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Cape Vincent planners OK supervisor’s solar project despite ‘flaws’ in zoning law

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CAPE VINCENT — The town Zoning Board of Appeals changed its interpretation of zoning rules for residential solar arrays this past fall, a move that later allowed Supervisor Urban C. Hirschey to get a special-use permit for a ground-mounted system to be installed this spring at his Tibbets Point Road property.

The board, which approved the permit for the 14.7-kilowatt solar array during a Jan. 6 public hearing, used rules that diverge from what was originally written in the zoning law. The Town Planning Board approved the site plan on Jan. 8 for the project, designed by Fourth Coast Inc., Clayton.

The project is roughly twice the size of the 7.2-kilowatt array that was first proposed by Mr. Hirschey last fall. Its scope was enlarged to become eligible for a rebate from the New York State Energy Research and Development Authority. Mr. Hirschey had an array in place in the late summer, but later removed it pending town review.

At first blush, a reader of the current zoning law might conclude Mr. Hirschey’s project should not be eligible for a special-use permit.

The law includes a table that lists requirements for eight zoning districts. It shows that ground-based solar arrays up to 100 square feet are eligible for special-use permits in the lake-front district, where Mr. Hirschey and his wife, Sally, have planned a 1,080-square-foot project on 30 acres of waterfront property. Ground-based solar panels more than 100 square feet are banned from the lake-front district, according to the table. They’re allowed only in agricultural, residential and light manufacturing districts. The law is available online at http://wdt.me/SFgpZB.

But the interpretation of those requirements was changed by the board on Nov. 4 when it passed a “zoning variance” resolution that allows special-use permits for larger solar projects, Zoning Board of Appeals Chairman R. Dennis Faulknham said.

Due to an error when the table was created, he said, the distinction between residential and commercial solar projects was not made. The row that shows requirements inside districts for solar projects of more than 100 square feet should have been designated “commercial only.” The row that shows projects up to 100 square feet should have been “residential only.” For those residential projects, all zoning districts are eligible for special-use permits except the municipal district.

Mr. Faulknham said the board concluded that the “100-square-foot maximum” rule for residential solar projects in the table isn’t accurate. It decided to amend the criteria based on page 55 of the law, which gives rules for ground-mounted systems.

That section states an “individual array shall not exceed 100 square feet per array,” and “one array per 10,000 square feet of lot” is allowed. Based on that language, the board decided that rules should enable 100 square feet of solar panels for every 10,000 square feet owned by a resident, Mr. Faulknham said. Ten thousand square feet is about a quarter of an acre. It also decided that arrays may be combined to become larger than 100 square feet each, if the amount of land owned by residents is large enough.

Because Mr. Hirschey owns 30 acres of land, his 18-panel project falls within that criteria, Mr. Faulknham said.

“In talking with the authors, this was the original intent of the zoning law. We agreed at that meeting that the chart does not necessarily depict the language in the law on page 55. They put together the document, and one individual made a mistake in the table by trying to make it short and sweet,” he said. “There should have been lines to clarify residential versus commercial projects. We put it in place for our minutes for the time being, but as soon as we change the law, we hope to have it more correctly outlined.”

It is uncertain, though, whether the distinction between residential and commercial ground-mounted projects was accidentally left out of the table in the zoning law. A similar section on requirements for wind projects, for instance, doesn’t fail to make the distinction between “residential” projects that generate less than 10 kilowatts, and “industrial” projects that generate more power.

The town established a committee in January to correct mistakes in the latest version of the zoning law, crafted in 2011 and 2012. The group, which meets at 2:15 p.m. every Thursday, hopes to finish revising the law by this summer, said Mr. Faulknham, who co-chairs the group with Planning Board Chairman Robert S. Brown.

The Town Council has the ultimate authority to make changes in the law. It can accept, modify or reject the committee’s recommendations.

Mr. Hirschey said Fourth Coast plans to install two separate nine-panel solar arrays on his property this spring. The panels are 5 feet by 12 feet each, which amounts to 1,080 square feet.

“There were clearly some mistakes in the law, and the ZBA clearly recognized that and gave me a special-use permit,” he said. “I still don’t have any panels up and probably won’t until this spring, or until after the zoning law is revised. It’s unfortunate that there are some blemishes in the law, and that’s why I (formed the committee) to look at it and correct the mistakes. I don’t think there are many, but we want to make sure to uncover them all.”

Mr. Hirschey said the ZBA has not shown preferred treatment in approving his solar project.

“I’ve advised them that I don’t want any favors, and they tell me that they’re not giving any,” he said.

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