He did not think the array was industrial but thought there wasn't enough details provided by either side. 

 

Gutmann, who took the place of regular member Brian Tenczar, who had to recuse himself as an abuttor to the property, thought the applicants should have immediately appealed the decision back to the planners and then taken it court. 

 

"It's bigger than me, it's larger than this board, and it's bigger than the town of Adams," he said. "It's so big, let the courts decide."

 

ZBA member Peter West pointed out the applicants were directed to appeal to the ZBA at its last meeting. He didn't find arguments about health issues convincing, noting a solar array was put in right next to the new high school, and, as a real estate agent, didn't see any proof that the array would affect home values since a home next to the proposed array had recently sold for above assessed value. The town's police and Department of Public Works had also signed off, he said.

 

"This is not something that has merit. It is based on opinion not fact," he said. "We're not here to interpret what they meant 25 years ago [in passing 40A]."

 

"As far as what they meant [with 40A], I don't believe they meant let's fill up a residential aera," said longtime board member Anthony Donovan. "I don't know what to do but it's not good. ... I don't ever remember ever voting against some other panel in town, especially the Planning Board."

 

Mach said he was appalled that the documentation didn't get to the board until 5 p.m. on Friday, and that some paperwork still hadn't been distributed. "We should have gotten all the information."

 

Greenbush and West voted no in upholding the permit denial; Mach, Gutmann and Donovan voted yes. 

 

The meeting was then continued until Tuesday, Nov. 19, with the request town counsel provide an opinion.