SOLAR PHOTOVOLTAIC FACILITY FOR SHERBORN?

In a previous post, I discussed the five criteria needed in order to become a designated "Green Community." Two of those criteria can be met with a single amendment to the Zoning Bylaw. The amendment would allow a solar photovoltaic electrical generation facility to locate by right (that is, without requiring a special permit) somewhere in Town and to do so with an "expedited permitting" process that would result in a permit within 12 months of application.

The type of facility that must be allowed needs to have a minimum capacity of 250 kilowatts. It is estimated that such a facility would require about an acre of land. Both the Energy Committee and Planning Board have been working on a warrant article that, if passed at Annual Town Meeting next April, would meet the 2 criteria.

The State has provided a model bylaw that contains most of the technical language that needs to be included in the bylaw. While decisions still need to be made about the exact proposal, what has been discussed is to designate the former landfill site (transfer station and recycling center) and/or the existing electrical transmission lines (and possibly some adjacent land) as an overlay district that would qualify as a site for such a facility. While the use would be allowed by right under the Zoning Bylaw, it would still be subject to site plan review by the Planning Board, all Conservation Commission regulations and any other Town requirements.

Such a bylaw would provide  an economic use for land that otherwise has little or no economic value. It could provide revenue to the Town through a ground lease(if located on a Town-owned site like the former landfill) and possibly through lower utility bills. In addition, qualifying as a Green Community would make the Town eligible for grants for other alternative energy or conservation projects, further reducing Town costs.

I will provide more information on this and other aspects of the effort to become a Green Community as it becomes available.

MORE ON OPEN MEETING LAW

In my earlier posting, I suggested that "posting" meeting notices is an obsolete and antiquated practice that reaches few people. I suggested that the practice should continue but that missing a posting should not be considered a "fatal flaw' in the process. I will now provide a real-life example of how such a requirement can inhibit the efficient functioning of government.

Last week, Thursday was a holiday (Veterans Day) so Town Hall was closed. Most Town offices (including the Town Clerk) are always closed on Friday. On Wednesday afternoon, a particular committee decided it wanted to postpone its meeting scheduled for that night to the following Tuesday evening. This was a full 6 days in advance. A second committee also came in to post a meeting for the following Monday (5 days in advance). However, the Assistant Town Clerk had left for the day at noon (due to limited hours) and the Town Clerk was busy and could not accept the postings. Therefore, at least 2 committees had to postpone their meetings until at least Wednesday evening so they could be posted on Monday and meet the 48-hour rule.

I fully understand the limitations of a part-time work force and the complicating factor of holidays. However, again there is a technological solution to this problem.

Now that Sherborn has an electronic monitor facing the window at the front entrance, why not allow postings to become fully automated? That is, a set of rules could be established and just as we currently fill out a form for the posting that is sent to the Town Clerk's office , why couldn't that posting go directly to the monitor? An auto-reply could confirm receipt of the notice as well as establish the day and time of receipt to ensure that it is received at least 48-hours in advance (excluding Saturdays and Sundays). The form on the Town Clerk's web site is already set up with required fields so that ensures completeness in the postings.

Access for submitting postings could be restricted to designated staff, committee chairs, etc. Furthermore, the notices could still be reviewed by the Town Clerk's office to ensure compliance and if any notices were found to be not in compliance for whatever reason, then the meeting could be cancelled and rescheduled with the proper notice. Coupled with a web site posting, this scenario would not only allow more flexibility in scheduling meetings with no loss in public access, but would actually increase such access through the web site posting.

NEW OPEN MEETING LAW COMMENTS

You may be aware that the state has adopted a new Open Meetings Law that went into effect on July 1, 2010. Among the major changes in the new law are the following: (1) agendas (or items the Chairman reasonably believes will be discussed) must be included in the posting of a meeting whereas previously only the date, time and place was required; (2) such notices must still be posted 48 hours in advance, but now Saturdays are excluded from that time period (Sundays had already been excluded); (3) the notices of all such meetings in a town must be accessible by the public on a 24 hour, 7 day basis; and (4) meeting minutes must now include a list of all documents and other exhibits discussed at the meeting and these must be available for the public view in the future.

There are also some clarifications and definitions. I think the new rules are a good step forward in assuring openness and accountability in government.

My primary problem with the new rules relates to its treatment of technology. The rules remain rooted in centuries-old technology. The basis of it remains posting notices at Town Hall and publishing notices in the newspaper. These may have been effective when people made frequent trips to the town square and when reading a daily newspaper was a common component of life, but in era of sprawling suburbs, plummeting newspaper circulation and an Internet economy, these methods no longer reach most people.

I am not advocating for abandoning these practices, but I do suggest that inadvertently missing a deadline for these should not be a fatal flaw in the process if it can be demonstrated that other means of communication have been used advantageously. In an era in which there are now more households with a cell phone and no land line than there are with a land line and no cell phone, I would be willing to bet that more people could be reached via the Internet than through Town Hall postings and newspaper ads.

While the new law expands the use of technology slightly, its primary focus seems to be to restrict use of technology rather than to embrace it a means of EXPANDING access to government. For example, the guidelines clarify that email can be used for administrative matters (scheduling meetings, distributing information, etc.) but not for substantive discussion. This is a good thing as far as it goes. Private emails should not be used to discuss public business.

However, why not use technology in an open manner to allow greater and easier participation? That is, a public forum could be established that would be viewable by the public in which members of a public body could ask questions or make comments that could be responded to by other members, the applicant or other Town officials. As long as those participating are identified and the forum is viewable by the public, why not allow it?

In the case of public hearings, why not let members of the public participate in the forum? Applicants could post the details of their project including plans, reports, etc. Comments and reports by consultants and Town officials could also be posted. Members of the public body as well as members of the public would have easy access to all information about the project. A requirement would be that all persons participating must be identified and registered with, at a minimum, name, residential address and email address (and, as applicable, whether they are a member of the public body, the applicant’s team, a town official, abutter, etc.). Any comments so posted would become part of the public record of the hearing. This would allow residents to participate who are not able to attend the physical hearing due to illness, mobility issues or scheduling conflicts. In addition, such a system could facilitate and streamline the physical hearing.

The new law does provide for remote participation by public body members. However, this provision is not yet in effect as the Attorney General’s office is seeking public comment as a first step to establishing rules about this practice. One example of how this could be utilized is the case of a public hearing that has been closed and a board is deliberating a decision. If a member is out of town on the day of the vote, but can certify that he or she has reviewed a copy of the draft decision, why not allow that member to participate remotely via phone, video conference, or Internet. When most Boards meet only once or twice per month, it could avoid unnecessary delays.

In summary, the new Open Meeting Law is good step forward in assuring transparency and openness in government. However, the job is not finished and more needs to be done to bring government into the 21^st Century.

BP OIL DISASTER

While not directly relevant to Sherborn, as a former resident of New Orleans, I am very interested in this issue. In graduate school, I was heavily involved in studying impacts of offshore oil and gas production. The title of my master's thesis was "The Fiscal Impacts of Outer Continental Oil and Gas Production on State and Local Governments in Lafourche Parish, LA." I also worked on a couple of other studies of the industry as a graduate research assistant.

The most interesting project I was involved with was commissioned by the Conservation Foundation (since merged with the World Wildlife Fund) through a contract with the Fish and Wildlife Service of the U.S. Department of Interior. I co-authored the report with a professor. The report is called "Environmental Planning for Offshore Oil and Gas, VolumeV: Regional Status Reports. Part 3:Gulf Coast Region." As the name implies, this was a national report on offshore oil and gas and we covered the Gulf Coast, which, of course, is the site of almost all offshore oil and gas activity. The President of the Conservation Foundation at the time was William Reilly, who later served as EPA Administrator and was just appointed by President Obama as Co-Chair of the commission investigating the BP disaster.

Among other things, the report covered some of the challenges involved in deepwater drilling, which was then in its infancy. In discussing technologies involving accident response, the report cites four main problems as  "reestablishing control over wells that have blown out, containing and cleaning up oil on water, salvaging marine life and birds, and cleaning up beaches." Not that these are not obvious issues! The report also discusses the impacts of offshore oils and gas activity on living things and the socioeconomic impacts.

GREEN COMMUNITIES ACT

In 2008, the Massachusetts Legislature adopted the Green Communities Act. This act provides funding for designated communities to implement alternative and renewable energy projects. The funding comes from the Regional Greenhouse Gas Initiative (RGGI, pronounced "reggie"). A system has been established by which companies can buy credits for their greenhouse gas emissions at an annual auction. The proceeds of those auctions are then used to fund local energy projects.

In order to become designated as a Green Community, a town must meet five criteria. These include the following:

1. Provide for the as-of-right siting of renewable or alternative energy generating facilities, renewable or alternative energy research and development (R&D) facilities, or renewable or alternative energy manufacturing facilities in designated locations.

2. Adopt an expedited application and permitting process under which these energy facilities may be sited within the municipality and which shall not exceed 1 year from the date of initial application to the date of final approval.

3. Establish an energy use baseline inventory for municipal buildings, vehicles, street and traffic lighting, and put in place a comprehensive program designed to reduce this baseline by 20 percent within 5 years of initial participation in the program.

4. Purchase only fuel-efficient vehicles for municipal use whenever such vehicles are commercially available and practicable.

5. Require all new residential construction over 3,000 square feet and all new commercial and industrial real estate construction to minimize, to the extent feasible, the life-cycle cost of the facility by utilizing energy efficiency, water conservation and other renewable or alternative energy technologies.

In my opinion, we could achieve 4 out of 5 of these relatively easily. Since we do not have any industrial zoning districts in which energy manufacturing or R&D facilities could locate, we would have to achieve #1 by allowing energy generating facilities by right. We could do this by allowing solar facilities within or adjacent to our electrical transmission lines. Solar panels (even one sized for commercial quantities of electricity) are relatively benign.

Similarly, we could achieve #2 by adopting an expedited permitting process ensuring that a permit would be granted (actually "decided," it could still be denied) within a year. Rarely do any permitting processes take more than a few months now so this would be very easy to comply with.

#4 is also easy. Heavy duty vehicles and police vehicles are exempt. The policy only applies to administrative vehicles. However, we would need to commit to energy-efficient police vehicles when they become commercially available.

#5 may be a little controversial. It would require adoption of the currently-optional "stretch code" component of the State Building Code. It simply requires more energy efficiency in new houses and other buildings. This increases up-front costs but saves money in the future since the building would use less energy. As energy prices increase, the payback period decreases.

The one I see as the most difficult is #3. First, it requires that we establish a baseline for total municipal energy use (including schools, town buildings, town vehicles and streetlights) and then commit to reduce this usage by 20% within 5 years. There is a free software program provided by the state to help with the inventory and the utility companies can provide usage information. However, some effort is needed to document square footage, number of employees using the space, etc. to complete this task.

Once a community earns the "Green Community" designation, it becomes eligible for the grants mentioned above that can be used to build alternative energy facilities in Town (and help meet the 20% reduction). Therefore, it is similar to the Community Preservation Act in one respect because the early adopters get to maximize the financial benefits. However, the primary benefits are simply the cost savings that result from reduced energy use as well as the reduction in greenhouse gas emissions.

TOWN MEETING RESULTS AND COMMENTS

The two Planning Board zoning articles failed to gain the required two-thirds majority at Town Meeting. The article to allow  accessory apartments for rent-paying nonrelatives was favored by an 86-70 vote. The 55% majority was 19 votes short of 66.6%. The vote in favor of creating an adaptive use special permit for properties on North Main Street across from the Business General district was 85-57, or 60%. It fell 10 votes short of the two-thirds super-majority required.

Neither of these articles were critical to the future of Sherborn. They both would have resulted in small changes. However, in the view of the Planning Board and the Advisory Committee, they would have facilitated incremental but positive improvements in the quality of life of Sherborn residents. As happens throughout Massachusetts, a minority is able to block progress because of the requirement for a two-thirds vote to change zoning.

This raises the question of whether the two-thirds requirement is appropriate. Apparently, in Connecticut, Planning Boards have the authority to change zoning on their own. While nobody is suggesting such a change in Massachusetts, there has been a debate about changing the two-thirds vote requirement. One suggestion is to allow each town to decide on its own whether zoning changes should be by simple majority or two-thirds with the proviso that reducing the requirement to a simple majority would require a two-thirds vote. I doubt that the minority with power to block changes would be willing to cede that authority in very many towns (if any).

I am not entirely opposed to the two-thirds requirement but I have considered variations that could be beneficial. One thought I have is to allow towns to set the requirement at anywhere between a simple majority and a two-thirds vote. In other words, a town could set the requirement at 55%, 60% or 53.7% if they so choose. Of course, how that would be set remains an issue. Requiring a two-thirds vote for the change would likely render it moot since few, if any towns would be able to make the change.

Another thought I have had would provide more authority to the Planning Board, but stop well short of the authority in Connecticut. That is, a zoning change endorsed by the Planning Board would require a simple majority while one that is opposed by the Planning Board would still require a super-majority. A variation with  checks and balances might be that in addition to the Planning Board, the article would need to be supported by the Advisory Committee, Warrant Committee, Finance Committee (or whatever a town calls its body that makes recommendations on warrant articles) in order to qualify for the simple majority vote.

My final comment reverts back to the specific Planning Board articles defeated at this year's Town Meeting. As stated above, the two articles that failed were not the foundation for a successful future for Sherborn nor the seeds of destruction for the Town. They were both minor in scope.Well-meaning residents can have honest disagreements about their value to the Town and there are good and legitimate arguments on both sides. However, it is disheartening to hear residents knowingly make arguments opposed to the articles that have no basis in fact. It is a well-known tactic to defeat an article by inventing unintended consequences, phantom conflicts with existing rules or other such measures in order to raise doubt and the prospect of scary problems in the future if the article were to pass.

REPORT ON ZONING ARTICLES

The Planning Board report on the zoning articles to be considered at the Annual Town Meeting on April 27 is now posted on its web site: http://sherbornma.org/Pages/SherbornMA_Planning/index.

The Planning Board voted 4-1 in support of Article 11 to amend the existing accessory apartment bylaw by deleting the provision prohibiting the collection of rent and prohibiting anyone but blood relatives and domestic help from occupying the units. The article also increases the maximum size of an accessory apartment from 800 to 1200 square feet (but retains the maximum limit of 30% of the size of the principle dwelling unit; this means only houses of 4000 square feet or more will be able to accommodate a 1200 square foot apartment.). As is the case now, accessory apartments would only be allowed by special permit from the Zoning Board of Appeals after notification of abutters and a public hearing. All requirements of the Zoning Bylaw as well as regulations of the Board of Health, Conservation Commission and any other Town rules and regulations would still need to be complied with.

The Planning Board also voted voted 4-1 to recommend Article 12 to create an Adaptive Use Special Permit that would provide a means of allowing very limited commercial use of two properties that are directly across the street from (but not in) the Business General district. The uses would be limited to professional offices or retail uses such as antique shops or arts and crafts shops. Also, at least one residence would be required to remain on the property and the architectural and historical integrity of the buildings would be required to be maintained.This also would be by special permit after abutter notification and a public hearing by the Planning Board.

Finally, the Planning Board voted unanimously in favor of Article 15, which essentially replaces the references to the FEMA flood maps to new ones which go into effect on June 4, 2010. This is a necessary step to ensure that Sherborn retains its eligibility under the National Flood Insurance Program.