 Okay, we are now recording. Great. Thank you, everybody. Thanks, Stephanie. Hello everybody. Happy Friday. And this is the 10 of emmer solar bylaw working group meeting for Friday, December 2nd. And thanks everybody for being here. We do have a forum so we can get started. Thanks, Stephanie. Thanks, Chris for being here as our staff people and Jonathan Murray will get to you later from KP law. Thanks for joining us today as well. Everybody has the agenda. And I guess maybe just we'll work on we'll complete the minutes obviously and then we'll have. Let me just ask Stephanie in terms of making the most valuable use of Jonathan's time, whether we should move that agenda, his agenda topic up at the beginning so he can be able to use his time efficiently or, or should we go through the staff updates and the committee updates first, I would move us later and Jonathan up and even the minutes I mean you don't absolutely have to do the minutes. Okay, you can do that after Jonathan as well. Okay, I think that would make sense if that sounds good with everybody and we do have everybody here. Let me before the one thing of importance is just to confirm our minute taker for today. Who per my notes is Martha. A great yeah from. She wasn't available to do it last time so she's on board now. So thank you, Martha. Maybe I'll email Janet to let her know that she's, she's on deck for the next meeting. Okay, great. All right, so, as, as we recall from a number of meetings ago, we had the opportunity to engage with the town. Council. KP law and provided some questions pertaining to the mission in front of us with regard to drafting solar bylaws. And we all put together I think with along with another committee put together some questions to pose to KP law. To help us move forward in our. Writing of these draft draft regulations and reviewing them and sort of understanding the, the guard rails around the, the legal frameworks here. And so really appreciate the town offering the services of the general council on the, and KP law and Jonathan Murray particularly for taking this on. And providing to us responses to both the presentation and responses, specific response and some general comments and then specific responses to our question so that is in our packet. And why don't I Stephanie can I hand it to you to maybe do a more formal introduction to Jonathan as our as the town council town general council. Sure, I don't know how much more formal. I can make it but I mean maybe Jonathan you would just like to introduce yourself. Sure, thank you. My name is Jonathan Murray I'm an attorney at KP law. My practice is mostly land use zoning enforcement adoption of zoning and planning board requirements and regulations that sort of stuff so what we've seen over the past three or four years is an increased interest in solar bylaws and associated battery energy storage bylaws. You provided some, some great questions I think there was 16 or 17 of them I hope I answered them to your satisfaction but I'm happy to go in more depth or if you have new questions really whatever is the best use of your all time. I'm happy to try to be of assistance. Did people have time to so take a look at the recall the questions that we asked and take a look at the responses. Yeah, I think it'd be great doing it we could just walk through. You're at a high level. If that's if we have time for that I don't know if we have time. It's important in my mind. So, I wouldn't mind doing that. And I do encourage everybody I don't think we need to spend the probably take half an hour to go through the presentation but I very much encourage people to look through the presentation that was offered, not to mention if you have the wherewithal to go back to the recording of Jonathan's presentation of this presentation. So, what was it the planning committee. This morning board of appeals. Yeah, the ZBA the zoning board of appeal a few weeks ago. So great. So yeah, can we, Stephanie, do you want to be questions and Jonathan's responses to those on the screen. See those. Yeah. Thank you. And Jonathan maybe, you know, not not the 45 minute version but maybe the three or four minute version of some of sort of these sort of background issues and sort of frameworks of the rules that were sort of that sort of drive the limitations and opportunities that we have with regard to zoning around solar. Absolutely. So, as you all might know, zoning in Massachusetts is governed primarily by general law chapter 40 a zoning act and section three of the zoning act. It's, it's often referred to as the Dover amendment you'll see that a lot. If we're being pedantic, it's not all the Dover amendment it's just one paragraph but you'll hear you'll hear that phrase a lot so it's I think it's important just to flag it for you the Dover amendment but the purpose of section three is a limitation on the powers of a municipality as it pertains to zoning and so the legislature has enumerated a list of particular uses which a town is either limited from regulating through zoning or is limited that that includes religious uses, educational uses, agricultural uses, radio antenna towers, childcare, but obviously the one we're talking about today is solar. And I've cited the statutory language but just to put it to paraphrase it and if you have the opportunity to see my presentation the ZBA, you'll see I repeat this ad nauseam I'm a broken record about it. But the municipality when it's looking to regulate solar uses, it cannot unreasonably regulate the use and its regulations must be connected to public health safety and welfare. And the phrase is really important. That's what the courts are going to look at. If bylaws ever challenged. That's what, you know, for other communities that's what the Attorney General looks at in her review. So, when the guard rails if you will, are regulations can't be unreasonable, and they have to have some connection to public health safety and welfare. So that's kind of your foundation you should you should have in the back of your head when we're talking about solar bylaws. Just to go just a little high high level about this but I know there was a question in here about what is public health safety and welfare. And I wish I could give you this dictionary definition of what that means but unfortunately, the courts and the attorney generals have kind of put that the onus back on on the community to say what is a public health safety and welfare concern for the town. And so you'll see as I answer your questions I put emphasis on your group and other boards in the town, really tip making an effort to study document and put in purpose, you know your purpose section. What are those connections to public health safety and welfare because in my opinion the more explicit we can be with a bylaw about, you know, the reasons why we're regulating solar uses and how it's going to protect the community the more likely it's going to survive a challenge in court. And then I'll just touch be briefly on battery energy storage uses. Section three that dober amendment doesn't specifically call out battery storage units. So it's not on that list of uses that the zoning act limits or prohibits a town from regulating with that said, courts and the attorney general have interpreted section three to include battery energy when it's associated with solar. So what we see often is large ground mounted solar installations, and then they, you know they collect the energy, and they put it in batteries on site. Courts and the AG have said when it's associated on the same parcel or, you know, associated on the same site with solar that battery is entitled to the same protections. So we're to have a case law isn't fully developed and we're not particularly sure but as it stands right now. Independent standalone better battery energy storage systems if you were just to have a battery somehow in the field. That's not entitled to zoning act protection, at least as we know right now, but most certainly if it's connected to a use, and if it's included in a bylaw definitely the town has to be aware that it might be limited in how it regulates those uses so. That's kind of a high level guard rails of what the zoning act says, and the factors that a town needs to consider when adopting a bylaw. And then, you know, I'm happy to go into particulars, or if there's any questions about that. Great. Maybe Laura can check me on this but to the extent that, at least for larger scale solar project which is what we're sort of primarily focused on here. I believe the smart program requires some degree of energy storage. I don't know if it's a bylaw, but if it is true, or at least they get an incentive for storage and I thought there was some requirement that some amount of storage was there. But to the extent. No storage is required but I think it's certainly the norm that you're saying it right now. Okay, okay. So you're saying Jonathan that in that case even if it's not required. If it is associated with the solar project it would be considered under that same Dover protection I guess of the solar installation. I have a question so Jonathan. Yeah, for standalone storage. Is there any expectation that that will, you know, eventually fall under sort of the zoning protections that you discuss or is it, is it just sort of unknown at this point. It's sort of unknown the way that the paragraph in section three is drafted it says the collection of solar energy. And so I haven't seen this yet, but I suspect someone in the future is going to make up the argument. Well batteries are required to collect solar energy because where else are we going to put them. We haven't even seen that yet but that's kind of my fear, or at least my concern. So as of right now what the courts have been saying is, if you adopt a bylaw and regulate battery storage. uses in association with solar, you can't parse that out. You know, once, once you associate it with solar, everything has the protection. Some communities have adopted standalone battery storage bylaws, those have been been approved by the Attorney General as not unreasonable and not in most cases not protected by section three. So that's kind of where we're at right now is we don't know for certain, but if it's not associated with solar, there seems to be a more liberal view of it in regards to the section three protection. Great, thank you. Any other general questions for Jonathan before we move on to looking at some of his responses to our specific questions. Super. Okay. So maybe we can scroll. I think the other way. Well, I'm not sure, just to where he starts answering the questions. Yeah, keep going. Okay, and maybe we can go through these relatively quickly Jonathan and see if there's any further sort of follow up from anybody I think these first to actually first two questions probably could be handled together with in regard to sort of potential constraints on on the size of arrays. And then the second one was the size of the rabite by sort of acreage or capacity or acreage or or the first one had to do with the size of the solar ray in terms of forested or agricultural land and clearing. Absolutely. So, so my response is to one and two I hope provide an example about basically draftsmanship of these types of bylaws. We had two kind of different examples but trying to get at the same policy objective where him attempted to adopt a bylaw that just provided a straight out lot size restriction. Medway also had a restriction on the general size but associated it with mitigation of lost carbon and forest habitat. And so what the Attorney General said in the where him case was the straight out lot size restriction without any association to public health welfare was unreasonable on its face. The town did not make an attempt to connect it to those three factors and so the without any evidence without any rationale and without any objectives the Attorney General said we have no way of knowing if there's if this is an appropriate regulation under section three there before we disapprove. My second way example is, and I think I linked it in a footnote but if you go in, you can see, just because I know someone else in my office who who's helping them with this. They spent quite a bit of time and hired outside experts and really associated their restrictions with with these public health concerns, primarily, you know the cutting down a forest the loss of carbon and the effect of the loss of carbon might have on the community in general and abutting communities and the AG said, well that's a more reasonable regulation, especially with the connection to public health. So, I think with both one and two. I think a lot of these these responses. My responses generally been it may be permissible and I know that's not always a helpful thing but it may be permissible to regulate it. But what we have to do is maybe take a step back and say well what is the purpose of this if we just say we want solar on acres that are no more than five acres. Not that the AG would necessarily be looking at this but you know if I were to bring this to court and the judge says, well why did the town do that. And if we don't have a particularly good reason or if we didn't spell it out in the bylaw, or we don't have studies or anything like that. And that certainly is going to be declared unreasonable but if you know we're concerned about size we're concerned about loss of forest and vegetation and agricultural land and we can make that association between well lots of these particular sizes. And that's not for, you know, or I should say you know, large lots like these account for X amount of forest loss and that's a loss of this amount of carbon, and that has this public health effect. The likelihood of it passing scrutiny goes out tremendously. That's not to say that the court might not say well you shouldn't do it anyway. That is the risk with judges, but my general point might my overview of one and two is, it may be permissible, but it's really important for this group in the town to document the policy reason why you're attempting to adopt this, and it's public health safety and welfare. And so long as you document why you're attempting to adopt this policy objective or this policy rationale, and it's connection to those factors, your likelihood of it passing scrutiny goes up. Super yeah okay great jack. Yeah, again I'm not a biologist. I'm not a geologist. And, but the trees, you know, kind of fascinating me and, and, you know I understand that you know there's a lot of pushback with regard to conversion of forest land to, you know, a solar field. But, but to me there's also this factor of a different quality of different forest stands, you know, certainly old growth, you know stands out. But is there any sort of sliding scale that you're seeing or wherever in terms of assessing the, you know the value of one force versus another with regard to, you know maybe the habitat there of the other and beyond, you know the carbon. You know benefits of the forest track. We haven't you know this is this this kind of the case law on this is still pretty new. So I haven't personally seen anything like that but I would just say, and I'm not a scientist or or anyone with that sort of training so I couldn't talk with any authority on it but you know say for example, you know this group or some group or whoever was able to document. We know that based on this evidence from this group or this national group that cutting down of old forest is harmful to the public health and these ways. And you put that in there. I think I think that might be a reasonable take to have. So I think there is an opportunity for a sliding scale it's just going to depend on, can we back it up with good evidence, or at least a good rationale and explanation on, you know why is old forest more detriment or the cutting of old forest more detrimental than new growth, or why is it, you know, you know more detrimental than some other category that I apologize I don't know but you know whatever it may be. So to answer your question yeah I think there there there's the possibility for a sliding scale when it comes to these types of bylaws. Thanks, Martha. Okay. Two things one an answer to Jack's question I think the problem is that it's difficult to quantify the benefit of a certain acreage of forest, you know you can't take 20 acres and say well, it's going to. Hold X amount of CO2 or it's going to have you know 25 species of, you know, protected plants or animals or something and so that's the challenge I see in in trying to balance when we try to balance the solar, which we can quantify how we balance we get versus the contribution of the forest. And then my question is, does the 2022 Massachusetts climate action plan was published in June and kind of talks more about the values of forest does that. The citing that help count as a justification for protecting public health. Yeah, yeah I would I would say publications like that, or from any other, you know maybe state, federal organization, or, you know nonprofit group, or university or whatever it may be. Those are all great things to cite, especially in this type of bylaw. So long as the conclusion of whatever that document is backs up your, your policy decision. Yeah, I would I would recommend citing as much as you can. Good luck, Lara. Just real quick, because I agree with. Like old growth forest. Is there anything in Massachusetts that would have, let's say a landowner has land for us. And you want to, for example, harvest the timber from the property could. Is there any restrictions and mass that would prevent them from doing that. Let's say they're not using solar. You know, I'm just curious. Um, there's a few different programs that I can think of off the top of that my head that might restrict someone's ability to cut down forests. There's a category of tax law called chapter lands. And that restricts it provides restrictions on agricultural forest and recreation land. In exchange for tax breaks, but those are voluntary programs the chapter lands. So, you know, for example, if someone had a forest and they entered into a chapter land agreement with the assessor's office they would be restricted in that regard. Certainly, if the, if the forest was protected either under the wetlands Protection Act or a local wetlands bylaw, if it's, you know, either, you know, within that buffer zone jurisdiction or if it's. You know, say perhaps like a national wildlife habitat or something like that you might be restricted. To be honest, I don't, we don't really see timbering questions that often. No, I was just curious, because I think that it's a logical restriction. I would love to see an MRC if you have a particular parcel of land on a really sensitive area. I didn't think of both from that case and, you know, the counter that would say, okay, fine, you're not letting us put solar here but I could just go ahead and, you know, timber from this land any mean like do other things. So just curious, thank you. Great and I guess Jonathan just from my thoughts on this I mean so if if you've mentioned sort of if you justify restrictions on cutting forest for to put up solar based on ecological, you say public health I'm not sure if it's public health or general welfare, but on those measures it would that then fly if you just if you just had then just a complete zoning measure that just said no forest land anywhere in our town can be cut down for solar does it have to be a little bit more specific to, to the, to the site is to the, to the sites. I don't know if it necessarily needs to be tailored to the site but the regulations have to be what's called narrowly tailored. So I would think that wholesale prohibition against cutting a forest would probably a court would say that's not narrowly tailored in the sense that, you know, if your is to protect public health and welfare, and to do that we're going to prohibit the cutting. What's the, you know, what's the balancing between that protection and also letting the landowner make use of their property. So, just as a hypothetical I think a wholesale prohibition would likely be unreasonable. So you'd have to really narrow that down to say, you know, these are the concerns, these are our specific concerns and these are how we're going to address them in a way that both protects the, you know, protects the interest and allows an owner to make use of their property. All right, great. Thank you. All right, let's, let's move on and we have the next question is maybe a bit similar but specifically more to sort of a prohibition or at least the limitations with regard to likes slopes for example. So I think like going back to my last response this is something you might, you might have to have a conversation about how do we narrowly to, you know, regulate or narrowly define or we, we talked to narrowly tailored regulation so if you just said no solar installations on slopes more than whatever the degree is 20 degrees 10 degrees whatever it is that might be unreasonable now I don't know if it is but it might be what what might have more successes to say, you know, on slopes of 0 to 5%. These are the these are the actions you must take to mitigate the erosion risk on 10 to 20. These are the actions you have to take. And so that sort of breaking it out and providing an opportunity for the landowner to still make use of it but but then require mitigation measures or protection measures. That's a more reasonable narrowly tailored regulation. So again I think I saying here you know what's, what's the reason for the regulation on slopes, and then I think you work your way, you know, as that that's your starting point, you work your way from, how do we protect that interest in a way that's not a wholesale prohibition not a wholesale, you know, regulation but you know how do we address it in a, in a targeted way. Great. Chris, yeah please. When we're reading other cities and towns bylaws, we see a lot of these restrictions, such as what we're talking about. For instance, Belcher town has a requirement, you know, not to cut more than X acres of woodland I think it's 10 acres or something like that and they have a requirement not to have a solar array larger than X amount of size. So, we can see that those are in other towns bylaws but the reason they're there is because they haven't been challenged right. And if someone were to come along and challenge those those things may actually be found to be not in keeping with the law. Is that correct I'm not picking on Belcher town I'm just trying to give examples to people who are listening and people who are on the solar array bylaw working group that, you know, just because we see some other town has this regulation doesn't mean that we should also adopt it we have to have our own specific reasons for adopting things. And we can't count on other cities and towns to have already done whatever research or, you know, in order to back up something like this that's that's what I wanted to ask. Thank you. Absolutely. And if I can just add to provide a little more context about what the case law has been up until the summer up until July we didn't have a real a clear appellate case interpreting section three. And I talk about it in the memo but the case is called tracer lane and we finally got it this summer. It was a supreme a state supreme judicial court case. Not particularly about slopes or anything but it was interpreting the, the permissible scope of regulations that mean municipality can adopt. And so what you'll see is, you know, other communities who may have adopted solar bylaws in the past three four years the attorney generals opinion might say, we approve this but be aware of this requirement, not with the knowledge that the SJC just gave us in July. So it's going to be really interesting to see because folks had fall town meeting and the AG hasn't completed their review of those bylaws but most certainly most towns have their annual town meeting in the spring. We're going to see a lot of zoning bylaws there and we're going to, we're going to have to see, you know how is the attorney general interpreting this in light of this brand new court case. So if you consider, you know, to Chris's point towns may have adopted these regulations or bylaws in the past, but they might not pass scrutiny today in light of tracer lane. So just something to be aware of. Thank you, Martha. And two things one in response to to Chris I mean I agree with her comments but I would also, you know picture the case where of every town except one had a bylaw, let us say limiting the size of an array to 15 acres. So then the developer might say aha, here's this one town that we can go to and put up a large array. Whereas if every town has that restriction, then the developer yeah they could still, you know file a legal process or something but it seems to me just tossing and it might be a protection if the other communities are doing it to and maybe, you know, that's, it's okay if, if, if, if we do something similar we can justify it. And the other question is I was just a little surprised about saying that one doesn't really need a any slope requirement. We've had conversations about that and Jack I think maybe my question would go to you it seemed we've had discussions about the detriments of steep slopes and then if you try to grade it, you're, you know, you're taking away, and really disturbing the soil to some depth etc, with the erosion so I just wondered about that maybe Jack has the answer. I agree do you have a response on that Jack I know you have your hands up hand up otherwise. So I would the slope. I mean, I knew for me, you know, anything can be engineered similar to what Jonathan was saying that you know you just have to put in appropriate mitigation measures which would be an increased costs to the developer. You know, probably falls more like more in the view shed, creeping into more of the view shed aspects, you know, versus, you know, erosion erosion because you know I think anything can be engineered. So, yeah, I, for me that the slope restriction probably isn't would be a high priority for us, you know, to include within the bylaw, but with a caveat that different Jonathan sort of laid out different slopes may require different levels of design or or safety. Correct, yes. Great. I knew you had your hand up. I think otherwise. Yeah, I was just wondering if, if Jonathan, again, Tracy Lane, I've seen it, and it's, it's not permeated my, my, my brain yet, but I'm wondering if you could just like some takeaways again, just so I can jot down this because it has come up. I know another member of our work group, Janet McGowan has brought it up and I just wondered what is there's a few bullets for us to, you know, to understand and carry forward from that. Yeah, absolutely. So, the, the 22nd background of what Tracy Lane was was the developer was looking to build a solar installation in the neighborhood of Lexington and they needed an access road, which happened to be in Lexington and Waltham has an ordinance that prohibited solar in all but 2% of their town and the court made a few different findings. The first was this wholesale prohibition from 98% of the town was unreasonable. So one takeaway is when we're talking about zones in which solar may be permitted. The current trade winds are that this wholesale prohibition from zoning districts is likely unreasonable. So a lot of towns might have bylaws restricting them from all residential. I haven't seen a case yet but I suspect we're going to see a case saying that's not permissible intersection three so that's the first one. The second the second takeaway from Tracer Lane is the treatment of accessory structures so like I said the solar installation in Tracer Lane was at was not actually in the city of Waltham it was in the neighboring community. And then in Waltham was the access road, you know the the only way they could get access to the site was through the Waltham. And the court said, even the access road, which is accessory to the, to the underlying use is entitled to that protection. And that's why we've kind of developed this thought about battery storages to say, if an access road has this protection, most certainly, we think a battery which collects the energy that's produced on the site is also going to be entitled to that protection. Now that's not to say that all uses on the site are entitled to protection we might say, you know, temporary construction trailers or, you know, fencing or stuff like that. And that might, those aren't necessarily, you know, you could imagine scenarios where those are entitled to protection or are at least subject to regulations but I think the second trick takeaway from Tracer Lane is accessory structures or accessory uses which support the collection of solar energy, or ground onto solar are also entitled to zoning protection. Those are the two main takeaways from Tracer Lane. I think that the practical impact of Tracer Lane what we've seen is the Attorney General has taken a hard line stance to say municipalities are severely limited in and how much they can regulate solar. What we've also seen this was just out of the land court so it's not binding, but it's, I guess an indication of where the courts are going. It was a land court case out of Walpole and Walpole had a bylaw similar to Waltham that prohibited more than 98% of their land area prohibited solar. And the land court said based on Tracer Lane we find that to be facially unreasonable and we strike down the bylaw. So that's kind of just an indication of practical effect of what Tracer Lane has said but I would say Tracer Lane in general, maybe the three points are, again, public health safety and welfare these regulations can't be unreasonable, and you have to have that connection. Accessory uses and structures are entitled to that protection and wholesale prohibitions of these use are facially unreasonable. Thank you. All right, good. This is really helpful Jonathan thank you. Let's move on. The next I'm not sure if we'd need too much and the next question seems pretty straightforward to me I guess with regard to potentially requiring a third party. Or requiring that the developer cover the cost of a third party to provide inspection oversight inspections of a particularly of a project particularly I think during the construction period to assure they're upholding the, the regulations and zoning requirements. Do you have any, any summary of that or worth. Yeah, I just very quickly, you know, boards have the ability to hire outside consultants under 44 section 53 G. Many, many boards many communities do this as a regular practice. When the boards, you know if you put in that ability in the bylaw. Many, the statute requires the boards to adopt regulations. So they hire. So that's more of I think a conversation for either the planning board of the ZBA or, or whoever might be taking up this, you know, these types of things. What I would say to, to the point about narrowly tailoring, certainly during construction and inspections I think, you know, this might be a decision more for the permit granting authority or the or the board that's overseeing it but just something to keep in mind about the effectiveness of regulations and how we narrowly tailor things, you know, certainly if we said, you know, during construction we want you to do monthly inspections or, you know, inspections at these points in the development stage for safety reasons or fire risk reasons or, you know, certainly the building commissioner is going to go out there and make sure it's up to building code. What might be unreasonable is to say, you know, you need to hire someone to go out and inspect, you know, every month for the life of the site, certainly that, you know, it would be hard to justify why they need to pay for that. A narrowly tailored version of that might be once a year you shall submit to the town a, you know, a letter stating who's who's in charge of the maintenance of the property and an emergency contact number and, and things like that so that if there was an emergency, you'd have proper information. So I think just another point of, when we're talking when we're thinking about regulations and we're thinking about, you know, provisions, we think about, you know, how can we how can we get to the end goal without overly burdening an applicant or overly burdening the process. Yeah, I guess that's my point on the farm. It is totally reasonable. I've seen it done is just, if you, if we wanted to bake in some kind of like, you know, O and M requirement because solar for the most part doesn't require a tremendous amount of operations and maintenance, but I've seen it done in the past where, you know, it's just a matter of cost if we want to pay and have the project pay for a third party that's going to be built in, attack on the ongoing O and M on a, you know, you know, twice annual basis or annual basis, you know, for the purposes of going back to like health and safety. I think that would be something that we could definitely do that the coalition group should consider. I think the next question maybe. I know there's no clear answer on the definition of public welfare but maybe we can sort of get your views on that a bit more, Jonathan. With regard to, and you mainly couched it so far more as public health. Is there differentiation with that in public welfare or they kind of seem to overlap each other but are there some things that are might not be like aesthetics that might not be covered under health but more welfare. And then also I'm just also wondering from my perspective, in terms of public welfare, you know, this whole desire to move to renewable energy is all about public welfare to with regard to addressing our climate emergency. And so how, how, how are those counter, I mean, this is why it's so hard because there's counteracting public welfare is at stake here. And so how, how would you imagine sort of threading that and how the courts would look at that. I think from your first point and as I indicate my response, there's no, there's no formalized definition of these things. I think from a, from a starting point, I would recommend just the common sense approach. You know, is the proposed policy position. Does it make, does it make sense? Is it related to public health? Is it related to safety? Is it related to welfare? And then we get into the, you know, what evidence are we using to justify that. I would also say these are are pretty local interpretations. So if a judge is looking at this, if you know, if the judge in Northampton or the judge in Boston is looking at this and says, they're not going to look at Belcher Town. They're not going to look at Hadley. They're not going to look at Deerfield. They're going to look at, well, what did Amherst say? What did, what did Amherst concerns for their public health and safety and welfare. So I think that's also something to keep in consideration. Certainly you can, you know, there's going to be a lot of overlapping concerns between neighboring towns and you might have some of the same concerns. But from how a judge would treat it, the judge isn't going to compare, necessarily compare this to other parts of the state. It's going to be based on the words you put in the paper and the rationale behind it. I think the last point was about these, these competing interests or at least, you know, this might get into more political positions or philosophical positions about, you know, what is what is public welfare and, you know, what do you do when, when there are, you know, two camps or more than two camps that take different positions on this. And these scenarios, I mean, these are policy decisions which I hesitate to advise on, but just from a, from a drafting perspective. You know, again, this goes back to evidence and this goes back to a sighting. So I think Martha had cited, you know, the energy publication that was just put out by the state. Certainly that's good evidence to put out when we talk about, you know, you know, public welfare and, and if you can cite two different sources. It's, it's hard, it's hard to, it's hard to answer that one with any authority, but I guess that would be my recommendation. Thank you. Yeah, Jack. Yeah, I just would want to note during Jonathan's presentation to the ZBA one of the ZBA members is also similar to Laura kind of active in industry and he just mentioned that you know the battery storage facilities. You know, the recent ones that they have installed that they, the noise factor is, is fairly minimal, not that we wouldn't want to address noise in the bylaw, but that the bat, you know, the thing with the battery energy storage systems having a noise factor is, is probably going to be a mood issue. So it's evidence at the landfill project to with the battery system that's installed there. I actually went by it and it was seemed to be on but it was just a minimal hum. Okay, great. Anything else questions on for Jonathan on these issues so far. Great. Okay, then. Can I jump in real quick? Yeah, please Stephanie. Because I'm just thinking about citing existing studies but wondering about more, if it's so locally focused, then, you know, what about hiring an independent consultant to come in and sort of investigate our existing conditions, citing those studies but looking specifically at the town like there are other examples of communities doing such a study. So in the footnote I think on, I think footnote two or three. If you look at medways, they hired some outside, I think they hired two outside consultants. I would say it's not a requirement to do that. Certainly, certainly you can adopt these bylaws and regulations without it. And you can maybe recreate the results, you know, either like you know this working group goes out and has public meeting sessions and hears from the community or sends out a survey or you know there's there's more cost effective ways maybe to get to the same result. But certainly, if there was an independent review and the consultant said, you know, for Amherst specifically, these are the public health concerns, we have these water sources and these old forest growths and these, you know, if you can cite to those, that's great. I mean that you would be at the top of the list at the most thorough bylaws in the Commonwealth, I think. But I, again, I don't think it's, I don't think it's required I don't think the majority of communities aren't doing that. There's probably more cost effective ways to get to that same result but it would, it would be a benefit, most certainly. Okay. Yeah, Martha. I just didn't reply to Stephanie I mean we already have two consultants we have just consultants and then the one Chris has is said they will be hiring. So, doesn't that cover things. If I can respond to that Dwayne. Yeah, please. Well I'm specifically looking at the question of public health safety and welfare and they're not looking at that specifically. There's a little investigation and asking about community priorities but that's in my mind these are still a little bit different when you're talking about citing specific impacts to slope. That's a very specific different question than just the sort of, you know, general survey. Our consultant is not getting into that level of detail. That just, you know, all the information that we're assembling as a, as a, as a bylaw working group and the varied expertise we have here ought to really take care of that along with common sense and I was just asking the general question that I wasn't implying that this group didn't have that expertise or resources I'm just wondering if other communities have done that that's all. Okay, thank you. Good. Yeah, okay. I think a lot of these are going to be good discussions later on when we get to these sections of the of the bylaw for us to all work out either through common sense or through digging in and researching a bit more, or potentially seeing if we need need some outside consulting support. Okay, then we had some questions, a question here about setbacks and and and minimum setback so yeah. Yeah, six and seven I think I can I can go together and response. Yeah. Yes, that that is permissible. You can have different setbacks. You can have mitigation requirements for certain elements of a project design. But again we get back to that narrowly tailored and connection to public health safety and welfare so if you said you know you need a 500 foot side, side yard setback. You know you might get an appeal to the court and the judge is going to say, you know attorney Murray why does the town need 500 feet. You know why does it need 1000 feet why couldn't it have 100 feet or 200 feet. So, if you go back to that where came example from from an earlier response that was kind of just a blanket size restriction they didn't really explain what they were getting out but if you said, we would like. And these are just made up numbers but if we need a 200 foot side yard setback because we're also going to require some vegetation replanting and we want to make sure you know the industry says that that the system should be 50 feet away from residences and whatever the reason is, you know you put that in there, that's fine. But, so the response to six and seven is yes that that is permissible but we should just be aware, you know, the reasonableness of what you're trying to get at. A 1000 foot setback is not going to fly with any court but you know a 200 foot might or 300 foot might or whatever, you know whatever you can justify that that's more likely to succeed. And then to just kind of the last conversation we had about experts and all that kind of stuff we say, you know mitigation for for adverse environmental impacts erosion that kind of stuff. And then the solution of water supply, and going back to, you know this group and, and other, you know, staff and boards and things like that. You know relying on what's local so you might say, and then again this is made up just by way of example say, say the conservation staff or the Conservation Commission said, you know we have a problem in South Amherst with erosion because of these factors. So it's a policy decision, you know specifically call that out in your solar bylaw saying, you know, solar still allowed but in these particular areas because there's a risk to public welfare based on erosion and pollution of water supply and all this stuff. Here are your added mitigation requirements. And so those are instances where you can in making these policy decisions, either rely on outside consultants or rely on town staff or other boards who have that subject matter expertise that you can then loop into a lot of say, you know, we understand that solar is a protective use that it's, it's permissible in the town, but we're concerned about these factors and this is how we're going to narrowly tailor our regulation to address those factors based on our local needs here. So just to kind of tie in the last two conversations. Great, thank you. Okay, so let's the, which number we are now eight. I think I've said it about 100 times. But yeah, it basically what I've been saying is, yeah, that's my biggest takeaway. My, my, my biggest recommendation I give to towns is public health safety and welfare and why, you know, what's your evidence what your rational, what's your, how are we justifying this, this exercise of municipal power. I leave it to you all to do the policy decision making, but from my perspective if it were ever to go to court I have to say, you know, this is the evidence that the town used when adopting it. So that's, that's an important consideration when you're adopting this is to say, or you know it would be helpful to me personally is to say, you know if this was ever in front of a judge and the judge says well why why I don't know why the town did this. So giving that town, given the judge of the court, that perspective in the bylaw, while it's not required for every line, you know, is, is helpful to defend. Great. Yeah, Chris, please. So, when we've had discussions with our site assessment consultant. They've mentioned certain industry standards, and they use these industry standards to decide which areas of town would be more suitable for solar arrays to be built. And some, you know, slopes that, well usually companies don't want to go beyond this slope, because it's too expensive for them to cope with the issues that might arise. Is it reasonable to site those kinds of standards that the industry itself kind of puts on itself, or is that not reasonable. I would just caveat by saying, you know, you had, you had just said, you know, the industry tends to not want to do, you know, steep slopes because of the cost. I would just warn folks don't, you know, there's going to be some rogue applicant out there on one instance, who says I'm going to put it on a 50 degree slow. I, you know, to heck with the industry standard. So, so yes, it is most certainly reasonable to cite that, but just keep it in the back of your head, you know, especially with those really extreme cases, you might want to, as a policy decision address those, knowing that they might not come up often but when they do it might be contentious. And let me, let me maybe follow up that relates to the slope issue again but we did have some, I think some comments that came in to the water protection supply committee with Jack I think they were that obviously as Jack says you can engineer these things to develop ability to construct on slopes and protect for erosion. But the risk goes up and this person was really talking about sort of risk which is a little bit more nebulous to sort of quantify that there are methodologies. And here it's a certain point where you can, you might be able to say okay well, while, you know, you could engineer around this the risks, the risk of potential failure tend to go up and we're going to call it call a limit at some some slope angle. And I think we'd have to see what that language is but I think that would be fine if we said, and you know whatever, you know maybe the expert says the industry standards say or if the industry standard says you know slopes greater than 50% fail. You know the project fails 90% of the time or results in this amount of water pollution. You could say you know as a public health safety and welfare reason, we're not going, we're going to limit that. Yeah, I think that's reasonable again, a lot of a lot of hypotheticals at this point I think when you guys get into the specifics of the policy. We might have a different conversation about it but as a general matter. Yeah, if there's something so extreme that it poses a high likelihood of failure or risk to public health, then yeah I think you can address it. Okay, thank you. All right then. The next question has to do with sort of rules with the may be considered in sort of the zoning bylaw that sort of encourages developers to provide as much economic economic impact economic development and benefits to the to the host community or to the town. I do get your point that this can't really necessarily be a requirement, but could be more of an encouragement. Can you just maybe summarize your comments there. Yeah, I think it's a really good question from from my perspective as I think about this from a litigation point of view or defending this, you know, I, I, I blocked at the question not to say it's a bad question but I had it thinking, oh no, you know where we're requiring financial, you know, exact you know we're requiring additional financials from from parties or, or to give up ownership or, or things like that, really extreme. And it's not to say that you can't suggest that to applicants but I think where these extreme requirements, especially relating to finances and ownership of property and anything like that. It would be. I hate to say almost impossible but I'm going to use that phrase to defend that. It's just so hard. It would be just so hard to rationalize or justify why, you know, we would require someone to offer up their property for sale, or we would offer, you know, require them to do additional, you know, have additional financial burden other as compared to other uses or other uses in town. So, you know, I cited a pilot, you know, the tax statute chapter 59 provides for pilot agreements for certain solar installation certainly you could say, you know, this is the town is in favor of these types of agreements you know encourages the applicant to look into that, or if there's some other sort of you ski, not skiing but you know system or policy idea that goes to this, this subject matter, you certainly could say you know it's an important policy of the town to do XYZ and the applicant is, is, it is recommended the applicant to consider this and certainly boards can bring it up, but having wholesale requirements, especially we're relating to ownership and financial issues is, is risky. I guess, let me ask two follow up questions one is in the in the case where the town really has the site control and a couple of these are already done but like the landfill and I think Hickory Ridge probably and I'm not sure if this is zoning or not, but would it would a town be able if they're if they have site control and they're going out and trying to get competitive bids from from developers. Could they include in their RFP and as an evaluation criteria the extent to which there are the quantified economic benefits that accrue to the town. Yeah, I don't know if it if that goes to zoning but I would just say in general, you know, consensual and voluntary agreements between towns and developers are generally permissible and if that's one factor which folks want to come to a mutual agreement on generally permissible but there's a lot of specifics there and a lot of different areas of municipal finance that it's hard to give a straight answer without knowing specifics. Also in the in the more usual case where not to say control but the town is involved even if it's on private property there could be still a pilot payment right to the town. In that case, towns are always sort of in a negotiating disadvantage of not really understanding very well the the the the costs and cash flows associated with the solar projects are not really knowing, having really good any information with regard to what the solar project could afford as a pilot payment. And is there any would there be a strict sort of prohibition of some financial disclosures that the town could require to find out to be a little bit more familiar and able to understand what the pilot, how the how the developer came up with the pilot offer that they provided to be candid I don't know that up top my head. Yeah, so I would have to look at that but I'll make a note, and maybe I can follow up by email just to you know as to that point whether this particular pilot program allows for something along that lines. Okay, I appreciate that I think that's actually something that many other towns are interested in as well. Alright. Okay, so Chris and then Laura. I wanted to note that there are other ways of dealing with some of these things besides zoning. For instance, the town of Amherst has a tax incentive that it offers to developers of affordable housing. But that is something that's completely outside the realm of zoning and the town manager and the finance director negotiate with developers to agree to something like that. That's true of pilots as well. And then there's also the host community agreement that marijuana purveyors need to sign with the town but that's again outside of zoning. So there may be things that we could put in place that wouldn't have to do with zoning and the regulatory process that could benefit the town but again that would be outside of zoning so I just wanted to say that. Thank you. Yeah, excellent. Yeah, thank you. I'm just so curious. Because I think I've seen it in other communities not necessarily in Massachusetts. I'm wondering if that's a difference in us, but is it reasonable for us to say that there's a preference or some sort of legal language to solar farms that offer a clear economic benefit to the town of Amherst? I doubt it. And the reason I doubt it is because there's a uniformity requirement in the zoning acts requires towns to treat applicants and uses uniform across districts and I would think that and also from just a from a due process standpoint that might be that's kind of a concern of mine saying, you know, we're going to treat this category of applicants different than we do that. I would say that applicants aren't different. They offer different, you know, scopes of projects and more sophistication and all that kind of things. But I think where, where the categories based off of benefit economic benefits of the town, I would be I would be hesitant to say that that's, you know, I would have a concern about it. So, interesting. So, a follow up question to that. So I understand that's a concern if you have a private landowner that's developing solar and it's like a developer and it's paid. But if, for example, the town of Amherst own land, and we have a bid out an RFP selecting as, you know, a developer and an asset owner for our personal land, knowing full well that the town is looking for ways to boost their tax base. That would be promising. Like, as part of the bid evaluation, we're looking for deals that further help sort of bolster the, you know, tax foundation of the community. Yeah, I think that question goes more, it doesn't really go to zoning it doesn't go to the regulation the underlying use it goes to the contractual relationship between the town and whoever wants to use the town's land so I think it's a little two different schemes. Got it. Okay. Super. All right, good. All right, so yeah, I imagine we might have a have a supplementary paper that we offer some recommendations to other groups and committees and departments that they might consider separate from zoning on these issues. Getting down to the towards the end of the ones pertaining to solar. So we did have this question here with regard to, you know, requiring, I think you like the language here within limitations of for for developers to design their programs to to assure that there was some degree of wildlife habitat, maintaining wildlife habitat pollinator habitat. I would throw in that as well that there is, you know, they're the state does, you know, it may not be permanent but the state does currently have in their program. And that is a matter specifically for pollinator have pollinator and friendly wildlife friendly habitat. And I'm wondering if that's something that could be pointed to as well that you know there's incentive to do it it's not necessarily that incentive, essentially covers the cost of doing it. And so we're going to make this a requirement within some limitations but any thoughts on that. Absolutely. I think that's a conversation you all can have. Again, about reasonableness and scope of regulation if, you know, I leave it to you to make the policy decision but you know just to say, you know what's what's the rationale behind wanting to protect these wildlife habitat some pollinator, you know, obviously we can say just from a layman's point of view like those things are good to have and we don't want to take them down but you know we might want to say, you know, these wildlife habitats provide these benefits to the town or these benefits to the community and pollinators provide this benefit to the general welfare and, and that's why we're requiring, you know, removal and replacement or requiring such a percentage or whatever whatever you all deem is reasonable but yeah certainly I think this is something that falls in those that category that you can make a, you can make an argument for that that's a reasonable regulation. Okay, great. And then I think to round this out with the solar ones is yes so this this concept where you know especially with the sensitivities obviously of cutting down forest nobody likes to do that. And the extent that, you know, could as owning bylaws provide that under certain, maybe a certain acreage amount of forest that's being removed that the developer demonstrate that they put into permanent permanent protection I guess some permanent protection planet, an equal or some amount of forest to sort of compensate for that loss. I think there's ways we can get to that end goal, and that would, that would be fine. Again, I would just say, and this is I apologize just me not knowing, you know, how it works practically but you know my, my, my concern would be if we, you know, certainly we could say it's not uncommon to see bylaws, even outside of solar that say well if you take down one acre you should, you know, one acre on this side of the property we're going to put up an acre on the other side or we're going to have some percentage of revegetation or or something along that line on the property. What I might might have a concern with and this is just me not knowing a whole lot about it is if, you know, we say oh, we got to put, you know we took down one acre in the town says you got to put up one acre somewhere else, you know land trust or something that the applicant might say well that's going to cost us 10 times as much as it would be if I planted them on the property or for, or if I did this other mitigation. Again, I say that not to say that you can't do it it's just, you know, it's going to depend on the specifics. So, so, yeah, it's fine just, you know, you know, again, what why, you know, yeah, yeah. Public health safety and welfare. Yeah, sorry. I've said this presentation. I've said this so many times and my wife was not a lawyer knows the standard 483. She's heard, she's heard me practice it a lot. All right, good. Chris. So, Stephanie may know more about this but I think our current wetlands bylaw, our town wetlands bylaw allows for offsite mitigation of wetlands resource, you know disturbance. And I think there's a financial component to it in other words if you can't mitigate on site or you don't have a piece of land that you can mitigate. Then you can contribute to the town a certain amount of money. And again, Stephanie, she's got her hand up maybe she knows about that but I was just going to ask, is that a reasonable type of thing to do in other words if you take down 30 acres of trees. Might you be asked to contribute to a fund to plant some acreage of trees in another location but that money would temporarily go into a trust fund of some sort is there any, anything that can be done like that. So I would say the short answer is yes, my longer answer is there's a lot of different factors that would go into something like that. I would say first, just from a reasonable reasonableness perspective under the zoning act we want to say, you know, what's the cost associated with replanting trees versus, you know, donating to the town. You know you might have an applicant who claims agreement because they can't afford the replacement and there's not enough space on the property. So that's a lot of different factors that would be considered in the language of the bylaw. What I thought is from a municipal finance perspective is, how do we treat that money, who's responsible for managing the money, who gets to say how it's spent, what is it spent on. Those are all questions that can be answered but it's hard, it's hard, or it's just something to consider is if we're going to go down that road. We go to the zoning realm and we get into finance realm and there's a whole lot of requirements with managing municipal funds. So, they can be answered, but folks might not like the answers. So something also to keep, keep in consideration. Yeah, Stephanie, you had something. I just wanted to say that. So, in my experience with the wetlands, the preference and the priorities always to mitigate onsite as much as possible. That's the first thing you should always try to do is mitigate with on the parcel that you're impacting. The financial pieces come in the, you know, later, it's been quite sometimes since I actually was the wetlands administrator so I think that requirement is fairly new but also I would say it doesn't sound like just funds go to a general fund it would have to be I think towards mitigating for wetland impacts because we have a no net loss requirement, both within the state and locally. So you would have to put it towards mitigating for the impacts to wetlands so, or somehow creating buffer that would protect wetlands so it would have to be. It couldn't be just general funds this, you know, the money gets spent wherever. So, that's just my response to that is all. I just wanted to say something to add on to that so it is a fairly new requirement or option in the conservation. During our last meeting review. I don't associate any sort of contribution for offsite medication in the second point. You know, it's always preferred to do that medication onsite but sometimes it's just not possible. And in all the funds, it's not like a general flush fund it goes directly to actual projects that the conservation commission would implement. For those purposes. So, it's an interesting idea to consider for the solar bylaw working group. It's certainly been done in other communities I mean the idea was taken directly from other Massachusetts communities where it was in place so. And I would just one last note on that is this concern with these sorts of trust funds if it's the only option that it's an unconstitutional tax or it's an informational tax. And so, in the limited circumstances where they are enacted we always give applicants other options. So, you know, the town is only allowed to tax based on what the legislature gives them the power to tax. And so we are sometimes concerned with those kinds of trust funds to say, well, you know, you only give me the option to pay this money. It potentially attacks it's unconstitutional. And so the way we get around that, not get around that but the way that we address that concern is we say, well here's option a here's option B here's option C and also you can pay this money if you choose to voluntarily. So I think if that this starts becoming part of the conversation, just, I would recommend, you know coming up with a lot of options for an applicant, you know put yourselves in the shoes of the applicant to say, you know I have this project these are, this is what I'm trying to do and what is the time going to require of me, you know what choices do I have always something important to keep in mind. All right, great. Any other questions for Jonathan sort of on the solar side we're going to. There's a few questions with regard to battery energy storage that will go to next. Let's move on to the battery storage ones and I think, as you indicated earlier Jonathan there's a little bit, some some additional uncertainty I guess in terms of this new, this new technology. But I guess, you know, first, just outright size limitations in a bylaw limit limiting the size of battery storage. Yeah, so I would, if you haven't had a chance to read the memo, I talk about two areas of concern we talk about this, the 32nd version is that when the state adopts statutes or regulations that control a field is kind of the term of art. It preempts the municipality from regulating it so the clear examples the building code, the building code is adopted by the state as a regulation in the town can adopt zoning bylaw that says well, you know this building code says you have to have these fixtures, you know on your, on your kitchen sink what we say you need these other ones, the state says no we've wholly regulated the field of the building code. And these towns can't regulate it they're preempted. So that that idea of preemption when it comes to battery storage systems comes in two facts one is the building code. And I would, and I explain it more in detail but there are current codes and codes that are coming down the pipeline that will regulate battery energy storage system so to the extent that the regulation pertaining to size conflicts with the building code, or with other state you may be restricted. The other thing is that the state regulates through what's called the energy, the energy facility siting board which is a board within the Department of Public Utilities. And I think big utility installations, normally, you know, gas and, you know, coal I don't think that coal but it would include energy, you know electricity, generating facilities, and this might, might be under their jurisdiction so to the point that you have a size restriction and it's also subject to regulation by the, the, the board. You may not be able to enforce that restriction because the board is going to preempt local control. And then the third factor is again I said it earlier but if it's associated with solar, you're going to have a restriction under the zoning act. So, those are the three to consider if they're, you know, one associated with solar and then two if they're subject to regulation by the state under a different scheme. Stand alone battery energy storage, not associated with solar. As far as we're aware right now the case law says it's not entitled to that same protection. So I think you could have a size restriction. And again, I'm not, I'm not trying to rush through these but I think it's the same answer. I have a screen here, sorry. So minimum setbacks pertaining to buildings pertaining to residences constraints on visual impacts. Yeah, you, you could have those but again if they're regulated somewhere else, you might be limited if they're associated with solar. They're definitely limited. If you're going to stand alone, just like any other zoning bylaw, you probably, there's a good chance you could regulate it. So it's going to really depend on where this regulation comes in. Great and regulate them with with justification based on public health and safety and welfare still. Well, I would. Yeah, I think generally that's, you know, that's the intent of the zoning act we always want to keep that in there. I would say if it's standalone system not associated with solar there isn't as much of an emphasis. Right. But still, those are always good things to. But not not as a strict. Right okay because they're not protected under the Dover act, the Dover amendment or whatever it was yeah. Yeah. And I suppose number five also kind of. Yeah, it is the same answer. DEP has a comprehensive set of noise odor and dust regulations there at 310 CMR. And to the extent that a zoning bylaw were to conflict with those regulations I would have a preemption concern. So a court might say, this isn't a matter for zoning this is something the Board of Health should address through either the DEP regulations or chapter 111, which they're allowed to, to update nuisances. So, the answer is, possibly you could address noise but just be aware that there are state regulations addressing noise already. And that the Board of Health, depending on the circumstances and what the language is maybe the more appropriate to address those concerns, but it's not. I wouldn't say there's an outright prohibition on it. Great, and maybe you can come in a little bit just as I'm thinking this through the batteries, battery storage technology field is changing quickly the technology the chemical chemistries and so forth. And to the extent that you know we want as evergreen zoning bylaws as possible. You know at least we don't want to hash them out again and in the next couple years and you know maybe think about 10 years at least or something where the battery technology can change a lot between now and then. So my sense is that we want these bylaws to be very, you know, based on sort of performance based standards, you know, not that you can't make noise but you have to certain decibels or whatever, less than that, as long as it's attempted by DEP. And, and, and, and so forth in the visual impacts I mean the, if we base that on megawatt capacity of the storage, who knows what, you know, a megawatt of storage is going to look like five years from now as opposed to now. Can you maybe just talk, address sort of how we go about writing these things so that that they are not, you know, based only on the, you know, very specific on the technology that's at hand today. I think there's probably two, two main approaches you could take to that the first being some sort of reference to industry strengths industry standards or, you know, compliance with the building code or other state or, or they're called international codes that's the name of them. There's a reference to other materials that perhaps are going to be updated more frequently than the town is going to update their zoning bylaw that's one way to handle it. I think the second way to handle it is to say, leaving it more broad and giving discretion to the board that is going to be overseeing applications of this so to say, you know, noise shall be consistent. This is kind of, you know, you know, how do you craft the language but, you know, giving that discretion to the board to say you know, noise is noise is a concern and the applicant shall make all attempts to the satisfaction of the board. That noise isn't an issue, and shall consider the following mitigation techniques, and you might say screening and buffering and all that kind of stuff, but leave the discretion of the board to say well, here. Here's what the bylaw, here's the framework that the bylaw gives us and we think based on this particular application and the, the characteristics of the site, and the mitigation proposed that it adequately addresses noise, and that way you're not getting into a conversation about, you know, the technical details because to your point, you know, in 10 years from now, you know, there might be some advantage where you don't need screening or you don't need buffering in a future board could say, we just require, you know, big walls to screen the noise but that's not required anymore because the technology has improved so much, we're not going to require that of you applicant. So that's the second way to do it. And there could be a combination of both of those techniques to say, you know, board, look towards these regulations as your, as your standard, but also, you know, you just you determine based off of the particulars of the site, what they've proposed is adequate because it might need more, it might need less, but you know, they're the ones who are going to be considering the application. Thank you. Yeah, that's really helpful. All right. I think we've gotten to the bottom of the list, which has been great. And this has been really helpful for us to, to really review with you Jonathan and sort of have the opportunity to ask follow up questions and clarifications and just run through this with you. Any, I see Stephanie's hand up at just before we let Jonathan go. Just think of any final questions or thoughts for Jonathan but we'll go to Stephanie first. Yeah, just a quick question and Jonathan I apologize if you've addressed this elsewhere. But when staff was initially discussing questions. One of the things that came up for us is what is the size of public for instance, is that something the committee would decide is one, a butter to a project quote unquote public. How, how do we address that. Yeah, it's a tough question. To be honest, because it might vary depending on what's being regulated and by which source you know zoning by laws or regulations are, you know, that kind of thing, I would say one, the quote common sense approach so we, you know, if a third party of a judge is going to look at this and say, you know, the next door neighbors probably not public, you know, just if we're just concerned with one next door neighbor probably not public, because public implies to me just based off of the definition definition, using dictionary definition. More, you know, more of a community more people more volume of people so that's kind of just the basic approach. You know, when we're talking about, you know, what is public welfare or what is public safety is is in this in this process that you all are undertaking. You know what evidence have you collected or what evidence can you go out and collect to say, you know what is public health or public welfare, for example, this is just thinking of another community but in another community. In their bylaw they had different they had really delineated water sources, you know, this side of town got it from this aquifer and this side of town got it from this. So you might define public health and saying, you know, the north side of town has a public health risk because of this environmental factor or this reduction factor or, you know, maybe it's even, you know, as it pertains to noise this one might be a little far far fetched but just as an example, you might say, you know the area around you mass or Amherst college is probably in because I was a student there I thought it was a lot louder it got right it might not be as susceptible to noise but maybe South Amherst where, you know, there's less density and all that kind of stuff is more susceptible so for that public area, you know it's going to depend on what you're trying to regulate. Again, I wish I could give you a definition and something like that but it's going to be based off of one that common sense approach of does this sound right. If you were trying to convince someone else, you know, what is public welfare or what is public health. You know, does it pass the smell test if you will if I can use the not artful phrase, and then the second approach is, you know, how, what are we trying to regulate and what's the, how is it going to protect what's the what's the group of citizens of the community that's going to protect. I think I got a question of the ZBA. Or maybe it was a different conversation about, well, isn't the public welfare. You know, as it pertains to solar energy and the climate crisis and all that kind of stuff isn't it the whole world or isn't the whole country and the whole state, you know you really could define it quite broadly. I would say to that. Yeah, from a policy perspective it's not necessarily wrong from a legal perspective, the judge is going to say well. Amherst has the power to regulate things in Amherst it doesn't have the power to regulate things in Boston and and province town and you know Texas and California and all that kind of stuff. So I would just keep that guard rail in your mind to say yeah it might have a benefit to the world the country the state at large, but your focus is is your general welfare and your public health and your public safety. Along those lines and just while we have you. This issue of aesthetics. I think we'll come up in our conversations and you know obviously, and I think maybe maybe in January somebody sort of wrote some comments with regard to, you know, I mean one reason why we love Amherst is is the aesthetic beauty that we all enjoy and share in the town. But, you know, and I would categorize that under general welfare, but it's, it's, it's pretty subjective, or it could be viewed as quite subjective of what people think is aesthetic. And so, and so how, how strong can that argument be in terms of, you know, protecting for example protecting specific view sheds in a bylaw. Well, I think certainly if there are concrete concerns when we're talking about aesthetics or visual design that might have a detrimental impact on either the community or neighbors or what it may be. So for example, you know, glare is often brought up in these conversations you know the pitch of the, the panels and the slope and which way they're oriented. And you might say from an aesthetic, aesthetic point, you know, we want you to design the system so as to minimize glare and that might be, you know, screening it or putting up vegetation buffer or something like that so from an aesthetic point you can tie in those concerns in connection with detriments to public health safety and welfare. If it's just, you know, I want it. I want the color of the wall red and not blue. That's not going to fly. That it's it's beyond, you know, that's that's more of a preference and it's harder to justify. Certainly, certainly there are designs, you know you go into certain towns that say, you know, all the signs of this particular color and you see it dunking donuts with a green sign you say well what's going on there. That's kind of a different conversation more about district planning and that kind of stuff not, not this use planning, but I would say, giving, giving options or or incorporating aesthetic options into the design. You know, to say, you know, you know, it's important, you know, it's important to screen these, you know, provide visually appealing options and ways an applicant might do that is provide vegetative cover provide, you know, screening, screening fence screening or wall screening that's consistent with the, the topography and the natural habitat of the site. There's, I think a few different ways from a planning perspective you might be able to achieve that. Again, we're talking about reasonableness so if you can connect it to public health safety and welfare. Awesome. If it's just a matter of preference, you might not have that authority. Good. Yeah, good Chris. In other words, if you have, you know, we have some pretty fantastic view sheds we have view sheds all along northeast street and southeast street and other parts of town. So we wouldn't really be able to say well you can't put solar arrays in those locations because they are our magnificent view sheds, you could say that there would be requirements for screening to the extent possible but it may not be possible to actually screen these things completely from site from the road. And so, you know, it would be a question of giving the applicant a reasonable form of mitigation that he could use or a reasonable form of trying to minimize the view of the solar arrays but you couldn't say no you can't put it there because that's our lovely view shed. Am I understanding correctly. And this might be a little insight baseball but under the zoning act. We talked there's a list of things that someone might be aggrieved by either a local decision or a file or something like that this categories and that could be, you know, a whole bunch of different things but one things that the court has kind of consistently said is visual impacts are generally not of interest protected by the zoning act. So when we're talking about visual impacts or regulations to visuals. I tend to be, you know, we have to be a little more regulated and how we address those because there's not as much authority to say, you know, you know, open space or, or, you know, utilities or, you know, erosion and all those kind of other things that are protected but yeah, Chris you're right I would say, you know, if you said, if you started banning, and that goes back to Tracer Lane. When I was clerking at the Land Court I wrote two cases one was called PLH versus East Long Meadow and one was called PLH versus where same company they did the same thing. That was one of the conversations to where they were wholesale banning from particular areas of town, and the judge in that case said no no you can't wholesale ban. You know you might have a reason for it but you can't wholesale ban what you might be able to do is say, you know, you know, it's allowed in this area of town but because of the factors you know your views or whatnot we want this particular type of vegetative screening so we want this type of fencing or something like that. All right good. Okay. Thank you so much Jonathan. And really appreciate your, your candor and your knowledge and insight. I know you'll be with us along the way to some extent if we have any quicker follow up questions I guess along the way and then obviously I presume you sort of review these at the, when they finally get to that, that position so hopefully you'll see it some drafts and then final versions that really reflect all that we learned from you through this process. Thank you for your time I appreciate it and I'm, you know, if you have any questions please just let me know. All right, thank you so much. All right, good. All right, great. Welcome back. That was really insightful and helpful and glad we ran through those it's really just helpful to hear and talk them out, in addition to the written responses. Great. Anything before we on that just after Jonathan left before we we move forward with returning to the top of the agenda probably great okay so let's we have about 20 minutes left so not a whole lot of time so let's do what we need to get done particularly with the reviewing and voting on the minutes from two weeks ago. I think some quick staff updates, and then time permitting which I hope we do have I wouldn't mind just particularly focusing on the Amherst Water Supply Protection Committee final now report to us which was greatly appreciated. And maybe Jack can just walk us through that quickly or address how they sort of finalize that document. Okay, so first with the minutes from November 18 meeting. Have people had time to review those and assuming so anybody have any concerns or revisions to offer. Thank you for asking, seeing none. And let me just verify you up so that was. That was Jack yeah thank you jack for for taking those minutes. Any. Yeah, is that question. I won't move to approve it but since I don't. Oh, I think you're prohibited from suggesting suggesting that so assuming he's operative from making a motion. I was trying to make Stephanie a co author but she took her name. Okay. Okay so I think Jack was that emotion to accept the minutes. Yeah, I guess if that's permissible. Okay great. Any, anybody care to second that. Okay. Laura who beat in first. Yes. All right. Okay great so. Yeah, please. Okay so no particular order. Brooks. Yes. Breger. Yes. Gem sec. Yes. Corcoran. Yes. Hannah. Yes. Okay. And it's approved. Okay. And then. Yeah, maybe any quick. Well, maybe quick staff updates. Stephanie and then Chris. Sure. Very quickly. We had a department head meeting last week with. Adrian to. Review some. Journal questions survey questions for department heads. Great meeting. We had at least, I think 17 of us were there. In attendance. Next steps will be to. Develop a public survey questionnaire. And that will certainly be distributed to both the ECAC, your group and department heads for. Feedback before it goes out to the general public. Also, I want to make a general statement about the assessment just again for clarification. That when the assessment is completed and the map is provided. What is indicated on the map does not identify where solar will go. It only identifies the potential feasibility. If the site. Shows that it's potentially feasible or doesn't show that it's feasible. It doesn't mean it is or isn't. It's going to require additional ground. It's going to require additional ground. It's going to require additional ground. Review, you know, and analysis before any solar installation could go even on a parcel that's identified as potentially being feasible. So there's other levels of review prior to. Installing solar. It will have to go through environmental permitting if it's necessary. And. So I just want to be clear that. This is not. Identifying where it will go. It's not. It's not. It's not. It's not. It's not. It's not. It's not. And it's just a place to start. Great. Thank you. I'm Chris. Anything I know. You've been obviously under the weather. So. Don't have anything. I basically been sick for the last week. Trying to keep up with what I can, but I don't have anything new. Thank you. All right. Great. Okay. Good. So that gives us. Maybe five, five minutes. Before the one 30. And so. Jack, just on behalf of myself and the working group. I did just want to express our. Appreciation and thanks to the. Water. Supply protection committee. For. Working on this report, developing this report. Addressing the comments that we provided and others have provided. And then finalizing that as suggested in the cover letter. Absolutely. I think this is going to be a great. Great. Thank you. Thank you. So. Thank you. We have a lot of resource. And reference material. For this working group to work from. You know, particularly as it pertains to. The zoning around, around. Particularly our water supply areas. So just thank you for, for, for all that work. And if you could express that appreciation to the committee as well, that would be super. Did you want to. Thank you. Make any comments or. Thank you. I think we should move this to the next meeting just to kind of go through it. I, you know, I guess I would refer to the red line strike out version. Which may or may not be super accurate, but it gives me, or I could go through the questions that the, that the, this working group had either way. Kind of, you know, say what was. Updated to it. So, and then I think there was reference to. Aaron Jock's comments as well. So I can, you know, talk briefly about those. Great. Well, let me, let me first just you mentioned a. I'm not sure if I saw a red strike out version, right? Okay. Stephanie's acknowledging something. Yeah. We're only only reviewing the final product that was submitted to the group, not previous drafts, only the final product. And then there were three additional items. That were submitted. One was the combined list of questions, which actually seems like a logical thing for you all to review. And then Aaron Jock's comments. That were provided both for the draft and also her. Sources that she cited. Yeah, yeah, exactly. Okay. And I think there are some. Comments with regard to her comments were well intention, but not, but to some extent broader than the issue of water supply. I think that was the scope of the work. Yeah. Okay. I guess I would be. As this sort of arrived in our packet. Just a day or so ago. Should have opened the open the floor for any clarifying questions or questions to tee up for Jack, but otherwise spend some time on this as an agenda item for our next meeting. And people can be, be better prepared and maybe Jack, if you could sort of think about, you know, 10 minutes, just to review the, the, the report and sort of some key takeaways and maybe also how you specifically address some of the more interesting questions or comments and questions that you received. Sure. That'd be good. Great. Okay. So we'll put that on the agenda for next time. And, but any, just questions for Jack to help. Think about what we might cover next time on this. Great. Okay. All right. So let. Let's before we go to public comment. Just to be all on board with our next meeting. It's going to be another one two weeks from today, which brings us to the 16th. I think it's my last meeting of December. We'll stick with the 1130. Apologize for that, Martha. I know you're going to be on the West. Early, early meeting. But I, I, I think it's my last department meeting that starts at 130. So. I'd appreciate starting at 1130. At least for the next meeting. We can discuss it at the next meeting, but my sense is that we will skip. We're going to be at the 30th. Of December. I'm not exactly sure where I'll be. Or what I'll be up to. But I think a lot of us will probably be in holiday mode. So is that, is that sound okay with folks? And then we'll pick it up in. What would might be January. 13th. Though we could go with the six. To get us going again. Yes. I don't know. I just think about January 6th as the next one. But we'll, we'll. Confirm that on. On during our meeting. On the 16th. Okay, great. Stephanie, if you could. Open it up to any public. Thoughts or comments that might be. Looking to, to, to provide some comments. Sure. Steve roof. Alrighty. You can go ahead and unmute yourself. Hello there. Thank you for your work. This is Steve roof. Amherst resident on the Southeast street. And I had a question that would. Would have loved to be able to ask Jonathan when he was speaking. And it has to do with those first two questions, kind of about the making the case for forest protection. And this is, this is a question that I would like to ask. If a solar bylaw makes the case for restricting solar developments to preserve forests for public health, safety and where welfare. But town zoning allows other forms of development that impacts forests with that undermine the validity of a forest protection restriction specific to solar development. So in other words, that would be an interesting question to get an answer on. So I mean, particularly maybe Steve with the fact that solar is provided protection under the Dover amendment. Whereas other forms. Housing, for example, or a house single family or multiple house may not. Good. Okay. Thank you. Yeah. Thank you, Steve. Stephanie, I mean, do you think that could be just a one-off question we asked Jonathan to opine on? Absolutely. Yeah. Okay. Great. Yeah. Awesome. Anyone else have from the public. Want to make a comment or ask a question. Of the committee, please electronically raise your hand. All right. See, seeing none. I'm happy to get five minutes to grab something. Department meeting. I just wanted to say there were five panelists. I know the questions coming up. So I'm going to five attendees. That was the maximum for the meeting. But. Yeah, exact. And go ahead, Martha. Just quickly say our last minutes say that we were going to invite the fire department. To come to our next meeting to make a presentation. Is that still the plan? Well, maybe we can invite them and see when, if they're available. Willing available. Either at. December 6th or January. Sorry, December 16th or January 6th. I'll reach out. Yeah. Find out which state works. Yeah. Yeah. And basically get. And then they actually made some comments to the water supply committee group. So I got a sort of sense of where they're at, but it would be great to hear what their. Level of, of, of knowledges and capabilities. And uncertainties. As well. Yeah. Thank you, Martha, for reminding us on that. Okay. Very good. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you for reminding us on that. Okay. Very good. Appreciate everybody. Hard, hard work today and attention. And. I hereby declare this meeting adjourned. Thank you. Have a good rest of the day. Thank you. Thank you.