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Permitting Coordinator Nate Joyner presents the ordinance to the Community Development Board for endorsement on Tuesday.

Pittsfield Revamping Solar Regulations to Limit Residential Impacts

By Andy McKeeveriBerkshires Staff
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PITTSFIELD, Mass. — Following hotly contested proposals for solar arrays in residential areas, the city is revamping its solar regulations.
The new regulations were endorsed by the Community Development Board and are being presented to the City Council by the Zoning Board of Appeals. Permitting Coordinator Nate Joyner took the lead on the development of the updated zoning laws and said it is particularly aimed at addressing concerns raised during the debate of recent proposals.
"I think we tried to address the concerns of the boards and the residents," Joyner said.
The ordinance breaks solar proposals into three sizes: small, medium, and large. The medium and large-scale arrays cannot be installed in residential zones. It also sets criteria for commonly cited issues such as decommissioning and maintenance and setback requirements. 
"The structures themselves would have to be 200 feet from any residential use," Joyner said.
The ordinance calls for construction of a system to be completed within 24 months, that the site is maintained to a level acceptable to the fire chief, and that all modifications to the system go through the Zoning Board of Appeals first. 
Small-scale solar projects must be 25 feet from a property line, at least 200 feet from any abutting residential district or residential, and that as much vegetation as possible is preserved to shield the system from public view. 
For the medium and large-scale systems, the setback from a property line is 50 feet and 200 feet from a residential use or zoning district. The utility lines should be underground whenever possible, cannot increase stormwater runoff, and must be screened from public view. 
The measure also asks that project owners minimize visual impact to scenic areas, health or safety concerns of residents, natural habitats, land with prime agricultural soils, glare from solar panels onto abutting properties, and potential vehicular traffic conflicts.
The medium and large-scale systems must also come with a decommissioning and removal plan. The Zoning Board of Appeals can require a bond to be made to cover the cost of the eventual removal of the array. 
Joyner said the ordinance is written for properties where the principal use is for a solar and that it does not govern accessory uses. For accessory uses, there is a 25-foot setback from property lines, installation only in side or rear yards and screened from view, they shall not increase stormwater runoff and utilities should be underground whenever possible.
Michele Rivers Murphy recently led the charge in opposition of a solar array planned for the Pontoosuc Country Club property. That borders a number of neighbors who teamed up to fight the proposal. Ultimately, the proponent was unable to get a permit from the Conservation Commission for an access road and walked away from the project.
Murphy addressed the Community Development Board in favor of the updated ordinances so that others in the community won't have to fight a similar battle.
"We have to be very cautious moving forward when we are talking about putting ground-mounted solar fields in residential areas," Murphy said.
Murphy said she appreciates the effort but thinks more can be done to deter the "unintended consequences" of solar arrays in residential areas.
Resident Lewis Schiller disagrees. Schiller believes the new rules are too restrictive.
"I think the proposed amendment is designed to restrict, if not totally prohibit, the installation of any ground-based photovoltaic systems in the city," Schiller said. "It just seems to be a NIMBY approach."
He disagreed with the subjective nature of some of the requirements, felt the setbacks would eliminate the potential for homeowners who don't live on traditional rectangular lots, could ultimately lead to the cutting of more trees to comply with those requirements, and that other types of infrastructure is not as heavily restricted.
Joyner replied to many of Schiller's concerns saying performance standards are set for other types of infrastructures, that setbacks are defined, and an appeals process is outlined elsewhere in the city's ordinances.
The Community Development Board had little issue with the proposal and unanimously endorsed it.

Tags: ordinances,   solar array,   zoning,   

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Letter: Problematic Proposed Lenox Short-Term Rental Bylaw

Letter to the Editor

To the Editor:

Under the proposed short-term rental Lenox bylaw, "up to two bedrooms in a dwelling unit may be rented year-round by right provided that the owner or tenant is occupying the dwelling unit at the time of the rental."

Presumably, bedrooms may not be rented at all if the owner or tenant is not occupying the dwelling unit.

In other words, literally, the very same use is allowed by one type of owner (an owner occupying the dwelling unit), but not another type of owner (one who does not occupy the dwelling unit where bedrooms are being rented). Because there is identical use and intensity and the only thing that differs is the type of owner or renter; it is hard to view this as mere regulation of use and not ownership.

The other provision suffers from the same problem. Suppose there is a duplex or land with two houses on it (perhaps an old robber-baron estate) but with separate owners for each dwelling unit. Under the rule regarding "dwelling units being rented in their entirety," "an entire dwelling unit maybe rented up to 75 days per calendar year by right," and "an entire dwelling unit may be rented for an additional 35 days (up to 110 days) per calendar year by Special Permit."

But then suppose there is unity of ownership and one person owns the entire duplex or both houses. In that case, "the above totals apply to the entire parcel" and "the day limits defined above shall be apportioned among those dwelling units."

A town can regulate the number of days a short-term rental may be utilized under the newly passed statute: but this additional restriction based on who owns the premises is a regulation of ownership and not use.

The same is instinct through other parts as well. Of course, Lenox residents or their guest can park in the street. But if you are renting a short-term rental, "All overnight parking must be within the property's driveway or garage." If you own or rent property, so long as you get the right permits, you may entertain on your property. But if you are a short-term renter, "events that include tents or amplified music or which would customarily require a license or permit are not allowed."

Since 1905, when Home Rules was put into the [Massachusetts] Constitution, towns could pass their own bylaws, so long as there was no regulation of a civil relationship unless it was an incident to a legitimate municipal power. This meant, among other things, zoning laws had to regulate use and not ownership. It is now a fundamental principle of Massachusetts zoning that it deals basically with the use, without regard to the ownership of the property involved, or who may be the operator of the use. This bylaw appears to violate this fundamental tenet.

By way of example of the you-may-regulate-use-but-not-ownership rule, it has been held that a city did not have authority under the Massachusetts Constitution to pass an ordinance that affected the civil relationship between tenants and their landlord, who wished to convert their rental units to condominiums. In another case, a municipal ordinance which restricted a landlord's ability to terminate a lease and remove his property from the rental market in order to sell it was invalid.

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