Zoning Board of Appeals

 

Exhibit 5 - Minutes of SolBright Renewable Energy

Hearing and Meeting(s) of 05/18/17, 05/25/17, and 06/28/17

 

The hearing was called to order at 7:05pm by Zoning Board of Appeals (ZBA)

Chair, Carla Ness.

Additional ZBA members in attendance were Michael Holden, Clerk; Kenneth

Howes, Ernest Strong, Deborah Emerson, Members; and Mark Bevan, Alternate

Member.

The chair read the meeting notice that ran in the Country Journal on

04/27/17 and 05/04/17 as follows:

 

“In accordance with the provisions of M.G.L. Ch. 40A, § 11, the Cummington

Zoning Board of Appeals will hold a public hearing at the Community House, 33 Main

Street, on Thursday, May 18, 2017, starting at 7:00 PM, to consider the

application of SolBright Renewable Energy, 701 East Bay Street, Charleston, SC, for

a Special Permit “for an other business use... namely for the development and

operation of a 649 kW ground-mounted solarvoltaic facility ” at 133 Plainfield Road,

Assessor’s map ID 9-7- 0; as provided in the Table of Uses, Paragraph B, Use 10 of

the zoning bylaw.

A copy of this application is available on the Selectboard’s table in the

Community House.

Any person interested or wishing to be heard on these matters should appear

at the above-designated time and place.”

 

Additionally, this notice was also posted at the following locations: The Old

Creamery, Cummington Post Office, Library, and the Cummington Community

House.

Others in attendance were: Attorney Adam Costa, representing SolBright; Cal

Goldsmith, Engineer, from Goldsmith, Prest, & Ringwall, Inc.; Mike Harrington, MA

Licensed Contractor affiliated with SolBright; Charles Jenkins, formerly of Synergy

Energy, LLC (the original lessee of the property); Sydney O’Leary for Ron Wolf,

landowner; Allan Douglas, Conservation Commission; Bill Adams, Selectboard

Member; and about 20 members of the general public.

Adam gave a brief overview of the project and took a moment to reiterate his

position (as stated in his letter to Joseph Latronica, Building Inspector and Zoning

Enforcement Officer on 03/08/17) that this type of facility was exempted from the

Special Permit process, but that the applicant had instructed him to move forward

with the application in the spirit of cooperation. Board members expressed

disagreement with his position, but were glad to have the applicant move ahead with

the process.

Adam then introduced Mike Harrington, who identified himself as a licensed

MA contractor who would be managing the project for SolBright. Mike said that the

location for the array was about a 4 acre area on a 64 acre farm. He said it would

generate enough electricity to supply 60 homes, though the electricity from the

project would provide power to the Dalton Housing Authority. (This was also stated

in a letter from Andrew Streit, Director of Business Development for SolBright, dated

03/07/17 and included in the application.)

Cal Goldsmith then offered a revised plan of the project dated 05/18/17 to

supersede other plans, and become part of the application. Cal walked the audience

through each page of the plan, explaining where and how an access road and

drainage would be dealt with; described the height, type, and placement of the

structure; fencing locations; and maintenance issues.

 

Concern was raised about the use of chemicals on the property. He explained

that in a project such as this erosion is always a threat and that plant growth was

necessary to prevent it, therefore herbicides, etc. are not used.

Questions of tree cutting arose from the public, and it was explained that

most of the site was open field, but there were some trees that would need to be

removed and those areas were pointed out on the drawing. Other issues raised were,

visibility from the road, and from the Bryant Homestead.

At 8:20pm the Board voted unanimously to close the Public Hearing portion of

the meeting. Board members then discussed a number of issues.

1. Why had the land lease been assigned and then re-assigned so that there

had now been 3 different lessees before the project even started? Charles Jenkins

offered a not very technical explanation that it had to do with financing.

2. The state registration shows that RevEnergy C2 Franklin, LLC has no

managers, and lists another entity, C2 Special Situations Group, LLC as manager.

Yet, C2 Special Situations Group, LLC is not registered in Massachusetts.

3. Given that this project site is not visible from Plainfield Road, and not

substantially visible from other roads; and that its visibility from the Bryant

Homestead will be modest, the consensus was to not include any buffer or screening

condition in the Special Permit.

4. The fact that many in town are opposed to the use or overuse of chemicals,

requiring mechanical management of plant life should be a condition.

5. The Special Permit would be granted for a specified size in area, as shown

on the plan. That area cannot be enlarged. This would not affect any increase in

output of the array if in the future panel efficiency was improved and the old panels

replaced. Also, nothing would prevent the Permitee from applying for a new Special

Permit for a larger area.

6. Discussion began about the “assignment(s)” of the ground lease, but it was

moved and voted to continue the meeting until sometime next week. Once a date

and time was decided it would be posted more than 48 hours in advance, and the

Clerk will call Adam to inform applicant as soon as it’s scheduled.

Before adjourning the board voted unanimously to “Inform the applicant that

in principle’ we would be issuing a Special Permit with conditions yet to be refined,

but would include 1. no chemicals; 2. no increase in land area; 3. no assigning of the

land lease without the prospective assignee first being granted a Special Permit to

operate; 4. and perhaps others; 5. and only after having it vetted by Town Counsel.”

Meeting adjourned at 8:45pm.

 

ZBA Meeting continues on 05/25/17

 

Meeting reconvened at 7:00pm on May 25, 2017 in the Board of Assessors’

office, in the Community House. In attendance were, Carla Ness, Chair; Michael

Holden, Clerk; Kenneth Howes, Ernest Strong, Deborah Emerson, Members; also

present were Assessors Sam Konieczny and Mark Bevan (also Alternate Member

ZBA), and Joy Johns, Assessors’ Assistant; Sydney O’leary, and Adam Costa.

Discussion returned to the ground lease and how many times it had already

been reassigned. Also discussed was whether or not a bond should be posted, or

other means of providing for the array’s removal 20 or so years down the road, as is

required of the cell towers. Sydney mentioned that she believed that issue was

covered in the ground lease, and that it shouldn’t be a concern for the town.

Michael mentioned that earlier in the afternoon (on 05/25) he had called and

spoken to Kathleen Burke, Chair of the Board of Commissioners for the Dalton

Housing Authority. He inquired about SolBright’s stated arrangement for the DHA to

buy electricity generated in Cummington. She said she had not ever heard of

Solbright or any of the companies he mentioned, Synergy Energy, Revio Energy, or

RevEnergy C2 Franklin; and that she knew of no plan to buy electricity from any of

them. Adam was surprised by this revelation, and said he would look into it.

The fact that the ground lease had been reassigned twice already (thereby

creating three separate lessees to date) would necessitate the requirement of

amending the ground lease to prohibit assignment before the new assignee had

applied for and been granted a Special Permit. It was explained that in Cummington,

Special Permits are issued to a Permitee and do not “run with the land”. The

Assessors were also amenable to including language in the PILOT agreement that

would require prospective assignee of the PILOT to first be granted a Special Permit

from the ZBA in an effort to align the agreements and protect the town. Adam Costa

expressed that although his client might be disappointed in this requirement, he did

not believe it would create a hardship.

A motion was made and seconded, and unanimously approved by the five

voting members, Ness, Holden, Howes, Strong, and Emerson:

 

“To grant RevEnergy C2 Franklin, LLC a Special Permit to operate a 649

kW solar photovoltaic facility at 133 Plainfield Road, Assessors’ Map ID 9-7-

0, as described in the drawing prepared by Goldsmith, Prest, & Ringwall,

Inc. (Job 161021) dated 05/18/17 and included as part of the application,

with the following conditions:

1. There shall be no use of chemicals to control plant life, etc.,

mechanical means only shall be used (mowers, string trimmers, etc.).

2. There shall be no increase in the land use area from what is shown on

the aforementioned drawing.

3. There shall be no further assignment of the ground lease between

Ronald Wolf (landowner) and Synergy Energy, LLC (05/28/2015),

then assigned to Revio Energy, Inc. (05/29/2015), then assigned to

RevEnergy C2 Franklin, LLC (01/06/2017) without first having the

prospective assignee apply for, and be granted a Special Permit from

the Cummington Zoning Board of Appeals to operate the facility.

4. Upon evidence that Condition 3 shall be met, by filing an amendment

to the ground lease reflecting the intent of Condition 3 with the

Registry, (Book_________ Page________ on this

date________________) this Special Permit shall be granted.”

 

The meeting was dissolved at 7:40pm.

 

ZBA meeting 0f 06/28/17

 

After having consulted with Town Counsel the ZBA met again on 06/28/17 to

discuss suggested changes to the Special Permit language. All members were

present, and the vote to make the changes was unanimous.

Michael Siddall, Town Counsel, forwarded to the ZBA a letter he received from

Adam Costa (Exhibit 6). In Adam’s letter he expressed concern about the

requirement that the amendment to the ground lease take place as a condition of

issuing the Special Permit. “Now, I was and am fully aware that such was a

condition of the ZBA’s vote: namely, no reassignment of the lease without a new

special permit. But surely the ZBA cannot require amendment to occur (and

notice thereof to be recorded with the Registry of Deeds) before the special

permit even issues.” “A lease amendment and Registry notice could be made a

precondition to issuance of a building permit, no doubt. But the special permit

 

SolBright Minutes 2017-0518

 

5

 

cannot be withheld pending these actions. Legally, I’d be remiss to advise

RevEnergy C2 Franklin, LLC to amend its lease or cloud title to the project site

before the special permit is even filed with the Town Clerk.”

Town Council was suggesting that this was not an invalid point being made,

and that the requirement to amend the ground lease was perhaps overkill given

the Special Permit clearly prohibits assignment of the lease without first having

the prospective assignee apply for, and be granted a new Special Permit.

The board felt that by requiring the amendment to the lease, it would

hopefully, preemptively save the town from having to take any enforcement

action, or litigation, by stating this requirement very clearly in all three

documents, the Ground Lease, the PILOT, and the Special Permit.

Using the suggestion made in Adam’s letter, the wording of Condition 4. was

changed. By making this change the board could both, relieve the applicant’s

concern, and still protect the Town’s interest. Also, this would allow the applicant

to file both the Special Permit (after the 20 day waiting period), and the ground

lease amendment at the same time thereby paving the way for issuance of the

building permit (from a zoning perspective) in one fell swoop.

Carla presented an email from Adam as follow-up to the question regarding

the Dalton Housing Authority and its purchase of electricity (Exhibit 7). Along

with the email there was an attachment, a letter signed by Susan Gregory,

Director, DHA, (Exhibit 8) acknowledging RevEnergy C2 Franklin’s permission to

submit applications to the MassACA on behalf of DHA. There were redacted lines

so Holden had called and spoke to Susan who provided an original copy (Exhibit

9). It revealed that originally the agreement was “…by and between Seaboard

Solar Holding, LLC and Dalton Housing Authority”, Seaboard being yet another

previously unmentioned party.

The Special Permit shall now read as follows:

 

“To grant RevEnergy C2 Franklin, LLC a Special Permit to operate a 649

kW solar photovoltaic facility at 133 Plainfield Road, Assessors’ Map ID 9-7-

0, as described in the drawing prepared by Goldsmith, Prest, & Ringwall,

Inc. (Job 161021) dated 05/18/17 and included as part of the application,

with the following conditions:

1. There shall be no use of chemicals to control plant life, etc.,

mechanical means only shall be used (mowers, string trimmers, etc.).

2. There shall be no increase in the land use area from what is shown on

the aforementioned drawing.

3. There shall be no further assignment of the ground lease between

Ronald Wolf (landowner) and Synergy Energy, LLC (05/28/2015),

then assigned to Revio Energy, Inc. (05/29/2015), then assigned to

RevEnergy C2 Franklin, LLC (01/06/2017) without first having the

prospective assignee apply for, and be granted a Special Permit from

the Cummington Zoning Board of Appeals to operate the facility.

4. The Building Permit shall not be issued until evidence that Condition 3

shall be met by filing an amendment to the ground lease, reflecting

the intent of Condition 3, with the Registry of Deeds.

All Special Permits in Cummington are granted to the Permittee, and do

not ‘run with the land’.”

 

Meeting dissolved 7:30pm Michael Holden, Clerk