Shelburne Planning Board rejects subdivision; Puts windfarm under commercial ban 

SHELBURNE – The Planning Board Wednesday night rejected a subdivision application for the Mount Massaemet Windfarm – an action that could keep the four-turbine electricity generating facility from going forward, now that the town has a ban on commercial-scale wind turbines.

The subdivision plan was filed on April 30, one day before annual town meeting voters would decide on a wind moratorium and on an article banning commercial-scale wind turbines.

Under state law, land-use for such subdivision applications is “grandfathered” under the town zoning bylaws that existed the day the plan was filed. That meant the windfarm proposal would have been exempt from the wind turbine ban, since the town meeting vote came later.

But the April 30 application was deemed “incomplete” because the application permit fees were not submitted by certified check and not in the correct amount as specified in the current town bylaw.

Planning Board Chairman V. Matthew Marchese said Frederick D. Field had submitted a six-parcel subdivision plan for land owned by the Gould family and a three-parcel subdivision plan for land owned by the Dole family. The existing bylaw requires a fee of $75 per parcel, submitted by certified check; it would have meant paying $450 for the Gould subdivisions and $225 for the Dole property. However, Field filed two personal checks, of $200 for each property.

Field, who attended Wednesday’s meeting, produced a copy of the bylaws he said his engineer was given by someone in the front town office, about six months ago, and that the fees he paid were based on that document. He said the fee was listed as $1 per foot for building a roadway, and that he paid a fee based on the road lengths.

The copy of the bylaws Field had were marked “draft” on each page, had corrections written in the margins, and had no date of when it was enacted.

Under ordinary circumstances, someone applying for a subdivision would simply be told to resubmit an application with correct and complete application fees and it would be filed on a new date. But for Mount Massaemet Windfarm, a new filing date does not grandfather the land-use to before the annual town meeting wind ban.

On a speaker phone, Town Counsel Donna MacNicol told the Planning Board it is the applicant’s responsibility to get the correct zoning bylaw when making an application. If the board were to simply accept the correct application fee late, she said, it “sets a precedent that applications can be filed without the fee.” She pointed out there is no provision in the bylaw for fees to be filed late, and “if you determine an application can be complete without the fee, you have deadline pressures.” On the other hand, she said, the applicant could take this to court, “and leave it up to the court to decide.” Planning Board member Christopher Davenport asked why this issue wasn’t addressed at annual town meeting, when townspeople were told about the subdivision filing. “I was under the impression that it had been looked at,” he said.

MacNicol said she only had information that the application had been filed. “I hadn’t looked at it,” she said. “I think I said a preliminary application had been filed. I had no idea that the correct fee had not been paid.” “I guess, the tough spot for me is, there was a whole lot that went on at town meeting that really hinged on this,” said Planner Beth Simmonds. “In the town’s eyes a vote (the commercial wind ban) was taken, based on something they thought was set in stone. But at what point did the applicant know they were misled by something they were given in Town Hall?” Marchese said when he asked the town clerk for a copy of the zoning bylaw, he was given the correct document. He said the town clerk’s office doesn’t get copies of draft bylaws.

Simmonds wondered what the ramifications would be to the board if the matter went to court. MacNicol said most zoning cases are not about monetary damage. “The whole issue is whether the application was complete” under bylaw provisions, MacNicol said. To collect damages, she said, the applicant would have to prove “it was filed right.” Marchese said if the board were pulled into a court case, he would rather they went in on the grounds they were following the town bylaws.

The board voted unanimously to reject the application, on grounds that it was not compliant with current bylaw subdivisions.

Marchese told Field he could re-file, but that it would be considered “a new application with a new date.” “I think we’re going to appeal,” said Field.

Just Tuesday afternoon, the Zoning Board of Appeals posted a public hearing date for the Mount Massaemet Windfarm special permit application. It has been scheduled for May 24, at 8 p.m. at the Buckland Shelburne Elementary School.

When told the Planning Board had rejected the subdivision, and asked if the ZBA public hearing will be canceled, ZBA Chairman Joseph Palmeri replied, “Quite honestly, I really don’t know. I’ve never been down this road before.” Meanwhile, the Planning Board had more bad news: They learned that the Franklin Regional Council of Governments got no bids for a technical consultant to help the Planning Board with its wind turbine siting bylaw process. Shelburne had been given a $5,000 technical assistance grant through FRCOG, to be spent by December, which was to be used for a consultant to help the board draft a new bylaw.

Last month, the board learned that the Massachusetts Clean Energy Center withdrew an offer to help with a wind bylaw.

The Mount Massaement wind proposal calls for four, 338-foot wind turbines that will produce six megawatts of electricity, on land belonging to the Dole and Gould families.

Last year, Field submitted a proposal for eight, 480-foot-tall turbines for a 20 kW system; but the proposal was withdrawn “without prejudice” during a public hearing.