Contested solar array to be allowed in Concord

  • A large solar array is seen in the backyard of Doug and Katrina Magee in Concord on Wednesday, June 1, 2016. (ELIZABETH FRANTZ / Monitor staff) Elizabeth Frantz

Monitor staff
Published: 6/9/2016 2:08:52 AM

For the second time, the Concord zoning board has voted to allow a family’s solar array in their rural neighborhood.

One year ago, Doug and Katrina Magee applied to build a large solar array in their backyard on Reserve Place, closer than usually allowed to the property line. Neighbors David and Rebecca Biss opposed the project, arguing the panels were out of character with the wooded area and would decrease the value of their own home. The board sided with the Magees in June, and the family built their array soon after.

The Bisses, however, fought their appeal all the way to the Merrimack County Superior Court. There, Judge Richard McNamara sent the case back to the zoning board. In his order, the judge called the June ruling “unreasonable.”

McNamara said the board needed more information – namely, whether the Magees’ property is so different than the surrounding area that it warrants an exception to the rules. The parties reconvened last week to lay out their respective arguments in further detail, and Wednesday night, the board upheld its original decision.

Because Concord’s zoning codes do not specifically address solar arrays, this case could set a precedent for others to come. Chairman Chris Carley noted solar panels were much less common when the guidelines for this neighborhood were written in 2001.

“I doubt that the specific issue of solar panels came up,” Carley said. “It’s incumbent on the board, until the ordinance addresses it specifically, it’s up to us to decide.”

The Magees and the Bisses live in a residential zoning district that requires a larger buffer between houses and most other structures than any other in Concord – at least 40 feet on each side of a property line, which adds up to at least 80 feet total.

Under pressure of an increasing electric bill, the Magees decided to go solar. The array couldn’t be built on the roof, however, because their home doesn’t face south. 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 such a large structure within the buffer, Magee needed a variance from the zoning board.

Because of the zoning board’s initial approval, the array itself has been online since September. Doug Magee said it stands 12 feet from the property line, and it is 11½ feet tall and 70 feet long.

The Magees argued nearly every other plot on their street could accommodate a ground solar array of the same size without needing a variance. They also pointed to other examples of solar projects in the zoning district, hoping to prove an array is not out of character with the neighborhood.

“I fully believe that what we’ve done is right and what the zoning board has done is right,” Magee said in an interview last week.

The Bisses and their attorney, Tim Britain, said the array is an intrusion on their privacy and does not fit with the rest of the area. In particular, they shared photos of a late afternoon glare on the edge of the array, which Rebecca Biss said has been a consistent problem. They were joined by an assessor, who predicted it would have a negative impact on the Bisses’ property value.

“It’s supposed to be a country area,” Britain testified last week. “They bought their property in reliance on the rural character of the area. An important part of the rural character is the 40-foot setbacks required of properties.”

“What is at stake here is whether or not that solar array should be placed in that setback and undercut the essential zoning characteristics,” he added. “Now that the array has been installed, there quite clearly is an impact to the property.”

“There are very few properties in that area that would have a similar topography problem with placing that array,” board member Andrew Winters said. “I think the evidence we heard was persuasive enough for me on that point.”

They also decided the solar panels do not violate the open space valued in this zoning district.

“We heard testimony that solar panels as such are very common in residential neighborhoods of all kinds in the city, and they are also present in this neighborhood,” Carley said.

The ruling was unanimous.

The Bisses have tried several means of recourse in the last 12 months. But a civil suit fizzled out, and the zoning board denied a request for a rehearing. They could choose to appeal this decision as well, but it is not clear whether they will do so.

“It’s like nobody’s listening,” Rebecca Biss said in an interview last year. “We’ve never done anything wrong. We’ve only spoken the truth.”

As they exited the hearing Wednesday night with their attorney, David Biss said the couple had no comment. Just behind them, Doug Magee and his own attorney quietly left the hearing as well.

“I hope we’re done, and we can move on,” Magee said.

(Megan Doyle can be reached at 369-3321, or on Twitter @megan_e_doyle.)

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