A group of local investors asked the Zoning Board of Appeals last Wednesday to overturn the town building commissioner’s denial of their proposal to build a “solar garden” on property on Woodchuck Hill Road. After well over two hours of discussion, the Zoning Board took no vote on the matter, with two of its three voting members saying they could use more time to think about the request. The board planned to take up the issue again at a meeting on June 13.
The Harvard Community Solar Garden Project applied for a building permit in late February to erect a 249.9 kilowatt solar photovoltaic system consisting of several ground-mounted panels on 1.3 acres of property at 50 Woodchuck Hill Road. The group, which, according to organizer Worth Robbins [also an owner of the Harvard Press], consists of 36 individual investors and three local businesses, is leasing the land from Adam and Lyn Horowitz in exchange for a share in the energy generated there.
Robbins told the Zoning Board at the May 23 hearing that the solar garden project split off last year from the Solarize Harvard project, in which Harvard served as one of four pilot communities for a state program that allows participants to purchase and install solar energy panels on their homes at discounted group rates.
“As we went along, what we discovered was there were a substantial number of people that wanted to participate, but couldn’t because their site didn’t support solar,” Robbins said. Reasons for this include lack of adequate sunlight or roofs poorly suited to supporting the photovoltaic panels.
The concept of the solar garden is for investors to receive the same benefits as those who can install the photovoltaic units on their homes. While the solar garden panels would be in a centralized location, investors would receive credit on their utility bill for their share in the solar garden through the same net-metering scheme offered to home installers. Net metering is an arrangement through which owners of small renewable energy facilities can receive retail prices from their utility for the excess energy they generate. These customers are billed for the net amount of energy they consume: the total amount of energy they use minus the total amount they generate.
Because of the net-metering benefit, building commissioner Gabriel Vellante Jr. denied the solar garden’s application for a building permit on the basis that it is a commercial business operation and therefore not allowed in the agricultural and residential district.
“It is my understanding that the proposed Solar Farm would sell the electricity it produces to the grid,” Vellante wrote in his letter of denial. Vellante did not attend the Zoning Board hearing last week.
Ruth Silman, an attorney for the solar garden, told the Zoning Board the group believes Vellante was misinformed when he said the solar garden would be selling electricity.
“The way that this will work is the same way that those 75 installations operating in the town,” Silman said. “… Now when I get my bill from National Grid, it’s less than it used to be because the solar panels are creating electricity and they are running on a meter, and I get a credit for the amount of electricity that’s generated. The same thing is happening to each of the participants of the solar garden.”
The members of the Zoning Board were not entirely convinced by Silman’s argument.
“I’m having difficulty getting over the commercial nature of this project,” said Zoning Board member Robert Capobianco. “I think it’s a great project. I have 38 acres ready to go, and I’m sure there are people sitting out there with literally hundreds of acres ready to go.”
But, Capobianco said, in his mind, when there is a buyer—the utility—and a seller—the solar garden investor—it counts as a commercial enterprise.
Zoning Board Chairman Christopher Tracey pointed out the town bylaws don’t offer a definition of commercial. In his view, Tracey said, the project could not be called a commercial venture just because the investors have banded together rather than install the solar systems at their own homes.
“If it’s a commercial activity with 15 people being combined, if you separate them, then it’s a commercial activity in 15 individual sites,” Tracey said. “…Just because you combine them, in and of itself, doesn’t necessarily make it commercial. It’s the activity that’s going on that I would look at to determine whether or not it’s commercial.”
Accessory use?
The Zoning Board discussion last Wednesday centered on two issues: whether or not the project was commercial and whether or not it could be considered an “accessory use” of the property.
In a letter to the Zoning Board, Planning Board chair Michelle Catalina wrote that her board agrees with Vellante’s decision because Harvard’s zoning allows solar installations in an agricultural and residential zone as an “accessory use.”
“A solar array on a vacant lot in the A/R district cannot be an accessory use; it is not subordinate to the main use of the premises (there is no dominant use), it is not customarily incidental to a residential or agricultural use, and it is not on the same premises as the main use since the main use is of premises,” Catalina wrote.
At Zoning Board hearing last week, Silman conceded that “this does not fit neatly within your definition of accessory use.” However, Silman argued, “the zoning act, our state statue, contains an exemption for solar.”
According to Chapter 40A, Section 3 of Massachusetts General Law, “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.”
“Many towns have taken that exemption—the state has taken that exemption for many years—as a mandate,” Silman said.
Town counsel Mark Lanza offered a different interpretation of Chapter 40A, Section 3. The town already meets the state requirement by allowing solar systems in a solar overlay district at the transfer station, he said.
“In my opinion, the zoning bylaw…doesn’t prohibit these facilities, it regulates them in a certain district,” Lanza said.
Lanza said he has strongly recommended to the Planning Board it create a bylaw addressing all forms of solar projects: commercial, residential, and solar gardens. The Planning Board had placed a solar bylaw on this year’s Annual Town Meeting warrant, but then recommended Town Meeting take no action to give the board more time to study and refine the bylaw.
‘Like taking medicine’
To overturn the building commissioner, the three voting members of the Zoning Board—Tracey, Capobianco, and Steve Moeser—have to come to a unanimous decision.
Moeser said he agreed with the Planning Board that the solar garden project doesn’t qualify as an accessory use.
“I don’t think the intent of [Chapter] 40A, Section 3 was to place [solar systems] where anybody wanted. I think it was to place it properly,” Moeser said. “…We’re here to interpret the zoning regulations, not to make new regulations.”
Tracey said he was “struggling” with the “commercial aspect” of the project, but needed more time to be able to articulate exactly why it’s a commercial project.
“I’d really love to figure out a way for this to work,” Tracey said. But, he said, “There’s no clause in [the zoning law] that says because you like this, you can do it.”
Capobianco also said he could use more time to think about his vote.
“It’s like taking medicine,” he said. “I’d rather take it an hour from now than take it now.”
