On a court order, a year-long dispute over a solar array between two neighbors has bounced back to the Concord Zoning Board.
The zoning board agreed last June to let Doug and Katrina Magee build a large solar array in their backyard on Reserve Place, closer than usually allowed to the adjacent property owned by David and Rebecca Biss. Upon appeal from those neighbors, however, a Merrimack County Superior Court judge said the zoning board needed more information to justify its decision.
So with lawyers and slideshow presentations at hand, both neighbors made their cases again Wednesday night before the board. The group recessed the meeting for a week to review the case and consult the city’s attorney.
At the hearing, the Magees argued nearly every other plot on their street could accommodate a ground solar array of the same size without needing a variance, and they pointed out numerous examples of other solar projects in their zoning district. Based on those findings, they said the solar array would not damage the character of the neighborhood and should be allowed by exception on their property.
“I fully believe that what we’ve done is right and what the zoning board has done is right,” Magee said in an interview this week.
The Bisses and their attorney, Tim Britain, declined to comment outside of the zoning board meeting. During their public testimony, they argued the array is an intrusion on their privacy and does not fit with the rest of the area.They were joined by an assessor, who predicted it would have a negative impact on the Bisses’ property value.
“This is a rural area,” Britain said. “It’s supposed to be a country area. . . . What is at stake here is whether or not that solar array should be placed in that setback and undercut the essential zoning characteristics.”
The array itself was completed in August, and it has been running since the first week of September. While Magee showed photos of evergreen trees planted to block the panels from view, the Bisses shared a photo of late afternoon glare visible from their home.
“It’s doing what it should be doing,” Magee said of his array. “It’s just unfortunate that the return of investment has been greatly lengthened due to the number of lawsuits our neighbor has thrown upon us. I’m baffled it has gone to this point.”
The Magees and the Bisses have been neighbors for more than 10 years. Reserve Place is located in a residential zoning district that requires more space between houses than any other in Concord – at least 80 feet total.
With young children and an increasing electric bill, the Magees hired Boscawen-based Granite State Solar to build their array. Any extra power generated returns to the grid and is credited by Unitil, which is called net metering.
The array couldn’t be built on the roof, however, because the home doesn’t face south. And due to wetlands and trees on other parts of the lot, Doug Magee said the only viable place to build would be on the ground near the Bisses’ property line. To build within that required setback, Magee asked for a variance from the Concord zoning board last year.
“I should be allowed to produce green energy, clean energy,” Magee told the board last June.
During two hearings on the application, the Bisses argued tree cover would be minimal in winter months, so the panels would be clearly visible from their home. The industrial look of the array would disrupt their enjoyment of their property and negatively impact its value, they said.
Despite those arguments, the board okayed the Magees’ array.
With the okay from the zoning board, the Magees finishing building the solar array last summer. The array built last year is 11½ feet tall and 70 feet long, Magee said, and it is 12 feet from the property line.
In the meantime, the Bisses have tried every avenue for recourse.
They filed a lawsuit arguing the solar array would violate a long-standing neighborhood covenant. But within a few months, that effort sputtered out. They also filed an appeal to the zoning board, asking for a new hearing. In particular, they said the Magees misrepresented the location and angle of the array in their application to the city. But the members unanimously denied that request in August, saying the Bisses did not bring forward new information to be considered.
“It’s like nobody’s listening,” Biss said in an interview at the time, her voice thick with emotion. “We’ve never done anything wrong. We’ve only spoken the truth.”
So in September, shortly after the array went online, the couple challenged the zoning board’s decision in Merrimack County Superior Court, where they were finally met with a degree of success. Earlier this year, Judge Richard McNamara sent the case back to the zoning board. In his order, the judge called the June ruling “unreasonable.”
He ruled the board needed to fill in the gaps on missing facts – namely, whether the Magees property is so different than the surrounding area that it warrants an exception to the rules. That order prompted Wednesday’s hearing.
The board decided to postpone discussion and a vote until next Wednesday at 7 p.m. in council chambers. Should the board uphold its decision, the Bisses could appeal again. Should the board rule against the Magees, it is unclear what would happen to the solar array.
“If I would have known it would have been this crazy, I never would have gone solar,” Magee said.
(Megan Doyle can be reached at 369-3321, mdoyle@cmonitor.com or on Twitter @megan_e_doyle.)