 The chair notes the time is 6.03. I call this meeting of the Amherst Zoning Board of Appeals to order. My name is Steve Judge and as ZBA chair, I wanna welcome everyone to this meeting. The Zoning Board of Appeals is a quasi-judicial body that operates under the authority of chapter 48 of the general laws of the Commonwealth for the purpose of promoting the health safety convenience and general welfare of the inhabitants of the town of Amherst. In accordance with provisions of Massachusetts general laws chapter 48 and article 10, special permit granting authority of the Amherst Zoning Bylaw. This public meeting has been duly advertised and notice thereof has been posted and mailed to parties at interest. Pursuant to chapter 20 of the Acts of 2021 and extended by chapter 22 of the Acts of 2022, this meeting will be conducted via remote means. Members of the public who wish to observe the meeting may do so via Zoom or by telephone. No in-person attendance of members of the public will be permitted, but every effort will be made to ensure that the public can adequately access the proceedings in real time via technological means. All hearings and meetings are open to the public and are recorded by town staff and may be viewed via the town of Amherst YouTube channel and ZBA webpage. We will begin with a roll call of ZBA members. Steve Judge is present. Ms. Tammy Parks. Mr. DeLon Maxfield. Here. Mr. Craig Meadows. Here. Mr. John Gilbert. Present. I also want to note the presence of our associate member, Ms. Sarah Marshall. Here, yep. Also attending the public hearing tonight is Maureen Pollock Planner in the town. Maureen is anybody else in the town? Yes, we have the sustainability director, Stephanie Ciccarello and building commissioner Rob Mora and planning director Christine Brestrup will be joining us shortly. They're in another meeting at the moment. All right. And also Jonathan Murray of the KP law firm is attending. Tonight's agenda, new business. Zoning Board of Appeals training on land use permitting for solar array installations and standalone battery energy storage systems under the Amherst Zoning By-law and Massachusetts General Laws, Chapter 40A, Section 3. Discuss which topics are reasonable to require a third party review through Massachusetts General Laws, Chapter 44, Section 53G and discuss what types of conditions the Zoning Board of Appeals can impose on a solar array installation permit or in a standalone battery energy storage system permit. After that, there'll be a general public common period on matters not before the board tonight and any other business not anticipated within the last 48 hours. Tonight, we are joined by members of the Solar By-law Working Group. Chairman Berger, are you, there you are. Chairman Berger as chair of the Solar By-law Working Group. Do you want to open your group's meeting? My understanding is that we do not have a quorum. You do not have a quorum. Correct. Go ahead. I can just introduce myself as being a member and the chair of the working working group, the Amherst Solar By-law Working Group and Jack Gemsick also is a member. And I think that's who we have here tonight. That's who you have. So you don't have a quorum so you won't be able to officially conduct business and comment because of the open meeting law. You'll be as a participant or attendees, not participants. And if that should change, let us know. I mean, if you get a quorum, let us know and we'll bring you in. But until that happens, you'll be- Yep, we'll participate. As members of the public, okay. Exactly, thank you. All right. Before we begin the presentation by Jonathan Murray of the KP Luffer, I thought it would be helpful for members of the ZVA to have an update on the site assessment being conducted by the town to determine the appropriate placement of solar arrays and for the progress and development of the new solar by-law. I had hoped that either Chris might be able to present the, how the site assessment is going on but perhaps Miss Chikarello might be able to update us on that briefly. Yes, thank you so much. I appreciate that and I've been managing the solar assessment project for the town. We're working with GZA Environmental. They've been meeting with me on a fairly regular basis and we also have a working group, a sub-working group that's been working with them as well that includes Dwayne Breger who is both the Energy and Climate Action Committee liaison as well as the solar by-law working group chair, Chris Brestrup, the planning director myself and also Mike Warner from our IT department. And we've been working to determine what is the best methodology to use in order to conduct the assessment. The assessment will really be just a general look at what is feasible for development in the town. It will not include the university or the two college campuses or their land holdings. So it will only be townland, business property and private property. Again, it will only be to look at what's feasible. It will not be specific beyond that as to exactly what can be developed. The criteria is still being developed as well and we will update you as we move along in that process. Thank you. I note that Ms. Brestrup has attended the meeting and we just went through the site assessment status report. Ms. Brestrup, do you wanna just let us give us a brief status report on where we are with the solar by-law and what the timetable is to inform the ZVA members of when they could expect to see a zoning by-law, a new solar by-law. Certainly. I'm Chris Brestrup, Planning Director. I think I know all of you. So good evening. The solar by-law working group is working on a solar by-law. Their deadline for having something ready to send to town meeting is the end of May in 2023. So you're probably not gonna have a solar by-law really to be realistic until sometime next summer because once it goes to town council, town council will need to refer it to the Planning Board and the CRC for public hearings and that could take a few months. And then both of those bodies need to make a recommendation to the town council and then it needs to go back to the town council. So it's gonna be a while. So you're gonna be working without a specific solar by-law for a while, but we're working diligently and making progress. Thank you. So I guess one of the things that I wanna point out to the members of ZBA is we're, I think, highly likely to see some applications for solar arrays, special permits before we have a by-law. This training is designed to give us a background on what the state of the current law is in the state, sort of condition of the qualities and characteristics of the conditions that we would need to consider to approve that by-law in the absence, approve that application in the absence of a by-law. So this is something that we'd probably be helpful for us to have this background as we deal with solar applications prior to the adoption of a new solar by-law. Before we go to Mr. Murray, we had Mr. Murray and I discussed the best way for his presentation to go. And I think the best way to have a consistent and concise presentation, what we thought was best is that Mr. Murray would present the first half of his presentation, we'd break and give everybody a chance to have his questions and then he presents the second half of the presentation and everybody could ask questions after that. In this way, we're not kind of interrupting him unless it's absolutely urgent. There's something you don't understand but it really needs to be clarified at that point. But generally questions, let's give him a chance to give a half his presentation, open it up for questions and then complete the presentation at that point. All right, Mr. Murray, do you wanna proceed? Thank you, Mr. Chairman, thank you. My name is Jonathan Murray, I'm an attorney at KP Law, just very briefly before I begin, my practice area involves land use, permitting and zoning matters, drafting and adopting of zoning by-laws, granting of permits, variances, comprehensive permits and then enforcement of zoning and other local and state codes. So I'm familiar with the zoning aspect and especially the solar aspect is being a hot button issue for many communities over the past two to three years. Before I was practicing at KP Law, I was a law clerk at the Land Court and I think I told the chairman, I unfortunately wrote a few decisions that many communities don't appreciate in the matter of solar, so I apologize but I can at least speak with some, at least some expertise on those. So let me see here, I will share my screen. Okay, I'm not an expert in this. So would someone just mind confirming that you can see? Yep, we got it. Okay, see you well. Thank you, you would think after a few years I would get this zoom thing down, but it's always, it's always tricky in the moment. So just a little background, originally the solar by-law working group had presented a list of questions regarding the drafting and implementation of a solar zoning by-law. And I copied the zoning board of appeals on that memo and I hope if you haven't had an opportunity to review it you might have some time to digest it in the coming weeks. But that I hope gives a good overview of the current state of the law and some of their questions that might be relevant to what your board might face in the coming months, especially matters within your jurisdiction. But this presentation as the chairman said, I hope to give you an overview of what the zoning act says especially in regards to solar uses and battery uses. And then after we break for questions, my second half I'd like to get into examples of by-laws that are permissible under the law at least what courts and the attorney general has said is permissible and what is not permissible. So obviously disclaimer, this is for educational uses only and if there's a specific questions please reach out to planning staff or my office or KP law in general. So like I said, I'd like to first start with the first two bullets, overview of the Dover amendment as it's called and then overview of the tracer lane decision which was the first appellate decision we have in Massachusetts came out this summer and analyzes the provisions of the zoning act pertaining to solar uses. After we break for questions, I'd like again to talk about some considerations in light of recent attorney general decisions and then some more broadly question and answer. So what is the Dover amendment? General laws chapter 40a, section three, the zoning act is commonly referred to as the Dover amendment. I would say if we were being pedantic which I've been accused of in the past before section three in reality is not entirely the Dover amendment. It's a specific paragraph in section three but you will commonly hear people refer to all of section three as the Dover amendment. So I just use that terminology because that's probably what you'd like to see or what you anticipate you might see or people talk about in discussion of these provisions. And so the legislature adopted section three and the Dover amendment originally to prevent municipalities from restricting educational and religious use of land. It was a case of the town of Dover where they prohibited a parochial school in a particular zoning district in response to that the legislature carved out zoning exemptions for religious uses and educational uses. And since that time that was in the mid 20th century the legislature has slowly been adding to that list. And generally the Dover amendment and the provisions in section three limit the authority of municipalities and limit the authority of permit granting authorities and special permit granting authorities in regards to particular uses. And so this is a general list of those uses that the municipalities and permit granting authorities have a limited jurisdiction or limited authority to condition. They include agricultural, religious, educational, solar, the reason we're here tonight, the interior areas of residential buildings, things that would be covered by the building code or the electrical code or plumbing code, things like that, child care, structures destroyed by fire and antennas. So like ham radio antennas. I would just give everyone, I'm sure these are things that you all have dealt with in your capacity as board members in the past, but I would just say, we're gonna talk about solar uses tonight, but be aware that each of these has a particular standard that boards and towns have to apply. The legislature didn't enact standardized criteria. So what may be true for solar is not necessarily true for agricultural and religious and educational. So just as a general matter, be aware that while these uses have zoning exemptions or zoning protections under section three, they're applied a little bit differently depending on what use there is. But like I said, reason we're here is solar uses. Solar was added in 1985, and that was part of the legislature's intent to protect solar panels from local regulation or overburdened local regulation. I would note just if folks are interested in this, there's a thought or there's a discussion about really what was the intent of the legislature in 1985. Some folks think that the legislature didn't anticipate these large ground-mounted solar projects that we now see today where dozens of acres are taken up by ground-mounted. Some think it was just intended for roof-mounted, but that's kind of just a purely academic thought at this point. The state of the law is that whether you're on the ground or on the roof or over a cranberry bog, the provisions of section three lie to these solar uses. And so this is the key phrase here and I'm just trying to get, if I can get my, there we go. The pictures there were blocking my view. So this is really the key language and I'll comment on it in a second, but it says, 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. And so I think there's two really key things if you take anything from what I'm discussing tonight is by-laws can't prohibit or unreasonably regulate. And the exception to that is accept where necessary to protect the public health safety or welfare. So I think prohibit is generally understood. You can't prohibit solar installations. There's a series of cases out of the land court where the court, while we don't have a pellet review of these cases, that court has struck down zoning by-laws that prohibit solar from entire districts. For example, there were, there's two cases, one out of the town of Ware and one out of the town of East Long Meadow where those communities prohibited all solar in all residential districts. And the court said that is an unreasonable regulation. Not only is it unreasonable, it's a straight up prohibition we think that that goes against the language of section three. So that's one, we don't really have a pellet cases on that quite yet, but that's something folks should be aware of. The second thing is that last sentence or the last portion of the sentence, the accept clause, accept where necessary to protect the public health safety or welfare. And that's kind of where you all come in and where the solar by-law working group will come in when you're considering permits for these types of uses, this is going to be the theme in your head or at least should be the theme in your head when you're either granting the permit or conditioning the permit. The statute prohibits unreasonable regulation except to protect the public health safety and welfare. So any condition that you might impose or consider imposing has to be very explicit and it has to be a very direct connection between the condition and the protection of those three things. So really main point, key point here is no unreasonable regulation except if we're protecting public health safety or welfare. And I'll continue on what that means in a moment, but unfortunately as I had a discussion with the chairman earlier, what is the public health safety or welfare is going to be different for each community. It's going to be dependent on local needs, local conditions and specific sites, project sites and that sort of thing. So this is truly a case by case basis. And while we can take general themes of it's improper to prohibit solar in your town, which obviously you're not proposing, but just as an example, it would be impermissible to do that. Where you do condition or you do limit this use, you have to make a connection to public health safety and welfare. So that's kind of the really the key thing to think about. We'll just go back to this. So like I said, there has been really a lack of case law on this issue up until this summer. I will say when I clerked to the land court that would have been 2018 to 2019. That's when we first started seeing cases come through really analyzing this issue. Prior to 2018, there were really four cases that discussed this solar provision of section three and they weren't particularly helpful for municipalities. But in June of 2022, the SGC finally took up this issue in a case called Tracer Lane. And I think it's really important to talk about it. One, because the attorney general has been strictly applying this case to new bylaws. And that's not particularly part of your calculus at this point, but you should just know that that will then inform how the courts are applying it. And that also applies to zoning bylaws. And if there's a zoning moratorium or something like that. So I'll just briefly explain the Tracer Lane case, kind of anticipate some questions and then we'll take a pause. And I can hear if you have any questions. So Tracer Lane, the main issue in that case was the developer had proposed to construct a large-scale ground-mounted solar system in the neighboring town of Lexington. In the Waltham portion, which is where this case arose from, they proposed to have an access road. And the city of Waltham determined that in the district where the access road was being proposed, they did not allow zoning. And they denied their permit for the access road, not even for the structure itself, but for the access road. That case was appealed to the land court. And they, in the land court and subsequently the appellate courts found that the access road was ancillary to the solar structure and therefore was under the umbrella of protection for section three, that ninth paragraph of section three because the access road was to facilitate the collection of energy, which is a protection in the zoning act. And they said that was a use that was connected, closely enough connected to the principle solar use to enjoy a protection. So that was the first part of that case. The second part of that case was the prohibition. I mentioned that earlier where some communities have prohibited solar in blanket districts. The court found that Waltham's prohibition was unreasonable because it only allowed for solar systems to be installed in 2% of the land area of town. And there was no provision in their zoning ordinance that had any reasonable basis in public health safety or welfare, which is why I've really trained to stress that phrase is because that's what the courts are, that's what the S.G.C. hung its hat on, that's what the attorney general has hung her hat on. And that's kind of the phrase that we're left with at this moment. And so here again is the holding, but the key takeaway is when we impose conditions on solar uses or when we adopt solar bylaws, we have to have the municipality, at least as far as we're sure right now, has to conduct and document its planning process in a way that articulates why they're adopting a regulation or why you're conditioning a project in relation to a reasonable health safety or welfare concern. And generally these conditions and these bylaws should be aimed at least according to the courts to promoting solar rather than restricting solar. And so that's kind of the balancing test that we have to undertake is does this condition on a reasonably regulate or unreasonably prohibit or is a backdoor way to prohibit solar in the town or is it a reasonable regulation which not only promotes solar, which is a requirement of Chapter 40A, but also protects health safety and welfare. And so I will just perhaps take a moment to try to anticipate a few questions and then I'll turn it back over to you, Mr. Chairman. So like I said, what does it mean reasonable health safety or welfare? I wish I could give you a definitive definition that made it very easy for you all to apply, but unfortunately that doesn't exist and it doesn't exist for a few reasons. One, it's different for every community. The town of Amherst is gonna have different priorities and different concerns than the city of Cambridge or the town of Yarmouth or the city of Springfield. There's different municipal concerns, different concerns throughout the state. Also, it's a case by case basis, I think. You can certainly imagine scenarios where you have a solar installation on top of a hill and you have erosion concerns or perhaps you have solar glare concerns if it's next to a residential house or perhaps if it's near a school and there needs to be fencing or screening or anything to keep children away. There's a million different scenarios you could think of. And so that's why it's unfortunate I'm unable to give you a particular definition, but like I said, those key takeaways, that phrase health safety or welfare, those should be in the back of your head anytime you see an application and you're considering imposing conditions is to say, does this condition on reason really regulate? No, and if not, what's the connection? Why are we imposing this condition? And if you're able to connect that to a health safety or welfare reason, the more likelihood if it were ever appealed to a court that a court would defer to your judgment. Because you all know the town better than the courts. There is a preference to defer to the local boards because they have local knowledge of both the bylaw and the facts of the case, but they won't defer if the condition is unreasonable. So it's a balancing act, but Mr. Chair, maybe if we pause here for a second and I can answer any questions or maybe just discuss further if anyone would like. Great, I do have one question and I wanna make sure to open this up to all ZBA members. So earlier in your presentation, you spoke about buildings, you couldn't unnecessarily or unreasonably prohibit or restrict buildings that facilitate the collection of solar energy. And then I noticed in that one case, they dealt with making a road in the construction of a road. So what is all the protected, not only building but activities that section three covers? Is it, obviously it's more than the building, it's more than the battery storage facility, it's more than the arrays. What all is covered? I mean, is it the construction, temporary construction mobile home that they use as an office? Is it, it's obviously the road in some cases, what else is covered and how broad is the protected class? Yeah, it's a pretty broad class in the sense that if the use of a structure is connected to the collection of solar energy, it will be entitled to section three's protection. So if you had, for example, a mobile trailer or some sort of structure to keep storage items or roads or fencing or things like that, anything that can be reasonably connected to the collection of solar energy use will be entitled to the protection. So temporary placement of construction materials for the time being until it's built and all the, so it's pretty broad in terms of what is protected. Yeah, it is pretty broad. I would maybe give you the caveat to say, like I said, the statute doesn't prohibit all regulation, it just prohibits a reasonable regulation. So if you were concerned about construction material, for example, I think a reasonable regulation might be, I don't know what that might be, but if it was a pile of dirt, if there was a lot of grading, you might have a reasonable condition to say, you might cover it or have dust mitigation plan or something like that. Because those types of conditions wouldn't unreasonably prohibit the underlying solar use, it would just be we're going to protect, say the neighbors from dust, from the construction activities, but you can still do the use. But to your question, it's a pretty broad class. And so long as the applicant, in my opinion, can show a connection between either the temporary use, the continuing use or the structure and how it supports energy collection, it's going to be entitled to zoning exemption. Thank you. Ms. Marshall. Yeah, I would just add on to Steve's question. I mean, the energy generated needs to be then transmitted. So does this also apply to transmission lines and the utility poles or can the ZBA ask that they be buried if that's even possible? I don't know, but it's not just generation. It's no good to anybody if it doesn't leave the site. Yeah, you bring up an excellent point and it leads me to the battery energy facilities that are in this presentation as well, but I'll answer your question first. We should just be careful, especially with like transmission lines, those might be depending on the project and the size and everything like that, those might be regulated under some sort of state statute, whether it be under the Department of Public Utilities or the Energy Siting Facility Board, which is a board within DPU, or it might be governed under the electrical code, you know, the subset of the building code. So to the extent that a transmission line is regulated by something from the state, the local municipality is preempted from regulating that. So I would just caution boards, you know, when we get into that kind of thing, we should just be, you know, and that might be consulting with the building commissioner or might, you know, someone from my office or planning staff, it might be preempted. So we might say, town can't even touch it. You know, it's governed under the state statute of the state regulation. If it's not, I would be, I would be hard-pressed to think of an example where that type of use or that type of structure wouldn't also be protected by the Zoning Act, you know, those supporting poles and everything like that. I would just say, it reminds me of the battery energy storage facilities. You'll see that a lot with solar panels. And instead of going back to the grid, they put them in batteries that are also on site. The AG's office and the courts have said where batteries are associated with the solar panels, they're also entitled to the section three, protection. Some communities, and I think Shootsbury and Ware and Medway and I think Wareham, there's a few different communities out there. I'm just trying to think of, you know, communities, they regulate independent storage facilities. And that's independent battery storage facilities. And to be honest, I don't know practically how that works, whether they collect energy from the grid and then it goes into batteries or whatnot. But the AG has kind of telegraphed that it may be permissible if they're independent and they're not associated with solar, communities might have jurisdiction over that. But then it goes back to the state preemption question of do those battery storage facilities, are they regulated under the building code, the electrical code or anything like that? So that was a long winded answer just to say, yeah, transmission lines would likely be covered under section three, but I would think in the first instance, communities are probably preempted under some state regulation. Thank you. Other questions at this point in the presentation for Mr. Murray. Ms. Parks. I guess what's coming up for me is I'm just wondering if there are any issues with the battery storage facilities where they might be considered a nuisance, like by way of sound or electrical emission or something like that. I guess I don't know that that would fall towards the zoning board, but is that an issue that has been raised about solar fields? Yeah, it certainly has been raised by different communities. I would say in the first instance, mass TEP has a comprehensive set of regulations regarding noise from property and odor. It's odor, noise and dust, I think, but it's noise and odor. And that's under the jurisdiction of the Board of Health. So I would say that there might be circumstances where the community is preemptive from specifically regulating issues regarding noise, because the Board of Health already has jurisdiction under DEP regulations to address that. They also have broad jurisdiction under Chapter 111 to enforce or take action against nuisances generally. But to your question, I would say that, to the extent that the board, this board or the town has jurisdiction over a battery facility or a solar facility, and you can identify in that particular application what might be a nuisance. Perhaps location, it's very close to a school or a residential area or something like that. You certainly can take reasonable regulations to address those nuisances. But like I said before, so long as you connect them to public health safety and welfare. So I think noise, you could probably make a good argument to say, this facility is so close that we are gonna require this screening to protect public health because the noise emitted causes health concerns or something like that. But I would say in the first instance, the Board of Health probably has sufficient jurisdiction to address the nuisance. But to the extent that it's not covered under those DEP regulations, you could impose reasonable conditions so long as those conditions weren't a back end to prohibit the use. Like I'm thinking, for example, setbacks. The AG has said you can impose a different set of setbacks for solar and the associated structures, but you couldn't require, say, a half a mile setback because that would just significantly reduce your land area you can use. And it's a back, they think of it as an unreasonable back end to prohibit the use. But say your normal setbacks in the district were 50 feet and you said through the bylaw or whatever it may be, we think 100 feet because they emit this particular noise and that noise has a detrimental impact on the neighborhood. It's a conversation worth having. But yeah, to answer your question, Board of Health is first and foremost in my mind about nuisances, but you can impose reasonable conditions to address potential nuisances. All right, I'm just not sure how we would know if someone was going to put it in installation. I don't know if those battery storage units do make a sound or if they do emit something. So... You certainly... Oh, sorry, Mr. Chair. I was just going to say, well, one thing that is available to us, and we've done it in one case earlier in a comprehensive permit is 53G. If we feel as a Board, we need additional information, we need to have it evaluated, we can use a provision of state law to require the applicant to fund an outside consultant to answer the questions that we post. So there is not only the knowledge that we have and it's the applicant in that our council would have, but we can go for outside help if we need it. I think that's one possibility that not, Mr. Murray. Oh, yes, that's exactly what I was going to say. There is a provision for employing outside counsel. Certainly, I went to law school, I didn't go to, I didn't get my electrical license. I don't know what sounds or dangers those emit, but you certainly could employ professionals who do have that expertise. It would be nice actually, if we could visit sites at some point and just see if there is a sound or, you know, any other way it might be constrained to be a nuisance. Thank you. Mr. Meadows. There just, there really is no noise. We're, if you go over to UMass, you will notice that there isn't any noise over by the Mullen Center. There's no noise at the new system that they just put in by the administration building. We're dealing with a four and a half megawatt system down in adjacent to a VA hospital in Houston. There's no noise. We're putting in battery energy storage. We just finished up at the VA hospital with four megawatts in Las Vegas. There is no noise. We put in a solar system at the FAA in Corpus Christi. The one thing that we did have there is a requirement that the reflective light off of the system did not interfere with the tower and the line of sight of the people in the tower who are bringing in the airplanes. That was very easily done. There was no problem. I don't think that we're gonna find that as a criteria in anywhere in Amherst. I don't think we're gonna see any problems with noise or any other hazards of that sort. Fencing, we did have a project down in Connecticut at a housing authority where we did put fencing around the facility around the solar. And we dropped it below the line of sight from the roads because there was concern of the reflective glass and reflection of the sun might interfere with cars being driven by reasonable reflection. But if you drive down the mass pike, you'll see solar all along the pike. That was installed by Amherstco. I haven't seen any reflectivity problems on the pike. I don't think you're going to given the way that they're situated. As long as things are situated properly, that typically solar is not gonna be a problem. Can I just ask quickly, for battery stores, does that generate any heat? Not really. Okay, I was just wondering if the batteries, where the transformer is, if it heats up and needs to be cooled down or anything like that. We haven't found any situation where that would be a problem. There are different types of battery energy storage systems. And some people have been indicating a desire to use lead acid batteries. And build larger structures to house them. Very inexpensive way to use that instead of using more minerals that need to be mined around the world for rare minerals. There's a lot of discussion about what could be used instead of the current battery energy storage systems. And perhaps that might be something, and I guess that's a question, as to whether there can be a restriction on the amount of rare minerals that are used in any specific solar system, a battery energy storage system that would be used in the town. Is that something that might be considered? I wouldn't say no. And to be honest, it sounds like you have more expertise and professional knowledge about this than I do. But I would say, again, what the court is gonna look at is, why is the town imposing that condition, whether it be the board or through the bylaw, is how does the restriction on those rare materials in the battery system protect the public health, safety and welfare? And could there be a less restrictive way to achieve the same goal? So it might be that the court might say, you can't outright prohibit or limit those, but you could require decommissioning bonds or decommissioning plans or hazard mitigation plans or whatever it might be. I think I would need to know a little bit more about the rationale behind the limitation. And then what we would do is connect that or try to connect that to public health, safety and welfare. Rare earth minerals are found usually in poor countries. They're mined in ways that use a lot of resources, particularly water. It's a matter of whether you can equate mining of those minerals with climate conditions. And if you can, does that make any difference as far as the court's concerned? It might. And I wish I could say yes or no, it might. It's just gonna depend on the way that the court is gonna look at it is to say, what connection to the community, how is this protecting the public health, safety and welfare? And I suppose you can make an argument that the public health would include, generally climate change, but that might be a harder sell. And I apologize that kind of sounded like I was, my thought process is the court is going to be more convinced, I think in my opinion, about the protection of the local community, the health, safety and welfare of the citizens of Amherst and the surrounding communities, rather than the world at large as maybe that's a policy decision that should change. But I think they would be more convinced by saying, if we limit these types of materials, they will have this positive effect or they will have this protective effect for our citizens. That's a more convincing argument than to say, we're gonna limit the types of materials you can use in this facility because it's going to help climate change in general. I think it's too loose and it's too amorphous for a court to really grab onto. I would also just caution to say, when we start getting into building materials and the types of materials used in construction of these facilities, if it's a matter that's governed under the building code, then I would say no. If the building code says you can use these types of batteries so long as you do XYZ, the board shouldn't go near it because that's the building code, Trump's local concern in regard to building matters. If the electrical code says you can use these materials so long as you do XYZ, the electrical code is Trump's it. So I don't wanna say no, but I think we would need to be very clear on is this preempted by state law regulation? And if not, how does this protect public health safety and welfare? And then third, if it does, is there a less restrictive means we could do this? Meaning, could you still use those materials but provide mitigation or emergency planning or bonds or decommissioning plans, something of the like? Unfortunately, I can't give you a yes or no, but I hope that's at least a little bit helpful. At the risk of kind of going into the rabbit hole here, let me just posit a question, hypothetical. Say that the, and this is purely hypothetical, say that the concern amongst the board that certain materials used in the batteries could degrade, could explode or could in some way be released to the town and to the neighboring area, even though those materials are permitted by the electrical code or the state building code. But if they had a well-baked, if they had a concern about that, would the board's restriction likely be overturned because or board's condition that those materials not be used in the batteries be likely overturned because there are the state electrical code or the state building code permits it? Is that what you're saying? That's my gut, just in a hypothetical. Yeah, it's a hypothetical and I'm not even sure it's a real concern but I'm just trying to get a feel for the. Yeah, I would say an outright prohibition if it's governed by a state code or regulation, the town prohibition would be prohibited. What you could do, say for example, that, and this is getting into technical things that I don't have great knowledge on, but you could imagine a scenario where you say, this particular type of battery or this particular arrangement of batteries is permitted under the building code and they did all the safety features but you as a board say, well, we have wetlands here or we have sensitive habitats or anything like that and what we'd like as a reasonable condition for you to do is provide some sort of buffering or some sort of container or some sort of a general inspection reporting. You have to report in once a year to make sure that they're in good working condition. Reasonable things that don't necessarily prohibit those uses but then still address the concern of, these are materials that we don't exactly want in the town but we wanna make sure that they're safe. So reporting, screening, containment, those conditions are more likely to pass judicious scrutiny than to say not allowed at all. Right, okay, that's helpful. Other questions for Mr. Murray, if not we can move on to the second part of your presentation but I do not wanna take away the opportunity for board members to ask questions, okay. All right, Mr. Murray, go ahead. Let me share this again. So we finished on Tracer Lane. So I just like to take a few minutes to talk about general other communities bylaws and I know this is the zoning board. I put this in partially for the solar bylaw working groups benefit but I think this is just helpful so you kinda know where other communities are on the issue. I won't read these out verbatim but I would just point out like for example in the Hopkins in case the town extensively studied the impacts presented and created a pretty lengthy record regarding public health safety and welfare the attorney general was satisfied by that in contrast in Wareham where they tried to adopt a bylaw that limited the acreage and didn't list a public health safety or welfare reason the AG said, no, that's an unreasonable regulation and you haven't sufficiently explained why the community should be allowed to have that regulation. So again, similar to Hopkins in the town of Washington had imposed or adopted regulations so as to further their goal of being a green community which is a state program, the AG said that was fine and then the Spencer case I would just note the Spencer AG decision came out before the Tracer Lane SJC case so we're not particularly sure if the AG were given this bylaw again if they would approve it but at the time they said 100 to 300 foot setbacks and other regulations were permissible but town be cautious, careful where you go. So again, other things that were fine site plan review, additional requirements for agricultural use or open space use. We talked about it briefly but bonds for decommissioning and removal I would just note that there's a particular requirement under chapter 44 municipal finance statute on how you handle those those would be worked into a bylaw or regulation if the town were interested in that but I would just flag that wholesale cutting of trees that's an interesting topic towns are really wrestling with this because of the public health concern with clear cutting trees and shade and the positive effects of having forest land. We don't have a great sense of where the courts fall on that one but the AG I think at least in the Medway case which was earlier this year tentatively said that that's probably okay. And then again, rare requirements for pollinator friendly planting especially if those requirements are connected with like say agriculture land or specific habitats or things like that. Those were presumed, we presume that those are reasonable. Disapproved unreasonable things prohibition on the use of pesticides, herbicides, fertilizer that's under department of agricultural resources jurisdiction similar to like the building code conversation and the DPU conversation if the state regulates it generally the towns are preempted from conditioning. So something to keep it aware of that those types of conditions might not be permissible or generally not permissible. Again, restrictions of the parcel size the three to 10 acres was the Wareham example that was disapproved this year earlier this year. That's not to say that the towns couldn't restrict the size of these parcels but Wareham didn't give a reason for it. So the AG said it's not sufficiently connected to public health, safety, or welfare. Again, the removal of trees that was Wareham as well. And ultimately, like I said anything not grounded in the protection of public health. I know I'm a broken record. I think my wife has heard me give this presentation a few times earlier today. I think she could give that as well. I've said it so many times, but yeah, it's something really important for conditioning these applications. Very quickly, just want to talk about battery energy storage systems. Like I said earlier, when they're connected to a solar use, presume that they're entitled to the section three protections. This is not where I say approved definition I just want to clarify. It was a definition approved by the AG. It's not like a definition set in statute. So you could have something a little bit different but this was the town of Medway that they got this definition approved. So it's just something if you want to go back and look at what perhaps might be permissible to regulate that's an approved definition. Again, when they cover direct connection to solar energy, they have protected status. Cannot interfere with the jurisdiction of the energy facility site and board. I think I mentioned that at the beginning but it's a board within the Department of Public Utilities. They have jurisdiction over larger scale projects relating to energy facilities. So that would be electric transmission stations, natural gas, fuel, geothermal, that sort of thing. If it's under the jurisdiction of that board, the town is also preempted. Same thing with the building code preempted. I kind of jumped the gun on that discussion but here's a slide about it. Here's an example, Montague had a bylaw recently that was approved that didn't violate section three when it came to battery energy source systems. They were allowable by special permit, small scale were allowed by right as accessory regulations to encourage co-locations and requirements for pollinator friendly plantings. I would just note again, the purpose or at least the court stated purpose for section three is to encourage solar and not prohibit it. And so where the AG says to encourage co-location citing the solar facilities, that is persuasive at least so far as we've seen to the attorney general to say where regulations are aimed to promote it subject to reasonable regulations they're more likely to pass scrutiny by both the AG and the courts. So something to keep in mind of. And of course, if you all look back through these slides and the memo I prepared, which I cite a few decisions and you'd like me to send you those decisions or at least the website that you can pull them off of I'm very happy to do that. Sometimes the AG has some helpful language or insight into what they were thinking. So if there's a particular interest or particular case just let me know and I'll shoot it over by email to one of the staff. I would just also note Amherst really doesn't, I would say there's a concept called dual use solar. Right now it's quite contentious down South Shore, Cape Cod, Bristol County area particularly because of cranberry bogs. What we've been seeing a lot in a lot of communities is that you'll have your cranberry bogs and then they'll stick the solar panels maybe 10 or 12 feet above the cranberry bogs so you can grow your cranberries but then have solar above. That's called dual use solar. That's been encouraged by the state also in the latest round of acts with the legislature enacted they amended the tax statute the tax exemption statute to encourage that. They also said that where you have this dual use solar that solar in the land is entitled to the section three protection. So Amherst might have it in the sense of agricultural land. Definitely I don't think there were any cranberry bogs at least the last time I was in Amherst a few years ago at this point no cranberry bogs but yeah definitely farmland and that sort of thing. So it might be something to consider just generally in the conversations maybe particularly more for the solar bylaw working group but just for the ZBA to know is that the state and the AG look favorably upon encouragement or reasonable conditions on dual use as a productive use of land. So generally just to kind of close it out I know I've said it a million times before but when we're imposing conditions and we're considering these applications it's can't stress the importance of saying how does the condition relate to public health safety and welfare and is there a less restrictive means because at the end of the day when the court looks at this case and if an applicant were to appeal a denial or appeal a condition their argument is going to be the restriction is so unreasonable and so burdensome that we can't do our solar use and the way to succeed or at least the path that we might be most accessible is to say in your decisions, in your conditions especially if we engage consultants and they can give this technical background is to say the reason we impose this condition is because XYZ our consultants studied it and they said XYZ and here's our connection to public health or safety or welfare. If boards and I haven't worked with you all on one of these projects yet but in other communities and other boards I've seen conditions that say no more than 10% shall be used for solar and the court says, well why on earth did you say that you didn't provide any rationale you didn't say why this is needed why couldn't they use 15% or 12% or whatever it may be and we get into a position where there may be a good reason why the board said that or there may be a reason why this is a really important issue and there's a protection as the zoning board you wanna protect the community and protect the neighbors and there may be a really good reason but unless we put it down on paper and unless we explain ourselves probably more clearly and more explicitly than we do and other types of permits there is a great risk that a court could strike it down. So I think there's some resources there I think that's more for the bylaw group but the first link is to those attorney general decisions. So just in conclusion I would say this board if it's considering a solar application is not outright prohibited from imposing conditions. That's not what the statute says but we have to be very careful with what conditions we do and I'll say it one last time that they have to be reasonable they have to be narrowly tailored and they have to be connected to the public health safety and welfare because if not and if it's not explained sufficiently the decision could be bounced back by either the land court or the superior court and that's certainly not something I'd like to see for the board or the town. So that's kind of if you take anything away from that is details explicit and connection. So that's kind of the end I would just say once again I prepared a memo for the bylaw working group I provided a lot more detailed explanation about 483 why it's in the law, how it's applied but if you haven't had a chance to read it yet please maybe grab it from one of the staff members and just take a look because it might give you a little more detail and a little more case law about it but that's the general overview and Mr. Sheriff we wanna take some more questions. Yep, it's a good time for more questions. I would echo what you said I did did have a chance to read your memo. I think it's really helpful and it provides a lot of information and gives me a lot of background information and I'd also say just one other thing weird to the extent that we deal with applications for permitting solar arrays we're gonna be doing it without the guidance of a bylaw we're gonna be doing it on our own we're gonna have to use our judgment and we're gonna have to make sure that we refer it back to those three criteria that you've stressed so often public health welfare and safety. So I guess I'd leave it at that and open it up for questions from members of the ZBA. Steve? Ms. Marshall. Yes, I just wanna be clear in my mind about this this Dover amendment doesn't exempt projects from complying with existing regulation about wetlands or whatever is in the zoning law in the zoning bylaw. You're just telling us that we can't impose additional constraints that aren't well-founded. Is that correct? Well, I would say apart from zoning other sets of criteria. So if they're under the Wetlands Protection Act or local wetlands bylaw or say for example if they needed subdivision or anything like that you have to require that. To your point about zoning I would say and I see that Christine has her hand up but I would say that there might be circumstances where an existing provision of the bylaw is unreasonable. I'm not saying that that's true but many communities have an issue where the existing bylaws on the book courts have now said in light of Tracer Lane that is an unreasonable regulation. Even if it wasn't established because of to deter solar projects. Right. Oh, I see. So there could be on, say for example this is a hypothetical say for example a town a year ago said a solar is required to have a thousand foot setbacks and it's on the books and it was approved. I think in light now in light of Tracer Lane and in light of all these cases we might say Borge you might not want to apply that regulation or that provision of the bylaw because courts will find it to be unreasonable. Authority too. Yeah. Okay. Ms. Breschup. Thank you. I think I know most of you. I'm Chris Brescher Planning Director and I had a question or I really just had a statement and maybe it's a question. We have zoning regulations and we've had I think four or five solar arrays installed in town and the zoning board has used the zoning regulations that we have in place, including per setbacks and fence height and lot coverage and all those kinds of things and building coverage I think although Rob Morris here, he'll know more about that. I think he interprets solar arrays as structures but I'm not absolutely sure about that. But anyway, I just wanted to say that we do have these zoning regulations in place and those have been used in the past to review and then condition solar arrays in town. So you're not, you know, flying blind you're not out there with no regulations at all. And I just wanted, I wondered if Jonathan Murray would comment on that. Yes, and I apologize if I gave the impression to say that any portion of your regulations were impermissible. I'm not making any comment on what you have on the books already and you should use those regulations, you know, you're required to follow what the bylaws and the regulations say. I would just say in general, this is, I think my comment was more that this is evolving every day. We don't have, you know, definitive guidance from the courts and the AG. And so sometimes find themselves in positions where they try to apply unreasonable regulations and they get, you know, criticized by the court or struck down or whatever. But I am certainly not making that comment for you all. I'm not making any comment on any particular ones. I just wanted to raise that as just a comment on this is a moving target, unfortunately. And I think that's just something for every community and every board, it's a moving target and it's requires a case by case analysis. You know, I think one of the things that Ms. Perestro mentioned is 10.38 is our zoning by-law that deals with a lot of the questions regarding public health and safety, nuisance. And that's what we've used. I mean, it's extensive. It's not specifically directed towards solar, but that's the framework in which we've tried to make decisions in the past on solar arrays and 10.38 provide some guidance on these questions generally. I think that's what you were pointing to, isn't it, Chris? I was pointing to that, but also we have dimensional regulations and other regulations throughout the by-law, fence height, you know, setbacks of fences that are over six feet high and all of those kinds of things that the board can use to guide it in reviewing projects. One quick question that I, are standalone battery energy storage systems protected under section three by themselves? The current state law is standalone battery systems not associated with solar are not entitled to section three protection. So they're not protected. That's the current state of the law. But if they're connected in any way to solar, they are entitled to the section three protection. Okay. So it's a solar connection, literally. It makes a difference there. Okay. All right. Mr. Meadows, I see you have your hand up. Given the fact that until there is a solar by-law that the town fields will fly with the courts and that's going to be next summer. And we, in any case, we'll probably find that we're going to get a petition for a solar array somewhere in town between now and then because we say we're not flying blind, no, but at the same time, there may be things that we would like to ask of the solar installer and asking of them as opposed to requirements usually gets some of the things that we want. Is there any reason not to ask? No, you can ask. I think voluntary concessions by an applicant. So long as they're voluntary and not connected to, unless you do this, we're not going to approve the permit. If you say, we're concerned about X, would you consider putting this up? I think that's perfectly fine. Yes. Other questions? Okay. Well, Mr. Murray, I've found this very enlightening. I've learned a lot. I think it guides, and I do, again, I would commend your memo to the members of the ZVA to take a look at that. It provides even more in-depth information that I think is really helpful. So I would encourage you to take a look at that. If we don't have any other questions from board members, I do want to just, one thing I want to acknowledge, Mr. Marshall is here, Doug Marshall, chairman of the planning board. They didn't have an official meeting, but I always want to acknowledge another chair of another town committee. I do want to then go to public comment. If there's no other questions from the board, nor the quit, nothing else Mr. Murray wishes to say, we can proceed to public comment, which is the next order of business. And that is a public comment from any member of the public on any matter that's not before the board tonight. So anything but solar sites and applications and conditioning, other than that, we're happy to entertain a three minute comment from members of the public. So if you wish to speak, please indicate so by raising your hand virtually. And the staff will try to identify you and then you identify yourself and you have three minutes to speak. I'm not seeing any raised hands. There's no questions. Is there any, or any new business? I don't think there's any more than 40 hours to raise. Members of the committee. All right. If oh, Ms. Presto, my hand is up. This question doesn't necessarily relate to ZBA work, but it relates to writing as a solar bylaw. So I thought I would just take this opportunity to ask it. We've asked the question of ourselves, would it be possible to use land under APR to have a dual use, you know, with solar and whatever kind of farming is going on there? Is that ever done, or is that completely foreign to the APR process? Is that a question for me? That would be a question for Jonathan if he's able to answer that. I would just say generally dual use solar on agricultural land has been encouraged by the state. I don't know the details of perhaps what you're talking about APR wise. So I apologize, but I would just say generally both under state regulations, under the tax exemption statute, and under 40 a three dual use is not only permitted, but encouraged. Thank you. Maureen, our next meeting is the, is it the 15th of December or? One moment. I believe it is. Yes, the 15th, Thursday, the 15th. Thursday the 15th. At six o'clock. So guess we'll be, our ZBAs will see you all on the 15th. Until then, I hope you all have a great Thanksgiving. It's the one time you can all eat too much and not feel guilty about it. I know I'm going to do the same. And we'll see you on this follow. I just wanted to say, so like all ZBA meetings, this meeting has been recorded and will be uploaded to the ZBA YouTube channel. And then probably in the next few days. So if at any time that someone wants to watch it for the first time or rewatch it, you can do so on the YouTube channel. Great. So I entertain a motion to adjourn our meeting. Do I have a motion? So moved. Ms. Parks. Is there a second? Okay. Oh, my mistake. Sorry. Well, I heard one, but I don't know from who. But I thought it was still Mr. Maxfield. So we got in the second, but I couldn't tell, but I heard a second. This is a non-debatable motion. It's a roll call vote required. Chair votes aye. Ms. Parks. Aye. Mr. Maxfield. Aye. Mr. Meadows. Aye. Mr. Gilbert. Aye. It's unanimous. We are adjourned. Happy Thanksgiving, everybody. We'll see you in a couple of weeks. Thanksgiving. Thank you. Thank you.