, Newburyport, MA

April 25, 2013

Lights out for solar farm

Homeowners plan to sue after selectmen reject array


---- — NEWBURY — Scotland Road homeowners Donna and Gene Pikul will take the town to court after the Board of Selectmen denied them permission to build a solar farm on their property.

The Pikuls said yesterday they intend to sue the town for damages after selectmen voted Tuesday against their request for a special permit to allow a solar array. The Pikuls were seeking to lease 15 of the 72 acres on their farm for use as a solar energy facility.

The suit will charge the town with a “regulatory land taking” because the Pikuls believe the selectmen’s decision has severely limited what they can do with their own property, said Donna Pikul.

She contends that the board’s decision violates state law and is a gross overreach of the town leaders’ authority. While “everyone can have their opinion” on what they think about the project being proposed, “the selectmen have a fiduciary responsibility to follow the law,” she said.

Pikul declined to give the amount of damages they are seeking, but said that it would reflect the 25- to 35-year income stream her family was denied by the selectmen’s decision.

The applicants’ first step will be to appeal the decision — an action they must undertake within 20 days after the selectmen’s decision is filed with the town clerk. The board has 14 days to file its written decision.

At the close of what has been a contentious application process, selectmen found on Tuesday that Sage Stone, the solar consultants, had satisfied the majority of requirements needed to allow the installation of 14,040 solar panels on a portion of the Pikul Farm. But because a super majority of the board did not reach consensus on all five requirements that must be satisfied before a special permit can be granted, the application was ultimately denied.

The five findings selectmen must stipulate are: that the project is in the best interest of the town; it is not objectively found to be injurious or obnoxious to neighbors; it fulfills a common need or convenience not otherwise being met; it doesn’t adversely affect abutters by increased traffic or on-street parking; and machinery, vehicles, or supplies between the structure and the road are not visible from the road.

During the deliberations on Tuesday Jonathan Klavens, counsel for the applicant, warned selectmen that he believed the reasons cited for denying the application would leave the town open to an appeal.

Following the meeting Klavens touted the benefits of the proposed solar facility as a new source of tax revenue without a demand on local services, a support for electric grid stability in the area, and a way to help the community and the country shift to a green energy future.

He noted that under state law, while selectmen can impose reasonable conditions on an application, only in cases where it is necessary in order to protect public health, safety and welfare can the board reject an application outright.

“We are deeply troubled by the board’s flagrant violation of the state law right to install solar energy equipment on the property,” Klavens wrote in a statement issued yesterday afternoon. “By deciding that the town’s ‘welfare’ includes maintenance of ‘common pasture’ landscape on private property and requires prohibition of the proposed solar facility, the board has made a mockery of that state law right and has set a very dangerous precedent that threatens to frustrate solar energy development across the state.”

But for Selectman David Mountain, protecting the community’s best interest was tied to preserving the historic Common Pasture, a swath of land from Plum Island to Haverhill that has been used continuously for farming, harvesting timber and pasturing livestock since Colonial times. Pikul Farm is located within that area.

“What value do we put on the Common Pasture?” he said. Mountain called it “the right project in the wrong place,” and felt the potential negative impact to the historic nature of the land far outweighed any as-yet-undetermined tax revenues the town might receive from the project.

He was the only selectman to vote no under this requirement, but that one “no” vote was all that was needed to sink the application. Selectman Chuck Bear also cast one “no” vote — against the stipulation that the project was not injurious or obnoxious to its neighbors. Vice Chairman Michael Bulgaris, who ran the meeting because Chairman Joe Story had recused himself, supported all five stipulations. And Geoff Walker, though openly conflicted about the project, did the same.

“Is this the kind of town you want to be — where people’s property rights don’t mean anything?” Walker asked his colleagues.

Any appeal filed would be subject to a de novo review, meaning the judge would take a fresh look at the application and render an opinion based on the objective facts as presented.

Because the town has a flat fee arrangement with its town counsel that includes customary land-use litigation, Finance Director Tracy Blais said yesterday that should Sage Stone initiate an appeal, she doesn’t anticipate incurring expenses beyond the available appropriation.