Durham Draft Solar Ordinance Community Information Meeting ~ December 7, 2023

2023-12-07 · Public Information Meeting · 2:14:09 · watch on YouTube →

A public information meeting held by the Durham Conservation Commission to present a draft framework for regulating solar energy systems and to collect comment on it. Joe Roy opened by saying he was speaking as a member of the Conservation Commission rather than as a select board member, and that Durham currently has no ordinance covering ground-mounted or utility-scale solar. George, the town planner, walked through the issues the Commission had researched, the three size categories it proposes, the documents an applicant would have to submit, and the performance standards under discussion, stopping for questions after each slide. Most of the evening was public comment, much of it from a resident who works in utility-scale solar development and who argued that the medium category is too small and that medium and large projects should not carry identical requirements. Other residents raised rooftop exemptions, how the regulated area is measured, noise and lighting standards, and impacts that fall outside the project footprint. Nothing was moved or voted on: this was an information meeting, and the Commission said it would take the comments back to its December 20 meeting before making a recommendation to the planning board.

No written minutes could be matched to this meeting. The transcript records that the speaker changed but never who was speaking, so any name attached to a statement below is inferred from context and is marked (?).

What was discussed

1. 0:06
   How the draft came about

   Joe Roy (?) said he was present as a member of the Conservation Commission and that nothing he said reflected the select board. Durham has no ordinance for utility-scale solar; the select board raised the subject with the planning board, which passed the work to the Conservation Commission. The Commission spent several months gathering ordinances from Topsham and other towns and from other states, and brought the result out as a rough draft for comment.

2. 0:06
   Solar language would go into the existing land use ordinance

   George, the town planner, said Durham keeps all of its land use policy in a single ordinance, so any solar requirements would be drafted into that rather than adopted as a separate solar ordinance. He said the town has had multiple inquiries about solar projects and that the planning board currently has only general conditional use criteria and site plan standards written for commercial development.

3. 5:59
   Comprehensive plan as the basis

   Under Maine law town land use policy must rest on the comprehensive plan. The 2018 plan came out of a public participation process with three themes: preserving rural character, supporting agriculture and forestry, and protecting the environment. It contains no policy on solar farms.

4. 5:59
   Visual impact and glare

   George (?) said visual impact is the most commonly raised issue, pointing to the installations around the Augusta interchanges and the resulting talk there of a moratorium. Slides showed an industrial-scale array with no buffering and a community-scale array on Route 201 serving the Hinckley school. Towns such as Topsham set standards requiring materials that do not produce glare.

5. 11:24
   Invasive species, stormwater and decommissioning

   Developers elsewhere are required to survey for invasive plants and to plan for eradication before clearing, and stormwater from the disturbed area has to be treated. Most ordinances require a decommissioning plan covering removal and recycling of panels, racking, wiring, inverters, transformers, foundations, fencing and access roads, backed by a financial guarantee kept in place for the life of the facility so the cost does not fall on the town.

6. 11:24
   Battery energy storage systems

   The town was contacted within the past month or so by a developer of an energy storage system. Storage can be tied to a solar array or stand alone, charging from the grid at off-peak times. The Commission said these facilities can be difficult for a fire department, burn hot and release toxic gases, and may require public water and special training, and that it does not yet know how far the ordinance should go on them.

7. 16:58
   Three proposed size categories

   Small, under 2,000 square feet of surface area, would need only the code officer's electrical permit. Medium, 2,000 to 20,000 square feet, would go to the planning board for site plan review or as part of a subdivision review. Anything larger would first need a conditional use review before design review. The acreage equivalent of 20,000 square feet was stated inconsistently during the evening, once as about a quarter acre and later as half an acre, and no megawatt cap is proposed.

8. 16:58
   Why square footage rather than megawatts

   Joe Roy (?) said the categories were built around visual footprint and rural character rather than output, and that as panels get more efficient a megawatt threshold would penalise a developer for producing more power from the same area. He said a homeowner or small business should still be able to build for their own use under a code officer permit.

9. 22:44
   How the regulated area would be measured

   Speakers were asked to give their name and street because the meeting was being recorded. A resident, whose name is garbled in the recording, asked whether the square footage is the fenced area or the pads. The answer was the vertical projection of the panel footprint, not the fence line and not the spacing between rows; the technical definition is still being drafted.

10. 22:44
    John O'Brian on the thresholds

    John O'Brian of 643 Durham Road (?) said he works in utility-scale solar advocacy and separately is developing a project on Durham Road in Brunswick of about 150 kilowatts, roughly a quarter acre, against a single-phase limit he gave as 167 kilowatts. He called the proposed numbers arbitrary and suggested categories keyed to whether a project connects to a single-phase line, a three-phase line or a transmission line.

11. 28:13
    Categories set the level of review, and wind is not covered

    George and Joe Roy both said the categories do not prohibit any size of project, only determine which permit and which standards apply, and that at present there is no standard at all beyond a nominal fee. Asked whether wind was included, they said this draft is solar only, because wind development is large enough to trigger state permits while sub-20-acre solar often is not.

12. 33:41
    Submission requirements for medium and large projects

    An applicant would have to file an operation and maintenance plan, system specifications with certification from qualified professionals that safety codes are met, evidence of the utility and state commission approvals, an emergency services plan for the fire chief covering fire, electrical rescue and access, a visual impact assessment by a landscape architect, a vegetation management plan, a decommissioning plan with a financial guarantee, and a public outreach plan. A resident raised the practice in the Pennsylvania gas well industry of bankrupting the LLC rather than decommissioning, and was told bonding is on the list, maintained in perpetuity and re-estimated every five years.

13. 39:04
    Objection that the medium category is unworkable

    John O'Brian (?) said he would not choose Durham for a quarter-acre project under these rules and that the requirements push projects into either the small or the large category. He argued the minimum size for medium should be higher and that medium and large should then carry the same standards. Presenters wrote the comment down and repeated it back for confirmation.

14. 39:04
    Performance standards, first set

    The standards under discussion include a 100-foot setback from the property line to any project equipment, limits on topsoil removal, an invasive species survey before and after construction with a mitigation plan, mitigation of surface glare, 8-foot agricultural-style security fencing with ground clearance for small mammals, a maximum array height of 15 feet, and a 50-foot vegetated buffer outside the fencing where a visual impact analysis calls for it, with planning board discretion to reduce it. The cost of any third-party or peer review would fall on the applicant, and conditional use review already requires proof of financial and technical capacity.

15. 44:52
    Setback measurement, topsoil, and defining 'visual'

    Juliet of Royalsborough Road (?) asked where the 100 feet is measured from; the answer was from the property line to any equipment, with the fence and buffer able to sit inside that. The topsoil limit was explained as protecting the site's restoration at decommissioning, so a developer cannot mine 20 acres of topsoil and leave a gravel pad. A resident said 'visual' will have to be defined specifically because one person's view of a site differs from another's.

16. 50:35
    Landscape architect buffers and peer review

    George showed a buffer plan from a Pennsylvania township in the Lancaster area, with planting cross-sections and photographs of the species used, as the kind of submission the town would want. The planning board could hire an independent peer reviewer to judge whether the planting is appropriate. Presenters (?) said subjectivity cannot be removed entirely, but the standards need to be broad enough to allow judgement and firm enough to defend a decision.

17. 55:49
    Whether solar is being singled out, and the height limit

    A resident asked why solar farms face setbacks and professional screening that a house or a pole barn does not, and said 100 feet is nothing to a utility-scale developer, suggesting setbacks measured from houses of around 300 feet instead. He also said 15 feet works for distribution-scale projects but that transmission-scale projects using two-panel portrait racking with single-axis trackers exceed it, and that he had seen ordinances allowing up to 25 feet. Taller racking widens the aisles, which he said makes agrivoltaics easier.

18. 1:01:33
    Remaining standards, noise question and public outreach

    The rest of the standards cover minimised and shielded lighting, a setback from residences for noise-generating equipment, posted access and contact information for the fire department, high-voltage warning signs, a maintenance and hazard-free requirement enforceable by notice of violation, minor modifications approved by the code officer, notice of ownership change with written acknowledgement by the new owner, breach of the financial guarantee as grounds to order operations stopped, and a time limit on decommissioning. Juliet (?) asked what equipment counts as noise-generating and whether a decibel level is set. The public outreach plan would ask a developer to meet neighbours and report back before the hearing rather than hear complaints for the first time at the public meeting.

19. 1:06:58
    Existing noise limits and state preemption

    A presenter read the land use ordinance's existing noise limits: 45 decibels from 7 p.m. to 7 a.m. and 55 decibels from 7 a.m. to 7 p.m., measured at least four feet above ground at the property boundary. The solar language would either defer to that or define its own threshold consistently. On home rule, George (?) said local standards stricter than the state's can stand, but that the state can preempt local authority as it did on housing density.

20. 1:06:58
    Schedule to the April town meeting

    The Conservation Commission would make its recommendation to the planning board later in December or early in January. The planning board, which is finishing its work on housing density under the new state affordable housing law, would then review it, followed by the select board by the end of January, draft warrant articles in the February town report, and a formal advertised public hearing between seven and thirty days before town meeting, with the vote on April 6.

21. 1:12:24
    Public comment window, and storage in the current draft

    Presenters (?) said comment stays open through roughly February, at the planning board and select board meetings and by email, and that whatever goes to the planning board for its January 3 meeting will be posted in the online packet. Asked about storage, they said the draft mentions it only inside the definition of solar energy systems; a standalone storage project would still fall to existing conditional use and site plan review, with the emergency services plan going to the fire chief.

22. 1:17:44
    Calls to separate medium and large, and a four-tier proposal

    A resident said medium is too small and too restrictive while large is not restrictive enough on buffers and setbacks, and that large needs to allow industrial-scale equipment above the 15-foot height. John O'Brian (?) proposed four levels instead: a project serving one service, a project serving multiple services on a single-phase line, a three-phase community-scale project up to around 2 to 2.5 megawatts and 20 acres, and utility scale on transmission lines. Presenters (?) acknowledged that as drafted almost everything utility-scale falls into the large category.

23. 1:23:27
    Acreage against kilowatts, revisited

    The Commission repeated that a footprint limit does not penalise a developer who installs more efficient panels and does not discourage repowering an existing site. Michael (?) said residents can picture half an acre or a football field more readily than an 80-kilowatt system, and that ordinances should be understandable to ordinary voters.

24. 1:29:05
    Rooftop solar, carbon credits and a possible exemption

    A resident from Snow Road, whose name is garbled in the recording, said he has a rooftop array on a garage and earns income selling carbon credits beyond net metering, and asked how income-generating rooftop would be treated; he argued the town should be encouraging arrays on existing structures. Presenters (?) said only rooftop over 2,000 square feet would trip the medium category, that 2,000 square feet was chosen because it supports roughly a 40-kilowatt system against a typical household's 7 to 8 kilowatts, and that they would look at an exemption or separate treatment for arrays fixed to existing structures. A concern was raised that this treats people without a suitable roof differently.

25. 1:34:22
    Comparison with Brunswick and Topsham, and what counts in the footprint

    A speaker said Brunswick treats rooftop as the lowest tier and sets its next step at a quarter acre, and suggested Durham be consistent with neighbouring towns. George (?) said Topsham, Brunswick and similar towns have industrial areas and zoning that Durham does not have anywhere. Residents pressed on whether tree clearing, fencing and access roads should count toward the square footage; the Commission said it followed Topsham in counting only the panel footprint.

26. 1:39:26
    Whether the whole project area should count

    A resident argued that the impact of a project is its total size, including clearing, grading and the fenced area, not just the panels. Presenters (?) replied that a fenced boundary can enclose retained woods, that measuring everything would be hard to administer, and that the thresholds were set low partly because the spacing between rows is excluded. A diagram was shown of how the surface area under the panels would be calculated, with trackers measured at their widest.

27. 1:44:32
    Resource protection, and a fourth tier for very large projects

    The draft would prohibit medium and large arrays in resource protection areas, which is the only zoning Durham has; elsewhere a project could be proposed anywhere. Residents suggested a fourth, larger tier with bigger setbacks and buffers, and disagreed on where it should begin, with one saying about 20 acres and another 100 acres. George (?) said a 100-acre project would face a long discussion at the conditional use stage over whether its scale and intensity fit the surrounding uses.

28. 1:49:50
    State thresholds and where three-phase lines run

    A speaker said the state's net billing tiers formerly allowed up to 5 megawatts and the new law dropped that to about 2 megawatts, leaving a gap before transmission-scale projects of around 50 megawatts. Asked how much of Durham has three-phase or transmission line capacity, speakers referred to a solar siting map and to a line running from the Quaker Meeting House toward Lisbon, and noted the Runaround Pond area carries a good deal of resource protection zoning.

29. 1:55:01
    Rural character against renewable energy

    A resident said there is an inconsistency in protecting the environment and rural character while discouraging renewable energy, when housing that raises population is not discouraged. Joe Roy (?) said the Commission was trying to strike a balance rather than prohibit, noting that everyone's electricity has to come from somewhere and that the comprehensive plan also speaks to individual property rights. A resident new to Durham after 18 years elsewhere said the town deserved credit for acting before a specific project is on the table, when a vocal minority usually dominates.

30. 2:00:45
    Siting incentives and mitigation fees deferred

    The Commission said it examined Topsham's mitigation fee system, which charges more in higher-value habitat, but that Topsham already has zoning and Durham has none, and the town has no mechanism to hold or spend such fees. It said the planning board asked for basic footprint and construction standards first, and that location incentives, prime farmland and forest block protections would be taken up in a later year, partly because there was not enough time for adequate public participation before the April warrant.

31. 2:06:15
    Impacts outside the footprint

    A resident said the true footprint extends past the fence line: light pollution, habitat fragmentation from power lines, access roads and grid connections. He asked for lighting standards that specify colour temperature rather than only shielding, saying warmer light attracts fewer brown-tail moths and disorients fewer birds, and referred to work he had done on street lighting in Bath. Roberta had raised a related point about a small project sitting in a travel corridor between large unfragmented habitat blocks. A developer in the room said solar arrays rarely need lighting beyond gates and entrances, but storage facilities often do.

32. 2:11:51
    Next meetings and close

    Written material and technical language can be sent to the town planner or the Conservation Commission. The planning board meets January 3; the Conservation Commission meets December 20 at 6:30 at the Town Office to work on the draft. Commission meetings are not recorded but are open, with informal public comment, and are posted on the town calendar.

What was decided

• 22:44
  The Commission said the technical definition of how panel surface area is measured will be written into the draft language it gives the planning board. No vote was taken; this was an information meeting and no motion was made.outcome unclear
• 55:49
  In response to comment that tracking panels exceed 15 feet at full tilt, presenters said there may be reason to set a different height standard for tracking panels. Stated as a point to look at, not as an agreed change, and no vote was taken.outcome unclear
• 1:06:58
  The Commission said the solar noise standard will either defer to the land use ordinance's existing limits of 45 decibels at night and 55 decibels by day, measured at the property boundary, or be explicitly defined so as to be consistent with them. No vote was taken.outcome unclear
• 1:29:05
  The Commission said it will discuss an exemption or separate treatment for arrays fixed to existing structures, so that rooftop installations over 2,000 square feet are not pushed into the medium category. Agreed as something to take back to the Commission; no vote was taken.outcome unclear
• 2:00:45
  The Commission reported an earlier decision to leave siting incentives, mitigation fees and prime farmland and forest protections out of the April 2024 amendment and to take them up in a later year, after the planning board asked for basic standards first. Reported to the meeting rather than decided at it; no vote was taken.outcome unclear
• 2:11:51
  The Conservation Commission will take the evening's comments to its meeting on December 20 at 6:30 at the Town Office, and whatever it sends to the planning board will appear in the packet posted for the January 3 planning board meeting. No vote was taken.outcome unclear

An outcome reads "unclear" where the recording does not state it plainly. The recogniser drops short words, and "the motion does not carry" is one missing word from its opposite.

Worth knowing

• 16:58
  The draft sets three tiers by surface area: under 2,000 square feet by code officer permit, 2,000 to 20,000 square feet by planning board site plan review, and anything larger by conditional use review as well. The acreage equivalent of 20,000 square feet was given inconsistently during the meeting, once as about a quarter acre and later as half an acre.
• 1:06:58
  The timetable runs from a Conservation Commission recommendation in late December or early January, through the planning board and the select board by the end of January, to a town meeting vote on April 6. Joe Roy (?) said that until something is adopted, a solar developer faces what he believed to be about a $250 permit and little else.
• 1:17:44
  The main criticism of the evening, from a resident who develops solar professionally, was that a project of a tenth of an acre and a project of a thousand acres would face the same submission requirements and standards. He said the medium category is too small to be worth using and the large category is not restrictive enough, and proposed four tiers based on how a project connects to the grid.
• 1:44:32
  The only place the draft would prohibit a medium or large array is in resource protection areas, because that is the only zoning Durham has. George (?) said the absence of commercial or industrial zones is why the town sends almost everything other than a single-family house to the planning board, and why residents are sensitive to what is built next to them.

Elsewhere

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