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Home My WebLink AboutBOA #4963 Bk 35536 Pg80 #60989 12-12-2022 @ 01 : 48p •�'� J O TOWN OF YARMOUTH BOARD OF APPEALS ` �,$ DECISION • A cNk" FILED WITH TOWN CLERK: November 18, 2022 PETITION NO: 4963 HEARING DATE: August 25, 2022 and November 10, 2022 PETITIONER: Winterberry Solar, LLC and Cape Cod Hospital PROPERTY OWNER: Cape Cod Hospital PROPERTY: 4,30,34& 40 Bayview Street,West Yarmouth Map 36, Parcels 8-10, 93, Zoning District: B1, R25, Partially within the Aquifer Protection District Title: Book 4094, Page 148; Book 1549, Page 226; Book 1423, Page 830; Book 1423, Page 831 MEMBERS PRESENT AND VOTING: Steven DeYoung(Chairman),Sean Igoe, Dick Martin, and John Mantoni attended in-person,and Jay Fraprie attended via Zoom. Notice of the hearing was given by sending notice thereof to the Petitioners and all those owners of property as required by law, and to the public by posting notice of the hearing and publishing in The Cape Cod Times. The hearing opened and was held on the dates stated above. The Petitioners propose to install canopy-mounted solar panels over the existing Cape Cod Hospital employee parking lot, along with three ground-mounted equipment pads and utility poles (collectively,the"Solar Project") on the subject properties,which are owned by Cape Cod Hospital. With this filing, the Petitioners seek to modify conditions 1 (pertaining to the approved plan reference) and 3 (to allow the Solar Project batteries and inverters outside of the Aquifer Protection District) set forth in Special Permit No. 4715 dated November 27, 2017, as recorded with the Barnstable County Registry of Deeds 30991, Page 58. In addition,the Petitioners also sought alternate relief in the form of a variance for the Solar Project. The Petitioners were represented at the hearings by Attorney Eliza Cox of Nutter, McClennen& Fish, LLP,together with Michael Bachstein of Cape Cod Healthcare, Daniel Serber of Winterberry Solar, LLC (NextGrid),and Brian Yergatian of BSC Group. The Petitioners described the site and the proposed project. The subject property is owned by Cape Cod Hospital and used by the hospital for its employee parking lot. The current A TRUE COPY ATTEST: Wt144. -a Fidt.dthaa--> CMM /CIVIC/ f iVVN CLERK DEC - 92,0g2 Bk 35536 Pg81 #60989 configuration of the parking lot was authorized by a series of special permits, the most recent of which was Special Permit No. 4715. Cape Cod Hospital has entered into a lease agreement with Winterberry Solar, LLC,which is proposing 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 on that portion of the subject property that is outside of the Aquifer Protection District(APD). The existing employee parking use and configuration will not be changing with the solar installation. The Solar Project satisfies all the dimensional requirements under the Yarmouth Zoning Bylaw. The Solar Project was approved by the Yarmouth Conservation Commission, the Design Review Committee and the Site Plan Review Committee. In addition, the Petitioners obtained and submitted for the record written confirmation from the Yarmouth Fire Department and the Yarmouth Hazardous Waste Inspector that the project is consistent with their respective requirements, including providing the required secondary containment of hazardous materials proposed outside of the APD. Massachusetts General Laws Chapter 40, Section 3, commonly referred to as the "Dover Amendment,"provides that"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."The Yarmouth Zoning Bylaw is silent as to the regulation of solar and Section 202.1 of the Bylaw prohibits uses which are not expressly allowed. Accordingly, the Solar Project is protected under the Dover Amendment and is allowed. Members of the Board raised concerns regarding containment measures for the hazardous materials associated with the use and with the decommissioning of the structures. The Petitioners responded to these concerns in their correspondence of October 3, 2022, and by amending the proposed site plan to include a three-sided concrete berming/curbing around the proposed equipment pads where the batteries and inverters are located that would, in the event of an incident, direct liquids to the south-east, away from the APD boundary, and direct flow in a manner that would facilitate capture, if necessary. The Petitioners also proposed conditions to address the Board's concerns. After deliberations, a motion was made by Mr. Fraprie, seconded by Mr. Martin, that the proposed modification of Decision 4715 to allow the Solar Project may be made on the following conditions: 1) Condition 1 of Decision 4715 is hereby amended to reference the site plan submitted for the Solar Project entitled "Cape Cod Hospital Photovoltaic System 4 Bayview Street in West Yarmouth Massachusetts (Barnstable County)"prepared by BSC Group dated August 16, 2021, last revised on September 20,2022. 2) Condition 3 of Decision 4715 is hereby amended to provide that there shall be no hazardous materials stored on the portion of the Subject Property that is located in the Aquifer Protection District(APD). A TRUE COPY ATTEST: WIA(4/ 0./iTlahtA-414 ii:mti:I•FCWN CL[J( DEC - 9 2022 Bk 35536 Pg82 #60989 3) When the Solar Project has reached the end of its useful life or has been abandoned,the canopies shall be removed within 1 year after the date of discontinued operations. For the purposes of this condition, the system shall be considered abandoned when it fails to operate for more than 1 year. All expenses for the removal of any abandoned property shall be the sole responsibility of Cape Cod Healthcare in the event that Winterberry Solar, LLC fails to pay for such removal. 4) Prior to the energization of the battery storage facility, the Petitioners shall provide the Town with proof that they contracted with Clean Harbors for emergency services and provide the Town's Hazardous Waste Inspector and Fire Chief with an emergency response plan. Except as so modified, Special Permit#4715, and all previous decisions pertaining to this site, shall remain in force and effect and the decisions shall run with the subject property. On a voice vote,the members voted unanimously in favor of the motion, 5-0. The petition was therefore granted. The Petitioners requested to withdraw, without prejudice,the variance portion of the application. Mr. Igoe made a motion to allow the withdrawal of the variance without prejudice. The motion was seconded by Mr. Mantoni. On a voice vote,the members voted unanimously in favor of the motion, 5-0. The withdrawal was therefore granted. No permit shall issue until 20 days from the filing of this Decision with the Town Clerk. Appeals from this Decision shall be made pursuant to MGL c40A section 17 and must be filed within 20 days 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, MGL c40A §9) Steven DeYoung, Chairman CERTIFICATION OF TOWN CLERK 1, Mary A. Maslowski, 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 #4963 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. Ttil),(4a W1141/X44 A TRUE COPY ATTEST: Mary A. Maslowski DEC DEC - 9 2022rLvyw ci_izEK DEC - .9 202 Bk 35536 Pg83 #60989 • ov•Y tk COMMONWEALTH OF MASSACHUSETTS TOWN OF YARMOUTH 5 c BOARD OF APPEALS Petition#:4963 Date:December 9,2022 Certificate of Granting of a Special Permit (General Laws Chapter 40A,Section I I) The Board of Appeals of the Town of Yarmouth Massachusetts hereby certifies that a Special Permit has been granted to: Cape Cod Hospital 27 Park Street Hyannis,MA 02601 Affecting the rights of the owner with respect to land or buildings at:4,30,34&40 Bayview Street,West Yarmouth;Map 36,Parcels 8-10,93,Zoning District:Bl,R25,Partially within the Aquifer Protection District;Title:Book 4094,Page 148;Book 1549,Page 226;Book 1423,Page 830;Book 1423,Page 831 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 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 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)days 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,Chairman A TRUE COPY ATTEST: Ltk.fl I t..M.i i'LLviN iacr;;t DEC -9 U JOHN F. HEADE, REGISTER BARNSTABLE COUNTY REGISTRY OF DEEDS RECEIVED &RECORDED ELECTRONICALLY iviatier Eliza Z. Cox Direct Line: (508) 790-5431 Fax: (617) 310-9680 E-mail: ecox@nutter.com December 12, 2022 r 121639-2 i CET 7l r 3 Ms. Dolores Fallon DEC 15 2022 ; 1Town of Yarmouth Zoning Board of Appeals 1146 Route 28 a BUILDING DEf,ARTN;ENT South Yarmouth, MA 02664 By — - - Mark Grylls, Building Commissioner Town of Yarmouth 1146 Route 28 South Yarmouth, MA 02664 Re: Cape Cod Hospital and Winterberry Solar, LLC / 4, 30, 34, and 40 Bayview St. Petition No. 4963 Dear Dolores and Mark: Enclosed please find a copy of the decision of the Zoning Board of Appeals for the above-referenced project recorded with the Barnstable County Registry of Deeds in Book 35536, Page 80, for your respective files. With best regards, I am Very truly yours, f‘ijit 4.49 Eliza Cox Enclosure cc: Cape Cod Hospital Winterberry Solar LLC 5801518.1 /11111011/1 Nutter McClennen & Fish LLP ; 1471 lyannough Rd, P.O. Box 1630 / Hyannis, MA 02601 / T: 508.790.5400 nutter.com