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HomeMy WebLinkAbout19-A056-Appeal DecisionOLD KING'S HIGHWAY REGIONAL HISTORIC DISTRICT COMMISSION P.O. Box 140, Barnstable, Massachusetts 02630-0140 Tel: 508-775-1766 Patricia Ta for and George Taylor, Y g Appellant/Applicant Vs. Decision for Appeal No 2019-6 Old King's Highway Regional Historic District Committee for the Town of Yarmouth On Tuesday, August 27, 2019 at 1:30 P. M. the Old King's Highway Regional Historic District Commission, here in after called the Regional Commission, held a public hearing at the West Barnstable Fire Station Meeting Room, 2160 Meetinghouse Way (Route #149), West Barnstable, Massachusetts, on Appeal No. 2019-6 filed by Patricia Taylor and George Taylor, seeking reversal of the Old King's Highway Regional Historic District Yarmouth Town Committee, herein after called the Yarmouth Town Committee, denial of Certificate of Appropriateness for a roof mounted Solar PV System with thirty- one (31) 320 watt LG modules (black on black) connected with a inverter to be located at 897 West Yarmouth Road, Yarmouth Port, Massachusetts, and identified as being shown on Town Map 115 Parcel 13. The Yarmouth Town Committee's decision was filed with the Yarmouth Town Clerk on Tuesday, July 23, 2019. The Appeal Petition was filed with the Regional Commission on Thursday, August 1, 2019, within the ten (10) days appeal period set forth in Section 11 of the Old King's Highway Regional Historic District Act - Chapter 470 of the Acts of 1973, as amended. A copy of the Appeal petition and Decision were available for public viewing at the Yarmouth Town Clerk's Office, 1146 Route 28, South Yarmouth, Massachusetts during regular business hours. Present at the public appeal hearing for the Regional Commission were Vice Chairman William Bohlin of Dennis; Robert Wilkins of Yarmouth; James Trabulsie of Brewster; George Jessop of Barnstable; Richard Claytor of Sandwich; Ronald Mgrdichian of Orleans; and James R. Wilson, Commission Administrative Counsel. Absent from the hearing was Chairman of the Regional Commission Richard Gegenwarth and Vice Chairman William Bohlin presided as Acting Chairman throughout the proceedings. Others present at the public appeal hearing were David Brajczewski of Cotuit Solar, LLC, P.O. Box 89, Cotuit, Massachusetts 02635, Agent for the Appellant/Applicant, and Patricia Taylor and George Taylor, the Appellant/Applicants. Background Information: Acting Chairman Bohlin announced that the Regional Commissioners had reviewed copies of the Appellant/Applicant's appeal petition; Yarmouth Town Committee's Decision; and the Yarmouth Town Committee's file with the Application, Owner -Service Provider Agreement, specification sheets for the LG 320NlK-AS Solar Panels, Proposed Array Placement sheets with pictures indicating the location of proposed Solar array, Property Map and Abutters' List. He reported that the Regional Commissioners had reviewed the video and draft Minutes for the July 22, 2019, public hearing and meeting of the Yarmouth Town Committee; observed the four-way stop intersection for White Rock Road and West Yarmouth Road; and had observed from White Rock Road and West Yarmouth Road the location for the proposed rooftop solar panel array and the visual public appearance of the rooftop solar panel arrays located at 2 Hamblin Hill Road, 902 West Yarmouth Road, and 906 West Yarmouth Road. Appellant/Applicant's Presentation: David Brajczewski began his presentation by suggesting that since the Regional Commissioners had reviewed the material presented to the Yarmouth Town Committee and watched the video of the July 22, 2019 public hearing, that it would be redundant to repeat that portion of the Appellant/Applicant's presentation. Acting Chairman Bohlin repeated that all the Commissioners had gone through the submitted material, watched the video and visited the site for the proposed rooftop solar panel array. Mr. Brajczewski stated that the Applicant still wished to have the proposed thirty-one (3 1) panel rooftop solar panel array as it had been originally presented to the Yarmouth Town Committee. He indicated that the reason for the appeal was the feeling that the Yarmouth Town Committee's decision to deny the application had been arbitrary and inconsistent with the approval of three (3) other solar panel applications. He identified the three (3) rooftop solar panel arrays as being located at 2 Hamblin Hill Road, 902 West Yarmouth Road, and 906 West Yarmouth Road which had been reviewed and discussed during the Yarmouth Town Committee July 22, 2019, public hearing. As set forth in the Appeal Petition, he expressed the opinion that the proposed rooftop solar panel array would adhere to all of the applicable requirements listed in the Old King's Highway Regional Historic District Commission's Bulletin October 2008, Guidelines: Section B., Item S. for the approval of solar panel projects that were to be located within the historic district. The complete Guideline reads as follows: 2 5. Enemy Conscious Design: Applicants may consider alternative energy resources when submitting proposals. Skylights, solar panels and wind generators may be approved provided the system will function in a practical manner and adhere to the following: a. Minimum visual impact on the surrounding neighborhood. b. No change to the appearance of the buildings except for the addition of the panels. c. The installation of the system does not permanently destroy significant historic features of the building. d. The applicant uses ground level solar mountings where possible. e. Roof mountings positioned so as to match existing roof slopes. f. Extensive use of vegetation and landscaping so as to minimize the visual impact of the system. g. Devices should be designed and constructed in such manner as to blend with existing features in the immediate area. h. wind generator towers should be located as far as possible from the street line so as to minimize the visual impact of the device. i. Skylights should below profile with flat pane. (See Page 31 of the Bulletin). He suggested that because other rooftop solar panel arrays had been approved and existed in the neighborhood; the proposed project would have no visual impact on the appearance of the surrounding neighborhood or the historic district and therefore the application ought to have been approved as submitted to the Yarmouth Town Committee. He asked Patricia Taylor if the presentation fairly represented their position on the appeal. Mrs. Taylor confirmed that it did and added that she could observe the rooftop solar panel array located at 906 West Yarmouth Road from her kitchen window. She acknowledged that the owner, as apparently required in the conditions for the approval of rooftop solar panel array located at 906 West Yarmouth Road, did plant screening vegetation that could grow and screen the visibility of the solar panels. She suggested that they would consider vegetated screening for their proposed rooftop solar panel array, but that it might not be practical due to the solar panel's high exposure and traffic safety concerns which had been expressed in the discussions during the Yarmouth Town Committee's review and public hearing. Mr. Brajczewski offered an opinion that the Yarmouth Town Committee had set the bar too high in requesting a vegetated screening plan for the proposed project. He indicated that the array to be efficient needed a clear exposure to the sun and would require clear intersection visibility for the public's safety in traveling on White Rock Road and West Yarmouth Road. 3 Mrs. Taylor indicated that, at this time in the appeal process, she might be willing to consider an affordable vegetated screening plan provided it did not include planting trees or increasing the hazardous road conditions that existed at the heavily traveled and accident prone intersection bordering her property. Yarmouth Town Committee's Presentation: Robert Wilkins, Chairperson Pro Tem for the Yarmouth Town Committee, indicated that the primary role of the review process is to preserve the appearance and character of the district as a historic district. He disputed any claim that the neighborhood had become characterized by the visual appearance of numerous rooftop solar panel arrays. He stated that the three (3) examples identified by the Appellant/Applicants were the only solar panel arrays located in the neighborhood and that each was very distinguishable from the proposal being considered in the present appeal. He pointed out that the rooftop solar panel array located at 902 West Yarmouth Road was located on the rear roof side of the building and could not be seen from any public street or public vantage point. He inferred that the obscure (not subject to public view) location of the solar panels prevented the change in exterior architectural features from having any impact on the historic character of the neighborhood or the historic district. He reported that the rooftop solar panel array located at 906 West Yarmouth Road has a public view but unlike the applicant's building is setback a considerable distance from the road and the visibility is at an oblique (perpendicular) angle to the public roadway. He stated that the Yarmouth Town Committee approved the rooftop solar panel array because of a submitted vegetated screening plan, which had been planted and as the evergreens grew would obscure the public's view of the solar panels. He acknowledged that the rooftop solar panel array located at 2 Hamblin Road was close to the road, but not as visually dramatic as the applicant's face on proposal. He noted that like the placement at 906 West Yarmouth Road the solar panels are at an oblique angle and restricted to a more remote part of the roof distant from the public's view from the heavily traveled West Yarmouth Road. He indicated that the problem with the application under review was a matter of geography. He identified the bordering 4 -way stop intersection at the convergence of two heavily traveled roadways as a major public location in Yarmouth Port. He noted that the public traveling westerly on White Rock Road and northerly on West Yarmouth Road when stopping at the stop signs would be facing a clear and unobstructed exposure of the large highly visible rooftop solar panel array. He inferred that unlike the settings of the other three (3) identified rooftop solar panel arrays in the area, this exposure would cause the visibility of the large array to have a dramatic and major impact on the historic character of the immediate surroundings and the historic district neighborhood. El He challenged the claim that the application adhered to the applicable requirements listed in the Old King's Highway Regional Historic District Commission's Bulletin October 2008, Guidelines: Section B., Item S. for the approval of solar panel projects. He specifically disputed that the submitted proposed project met any of the following three (3) required listed criteria: a. Minimum visual impact on the surrounding neighborhood. f. Extensive use of vegetation and landscaping so as to minimize the visual impact of the system. g. Devices should be designed and constructed in such manner as to blend with existing features in the immediate area. He concluded by suggesting that the many diverse variables affecting the review of each application that comes before the committee make decisions based upon a standard of precedence or consistency with prior results of approval or disapproval to be contrary to the role of a full and fair consideration of all the criteria that may apply to a particular application that is under consideration. He pointed out the risk of seeking to procedurally bind a committee's judgment to past determinations of denial or approval results. Public Comment: Acting Chairman Bohlin asked for public comment on the appeal and there was none. Appellant/Applicant's Rebuttal & Conclusion: Mr. Brajczewski stated that it really came down to consistency in the approval of rooftop solar panel applications. He repeated the applicant's opinion that once a committee approved solar panel arrays within an area of the historic district, it became unfair and therefore an arbitrary judgment to not approve subsequent solar panel applications without special vegetated screening requirements. He accused the Yarmouth Town Committee of inconsistency and unfairness by requiring a vegetation and landscaping plan that was more expensive and any greater than those required for the other less visible solar panel projects. Mrs. Taylor, while she declined to submit a vegetation and landscaping plan to the Yarmouth Town Committee, stated that she would now be willing to plant 5 or 6 Leland Cypress shrubs in her front yard just as the people at 906 West Yarmouth Road had been allowed to do in screening their solar panel array. Yarmouth Town Committee Rebuttal & Conclusion: Mr. Wilkins concluded by indicating that the vegetated screening requirements came about to address energy advantage needs with the visual preservation needs of the historic district. He acknowledged that the administration of the application of the vegetated screening feature to each application has been difficult with varying results for both the residents who wish to install rooftop solar panels and the administrators of the historic district. He pointed out that vegetated screening using Leland Cypress has had mixed results because of its rapid growth feature, fragile condition and susceptibility to destruction by wind, storm and other factors. Closure of Public Hearing: There being no further evidence to be offered, Acting Chairman Bohlin announced the closure of the public hearing process and stated that the Regional Commissioners would attempt to decide the appeal. He stated that the parties and public could remain to observe and hear the deliberations but would not be allowed to participate in the deliberations. Regional Commission Discussion: Commissioner Mgrdichian of Orleans began the discussion by indicating that the role of the Regional Commission is not to redesign the project or look at different design features or alternatives that might be added to the project. He stated that the role of the Regional Commission is to judge whether, or not, the Yarmouth Town Committee exceeded its authority, exercised poor judgment, was arbitrary, capricious or erroneous in its action. He indicated in looking at the extent of paperwork and all the discussions between the Appellant/Applicants and the Yarmouth Town Committee, he did not see where the committee violated any procedural requirement or failed to consider the application within the parameter of the published criteria. Commissioner Trabulsie of Brewster stated that each application must be judged on its own merit. Each proposal for a rooftop solar panel array will have a different visual impact depending upon its location, design features and surrounding conditions. He expressed the opinion that it would be hard to argue with the reasonableness of the Yarmouth Town Committee's determination that the visual impact of the proposed rooftop solar panel array will be much greater than the other three (3) approved projects put forth by the Appellant/Applicants. He expressed the opinion that he agreed with Commissioner Mgrdichian that the denial was not arbitrary but had a reasonable basis and that he did not see an error or mistake in the Yarmouth Town Committee's denial of the project. He stated that he did not think that the property would support the use of the proposed rooftop solar panel array. Commissioner Claytor of Sandwich stated that he disagreed with his fellow Commissioners. He indicated that he felt that the Appellant/Applicants had made a reasonable effort to comply with the Guidelines. He expressed concern about the failure of the Appellant/Applicants to offer any vegetated screening at the original hearing, but that he would be inclined to overturn the Yarmouth Town Committee's denial and grant the application with a condition that suitable landscaping be added. Commissioner Jessop of Barnstable stated that he favored the use of solar panels and liked the fact that the proposal appeared to blanket the two roofs without being broken up by pipes or other features. He expressed concern about the absence of scaled plans showing the panel layout which he indicated ought to have been submitted. He noted the light gray roof might accentuate the contrast with the black solar panel array, but he agreed with Commissioner Claytor that with a proper use of vegetated screening such as of rhododendrons or evergreens the project might be found to be acceptable. Acting Chairman Bohlin noting the split within the Regional Commissioners expressed his thoughts about the appeal. He stated that he felt that the Yarmouth Town Committee made the right decision. He expressed the opinion that these solar panels are not minimally visible. He indicated that no matter what is done with plantings, the rooftop solar panel array will always be very visible, and vegetation can be removed at any time by all kinds of subsequent events. He acknowledged that the Guideline of having "minimum visual impact" will generate different opinions, but that is the reason that the judgment is by a committee. He noted that the subject property was bordered by two major roads with a 4 -way major stop intersection. He stated that he would vote in favor of the Yarmouth Town Committee's decision. He asked for any more comments from the Commissioners. Commissioner Trabulsie repeated the opinion that the role of the Regional Commission is not to redesign the application. He pointed out that the Appellant/Applicants was offered the opportunity to submit a vegetated screening plan and declined to consider its inclusion in the project until this stage of the appeal process. He suggested that the applicants might return to the local town committee and submit a new application with redesigned plans that might include more suitable vegetated screening plans and other modifications. Acting Chairman Bohlin requested that the Administrative Counsel distribute a written set of possible draft findings that might apply to the issues raised by the appeal. A written draft of possible findings was distributed to the Regional Commissioners. The Regional Commissioners reviewed the draft findings. Mr. Mgrdichian moved, seconded by Mr. Trabulsie that the following findings of fact be adopted and incorporated into the Regional Commission's decision. The motion was adopted by a vote of 4 - 1 - 1. (Mgrdician, Trabulsie, Jessop, & Bohlin in favor; Claytor opposed; Wilkins abstaining) The Commission findings: 1. The project consists of a request to install a rooftop mounted Solar PV System with thirty-one (3 1) black 320 watt LG modules connected with a string inverter which is to be 7 located at 897 West Yarmouth Road, Yarmouth Port, Massachusetts and being shown on Yarmouth Town Map 115 Parcel 13. 2. The proposed black solar panels are to be placed on the exiting light gray colored roof of the Appellant/Applicant's house and garage. 3. The roof slopes where the black panels are to be mounted prominently face the heavily traveled public way known as "White Rock Road." 4. The proposed solar panels will have high public visibility from the ways known as "West Yarmouth Road" and "White Rock Road." 5. The project is located within the Old King's Highway Regional Historic District. 6. The Yarmouth Town Committee had jurisdiction and the authority under the Old King's Highway Regional Historic District Act to determine the appropriateness of the proposed project. 7. The highly visible smooth surface texture and metal materials of the thirty-one (3 1) black solar panel rooftop system will be incongruous and not blend with the existing light gray color and rough texture of the roof shingles of the building. 8. The variable reflective characteristics of the metal and glass components of the rooftop solar panel system will have an obvious difference in appearance from the traditional visual character of the historic district neighborhood. 9. The exposure of the proposed thirty-one (3 1) black solar panels will be incongruent to the purposes set forth in the historic District Act and will have a detrimental impact on the preservation of the visual character and historic appearance of the neighborhood. 10. The Yarmouth Town Committee did not act in an arbitrary, capricious or erroneous manner in reviewing and acting on the project. 11. The Yarmouth Town Committee did not exceed its authority or exercise poor judgment in denying the application. 12. The Yarmouth Town Committee's decision to deny the application should be affirmed Regional Commission's Determination: Mr. Jessop moved, seconded by Mr. Trabulsie that the Regional Commission vote to uphold the decision denying the Certificate of Appropriateness to Patricia Taylor and George Taylor for the installation of thirty-one (3 1) black solar panels on the roof of the house and garage facing White Rock Road located at 897 West Yarmouth Road, Yarmouth Port, Massachusetts, which is shown on Yarmouth Town Map 115 as Parcel 13. It is hereby noted that we find that the Yarmouth Town Committee did not exceed its authority or exercise poor judgment and was not arbitrary, capricious or erroneous in its action and that the decision was within the guidelines of the Act and specific to the setting under consideration. The motion carried by a vote of 4 - 1 - 1. (Jessop, Trabulsie, Mgrdichian, & Bohlin in favor; Claytor opposed; Wilkins abstaining) As to Appeal No. 2019-6, the decision by the Yarmouth Town Committee to deny a Certificate of Appropriateness for the installation of thirty-one (3 1) rooftop Solar Panels to be located at 897 West Yarmouth Road, Yarmouth Port, Massachusetts is affirmed. Any person aggrieved by this decision has a right to appeal to the District Court Department, Barnstable Division, within 20 days of the filing of this decision with the Yarmouth Town Clerk. Dated: September 12, 2019 William Bohlin, Vice Chairman 9