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HomeMy WebLinkAbout4963 4, 30, 34, 40 Bayview St Application Materials and ExhibitsNutter Eliza Z. Cox Direct Line: (508) 790-5431 Fax: (617) 310-9680 E-mail: ecox@nutter.com June 2, 2022 121639-2 By Electronic Mail and Hand Delivery Ms. Dolores Fallon Town of Yarmouth Zoning Board of Appeals 1146 Route 28 South Yarmouth, MA 02664 Re: Cape Cod Hospital and Winterberry Solar, LLC / 4, 30, 34, and 40 Bayview St. Dear Ms. Fallon: This office represents Cape Cod Hospital and Winterberry Solar, LLC (a wholly owned subsidiary of NextGrid, Inc.), collectively, the "Applicants." Cape Cod Hospital is the owner of the properties located at 4, 30, 34 and 40 Bayview Street in West Yarmouth (the "Property"). The Property is located within the B1 and R25 Zoning Districts, and partially within the Aquifer Protection District (APD). Currently the Property is used by Cape Cod Hospital as a parking lot for its staff and doctors, which use was authorized by Special Permit No. 4715, recorded in the Barnstable County Registry of Deeds in Book 30991, Page 58. A copy of this special permit decision is attached as Exhibit A to the application addendum included herewith. With this filing, the Applicants are re-filing their request to construct solar canopies over the existing parking lot, along with three ground-mounted equipment pads and utility poles. The proposed solar use is exempt from local zoning bylaws pursuant to G.L. c. 40A, §3, and the proposed solar canopy structures satisfy all dimensional requirements under the Yarmouth Zoning Bylaw. Accordingly, it is our position that no zoning relief is required for the proposed use or structures. However, we acknowledge that zoning relief is necessary in the form of a modification to the prior Special Permit for the Property. In particular, the Applicants seek to modify Condition 1 to reflect the plans submitted herewith, and seek to modify Condition 3 to clarify that no hazardous materials shall be stored within the portion of the Property located within the APD. Notwithstanding our position that the solar use and solar canopy structures themselves do not require zoning relief, we have nonetheless — to cover all bases - also included a request for variance relief to allow for installation of the solar canopy structures, if and to the extent deemed necessary by the Board. Nutter McClennen & Fish LLP / 1471 lyannough Rd, P.O. Box 1630 / Hyannis, MA 02601 / T: 508.790.5400 / nutter.com Ms. Fallon, Office Administrator June 2, 2022 Page 2 In support of this application, we enclose the following information and materials for filing with the Yarmouth Zoning Board of Appeals: 1. Two (2) original Yarmouth Zoning Board of Appeals' applications seeking the special permit modification and variance relief; 2. Thirteen (13) copies of a plan set showing the proposed project, prepared by BSC Group, consisting of an existing conditions plan dated August 16, 2021, and a proposed site plan dated last revised on June 1, 2022; 3. Thirteen (13) copies of an Addendum, with Exhibits A-D, providing supplemental background on the project and an overview of the protections afforded under the Dover Amendment; and 4. Check No. 86960 in the amount of $200, payable to the Town of Yarmouth, which represents the required filing fee. We understand that you will order the abutters list for the filing. Once the abutters list is prepared, please let us know the additional fee for notification to abutters and we will submit the check to you forthwith under separate cover. Please forward copies of these documents to the members of the Zoning Board of Appeals. We respectfully request that this application be placed on the next available meeting of the Board. In addition, kindly let us know when this matter will be heard so that we can confirm our availability and mark our calendars accordingly. Please do not hesitate to contact us with any questions, comments, or if you need any additional information. Thank you very much for your assistance. Very truly yours, Eliza Cox Enclosures cc: Cape Cod Hospital and Winterberry Solar LLC, Applicants 5568713.1 TOWN OF YARMOUTH ova 7-,BOARD OF APPEALS APPLICATION FOR HEARING vcA VD' Appealti: Hearing Date: Ece$ Owner-Applicant; Cape Cod Hospital & Winterberry Solar LLC (wholly owned by NextGrid, Inc.) (Full Names- including d/b/a) (Address) (Telephone Number)(timail Address) and is the (check one) D.< Owner E Tenant L.. Prospective Buyer L Other Interested Party Property: This application relates to the property located at:4, 30, 34 & 40 Bayview St. and shown on the Assessor's Map II: 36 as Parcel#: 8-10, 93 Zoning District:131/R25/Partial APD If property is on an un-constructed (paper) street name of nearest ct•oss street, or other identifying location: N/A Project; The applicant seeks permission to undertake the following construction/use/activity (give a brief description of the project. i.e.: "add a 10' by 15' deck to the front of our house" or "change the use of the existing building on the property"): RELIEF REQUESTED: The applicant seeks the following relief from the Board ofAppeals: The applicants propose to construct canopy-mounted solar panels over an existing CCH parking lot, along with 3 ground mounted equipment pads and utility poles. Although the proposed use does not require zoning relief, the applicants seek modification of an existing special permit for the site. In addition, and only if deemed required by the Board, variance relief is also requested to permit the solar canopies as accessory to the parking lot. ) REVERSE THE DECISION OF THE BUILDING INSPECTOR OR THE ZONING ADMINISTRATOR dated attach a copy of the decision appealed from). State the reason for reversal and the ruling which you request the Board to make. 2)_x SPECIAL PERMIT under § 102.2 of the Yarmouth Zoning By-law and/or for a use authorized upon Special Permit in the "Use Regulation Schedule" §202.5 .(use space below if needed) 3) x VARIANCE from the Yarmouth Zoning By-law. Specify all sections of the by-law from which relief is requested, and, as to each section, specify the relief sought: Section: 102.2.2 Relief sought: Installation of solar canopies Section: Relief sought: Section: Relief sought: ADDITIONAL INFORMATION: Please use the space below to provide any additional information which you feel should be included in your application: The applicants seek modification of conditions 1 and 3 set forth in Special Permit No. 4715 dated November 27, 2017 and recorded in the Barnstable County Registry of Deeds in Book 30991, Page 58, a copy of which is filed herewith. FACT SHEET Current Owner of Property as listed on the deed (if other than applicant): Cape Cod Hospital, 27 Park Street, Hyannis, MA 02601 Name & Address Title deed reference: Book & Page# 4094/148; 1549/226: 1423/830; & or Certificate # Land Court Lot # Plan # 1423/831 (provide copy of recent deed) Use Classification: Existing: Hospital uses/accessory parking §202,5 #P4 and Q2 Proposed: Same plus solar use §202.5 #P4, 02, and Dover-exempt solar use under G.L. c. 40A. s. 3 Is the property vacant: No If so, how long?: N/A L01. Information Size/Area: 600,585 sf Plan Book and Page 672/92 / Lott/ Is this property within the Aquifer Protection Overlay District? Yes No Have you completed a formal commercial site plan review (if needed)? Yes No Other Department(s) Reviewing Project: Indicate the other Town Departments which are/ have/ or will review this !project, and indicate the status of their review process: Design Review completed on September 16, 2021 Repetitive Petition: Is this a re-application: No if yes, do you have Planning Board Approval? N/A Prior Relief: If the property in question has been the subject of prior application to the Board of Appeals or Zoning Administrator, indicate the date and Appeal number(s) and other available information. Include a copy of the deeision(s) with this application: See Special Permit Decisions 4715, 4354, 3899 and 2405, copies of which are attached hereto. Building Commissioner Comments: Applica is /Attorn /Agent Si attire Owner's Signature Eliza ox Esq, Address Nutter, McClennen & Fish, LLP P.O. Box 1630, Hyannis, MA 02601 Phone 508-790-5431 E-Mail: ecoxpnuttercom Building Commissioner Signature Date Cape Cod Hospital and Winterberry Solar, LLC Addendum to ZBA Application This application is submitted on behalf of Cape Cod Hospital and Winterberry Solar LLC (collectively, the "Applicants"), who are seeking to install canopy-mounted solar panels over an existing Cape Cod Hospital employee parking lot, along with three ground mounted equipment pads and utility poles (the "Solar Project") at the properties located at 4, 30, 34 and 40 Bayview Street (the "Property"), owned by Cape Cod Hospital. The Property is located primarily in the B1 zoning district, with the southerly portion located within the R-25 zoning district. The northerly part of the site is also located within the Aquifer Protection Overlay District ("APD"). With this filing, the Applicants seek to modify Conditions 1 and 3 set forth in Special Permit No. 4715 dated November 27, 2017 and recorded with the Barnstable County Registry of Deeds in Book 30991, Page 58. With this memorandum, we seek to provide additional details regarding the proposed Solar Project, and clarify the application and scope of the Dover Amendment, G.L. c. 40A, § 3 in these circumstances. In addition, the Applicants has also sought variance relief to allow installation of the solar canopies, if the Boards determines that a variance is needed. As set forth in this memorandum below, it is our position that the variance is not required. 1. The Property and the Proposed Project As set forth in the application materials submitted by the Applicants, the Property consists of four parcels and is currently used as an employee parking lot in connection with Cape Cod Hospital. The current configuration of the parking lot was authorized by Special Permit Decision 4715, which classifies the existing uses on the Property as Hospital use (see Bylaw, § 202.5(P4) and Accessory Parking use (see Bylaw, § 202.5(Q2). See Decision 4715, a copy of which is attached hereto as Exhibit A. With the Solar Project, the Applicants seek to install canopy-mounted solar panels over portions of the existing parking lot, along with three ground mounted equipment pads and utility poles. All battery storage will be located outside the APD. The existing employee parking use will not be changing with the solar installation. Importantly, all components of the Solar Project fully satisfy the dimensional requirements under the Yarmouth Zoning Bylaw (the "Bylaw"). Additionally, although some existing in-lot trees have been relocated to accommodate the canopies, the proposal satisfies the in-lot tree requirements set forth in Section 301.4.6 of the Bylaw. The Solar Project was also approved by the Yarmouth Conservation Commission, the Design Review Committee, and the Site Plan Review Committee. In addition, the Applicants have obtained confirmation from the Yarmouth Fire Department and the Yarmouth Hazardous Waste Inspector that the project is consistent with their respective requirements (see Exhibit B, containing memos from the Fire Department and Health Department regarding the proposed project). 2. The Dover Amendment and the Bylaw The State Legislature has codified solar energy as a protected use in the Zoning Act, General Laws Chapter 40A, § 3, commonly referred to as the Dover Amendment.I In particular, Section 3 provides zoning protections to solar energy systems and the building of solar structures as follows: No zoning...bylaw 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. Thus, the exemptive provisions of G.L. c. 40A, § 3 preclude municipalities from "prohibiting" solar uses and structures or subjecting them to "unreasonable" regulation. "Unreasonable" regulation has generally been determined to be regulation that as a practical matter amounts to a prohibition of otherwise unduly restricts the protected use. Tracer Lane 11 Realty LLC v. City of Waltham, 2021 WL 861157 (Mass. Land Ct. Mar. 5, 2021) (HPS), citing Trustees of Tufts College v. Medford, 415 Mass. 753, 759-760 (1993). There are several ways in which an applicant may demonstrate "unreasonableness." For example, a zoning requirement is unreasonable if it detracts from usefulness of a structure, imposes excessive costs on the applicant, or impairs the character of a proposed structure. Id. Further, "proof of compliance is only one way" to show unreasonableness, and courts must consider other aspects such as use or character of property. Tracer Lane II Realty LLC, supra, quoting Rogers v. Norfolk, 432 Mass. 374, 385 (2000). Even dimensional regulations that do not strictly prohibit a protected use may impair it to an impermissible degree. Id. In short, the protective provisions of the Dover Amendment prevent municipalities from prohibiting solar energy systems except in "that narrow ambit" where a denial is necessary protect public health, safety and welfare. PLH LLC v. Ware, 2019 WL 7201712 (Mass. Land Ct. Dec. 24, 2019) (GHP). Unlike the Dover Amendment, the Bylaw is silent as to the regulation of solar use — it neither allows nor prohibits solar use in any of the Town's zoning districts. The Bylaw does allow by right, as an accessory use, "other accessory uses if customarily incidental to any of the above permitted uses and not detrimental to the neighborhood."2 The Bylaw prohibits uses which are not expressly allowed, except upon an appeal.3 See Bylaw, § 202.1. 3. The Solar Project is Authorized Under the Dover Amendment Solar energy uses, like other uses protected under the Zoning Act, are so important to the public good that it was necessary "to take away" some measure of municipalities' "power to limit the use of land" within their borders. Attorney General v. Dover, 327 Mass. 601, 604 (1950). Thus, "neighborhood hostility" or contrary local "preferences" should not dictate whether solar energy systems are constructed in sufficient quantity to meet the public need. Newbury Junior Coll. v. Brookline, 19 Mass. App. Ct. 197, 205, 207-08 (1985). 2 The definition of "Accessory Use" mirrors this language. The Bylaw defines it as "a use customarily incidental to and secondary to the allowed use and not detrimental to the neighborhood. 3 The Bylaw also regulates both primary and accessory structures, requiring them to conform with all applicable dimensional requirements. 2 As explained in detail below, we take the position that the solar use and structures do not independently require zoning relief because both are protected under the Dover Amendment and the solar structures fully comply with all applicable dimensional requirements. Accordingly, the need to appear before the Board arises solely from the need to modify conditions of an earlier Special Permit Decision for this Property. a. The Proposed Solar Use is Authorized by Right on the Property Where, as here, the Bylaw contains no provisions regulating solar use in any of the Town's zoning districts, case law is established that the solar use is allowed under the Dover Amendment. The Massachusetts Land Court has clearly stated that the provisions of the Dover Amendment "expressly address this situation" and allow the solar use. See Waller v. Alqaraghuli, 2017 WL 3380387 (Mass. Land Ct. Aug. 4, 2017 (KPS) (holding that the Dover Amendment exemption authorizes solar uses where local bylaws do not regulate solar uses and prohibit uses not expressly allowed). In Waller, the City of Newton Zoning Board of Appeal upheld the issuance of a building permit issued to a solar developer for the installation of a solar canopy on a parking garage servicing Newton-Wellesley Hospital, located in a residential district. An abutter appealed the board's decision, arguing that the board incorrectly applied the Dover Amendment, G.L. c. 40A, § 3 to the proposed solar use. Specifically, the abutter claimed the board "exceeded its authority in concluding [the Dover Amendment] allows solar energy systems in all Newton zoning districts." The abutter based her argument on the fact that the local ordinance did not regulate solar energy systems, and the ordinance further prohibits uses which are not expressly allowed. Id. at *4. According to the abutter, therefore, the solar canopy would not be allowed in the residential zoning district it was located in (or any zoning district for that matter). The Court firmly rejected the abutter's argument, finding that it "ignores the provisions of G.L. c. 40A, § 3, which expressly address this situation, in which a solar use is completely prohibited by virtue of its omission from a local zoning ordinance." Id. The Court concluded that the decision was "fully consonant with the provisions and purposes of G.L. c. 40A, § 3." Id.; see also PLH LLC, supra at *3 (in reviewing a proposed solar use, the board cannot, within their discretion, determine "whether the protected use can take place in that district, because to do so would be at odds with the penumbral protections that are provided under § 3"). During the proceeding before the Board on this matter before said prior application was withdrawn without prejudice, a question arose whether the Land Court's decision in Briggs v. Zoning Bd. of Appeals of Marion, 2014 WL 471951 (Mass. Land Ct. Feb. 6, 2014) (AHS) applied to prohibit the portion of the Solar Project located within the R-25 zoning district. In Briggs, the local bylaw expressly prohibited commercial solar farms in residential zoning districts, but allowed them in various other commercial zoning districts. In accordance with the Bylaw's provisions, the local board denied a special permit application for a commercial solar farm in a residential district. The reviewing Land Court judge found that the local bylaw in Marion was not an unreasonable restriction on solar under the Dover Amendment because the bylaw expressly authorized commercial solar farms in multiple commercial zoning districts. Unlike the local bylaw at issue in Briggs, the Yarmouth Zoning Bylaw does not allow solar in commercial zoning districts and prohibit solar in residential districts. Rather, the Bylaw contains 3 no provisions regulating the use of solar in any zoning district. Accordingly, the holding in Waller, not Briggs, applies to authorize the use.4 Based on the foregoing analysis, the proposed solar use is authorized by right on the Property under the Dover Amendment. b. The Proposed Solar Canopy Structures Are Similarly Allowed Similarly, during the prior proceedings on this matter, a board member posited that the proposed canopy structures, by their nature, are "accessory structures," yet appear to be the only proposed structures on the Property. As such, a question arose whether the canopy structures are authorized under the Bylaw, which defines an "accessory structure" as "a structure customarily incidental to and located on the same lot with the principle structure, or on contiguous lots held under the same ownership." As shown on the project plans, there is a "primary" structure located in the northwest corner of the lot. It is a building used by Cape Cod Healthcare for dementia and Alzheimer's caregiver support and for physician recruitment. As such, the proposed solar canopies may be considered "accessory structures" to that building. That said, we don't believe the solar canopies must qualify as "accessory structures" under the Bylaw for them to be an allowed use, given the broad protections afforded under the Dover Amendment. As set forth above, the Dover Amendment protects not only the proposed solar use, but also "the building of structures that *dilate the collection of solar energy." Thus, with respect to solar, the Dover Amendment does not distinguish between the use and the structure. Instead, it makes it unlawful for the Town to apply any provision of its Bylaw in a way that would "prohibit or unreasonably regulate" the "building of [solar canopy] structures." On this site, the collection of solar energy would be impossible without the proposed solar canopies. As a result, whether the proposed solar canopies are considered "principal structures" or "accessory structures" is irrelevant. The proposed solar canopy structures — like the solar use itself — are authorized under the Zoning Act. Otherwise, a ground-mounted solar energy system would be allowed on this site whereas a canopy-mounted solar energy system would not. Such an interpretation of the Bylaw — allowing one form of a solar energy system but not another of the same size — would disregard common sense and constitute an "unreasonable" restriction under the Dover Amendment. See Tracer Lane 11 Realty LLC v. City of Waltham, supra (a zoning requirement is unreasonable if it detracts from usefulness of a structure, impairs the character of a proposed structure, or does not account for the use or character of property). i. The Proposed Solar Canopies Are Not Carports 4 Note that more recent decisions of the Land Court have rejected the argument that absolute prohibition of solar energy systems within certain zoning districts is allowed under the Dover Amendment. See, e.g., Northbridge McQuade, LLC v. Northbridge Zoning Bd. of Appeals, Mass. Land Ct. No. 18 Misc. 000519 at *2 (June 17, 2019) ("The court sees nothing in the statutory language or purpose that would countenance carving out large areas of land by district in the town and making them immune from the remedial indulgent protections of § 3 with respect to this solar use."). Again, this issue is irrelevant here, where the Yarmouth Zoning Bylaw does not contain any provisions regulating solar use in any zoning district. 4 During the prior proceedings, there was also a question raised as to whether the proposed solar canopies are "carports" proposed independent of any solar use, in which case the Dover Amendment would arguably not apply. As stated above, the canopy structures are proposed solely to accommodate the proposed solar use within the existing parking lot. Accordingly, regardless of whether they are referred to as solar "carports" or solar "canopies," the proposed structures unquestionably "facilitate the collection of solar energy" under the Dover Amendment, G.L. c. 40A, § 3, and cannot be "prohibit[ed] or unreasonably regulate[d]" by the Bylaw. 4. The Solar Project Poses No Public Safety, Health, or Welfare Concerns The fundamental purpose of G.L. c. 40A, § 3 is to "facilitate the provision of public requirements" that may be locally disfavored. Cnty. Comm 'rs of Bristol v. Conservation Comm 'n of Dartmouth, 380 Mass. 706, 713 (1980); see also Northbridge McQuade, LLC, supra ("The purpose of the solar energy facility protections of G.L. c. 40A, § 3 is to require some `standing down' by municipalities to encourage and protect solar facilities — a use that might be seen as unwelcome in municipalities at a local level — by abutters, neighbors, and by town government."). Thus, the Town must weigh the burdens that a municipal regulation imposes on solar uses against justifications for the regulation based on legitimate municipal objectives grounded in the protection of health, safety or welfare. Id. It is now common knowledge that "solar energy facilities generate no noise, no odor, and virtually no additional traffic, and cast no long shadows." Summit Farm Solar, LLC v. Planning Bd of Town of New Braintree, 2022 WL 522438 (Mass. Land Ct. Feb. 18, 2022) (HPS). Moreover, the Applicants have worked closely with both the Health Department and the Fire Department to address any concerns with the proposed Solar Project and have met with both departments onsite. At these departments' request, we have revised the site plan to include protective bollards surrounding the equipment areas, a new fire hydrant and dry standpipe on the Property, and a new fire main from Bayview Street. And, it goes without saying that the Solar Project cannot be constructed unless and until all necessary approvals are obtained from both departments. 5. Parking Lots are Preferable Sites for Solar Energy Systems It is also worth noting that unlike some solar energy facilities that take up significant portions of land that might otherwise be devoted to farming or open space, this Solar Project is proposed to be constructed exclusively over an existing impervious parking lot. This is exactly the type of solar project that is encouraged by the Massachusetts Department of Energy Resources ("DOER") and the Cape Cod Commission. In a 2015 presentation by DOER titled "Solar Canopies at State and Municipal Facilities in MA," DOER outlined the numerous benefits of solar canopies, which include preferential treatment from DOER, the ability to "keep green spaces open fot• public enjoyment," and various secondary benefits. See portions of DOER PowerPoint presentation, attached hereto as Exhibit C.5 Similarly, the Cape Cod Commission has noted that "parking lots" are a "preferable site" for Due to the length of the PowerPoint presentation (69 pages), we have only included the cited portions. The entire presentation can be found at haps://www.mass.govklocisolar-canopies-slides/clownload 5 large-scale solar projects because they are "previously developed sites." See "Siting Large-Scale Solar Photovoltaic Projects on Cape Cod" dated December 2020 prepared by the Cape Cod Commission, p. 13, attached hereto as Exhibit D. 6. Conclusion For the foregoing reasons, the proposed solar use is authorized under the Dover Amendment and the Bylaw and the requested relief is warranted. As such, we would request the Board approve the requested modifications to Conditions 1 and 3 of Special Permit Decision No. 4715. Nonetheless, if deemed necessary by the Board, the Applicants have also filed for variance relief to allow installation of the solar canopies. It is the position of the Applicants that this relief is not needed, and is submitted only to the extent necessary. 5568677.1 6 Exhibit A l< 3 1:19 9 t. 1. --- 0 1 F--; 5a 8 1: 1.7.:;":.!-6--"" TOWN OF YARMOUTH BOARD OF APPEALS DECISION 1.7NfiV27F,fr:12:40 FILED WITH TOWN CLERK: November 27, 2017 PETITION NO: ii4715 HEARING DATES: October 26, 2017 and November 9, 2017 PETITIONER: Cape Cod flospital SUBJECT PROPERTY: 4, 30, 34, 40, 44, 50, 56, 62 and 66 Bayview Street Map 36, Parcels: 3, 8, 9, 10, 11,12, 13,14, and 93 (hereafter, collectively, the "Subject Property") TITLE REFERENCES (BOOK/PAGE): 3380/199, 3644/207; 21279/263; 4094/148; 1423/831; 1549/226; 1423/830; 2115/15; and 15030/135 MEMBERS PRESENT AND VOTING: Steven DeYoung, Chairman, Sean Igoe, Vice Chairman, Dick Martin, Tom Nickinello, Susan. Brita, and nonvoting Alternate, Tom Baron. Notice of the hearing has been given by sending notice thereof to the Petitioner and all those owners of property as required by law, and to the public by notice of the hearings and publishing in The Register, the hearing opened on October 26, 2017, testimony was taken, and the matter was continued to November 9, 2017, at which time the Board of Appeals (the "Board") elosed the public hearing and voted on the petition. The Petitioner seeks to expand its employee/staff parking lot located on the easterly side of Bayview Street in West Yarmouth. Specifically, the Petitioner proposes the addition of 35 new parking spaces, however 7 existing parking spaces will be eliminated to construct new interior landscape islands such that the project results in a net increase of 28 parking spaces, The new parking spaces are disbursed. throughout the Subject Property (as defined above) and are either located on existing paved areas or result in new pavement that is aligned with existing edges of pavement, New drainage is also proposed for the new parking areas. At its closest point, the new parking is located approximately 86 feet away from the edge of wetland. As part of the project, the Petitioner proposes additional landscape improvements, both on and off the Subject Property. The Subject Property landscape im.provements include additional buffer plantings on the north and west sides of the Subject Property and converting 7 existing parking spaces to interior landscape islands. In addition, a new block planter wall with. minimum 6 foot high Leyland Cypress trees are 'Proposed to help screen views of the parking lot from East Main Street. This planted sc,rcening feature is partially located on the Subject Property and partially Bk 30991 Pg59 #66089 located on two adjoining lots (5 Murray Road and 9 East Main Street, hereafter, collectively, the "Off-Site Parcels"), both of which are also owned by the Petitioner. Finally, the Petitioner also proposes planting 7 additional trees on the Off-Site Parcels. All of the proposed improvements, including those proposed on the. Subject Property and on the Off-Site Parcels, are shown on the plans submitted which are referenced below and made a condition hereof. On October 12, 2017, the Yarmouth Conservation Commission issued a Determination of Applicability for the project confirming that no Notice of Intent was required. On September 26, 2017, the Petitioner completed Formal Site Plan Review with the Site Plan Review Committee. The Subject Property consists of approximately 13.8 acres of land and is located within several different zoning districts including the 131, the R25, and the northerly portion is within the APD. The Petitioner requested both special permit and variance relief for the proposed project, as follows: • Modify prior Special Permit No. 4354, dated August .5, 2011, as recorded with the Barnstable County Registry of Deeds in Book 25666, Page 232 to permit the proposed site changes; • Special permit relief pursuant to §102.2 and §103.2 of the Yarmouth Zoning Bylaw to permit Hospital uses/accessory parking in the R25 and 131 zones and to allow commercial. parking, though restricted to Cape Cod Hospital staff/employees, in the APD portions of the site; • Variance from §341,4.8 (accessible parking spaces) of the Yarmouth Zoning Bylaw; • Variance from §301.4.4 (buffer requirements) of the Yarmouth Zoning Bylaw along the easterly property lines; • And, if needed, as alternative relief, a Special. Permit pursuant to §104.3,2.4 (expanded non-conforming uses) and/or a Use Variance for a §202.5(L)(7) (Medical Services Appurtenant Parking use). Received at the hearings were three exhibits: Exhibit 1 — A copy of the Yarmouth Conservation Commission's October 12, 2017 Determination of Applicability; Exhibit 2 — A copy of Cape Cod Healthcare's Administrative. Policy and Procedure Statement on Employee Parking, dated February 22, 2017; and Exhibit 3 — A summary of the zoning relief being sought which was prepared by Petitioners' Counsel, Attorney Eliza Cox of Nutter McClennen & Fish, LLP. The Board opened the hearing on this matter at its October 26, 2017 hearing, The Petitioner, through its counsel, Attorney Eliza Cox of Nutter McClennen &. Fish, LLP, and its civil engineer, Dan Ojaht of Down Cape Engineering, Inc,, described the Subject Property and proposed improvements, The Petitioner's representatives explained that. Cape Cod Hospital was reinforcing its policy of requiring staff/employees to use designated lots rather than the visitor/patient parking areas thereby creating a need to maximize the number of staff/employee spaces, that no changes were proposed. to the access/egress points of the parking lot, and that additional trees were proposed along the Bayview Street buffer areas and within the interior of the parking lot, Public testimony was also taken including questions from Cynthia Laflash (7F Virginia Street) regarding lighting and location of the proposed new parking spaces and from Michael Hayes, Esq. (23 E. Main Street). 1\4r. Hayes expressed concerns with trash, the cutting of trees on 5 Murray Road, and 2 Bk 30991 Pg60 # 6 6 8 9 inadequate screening of the Subject Property from his property and from 'East Main Street. At the October 26th hearing, the Board requested that the Petitioner consider additional landscaping both within the Subject Property and along its borders and that it evaluate ways to improve the appearance of the northerly portion of the Subject Property. At the Petitioner's request, the Board voted to continue the public hearing to November 9, 2017. The Board .reopened the matter at its November 9, 2017 hearing at which time the Petitioner, through Ms, Cox and Mr. Ojala, presented revised project plans that included additional landscape improvements on the Subject Property as well as the landscape improvements described herein above on the Off-Site Parcels. Mr. Michael Baehstein of Cape Cod Healthcare was also present at the continued hearing and explained Cape Cod Healthcare's employee parking policy and parking enforcement efforts. The Petitioner also indicated that the discarded trash had been removed and how the trailers on the Subject Property were used, The Board commented positively on the revisions to the project plans. In response to Board questions, the Petitioner also indicated that no liazardous materials were kept in any of the trailers, Public comment was requested and Mr. Hayes spoke in support of the revised plans indicating that he had net with the Petitioner's representatives following the .first hearing and that be was pleased with the revised plans, At the November 9, 2017 continued hearing, the Board found that granting the requested relief would not be more detrimental to the neighborhood, and would not cause any undue nuisance, hazard or con.gcstion. The Board found that the landscape improvements were substantial, particularly the proposed improvements on the Off-Site Parcels which would greatly improve the streetscape along East Main Street, The Board also determined that special circumstanees exist relative to the Subject Property, including its shape and soil conditions adjacent to the wetland, such that there was a hardship in having to plant additional buffer trees along .the easterly side of the Subject Property as it would involve additional disturbance within the buffer to a resource area, and that there was no substantial detrime.nt, Similarly, the Board determined that it would be an undue hardship for the Petitioner to construct handicap accessible parking spaces on this lot given the fact that there is ample, more accessible, parking spaces provided on the main Hospital campus. 'Therefore, a Motion was made by Mr. Igoe and seconded by Mr. Martin, to grant the following relief: • Amend prior Special Perrnit No. 4354, dat.ed August 5, 2011, as recorded with the Barnstable County Registry of Deeds in Book 25666, Page 232 to permit the proposed project. site changes as shown on the revised plans; and • To grant a Special Permit pursuant to §102,2 and §103.2 of the Yarmouth Zoning Bylaw to permit Hospital uses/accessory parking in the R-25 and B1 zones and to allow commercial parking, though restricted to Cape Cod Hospital staff/employees, in the API) portions of the site; and • To Grant a Variance from §301.4.8 (accessible parking spaces) of the Yarmouth Zoning Bylaw; and • To Grant a Variance from §301,4.4 (buffer requirements) of the Yarmouth Zoning Bylaw along the easterly property lines. Bk 30991 Pg61 #66089 With the following conditions of approval: 1.) The project shall be constructed and maintained in accordance with the revised project plans entitled "Overview Site Plan of Land in Yarmouth, MA #30 Bay View Street Parking Lot Additions" dated September 15, 2017, last revised on November 3, 2017, prepared by Down Cape Engineering Inc., consisting of four sheets, including the "Overview" cover sheet and three d.etai.led area plans (hereafter, the "Approved Plans"). 2.) All new landscaping shown on the Approved Plans shall be actively and regularly eared for until the new plantings are established and mature, 3.) There shall be no hazardous materials stored on the Subject Property, including within any of the temporary trailers which may be located on the Subject Property. The Board members voted unanimously to approve this Motion and grant the requested relief. A second Motion was also made by Mr. Igoe, seconded by Mr. Nicki.nello, to allow the Petitioner's request to withdraw, without prejudice, the Special Permit relief requested pursuant to §104.3.2.4 and the use Variance request (§202.5(L)(7)). The Board voted unanimously in favor of this Motion. No permit shall issue until 20 days from the filing of this deeision with the Town Clerk. Appeals from this decision shall be made pursuant to MGL 0.40A section 17 and must he filed within 20 clays after filing of this notice/decision with the Town Clerk. Unless otherwise provided herein, the Special Permit shall lapse if a substantial use thereof has not begun within 24 months. (See bylaw §103.2.5, MOE, 0,40A §9). Unless otherwise provided herein, a Variance shall lapse if the rights authorized herein are not excised within '12 months (see MGL c.40A §10). Steven DeYo ung, irman 4 Bk 3 0 991. Pg62 #660 8 9 COMMONWEALTH OF MA.SSACHUSETTS TOWN OF YARMOUTH BOARD OF .APPEALS Appeal H4715 Date: December 18, 2017 Certificate of Granting of a Special Permit and Variance (General Laws Chapter 40A, section 11) The Board of Appeals of the Town of Yarmouth Massachusetts hereby certifies that a Special Permit and Variance has been granted to: PETITIONER: Cape Cod Hospital, 27 Park Street, Hyannis, MA OWNER: Same as Petitioner SUBJECT PROPERTY: 4, 30, 34, 40, 44, 50, 56, 62 and 66 Bayview Street Map 36, Parcels: 3, 8, 9, 10, 11, 12, 13, 14, and 93 (hereafter, collectively, the "Subject Property") TITLE REFERENCES (BOOK/PAGE): 3380/199, 3644/207; 21279/263; 4094/148; 1423/831; 1549/226; 1423/830; 2115/15; and 1.5030/135 Affecting the rights of the owner with respect to land or buildings at: 4, 30, 34, 40, 44, 50, 56, 62 and 66 Bayview Street; Map 36, Parcels; 3, 8, 9, 10, 11, 12, 13, 14, and 93 Zoning District: B-1, R-25 and APD; Registry of Deeds Book/Page: 3380/199, 3644/207; 21279/263; 4094/148;1423/831; 1549/226; 1423/830; 21.15/15; and 15030/135; and the said Board of Appeals further certifies that the decision attached hereto is a true and correct copy of its decision granting said Special Permit and Variance, and that copies of said decision, and of all plans referred to in the decision, have been filed, The Board of Appeals also calls to the attention of the owner or applicant that General Laws, Chapter 40A, Section 11 (last paragraph) and Section 13, provides that no Special Permit, or Variance or any extension, modification or renewal thereof, shall take effect until a copy Of the decision bearing the certification of the Town Clerk that twenty (20) clays have elapsed after the decision has been filed in the office of the Town Clerk and no appeal has been filed or that, if such appeal has been filed, that it has been dismissed or denied, is recorded in the Registry of Deeds for the county and district in which the land is located and indexed in the grantor index under the name of the owner of record or is recorded and noted on the owner's certificate of title, The fee for such recording or registering shall be paid by the owner or applicant. Steven DeYoung, irman Bk 30991 Pg63 #66089 TOWN OF YARMOUT 1146 ROUTE 28, SOUTH YARMOUTH, .MASSACIRYSETTS 02664-4451 Telephone (508) 398-2231 Ext, 1285, Fax (508) 398-0836 CFRTIFICATION OF TOWN CLERK Town Clerk I, Philip 13, Gaudet, III, Town Clerk, Town of Yarmouth, do hereby certify that 20 days have elapsed since the filing with me of the above Board of Appeals Decision 44715 that no notice of appeal of said decision has been filed with me, or, if such appeal has been filed it has been dismissed or denied. All appeals have been exhausted. . ' • BARNSTABLE REGISTRY OF DEEDS John F. Meade, Register Fxhibit B YARMOUTH FIRE AND RESCUE 96 OLD MAIN STREET SOUTH YARMOUTH, MASSACHUSETTS 02664 Fire Prevention Telephone: (508) 760-4859 Ex 3216 Fax: (508) 760-4858 After meeting with CCH project managers they have addressed Fire Department concerns/comments, regarding proposed solar canopies for the CCH employee parking lot located at 4 Bayview St. Fire Dept. Access will be maintained in relation to the solar canopies. A hydrant will be located within 100' of the energy storage system and Next Grid will provide training for fire department personnel on fire suppression systems relating to the storage unit. Bollards will provided to protect the system from damage from vehicles in the parking lot. Separate permits may be required for energy storage systems. Kevin Huck A/Deputy Chief Yarmouth Fire Department 508-398-2212 TOWN OF YARMOUTH 1146 ROUTE 28, SOUTH YARMOUTH, MASSACHUSETTS 02664-4451 Telephone (508) 398-2231 ext. 1240, Fax (508) 760-3472 BOARD OF HEALTH MEMORANDUM TO: Zoning Board of Appeals (ZBA) FROM: Carl E. Lawson, Jr., Hazardous Waste Inspector C L__ SUBJECT: ZBA Petition Number 4945 (Continued from 3-24-22) ZBA Hearing Date May 26, 2022 Cape Cod Hospital & Winterbury Solar LLC (Next Grid Inc.) 4, 30, 34 and 40 Bayview St. West Yarmouth DATE: May 17, 2022 CC:1) Mark Grylls, Building Commissioner, Director of Inspectional Services 2) Yarmouth Fire Prevention Summary Based on the information received thus far it appears Next Grid will be able to comply with all aspects of the Town of Yarmouth, Board of Health Regulation: Handling and Storage of Toxic or Hazardous Materials, with additional safeguards beyond the strict scope of the regulation also included. Below please find the process by which this conclusion was determined. Health Dept. Review Since the original ZBA hearing date of March 24, 2022 the Health Dept. participated in a conference call with Mr. Huang IU, Chief Technical Officer of Eneon, the battery supplier and Mr. Daniel Serber, Senior Director of Land Development with Next Grid Inc., the project applicant seeking to construct carports with roof-mounted solar panels above an existing Cape Cod Hospital parking lot. After the call we exchanged several emails over the next couple of weeks during which I learned further details of the project. Information and project details obtained during the conference call and subsequent emails follow below. 1 Proposal The Health Department was informed (initially by Town Site Plan Review notice, later by email from the project attorney and most recently by ZBA Hearing Notice) that Cape Cod Hospital (CCH) seeks to construct car ports with canopy-mounted solar panels over an existing parking lot. The solar panels will generate energy that will be stored by the batteries for return to the electric power grid as electrical demand allows. Two electrical inverters will convert the DC current generated by the solar panels to AC current for return to the electric power grid. Regulatory Items The Board of Health (BOH) Regulation "Handling and Storage of Toxic or Hazardous Materials," effective May 2, 1990, and licensing requirement is applicable to this proposal as the involved quantities of materials exceed the licensing threshold of 10 gallons liquid measure and 5 pounds dry weight. The regulation includes, but is not limited to, 150% volume secondary containment of toxic or hazardous materials. Information Learned Since the ZBA Hearing on March 24, 2022 Batteries Single-celled, lithium-ion batteries will be installed for the project. Each lithium-ion battery cell: (1) is contained within a single-walled aluminum housing known as a can; (2) is a fully sealed unit with no venting and (3) contains liquid electrolyte solution in the amount of approximately 1.617 liters or 0.4271 gallons. The batteries are housed within modules. Each module contains 10 batteries. The modules are housed within racks. Each rack can house up to 38 modules and that number is planned at this time. The racks are housed within cabinets. Each cabinet contains one rack and 18 cabinets are planned at this time. A total of 6840 batteries will be in place once the solar installation is complete. 1 battery X 10 batteries per module X 38 modules per rack X 1 rack per cabinet X 18 cabinets = 6840 batteries. 2 Electrical Inverters As mentioned previously two electrical inverters will be installed as part of this project. Each electrical inverters contains 4 liters (L) or approximately 1.096 gallons of antifreeze. Health Dept. Review of Toxic or Hazardous Materials The Health Dept. reviewed Safety Data Sheets (SDS) for each component of the battery electrolyte solution and the electrical inverter antifreeze. None of the materials are nontoxic and nonhazardous, nor was such a claim ever made by the providers of the materials. An SDS for the electrolyte solution is not available because it is a trade secret, however the SDS for the individual components were received and reviewed. Secondary Containment of Toxic or Hazardous Materials Battery Electrolyte As mentioned above 6840 total batteries each containing approximately 0.4271 gallons of electrolyte solution are included in this project. Therefore, approximately 2921 gallons of electrolyte are involved. The primary containment is the single-walled aluminum battery housings referred to as cans. The module housings in which the batteries reside provide secondary containment although short of the 150% required by regulation. As mentioned above the modules are place within racks. The racks have no containment capacity. The cabinets which each house one rack have secondary containment capacity that when coupled with that provided by the modules achieve more than the 150% volume secondary containment required by regulation. Electrical Inverter Antifreeze Each electrical inverters contains 4 liters (L) or approximately 1.096 gallons of antifreeze. The inverters each have secondary containment capacity that far exceeds the 150% volume required by regulation. Solar Panels The solar panels contain no toxic or hazardous liquids or dry materials. Delivery of Toxic and Hazardous Materials The solar array components containing toxic or hazardous materials will be delivered to the site for installation by the contractor. After construction is complete there are no further deliveries planned unless components need replacement. 3 Storage of Toxic and Hazardous Materials All electrolyte solution is contained inside the batteries. The batteries are housed within modules that are placed within racks which will reside inside cabinets placed outside on concrete equipment pads which will be surrounded by protective bollards. All antifreeze is contained inside the electrical inverters which will also be placed outside on a concrete equipment pad also surrounded by protective bollards. Use of Toxic and Hazardous Materials All the toxic and hazardous materials will be used within the listed components (batteries and electrical inverters) in the process of solar energy generation and storage. Disposal of Toxic and Hazardous Materials No hazardous wastes will be generated on a regular basis. The service life of the batteries is 10 to 20 years. Yarmouth Board of Health Regulation Yarmouth Health Regulation requires the following regarding toxic or hazardous materials handling and storage which apply to the proposal from Next Grid. 1) The business must register annually for a Yarmouth Board of Health Handling and Storage of Toxic or Hazardous Materials License. Next Grid has confirmed they will apply. 2) No materials may be discharged to the environment. Next Grid understands and has no plan to do so, nor need for such. 3) No outdoor storage of materials is allowed. The batteries and each of the two inverters will be inside cabinets intended for outdoor use. 4) All materials must be protected from vandalism. The cabinets for all materials will be locked. 5) Materials must be stored in covered product-tight containers. 4 The toxic and hazardous materials are all contained within solar array system components. 6) All materials must be stored inside secondary containment of 150% volume of the total amount of materials stored. The toxic and hazardous materials will have secondary containment that meets this requirement. 7) Any waste material must be properly disposed by a licensed hazardous waste hauler with removal documentation in the form of hazardous waste manifests retained. There will be no regular generation of toxic or hazardous waste. The only disposal will be the removal of batteries at the end of their service life which is expected to be 10 to 20 years. 8) Safety Data Sheets (SDS) for each toxic or hazardous material must be maintained onsite and be readily available. Next Grid, the owner Of the solar array equipment will have no physical office onsite in which to house SDS hard copy or electronic files. The SDS should be provided to CCH, the property owner. 9) No vehicle repair or washing is allowed onsite. No operations involving the above is proposed. 10)A sufficient supply of absorbent material must be kept onsite for use in the event of a release of toxic or hazardous materials. The initial response to mitigate a release of material was discussed on May 19, 2022 during a site visit at the project location. CCH, Yarmouth Fire Dept. (YFD), Health Dept. and Down Cape Engineering staff attended. Daniel Serber of Next Grid participated by phone during the discussion of this topic. Due to the hazardous nature of the involved materials it was discussed that CCH personnel will not play a role in containing or absorbing any released materials. Instead CCH personnel will notify YFD and establish a boundary around the solar installation, within which no CCH staff or members of the public will be permitted. The delineation of such boundary will be determined through further discussion between the Fire Dept. Next Grid, and CCH. A completed spill plan has yet to be completed. Following YFD response and assessment, Clean Harbors, an environmental services company contracted by Next Grid, will complete remediation of released materials once the impacted area is deemed safe by YFD for such work. 5 Additional Safeguards Beyond Secondary Containment and the Strict Scope of the Board of Health Regulation Monitoring The batteries are electronically monitored on a continuous basis for both safe operation and performance. Performance issues automatically generate an email to Next Grid for evaluation. Safety issues generate an immediate, automatic notification to a Massachusetts-based monitoring firm. Depending upon the level of severity of the safety issue: (1) the Fire Dept. is notified; (2) the system automatically shuts down; and/or (3) the automatic water injection fire suppression system disperses water onto the battery array. The fire suppression system will be supplied by an onsite 300-gallon water tank that the service contractor will keep filled. The system will operate until the water supply is exhausted with continued response and application of water by YFD. Physical Protection The battery cabinets and electrical inverters will be protected by bollards from potential vehicle strikes. Protection from Vandalism The battery cabinets and electrical inverters will be locked. Summary In reiteration of the summary presented at the beginning of this memorandum and based on the information received thus far it appears Next Grid will be able to comply with all aspects of the Town of Yarmouth, Board of Health Regulation: Handling and Storage of Toxic or Hazardous Materials, with additional safeguards beyond the strict scope of the regulation also included. 6 Exhibit C Creating A Cleaner Energy Future For the Commonwealth 11•,-DER Massachusetts Department of Energy Resources Webinar April 15, 2015 12:00 pm LEADING BY EXAMPLE Solar Canopies at State and Municipal Facilities in MA Leading by Example Team — Dept. of Energy Resources Taylor Leyden & Francois Attal —Business Development, Solaire Generation Brian Tracey, Program Development, PowerOptions Reference herein to any specific commercial product, process, or service by trade name, trademark, manufacturer, or otherwise does not necessarily constitute or imply its endorsement, recommendation, or favoring by the Commonwealth or DOER. Why Solar Canopies in MA? • Many of the best roof/ground sites have been exhausted • In general, 40% of pavement is parking lots • Greater potential for large scale systems • Substantial potential for canopies across portfolio of government- owned parking lots • State lots: 4 MW installed at handful of sites ;, Municipal lots: minimal installations • Rough estimates suggest > 50 MW possible • Keep green spaces open for public enjoyment • Additional Benefits Creating A Cleaner Energy Future For the C Pros of Solar Carports 1.Receive preferential treatment from MA DOER SREC program 2.Transform unused assets into productive power plants 3.Are close to point of consumption versus solar farms which require high interconnection upgrade costs 4.Provide an ideal alternative when roof installations are not feasible due to roof age and load limitations 5.Usually size up to ideal production of buildings nearby — 40 to 50% of electricity consumption SOLAIRE GENERATION Creating A Cleaner Energy Future For the Commonwealth Massachusetts Departtnen