Solar array dispute: Zoning Board of Appeals reverses permit approval

The controversial solar array off Canterbury Lane had its approval reversed by the Zoning Board of Appeals, but with a path left open for a new valid permit to be sought.
The appeals board determined the array had been improperly permitted — it shouldn’t have been approved under regulation governing “outbuildings,” but under one covering “other structures.”
Discussion before the board’s 5-to-0 ruling left it clear that the owners of the solar array may reapply under the appropriate regulation.
And if zoning officer Richard Baldelli decides to approve the solar array under a new application — the board left that call to him — the board suggested that an appropriate condition of the permit could require “adequate screening” to reduce its visibility from neighboring properties.
The board also advocated including language makes it clear the system is allowed to return energy to electrical grid, as nearly all home solar systems do. The initial decision that was overturned contained language designed to prevent commercial sale of any excess electricity the solar system might generate, but that wording appeared as if it might also forbid the return of electricity to the power grid — something home solar arrays generally and routinely do, in exchange for reductions to the homeowners’ electric bills.
The Zoning Board of Appeals (ZBA) will write up the ruling and issue it as a formal decision, said Glenn R. Smith, who chaired the proceedings.
A crowd of about 25 people — including the Tripathis and the Ungers, the two families at the heart of the dispute, as well as friends and neighbors of both — watched and listened as the board deliberated in the town hall annex Thursday, Feb. 7. But members of the audience weren’t allowed to speak, as the two-session public hearing had previously been closed.
Wrong section, right section
The section of the regulations which the initial permit had been granted under allows a house in a residential zone to also have an “outbuilding — shed, detached garage, farm outbuilding, cabana, studio, or similar outbuilding not intended, designed, or used for residential occupancy provided it shall not be located in the front yard.”
It was this section — 3. 4 (B) 1 — that the board ruled was the wrong section. Under it outbuildings are allowed with permits granted by the zoning enforcement officer.
The board said the solar arrays should have been permitted under anther section governing “Other Structures” —section 3.4 (C) 2. This allows “Other accessory buildings or structures not customarily and reasonably incidental (as determined by the Planning Director) to a permitted principal use.”
A good deal of the debate at the two public hearing sessions had concerned whether the 11 foot high ground-mount solar array qualified as accessory use that is “customarily and reasonably incidental” to the principal use, a single family house.
It got convoluted.
“You can have an accessory structure that’s not an accessory use,” the board’s attorney, Peter Gelderman, advised. “...Ground-mount solar, even though the use solar might be customary, the structure might not be customary.”
The “outbuildings” section that the board decided was wrong for the solar array allows for approval with a zoning permit issued by the zoning enforcement officer.
The “other structures” section that the board felt was the right one for the solar array requires a “site plan approval” which is issued by the town planning director.
Currently both job titles are held by Richard Baldelli.
Under the “other structures” section that the board thought was the appropriate rule for the application, the “site plan approval” process is a more elaborate procedure allowing more room for conditions to be required.
It was under this process that the board suggested Baldelli consider requiring a landscape screening to shield neighbors’ view of the 11 foot solar array just 27 feet from the side property line. After some discussion the board decided not to get into details of what sort of plantings or fencing should be used to screen the array, or how tall it should be.
Board members noted that the owners of the solar array have already said they plan to put in screening.
After close to two and a half hours of discussion board member Carson Fincham moved “to sustain the appeal for the permit having been improperly granted under the wrong section” adding that it should be “reconsidered under the right section, 3.4 (C) 2 ‘Other structures.’”
The motion was seconded by Mark Seavy.
Zoning officer Richard Baldelli, whose decision to permit the array was overturned, said he would wait until the written decision was issued, and he could read it, before offering any comment on the board’s decision.
Baldelli did say he planned to talk to the Planning and Zoning Commission at its meeting Tuesday, Feb. 12, to discuss some of the concerns raised in the appeals board hearings on the solar array.
Dane Unger, who owns the Canterbury Lane property where the solar array is being built — along with his new house — said he and his wife were considering what course of action they’ll take.
“We’re still trying to get our arms around recent events,” he said.
Sanjay Tripathi, the immediate neighbor who brought the appeal against the solar array’s permit, did respond to a request for comment.
“We are gratified that the ZBA overturned the permit and asked for a site plan review which will consider how to protect property values and the health, safety, and welfare of the neighborhood. The ZBA also recognized that such facilities must be screened from adjoining properties,” Tripathi said.
“The outpouring of support we have received from friends, neighbors, and persons in town has been phenomenal. Because we all live in this wonderful community and because we are all on the same team we ask that the town enact sensible standards for ground-mount solar arrays,” he said.
“Without sensible standards, the proliferation of these large structures will negatively impact property values, reduce the tax base, and hurt Ridgefield’s legendary charm that generations of residents have worked hard to maintain.”