State attorney general’s office rejects parts of Pelham’s solar bylaws

By SCOTT MERZBACH

Staff Writer

Published: 12-15-2023 11:28 AM

PELHAM — The state attorney general’s office is rejecting portions of an amended solar electric bylaw adopted by voters at annual Town Meeting in May, including requiring mitigation for loss of carbon sequestration and forest habitat and prohibiting standalone battery storage systems.

The Dec. 4 letter from Attorney General Andrea Joy Campbell’s office is similar to one Shutesbury officials received in November, which rejected its revised bylaw, though the concerns for Pelham’s amended bylaw center on specific sections that could be in conflict with state law and the state’s Supreme Judicial Court’s Tracer Lane II Realty LLC v. City of Waltham decision. That ruling states cities and towns can’t having zoning regulations that ban solar installations.

Pelham’s revised bylaw specifies that large-scale solar installations, defined as those occupying 1.5 to 15 acres of land and in the Solar Electric Installation District, are allowed in the overlay district by special permit, while smaller installations “which are accessory to an existing residential or non-residential use” are as of right with site plan review. Building-mounted solar projects are entirely by right.

While parts of the bylaw were turned down, Assistant Attorney General Nicole B. Caprioli warns that other sections were only approved because it is uncertain whether or not they are in compliance with state law.

“Given the bylaw’s extensive siting regulations and limitations, it is not clear whether there is sufficient land in the town to accommodate a large-scale solar installation,” Caprioli writes. “If these provisions are used to deny a solar installation, or otherwise applied in ways that make it impracticable or uneconomical to build solar energy systems and related structures, such application would run a serious risk of violating” the provisions of state general law, chapter 40A, section 3.

One section flagged for not being in compliance with state law related to forestland preservation and a demand to set aside four times the amount of woodland used in a solar project. The attorney general’s office noted this is “unreasonable regulation,” since a 15-acre solar development would likely need to have a 75-acre parcel.

“This requirement imposes a significant restriction on solar construction without any record evidence explaining why this restriction is necessary to protect the public health, safety or welfare,” Caprioli writes.

There were also worries from the attorney general’s office about the “forest block fragmentation” of the solar overlay district, which might cap the town at six large-scale installations.

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“This limitation amounts to a complete ban of all solar installations once the ‘number indicated’ on the 2020 zoning map is reached. In the bylaw record provided to this office, the town does identify any justification for this restriction, grounded in protecting the public health, safety, or welfare,” Caprioli writes.

Planning Board Chairwoman Judith Eiseman said town officials are just beginning to review the decision and have 60 days to respond.

“We admit to being concerned by some aspects of the AG’s opinion given the current scientific data and policy that are available and pertinent,” Eiseman said. “State agency-generated reports and studies, as well as those conducted by Mass Audubon and Harvard Forest among others, emphasize the importance of maintaining protection of forest land and soils for carbon sequestration as we face the climate crisis.”

Another part of the bylaw nixed was prohibiting energy storage systems that receive, store or transfer their energy from other solar installations.

“By statute ESS qualify as ‘solar energy systems’ and ‘structures that facilitate the collection of solar energy,’” Caprioli writes, noting also that “the town provides no justification for limiting the source of energy that an ESS can receive, store, or transfer.”

The attorney general’s office also turned down the town’s attempts to prohibit use of herbicides and pesticides, which is preempted by the Massachusetts Pesticide Control Act, and a mandate that the owners or operators pay all expenses related to training police, fire and emergency management personnel for responses, a provision inconsistent with state law.

Other parts of the bylaw that remain intact for large-scale solar installations include dimensional requirements, such as setback and lot size, mandated perimeter fences and how to counter the disruption of trail networks, the disruption of historic resources and properties and impacts to road integrity.

Scott Merzbach can be reached at smerzbach@gazettenet.com.