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16 Great Neck Road North <br />Mashpee, Massachusetts 02649 <br />Ms. Waygan asked if these definitions were in conflict with the 2019 zoning bylaw. <br />Mr. Lehrer stated no, they should have been identical. The petition article is similar to the first <br />article, as it contained all the performance standards. The difference is it established the <br />overlay with a specific set of parcels where those performance standards would apply. With <br />the case law being settled, Town Counsel has confirmed they might want to reevaluate the <br />bylaw for larger scale solar facilities. It is really a discussion about the approach. He alluded to <br />two approaches. They can't unreasonably regulate but rather encourage or they can <br />prohibit/unreasonably restrict if such restriction is intended for health, safety, or welfare. He is <br />uncertain if legal argument exists. He would recommend establishing and identifying parcels <br />with a certain set of criteria with the need to encourage as to not restrict. <br />Mr. Hansen asked by establishing an overlay district, what does the overlay district buy us <br />relative to new regulations? <br />Mr. Lehrer stated we need to take into consideration the case law that is requiring us to look <br />back at our regulations. He believes the town this case law applies to is Concord. They, similar <br />to Mashpee, restricted large scale solar energy systems to their industrial districts, like <br />Mashpee, it was by right use but only in industrial, which composed only 2% of the towns <br />overall land area. It really comes down to the language about encouraging solar energy, <br />whereas the restriction to the 2% overall land area was hardly an encouragement. Mashpee's <br />industrial area is around 8%, but the vast majority of that acreage is contained on the base. <br />For the purpose of our analysis, the amount of industrial zoned property that we consider is <br />substantially less than 8%. In Counsel's legal opinion, whether it's 2% or 8% is not relevant, it <br />needs to be perceived by a reasonable person to encourage the actual use. We need to <br />establish criteria to define a set of parcels just like the Planning Board did in the mid 90's to <br />establish the wireless overlay district. A set of criteria was established, an algorithm, to query <br />down parcels under certain conditions applying to the lots. It provides more opportunity for use <br />if those conditions apply. <br />Ms. Waygan would like to start by looking at the industrial district and the three commercial <br />districts before we bump this into an overlay. If industrial land is 8% with 50% on the base, we <br />are already at 4%. She would like to know what percentage is not on the base, and what's in <br />commercial 1, 2, and 3. <br />Mr. Lehrer would like it to be about encouragement of the system and less about percentages. <br />It needs to be reasonably perceived to encourage the use. <br />