SELECT BOARD OFFICE OF THE TOWN AGENDA ACTION REQUEST ADMINSTRATOR November 4, 2020
PUBLIC COMMENT
REQUESTED BY: Select Board
DESIRED ACTION: Public comment – zoom meeting participants
PROPOSED MOTION: N/A
ACTION TAKEN: Moved By: ______Seconded By: ______Condition(s):
VOTED: Aye _____ Nay______Abstain ______
SELECT BOARD OFFICE OF THE TOWN AGENDA ACTION REQUEST ADMINSTRATOR November 4, 2020
COVID-19 UPDATE
REQUESTED BY: Select Board
DESIRED ACTION: Update on COVID-19 from Health Agent, Bob Canning
PROPOSED MOTION: N/A
ACTION TAKEN: Moved By: ______Seconded By: ______Condition(s):
VOTED: Aye _____ Nay______Abstain ______
SELECT BOARD OFFICE OF THE TOWN AGENDA ACTION REQUEST ADMINSTRATOR November 4, 2020
MINUTES
REQUESTED BY: Select Board
DESIRED ACTION: Approval of meeting minutes
PROPOSED MOTION: a. I move to approve the minutes of May 6, 2020 as printed/as amended. b. I move to approve the minutes of October 7, 2020 as printed/as amended. c. I move to approve the Executive Session minutes of October 7, 2020 as printed/as amended. d. I move to approve the minutes of October 14, 2020 as printed/as amended. e. I move to approve the minutes of October 21, 2020 as printed/as amended. f. I move to approve the Executive Session minutes of October 21, 2020 as printed/as amended.
ACTION TAKEN: Moved By: ______Seconded By: ______Condition(s):
VOTED: Aye _____ Nay______Abstain ______
Orleans Board of Selectmen April 29, 2020
ORLEANS BOARD OF SELECTMEN MAY 6, 2020 DRAFT
A meeting of the Orleans Board of Selectmen was held on Wednesday, May 6, 2020. Present were Chairman Mark Mathison, Vice Chairman Kevin Galligan, Clerk Cecil Newcomb, Selectman Mefford Runyon, Selectman David Currier & Town Administrator John Kelly.
This was a virtual meeting convened via remote participation, audio only, with real-time public access provided by Orleans Channel 18 on the Town website and cable television.
Chairman Mathison called the executive session to order at 4:00 p.m.
On a motion by Mr. Runyon and seconded by Mr. Galligan, the Board voted to enter into executive session to conduct contract negotiations with non-union personnel and to reconvene in open session and that the Chair declare that an open meeting may have a detrimental effect on the litigating or negotiating position of the body, and to reconvene in open session. The vote was 5-0-0, with Mr. Mathison, Mr. Galligan, Mr. Runyon, Mr. Currier & Mr. Newcomb all voting aye by roll call. The Chair declared that an open meeting may have a detrimental effect on the negotiating position of the body.
Mr. Mathison reported that the Board has concluded negotiations with the Fire Chief and Deputy Fire Chief. The Board will be voting at their next meeting to sign the agreements in open session.
Public comment-Read emails sent to [email protected] for the Board of Selectmen by 4:00 p.m. on Monday, May 4, 2020
Mr. Mathison read an email from Joan Nix regarding COVID-19. Ms. Nix stated that if it were up to her, she would open Orleans now, including restaurants and businesses. She does not support a regulation of wearing masks or closing beaches, skateboard parks or playgrounds. Ms. Nix would like to see that Orleans be opened up to tourists as soon as allowed by the Government. A full copy of Ms. Nix’s email is available in the Board of Selectmen’s packet.
Mr. Mathison read an email from Gail Meyers Levin who referenced an email from Bethany Gibbons. Ms. Gibbons would like to see Orleans follow other communities who are requiring people to wear face coverings in public spaces where social distancing is not possible. A full copy of Ms. Levin’s and Ms. Gibbons email is available in the Board of Selectmen’s packet.
Mr. Mathison read an email from Hank Schumacher who would like to see Article 13 removed in its entirety from this year’s warrant. A full copy of Mr. Schumacher’s email is available in the Board of Selectmen’s packet.
Mr. Mathison read an email from George Waugh about the census not being received at post office boxes. He suggested that the Board ask the post masters to post a notice at the post offices. A full copy of Mr. Waugh’s email is available in the Board of Selectmen’s packet.
Mr. Mathison read an email from Lawrence Diaz regarding his concerns about the proposed FW Webb building project at the underground plaza. Mr. Diaz provided the Board with a detailed
1 Orleans Board of Selectmen April 29, 2020
outline of his concerns. A full copy of Mr. Diaz’s email is available in the Board of Selectmen’s packet.
COVID-19 update from Fire Chief Deering, Health Agent Bob Canning and Police Chief MacDonald
Health Agent Bob Canning reported that as of 4:00 p.m. yesterday, there are 70,271 positive cases of COVID-19 in Massachusetts and 969 in Barnstable County. Orleans has 13 confirmed cases, none of which are active. The numbers provided are reported by MassDPH and does not include anyone who did not receive testing or who is asymptomatic. On May 1, Governor Baker issued an order requiring face mask/coverings be worn when in public places, effective May 6, 2020. People over the age of 5 must wear a face masks/covering when inside or outside where 6’ of social. A business may decline entry if someone refuses to wear a face mask/covering. Violations of the order under the state criteria is a civil fine up to $300.00. On May 4, 2020, the Board of Health adopted the Governor’s order # 31, which was done to give local agencies grounds to enforce the order.
Mr. Newcomb asked if the town is enforcing all of the Governor’s mandates or just the mask requirement. Mr. Canning responded that the Board of Health has adopted mandates with respect to masks, social gatherings and essential services.
Mr. Canning added that the curve appears to be flattening, however, we have not had a clear run of 2 weeks showing a downward trench.
Mr. Galligan stated that he listened to the May 4, 2020 Board of Health meeting in which there was a lot of good discussion. Mr. Galligan raised a concern about COVID-19 related expenses and a consideration of a policy for short-term rentals, standardized cleaning and disinfecting policy. He can see a huge burden on the Health Department having to take on these additional tasks. He asked Mr. Canning to keep in mind the resources that his department may need and how we can get reimbursement. Mr. Canning responded that an issue might be the short-term rentals that are not licensed by the town. The enforcement aspect of rentals may be difficult to enforce as we don’t have access to the homes. A plan will need to be developed to inform the public of our procedures that they will have to adhere by.
Mr. Canning informed the Board that they have reached out to the food establishments in Orleans to review criteria going forward. Some seasonal food establishments that we have a good working relationship are looking to open for the season. At this time, the Board of health would be looking to allow them to open without a pre-open inspection. The Health Department would be doing inspections as soon as possible. The Health Department is doing what they can to work with food establishments and they remain in contact with the Barnstable County Health Department.
Police Chief Scott MacDonald reported that staffing at the Police Department remains good. This week, the department is looking at a 24% reduction in calls for service. The types of calls that are being responded to are domestic related issues, harassment orders and disputes among individuals. Chief MacDonald has noticed an increase in opposition to state and local regulations as they relate to COVID-19. The department needs to be prepared by developing clear and concise procedures.
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Fire Chief Geof Deering reported that the Fire Department does not have any staffing issues related to COVID-19. The decontamination process is working well, but is time consuming. Chief Deering reiterated that if you are having a medical emergency, to call 9-1-1. It is a national problem that people are not seeking medical care until they are very sick. The Fire Department is also noticing that when people are calling 9-1-1, they are not being honest about their symptoms, which creates a problem for staff. Residents are encouraged to be honest about symptoms when calling 9-1-1 to protect everyone’s safety. Supplies are being delivered regularly and distributed to the schools, Council on Aging, DPW and Police Department.
a. Consider signing on to Guidance to Cape & Islands Seasonal Community letter
Mr. Kelly informed the Board that both himself and Mr. Mathison were part of a call with other town managers and administrators to discuss how we will move forward on a regional level. The goal is that everyone needs to give the same message.
Mr. Galligan moved that Orleans sign on to the Guidance to Cape & Islands Seasonal Community Letter, 2nd by Mr. Newcomb. The vote was 5-0-0 with Mr. Mathison, Mr. Galligan, Mr. Runyon, Mr. Currier & Mr. Newcomb also voting aye by roll call.
b. Further discussion on establishing a re-opening advisory panel
Mr. Mathison stated that the working groups we currently have might be able to be enhanced or look at the possibility of having some other people from the community involved.
Mr. Runyon said that he would support putting a group together for Orleans with the hopes that it will allow to plan and give direction. Mr. Newcomb agreed.
Mr. Currier stated that he is not opposed to a group, but thinks that we need to wait and see what the state will allow us to do.
Mr. Galligan suggested reaching out to the Chamber of Commerce to see if they have ideas that are specific to our unique community.
Mr. Kelly reported that during the Lt. Governor’s weekly call it was indicated that there are sub- groups in place to deal with various retailers. They have established portals which will allow for specific input to be provided. Mr. Kelly agrees that Orleans should be in a position to help distribute information and support documents as they become available.
Mr. Mathison wants to make sure that everything is coordinated between town services and businesses as things start to open back up.
Mr. Currier moved to adjourn as Selectmen and convene as Park Commissioners with Mefford Runyon as Chairman, 2nd by Mr. Newcomb The vote was 5-0-0 with Mr. Mathison, Mr. Galligan, Mr. Runyon, Mr. Currier & Mr. Newcomb all voting aye by roll call.
Meet as Park Commissioners with Natural Resources Manager Nate Sears for a discussion on the startup of seasonal beach operations
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Natural Resources Manager Nate Sears was present remotely. A memo for the Selectmen was presented on what the plans are operationally for the upcoming beach season. At this time, staff recommends that beach operations begin as normally scheduled. In order to provide adequate space for social distancing, parking spaces at Nauset and Skaket Beach will be reduced to provide adequate room on the beachfront. Food concession services will be managed similar to a restaurant who provides takeout and grocery stores with cordoned off service lines and adequate spacing. Restrooms and public buildings will be cleaned at once daily. Seasonal employee housing will provide only single unit accommodations with the exception for the 2 separate family units. Because we are already witnessing early season beach demand, staff is recommending implementing the available parking spot reduction strategy immediately. Rangers will be monitoring the situation of the over-sand trails and will work with the Police Department if issues arise. It is understood local management may have to be revised as additional guidance from the state is received.
Mr. Galligan asked if we have less beachfront this year given the relocation of a significant amount of sand. Mr. Sears confirmed that the beach has changed due to mother nature. Mr. Galligan is asking people to stay off of the dunes and beach grass.
Mr. Currier moved that the Board of Selectmen support the decision of the Natural Resources Manager, 2nd by Mr. Galligan. The vote was 5-0-0 with Mr. Mathison, Mr. Galligan, Mr. Runyon, Mr. Currier & Mr. Newcomb all voting aye by roll call.
Mr. Canning added that the Board of Health did review the memo regarding the beach program and the only change they suggested is not committing the beach parking lot to a 50% reduction. They would like to see as much flexibility as possible given to the DPW and Natural Resource departments to meeting the Governor’s order. Mr. Sears doesn’t envision that he would be tied to the 50% reduction. It will be to his discretion and comfort level.
Mr. Runyon would like to make sure that the changes are communicated properly to the residents. Mr. Sears responded that he would put announcements on the town website and social media page. We want to get out as much information as possible while not scaring people away from the beach.
Chief MacDonald noted that we will need to keep close tabs on where vehicles are going that are turned away when the beaches are full. We have had issues in the past where people park illegally in neighborhoods.
Mr. Mathison added that we need to remember that what one town does can impact what happens in other towns. If a town is shutting down beach access, then people will go to neighboring towns to look for access. We need to make sure that we are keeping both the people and our resources safe.
Mr. Runyon asked if we should provide information about the Governor’s order to the ORV sticker holders. Mr. Sears responded that there are some people that will abide by the order and other that won’t, noting that it will be a tough time to keep everyone happy. He suggested the possibility of adding something in the rules and regulations regarding the order. Mr. Currier asked how we could get the information to those who have already purchased their stickers. Mr. Sears
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responded that when tollbooth staff is present and we get into peak season, they could be notified at the booth.
Mr. Mathison asked if Mr. Sears anticipates a situation where we will have large groups of boaters that will tie up together and if there is staff available to deal with any issues. Mr. Sears responded that there are always challenges on the remote sections of the beach. He will continue to update the Board on a regular basis.
Mr. Sears noted that we have contracts with the food vendors for both Nauset and Skaket Beaches. He suggested amending the contract to only base this year’s numbers on % of sales and not require a front-loaded payment. Mr. Kelly stated that he would support an amendment to the lease agreement with the vendors and suggested putting the discussion on the agenda for next week.
Mr. Sears asked for the Board’s authorization for him to manage the electronic sign at Meetinghouse Pond as needed. The Board gave their support.
Mr. Currier moved to adjourn as Park Commissioners and re-convene as Selectmen, 2nd by Mr. Galligan. The vote was 5-0-0 with Mr. Mathison, Mr. Galligan, Mr. Runyon, Mr. Currier & Mr. Newcomb all voting aye by roll call.
Meet with Finance Director Cathy Doane to review the 5-year Financial Plan and consider a change in the Free Cash Policy
Ms. Doane reviewed the information provided to the Board regarding fiscal stability. For the past few years, Ms. Doane has been talking to the Board about the declining position of local receipts and the excess levy capacity that, without budget reductions, could result in the need of securing a general operating override to maintain the current level of services. The declining revenue projections is further exacerbated by the financial effects of the COVID-19 pandemic. With all of the uncertainty, Ms. Doane has expressed her concerns to the Board regarding their ability to maintain Orleans financial reserves while weathering the storm. For the past several months, Ms. Doane has been researching viable alternatives and have been working with Hilltop Securities, to put together a financial strategy that would attempt to do the following:
1. Protect the Town’s Credit Rating of AAA 2. Reduce reliance on Free Cash to offset the operating budget 3. Provide the Town with flexibility to weather the economic fallout of COVID-19 into FY 22 and perhaps beyond. 4. Preserve the Town’s financial reserves.
Ms. Doane proposed the following for consideration of how we need to proceed. Steps for FY 21 include reducing reliance on free cash to balance the budget and instead utilize excess levy capacity, adopting new financial reserves policy, evaluating actual revenue vs. projections during the summer months and adjust FY21 budget at the October STM to offset any shortfall, conducting Board of Selectmen work sessions on the future need for general operating override, considering to include possibility of reducing services and increasing fee-based revenue. Work sessions should commence early FY 21 in preparation for the FY 22 budget process.
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Steps for FY 22 – FY 25 projection include based on FY 21 adjustments and work sessions, amend projections for revenue and operating budgets.
Mr. Galligan believes that it is important to have work sessions throughout the summer since we will be having a fall town meeting. The Finance Committee and Revenue Committee should be involved in the work sessions as well.
Mr. Runyon asked if it is too early to start thinking about the idea of a hiring freeze and not replacing or filling openings that might develop until such time as we have a better idea of where we are going. Ms. Doane responded that it is never too early to start these discussions and might be something worth considering.
Mr. Galligan hopes that when we have the work sessions that the schools are active participants in discussions.
Mr. Galligan moved that the Board of Selectmen support the steps as outlined in the Finance Director’s memo dated May 1, 2020, 2nd by Mr. Runyon. The vote was 5-0-0 with Mr. Mathison, Mr. Galligan, Mr. Runyon, Mr. Currier & Mr. Newcomb all voting aye by roll call.
Consider a revised Article 13. Fund Comprehensive Water Resources Management Plan Implementation/Construction and vote to reduce the total appropriation by $125,000
Mr. Kelly stated that this was brought up at the last meeting and he has since reviewed the available appropriations from prior years. He recommends taking the Lonnie’s Pond and fresh water restoration items out of the article and all that would be left would be the bonded work on the PRB’s and the next steps on the Meetinghouse Pond sewering.
Mr. Runyon asked if there would be any consequences if this was pushed back. Mr. Kelly reviewed the timelines for voting and contracts.
Mr. Galligan would like to be clear that this is to get the approval on the appropriation and helps get the signal to everyone involved. It is not an expenditure, but just to show the follow up on our commitment.
Mr. Galligan moved to revise Article 13 to reduce the appropriation by $125,000, 2nd by Mr. Newcomb. The vote was 5-0-0 with Mr. Mathison, Mr. Galligan, Mr. Runyon, Mr. Currier & Mr. Newcomb all voting aye by roll call.
Vote to place debt exclusion questions on the annual election ballot for the following articles: a. Article 13. Fund Comprehensive Water Resources Management Plan Implementation/Construction
This agenda item was deferred until next week.
b. Article 17. Fund Fire Station HVAC/Interim Improvements
6 Orleans Board of Selectmen April 29, 2020
Mr. Runyon moved to place the debt exclusion question for Article 17 on the annual election ballot, 2nd by Mr. Newcomb. The vote was 5-0-0 with Mr. Mathison, Mr. Galligan, Mr. Runyon, Mr. Currier & Mr. Newcomb all voting aye by roll call.
Further discussion on Town Meeting planning and possible options to change date, time or place a. Review of proposed legislation (S. 2673) that would allow a reduction in the quorum
Mr. Kelly shared communications that he has had with staff, Town Counsel and the Town Moderator regarding planning and possible options to change the date, time or place of Town Meeting. When you start to apply physical distancing using a radius around each chair, you can hold a Town Meeting at the middle school using both gyms, cafeteria, auditorium and potentially some classrooms. Before we could consider holding Town Meeting at the high school, we would need legislation to be passed. Mr. Kelly recommends not to consider an outdoor Town Meeting as he is not sure there would be enough seating and there is the potential for weather issues. It would be cost prohibitive to put up tents, also keeping in mind that there is underground irrigation that could be damaged. There are no bathroom facilities and the area is not handicapped accessible. If the town were to have the option to reduce the quorum to 10%, that would allow for 20 voters. If that were to be invoked, the only thing that could be approved in the warrant would be articles dealing with the budget. We could change the address of town meeting to say at the middle school and not have a specific room posted.
Mr. Galligan stated that he would like to keep in mind that if there is a heat wave during town meeting, that we have as much air flow as possible to keep people cool.
Mr. Newcomb asked what would happen if Governor Baker changes his guidance and we cannot hold a Town Meeting in June. Mr. Kelly responded that the Town Moderator would have the ability to postpone the meeting to another date and time certain using the same warrant. Mr. Newcomb added that he would not be in favor of a 20-person quorum and hopes to keep it at 200.
Mr. Runyon asked if we held the Town Meeting at the middle school, would anyone feel that an earlier time of day would of benefit. He also asked in what ways would the town benefit by having a budget passed in June versus letting it slide. Assuming we have a reduced quorum meeting, how much of a citizen voice would be lost by the fairly routine article. Mr. Kelly responded that we will have to wait and see what comes out of the legislature.
Mr. Runyon inquired if the requirement to social distance applies to spouses and partners that are living together at home. Mr. Kelly responded that when they were planning the space, it was assumed that couples would sit next to each other.
Mr. Currier asked if there has been any consideration for when people need to get up and leave the room and cross by others. Tom Daley responded that there will be no crossing over other people and that there will be a 6’ minimum even when walking by other people.
Staff updates on F.W. Webb project application and Orleans Downtown Street Scape Construction
Mr. Kelly reported that George Meservey provided comments for the Selectmen regarding the F.W. Webb project application.
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FW Webb has submitted plans for a retail store, showroom, office and warehouse on the site of the former Underground Mall. The proposal includes removal of all existing buildings on the 3.6- acre parcel, and construction of a free-standing 38,329 s.f. building. The following is the status of regulatory approvals.
A formal Site Plan was approved on March 4, 2020 by the Site Plan Review Committee. The submission included a lighting plan, landscape plan, and alternatives for improving the corner of Nell’s Way at Baker’s Pond Road. The committee accepted the turning plan showing an 18’ radius (attached). Applicant applied to the Old Kings’ Highway Regional Historic District Committee for a Certificate of Appropriateness for the building, signs, and new retaining wall. The matter was scheduled to be heard in April, but the Committee has not held any meetings since the State of Emergency was declared. When Town Hall is reopened, the committee will need 7-10 days to advertise for the hearing. The applicant is also waiting for a hearing before the Zoning Board of Appeals. The project requires Special Permits for (1) commercial space greater than 2,500 s.f., (2) a lot in two zoning districts, and (3) a reduction in required parking spaces. Both of the open applications are subject to the recent extension granted by the MA Legislature, which extended all permits and approval deadlines 45 days after the end of the State of Emergency. An evaluation of potential Cape Cod Commission jurisdiction was reviewed with Jonathan Idman, CCC Chief Regulatory Officer. The proposed building does not create 10,000 s.f. of additional commercial space, nor is the outdoor display area larger than 40,000 s.f. It was therefore determined that the project does not require a mandatory referral to the CCC as a Development of Regional Impact. However, any regulatory board, or the Board of Selectmen may make a Discretionary Referral of the project and ask for its review as a DRI.
Mr. Mathison would like to have Mr. Meservey available to discuss what makes the most sense for the town and to see if we might need the help of the Cape Cod Commission.
Mr. Galligan feels that it would be worth reminding regulatory boards that if they need help regarding a decision on a topic, that they should feel comfortable requesting outside advice. The regulatory boards need to know that they have the support from town resources if they need it.
Tom Daley was present remotely to provide an update on the streetscapes project. The overall project is going quite well. The biggest issue recently has been the weather. At the same time, without having a messy winter, the work was able to start in January. The COVID-19 issue has been favorable from the standpoint of having reduced traffic in the area and the non-essential stores were closed. The project is about 50% complete. Depending on the Governor’s pending updated guidance, if stores remain closed, staff may consider working through Memorial Day Weekend to move the project along quicker. Mr. Daley provided the Board with a weekly work schedule through June 1, 2020.
Vote to award the 2020-2021 Sarah Brown Scholarship
Mr. Newcomb moved to award the 2020 - 2021 Sarah Brown Scholarship in the amount of $2,000 to the recommended recipient, 2nd by Mr. Runyon. The vote was 5-0-0 with Mr. Mathison, Mr. Galligan, Mr. Runyon, Mr. Currier & Mr. Newcomb all voting aye by roll call.
Vote to participate in Regional Community Development Block Grant for COVID-19 emergency funds
8 Orleans Board of Selectmen April 29, 2020
Mr. Kelly reported that the Town of Truro has hired Bailey Boyd who has been involved in a number of regional efforts. This is a federal air program to provide emergency relief for low- and moderate-income residents. Mr. Kelly recommends that the Board vote to participate and authorize the Chairman to sign the application.
Mr. Runyon moved to participate in the Regional Community Development Block Grant for COVID-19 emergency funds, 2nd by Mr. Newcomb. The vote was 4-0-1 with Mr. Mathison, Mr. Runyon, Mr. Galligan & Mr. Newcomb voting aye and Mr. Currier abstaining by roll call.
Discussion on next meeting date and items for future agendas
The Board discussed meeting times going forward.
Mr. Runyon asked if there has been any update on the census. Mr. Kelly responded that they have sent information to the post masters and they have posted notices in the post offices. The same message is on our website.
Mr. Galligan wondered if there might be any room on the ballots that are being mailed out to include a plug for the census. Mr. Galligan also asked if the Board could be given an update on what the town has accumulated in terms of COVID-19 expenditures. Mr. Kelly responded that he has started discussions with department managers and as soon as he has more information available, he will report back to the Board.
At last week’s meeting, the Board heard 2 great presentations from audit firms. Our current auditors don’t have any interest in the IT vulnerability assessment. Mr. Galligan would like to see the Board look into this further. Mr. Kelly responded that staff has been working on this topic with something in the works and he will get an update for the Board.
Adjourn
Mr. Currier moved to adjourn, 2nd by Mr. Newcomb. The vote was 5-0-0 with Mr. Mathison, Mr. Galligan, Mr. Runyon, Mr. Currier & Mr. Newcomb all voting aye by roll call.
Respectfully Submitted, Jennifer Clarke ______Cecil Newcomb, Clerk Documents in May 6, 2020 Packet: 1. Agenda 2. Public Comment 3. Email - Senator Julian Cyr 4. Guidance for Seasonal Community 5. Orleans Beach Opening Recommendation 6. Memo from Finance Director – Fiscal Stability 7. Financial Plan FY21-FY25 8. Article 13 revised 9. Email - David Lyttle
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10. House 4398 Summary 11. F.W. Webb status 12. Main Street Improvements Project update 13. Adopted Orleans Beach Opening Recommendation
10 Orleans Select Board October 7, 2020
ORLEANS SELECT BOARD OCTOBER 7, 2020 DRAFT
A meeting of the Orleans Select Board was held on Wednesday, October 7, 2020. Present were Chairman Kevin Galligan, Vice Chairman Mefford Runyon, Clerk Andrea Reed, Select Board Member Cecil Newcomb, Select Board Member Mark Mathison, Finance Director Cathy Doane and Town Administrator John Kelly.
This was a virtual meeting convened via remote participation, with real time public access provided by Channel 18 on the town website and cable television.
Chairman Galligan called the executive session to order at 6:00 p.m.
On a motion by Mr. Runyon and seconded by Ms. Reed., the Board voted to enter into executive session to conduct collective bargaining session with the Police Union, and discuss the deployment of security personnel or devices, or strategies with respect thereto, and to conduct contract negotiations with the Finance Director and that the Chair declare that an open meeting may have a detrimental effect on the litigating or negotiating position of the body, and to reconvene in open session. The vote was 4-1-0, with Mr. Galligan, Mr. Runyon, Mr. Mathison & Ms. Reed all voting aye and Mr. Newcomb voting nay by roll call. The Chair declared that an open meeting may have a detrimental effect on the negotiating position of the body.
Meet in Executive Session to conduct collective bargaining session with the Police Union and discuss the deployment of security personnel or devices, or strategies with respect thereto, and to conduct contract negotiations with the Finance Director
Mr. Galligan stated that there is nothing to report in open session from executive session.
Public Comment (use Join Zoom Meeting to participate in public comment)
Ken Heritage was present remotely and noted concerns that he has on a couple of warrant items. Concerns were regarding the Fire Department pumper truck, design of a dredge and proposed increase in fees.
Ed Haffner was present remotely to provide comment on the proposed treatment of Uncle Harvey’s Pond by using alum. He reiterated the 4-1 vote from the Marine and Freshwater Quality Task Force to approve the use of alum. Mr. Haffner was the opposed vote and he explained why. He feels that nothing new has been presented since the vote was taken to suggest that the vote needs to be revisited.
Approval of Minutes
Mr. Galligan lost video connection to the meeting and was not able to reconnect due to a power outage.
a. August 26, 2020 (Executive Session)
1 Orleans Select Board October 7, 2020
Ms. Reed moved to approve the minutes of the August 26, 2020 executive session, 2nd by Mr. Newcomb. The vote was 4-0-0 with Mr. Runyon, Mr. Mathison, Ms. Reed & Mr. Newcomb all voting aye by roll call.
b. August 26, 2020
Ms. Reed moved to approve the minutes of the August 26, 2020 meeting, 2nd by Mr. Newcomb. The vote was 4-0-0 with Mr. Runyon, Mr. Mathison, Ms. Reed & Mr. Newcomb all voting aye by roll call.
c. August 28, 2020 (Executive Session)
Ms. Reed moved to approve the minutes of the August 28, 2020 executive session, 2nd by Mr. Newcomb. The vote was 4-0-0 with Mr. Runyon, Mr. Mathison, Ms. Reed & Mr. Newcomb all voting aye by roll call.
d. September 2, 2020 (Executive Session)
Mr. Newcomb moved to approve the minutes of the September 2, 2020 executive session, 2nd by Ms. Reed. The vote was 4-0-0 with Mr. Runyon, Mr. Mathison, Ms. Reed & Mr. Newcomb all voting aye by roll call.
e. September 2, 2020
Ms. Reed moved to approve the minutes of the September 2, 2020 meeting, 2nd by Mr. Newcomb. The vote was 4-0-0 with Mr. Runyon, Mr. Mathison, Ms. Reed & Mr. Newcomb all voting aye by roll call.
f. September 4, 2020 (Executive Session)
Ms. Reed moved to approve the minutes of the September 4, 2020 executive session, 2nd by Mr. Newcomb. The vote was 4-0-0 with Mr. Runyon, Mr. Mathison, Ms. Reed & Mr. Newcomb all voting aye by roll call.
g. September 4, 2020
Ms. Reed moved to approve the minutes of the September 4, 2020 meeting, 2nd by Mr. Newcomb. The vote was 4-0-0 with Mr. Runyon, Mr. Mathison, Ms. Reed & Mr. Newcomb all voting aye by roll call.
h. September 9, 2020
Ms. Reed moved to approve the minutes of the September 9, 2020 meeting, 2nd by Mr. Newcomb. The vote was 4-0-0 with Mr. Runyon, Mr. Mathison, Ms. Reed & Mr. Newcomb all voting aye by roll call.
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i. September 15, 2020 (Executive Session)
Ms. Reed moved to approve the minutes of the September 15, 2020 executive session, 2nd by Mr. Newcomb. The vote was 4-0-0 with Mr. Runyon, Mr. Mathison, Ms. Reed & Mr. Newcomb all voting aye by roll call.
j. September 15, 2020
Mr. Newcomb moved to approve the minutes of the September 15, 2020 meeting, 2nd by Ms. Reed. The vote was 4-0-0 with Mr. Runyon, Mr. Mathison, Ms. Reed & Mr. Newcomb all voting aye by roll call.
k. September 16, 2020
Ms. Reed moved to approve the minutes of the September 16, 2020 meeting, 2nd by Mr. Newcomb. The vote was 4-0-0 with Mr. Runyon, Mr. Mathison, Ms. Reed & Mr. Newcomb all voting aye by roll call.
l. September 23, 2020
Ms. Reed moved to approve the minutes of the September 23, 2020 meeting, 2nd by Mr. Newcomb. The vote was 4-0-0 with Mr. Runyon, Mr. Mathison, Ms. Reed & Mr. Newcomb all voting aye by roll call.
Mr. Mathison stated that Mr. Galligan called him and is not able to reconnect into the meeting due to a power outage. Mr. Runyon continued the meeting as Select Board Chair.
Committee Interviews, Appointments, Resignations a. Community Building Renovation Task Force- Keith Campbell
Keith Campbell was present remotely and stated his background and interest in the task force.
Mr. Newcomb moved to appoint Keith Campbell to the Community Building Renovation Task Force with a term to expire on June 30, 2023, 2nd by Ms. Reed. The vote was 4-0-0 with Mr. Runyon, Mr. Mathison, Ms. Reed & Mr. Newcomb all voting aye by roll call.
b. Veterans/Memorial Day Committee- Barbara Garran Howerton
Ms. Reed moved to accept the resignation of Barbara Garran Howerton from the Veterans/Memorial Day Committee, effective immediately, 2nd by Mr. Mathison The vote was 4-0-0 with Mr. Runyon, Mr. Mathison, Ms. Reed & Mr. Newcomb all voting aye by roll call.
Public Hearing-Alteration of Premises for Dragon City Restaurant, Inc. d/b/a Double Dragon, 59 Route 6a, Dirgha Rai, Manager
Mr. Galligan read the public hearing notice. Dirgha Rai was present remotely and reviewed the request.
3 Orleans Select Board October 7, 2020
No public comment was heard.
Ms. Reed moved to close the public hearing, 2nd by Mr. Runyon. The vote was 5-0-0 with Mr. Galligan, Mr. Runyon, Mr. Mathison, Ms. Reed and Mr. Newcomb all voting aye by roll call.
Mr. Runyon moved to approve Dirgha B Rai’s Application for Alteration of Premises for the Annual All Alcoholic Beverages Common Victualler Liquor license held by Dragon City restaurant, Inc. dba Double Dragon, located at 59 Cranberry Highway, Orleans to add to the licensed premises 525 sq. ft deck with 30 seats and 1,017 sq. ft patio with 36 seats, subject to all local and state permits, licenses and approvals, laws and bylaws and in accordance with the Town of Orleans Rules & Regulations of the Liquor Licensing Authority adopted December 21, 1994, and recently revised on November 5, 2014 and Massachusetts General Law Chapter 138. Said license is subject to approval by the Alcoholic Beverage Control Commission, 2nd by Ms. Reed. The vote was 5-0-0 with Mr. Galligan, Mr. Runyon, Mr. Mathison, Ms. Reed & Mr. Newcomb all voting aye by roll call.
Town Administrators Budget Policy Recommendations for FY22
No discussion was had.
Review of Planning Board request for status of Select Board Comprehensive Plan Actions
No discussion was had.
Follow up Select Board conditional authorization to file Notice of Intent with Conservation Commission for Uncle Harvey’s Pond Alum Treatment
No discussion was had.
Vote to sign Special Town Meeting Warrant
Ms. Reed moved to sign the Special Town Meeting Warrant and authorize the Town Administrator to use Select Board signature stamps, 2nd by Mr. Newcomb. The vote was 5-0-0 with Mr. Runyon, Mr. Mathison, Ms. Reed & Mr. Newcomb all voting aye by roll call.
Review of Annual Select Board Goals-Review of 1 or 2 per meeting
No discussion was had.
Town Administrators Report
Mr. Kelly stated that he will be going to the Finance Committee to request a reserve fund transfer to hire a recording secretary for the Charter Review Committee.
Mr. Kelly reported that the town received grant funding in the amount of $12,500 for the master plan for the photovoltaic array.
4 Orleans Select Board October 7, 2020
Mr. Kelly informed the Board that he has been working with Options Technology, Town Moderator and staff to put together a site plan for the Special Town Meeting. He hopes to have a representative from Options Technology participate in the pre-town meeting on October 21, 2020 to provide a demonstration on electronic voting.
Liaison Reports
Mr. Newcomb stated that the existing Council on Aging fitness class, which is held at 7:00 a.m., is difficult for some seniors to attend. He wondered if the class could be broadcast later in the morning, 3 times per week. Mr. Kelly responded that he would work with Channel 18 to accommodate.
Ms. Reed complimented the Board of Health on how creative and accommodating they are of requests that are received. She noted that they are outstanding problem solvers and that she is impressed with how they are able to protect public health while still allowing people to do what they need to do.
a. Cape Cod Water Protection Fund Distribution through August 2020
No discussion was had.
Items for Future Agendas
Ms. Reed is hoping to be able to do a breakdown of Select Board goals at an upcoming meeting.
Ms. Reed moved to adjourn the meeting of the Select Board in open session, 2nd by Mr. Newcomb. The vote was 4-0-0 with Mr. Runyon, Mr. Mathison, Ms. Reed & Mr. Newcomb all voting aye by roll call.
Respectfully Submitted, Jennifer Clarke ______Andrea Reed, Clerk Documents in October 7, 2020 Packet:
5 Orleans Select Board October 14, 2020
ORLEANS SELECT BOARD OCTOBER 14, 2020 DRAFT
A meeting of the Orleans Select Board was held on Wednesday, October 14, 2020. Present were Chairman Kevin Galligan, Vice Chairman Mefford Runyon, Clerk Andrea Reed, Select Board Member Cecil Newcomb, Select Board Member Mark Mathison, Finance Director Cathy Doane and Town Administrator John Kelly.
This was a virtual meeting convened via remote participation, with real time public access provided by Channel 18 on the town website and cable television.
Chairman Galligan called the meeting to order at 6:00 p.m.
Public Comment (use Join Zoom Meeting to participate in public comment)
No public comment was heard.
Town Administrator’s Budget Policy Recommendations for FY22
Mr. Kelly provided the Select Board with an overview of his budget policy recommendation for FY22. Under the charter, the Select Board needs to vote to adopt the budget no later than November 1. With a projected structural deficit beginning in FY22 in the amount of $773,000, and an additional $345,000 in FY23, the development of the FY22 budget shall focus on options to mitigate the impending deficits through a combination of budget reductions, revenue increases and/or potential general override(s), with the goal of minimizing the impact on the existing level of Town services to the extent possible.
Mr. Kelly stated that staffing and expenses will be looked at in various departments to see how the deficit can be reduced, keeping in mind that the Select Board is concerned about how reductions may impact services.
The schools have also been asked to review their budgets including school choice funding and cost per student.
Mr. Runyon feels that it would be helpful if we tried to focus on looking at if there is an expense or revenue problem. He looks at the problem being on the revenue side. Mr. Runyon stated that looking at revenue enhancements might be a better way to spend the Board’s time.
Ms. Reed would like to see us look at short-term and long-term income producing streams that are under our control. Ms. Reed added that we should be looking at sustainable municipal income and things that will grow our commercial tax base.
Mr. Newcomb asked what the revenue projection would be if the $25.00 resident beach sticker fee were to pass. Mr. Kelly responded that if we sell 8,000 stickers at $25.00 each, projected revenue would be approximately $200,000.
1 Orleans Select Board October 14, 2020
Ms. Doane reminded the Board that if enterprise funds are established, both the expenses and revenues would move into those funds.
Mr. Newcomb asked what services are projected to be cut. Mr. Kelly responded that he did not have a list ready, but that we are looking at cutting $300,000, we would be looking at cutting staff.
Mr. Mathison noted that he has been pretty consistent in wanting to be sure that we are very clear to our citizens of what the expectations are of the services that the town should be providing. He does not want to see us lose focus of the fact that the town has a certain responsibility to provide services to the people that live here. When you have a service and a facility, you need to take care of them.
Under the process, Mr. Galligan would like to see added that the Select Board will continue, to the extent possible, the fiscal stability work sessions.
Ms. Reed is concerned that it is unrealistic to ask the schools to reduce spending with the reality that they are facing. Mr. Kelly responded that under the Charter, the Select Board can only make a recommendation regarding the school budget. All we are asking them to do is take another look at their side of the equation.
Mr. Kelly stated that he would put a finalized copy of this on next week’s agenda for a final vote.
Review of Planning Board request for status of Select Board Comprehensive Plan Actions
Mr. Kelly stated that this plan includes items that have been ongoing for a period of time.
Mr. Runyon suggested edits to AH1, which probably needs additional language about the number of units needed to meet the town’s affordable housing goals. Ms. Reed added that it might be pertinent to note that our goals have changed since the plan was done.
Mr. Galligan believes that the disposition of the abandoned DPW facilities included in CF11 has not been resolved. He suggested reducing the % complete to 95.
Ms. Reed stated that HC17 originally belonged to the Planning Department, but represents the Economic Development Committee, which never took off. She wants to make sure that this does not get dropped as it has come up again in the Planning discussions.
Ms. Reed moved to send the Select Board Comprehensive Plan Actions back to the Planning Board with the noted changes, 2nd by Mr. Runyon. The vote was 5-0-0 with Mr. Galligan, Mr. Runyon, Mr. Mathison, Ms. Reed and Mr. Newcomb all voting aye by roll call.
Update on Select Board conditional authorization to file Notice of Intent with Conservation Commission for Uncle Harvey’s Pond alum treatment
Mr. Kelly stated that he has not filed the Notice of Intent for the alum treatment of Uncle Harvey’s Pond. There has been a lot of information from the Conservation Department, Planning Department and Marine and Fresh Water Quality Task Force. Mr. Kelly would like to bring this
2 Orleans Select Board October 14, 2020 back before the Board at their November 4, 2020 meeting for further discussion. As of today, the Notice of Intent has not been filed and staff is still working on getting all of the answers that the Board has asked for.
Review of Annual Select Board Goals-Review of 1 or 2 per meeting
Mr. Galligan briefly walked the Select Board members through the goals. He noted that members can talk off-line about who would like to volunteer to take the lead on which goals.
Liaison Reports
Mr. Runyon stated that the Planning Board voted to request that they be included in the process of the feasibility analysis or planning analysis for the Governor Prence property, should the funds for the feasibility study pass at the October 31, 2020 Special Town Meeting. Mr. Kelly added that he has been working with Town Counsel, Mr. Galligan and Mr. McClennen and that they would like to have an executive session next Wednesday for an update on the property.
Mr. Runyon reported that the Historical Committee met and found that there is deferred maintenance due on the Jonathan Young Windmill.
Mr. Newcomb reported that the Council on Aging Board met for the first time since COVID-19. He gave kudos to Council on Aging Director Judi Wilson for all of her work during COVID-19. Ms. Wilson had reported that she made her Board of Directors aware that there is a possibility of a 25% cut to state aid. In August, 163 seniors were served 943 units of service. Mr. Newcomb also reported that there are 3 open positions in the Council on Aging.
Ms. Reed stated that the Affordable Housing Committee and Affordable Housing Trust Fund Board have been moving along looking at the tools that the town might need to tease out different discussions.
Mr. Mathison reported that the school committees have been meeting to review their budgets. All of the school buildings have gone through the process of determining air flow and air quality. Mr. Mathison provided a review of the fluctuating numbers of homeschool students versus remote learning students.
Mr. Galligan reported that the Snow Library Trustees met yesterday and are working on a limited browsing plan, with no certain date set as of yet.
Mr. Galligan also noted that he drove past Eldredge Parkway and saw that the concrete form was being poured for the Fire Department traffic light.
Mr. Galligan asked if any Select Board members would like to volunteer as liaison to the Charter Review Committee. Mr. Runyon volunteered.
a. Cape Cod Water Protection Fund Distribution through August 2020
Mr. Galligan briefly reviewed the fund distribution.
3 Orleans Select Board October 14, 2020
Items for future agendas
No items for future agenda were discussed.
Adjourn
Ms. Reed moved to adjourn the meeting of the Select Board, 2nd by Mr. Newcomb. The vote was 5-0-0 with Mr. Galligan, Mr. Runyon, Mr. Mathison, Ms. Reed and Mr. Newcomb all voting aye by roll call.
Respectfully Submitted, Jennifer Clarke ______Andrea Reed, Clerk Documents in October 14, 2020 Packet:
4 Orleans Select Board October 21, 2020
ORLEANS SELECT BOARD OCTOBER 21, 2020 DRAFT
A meeting of the Orleans Select Board was held on Tuesday, October 21, 2020. Present were Chairman Kevin Galligan, Vice Chairman Mefford Runyon, Clerk Andrea Reed, Select Board Member Mark Mathison and Town Administrator John Kelly. Select Board Member Cecil Newcomb was absent.
This was a virtual meeting convened via remote participation, with real time public access provided by Channel 18 on the town website and cable television.
Chairman Galligan called the executive session to order at 5:30 p.m.
On a motion by Mr. Runyon and seconded by Mr. Mathison, the Board voted to enter into executive session to consider the purchase, exchange, lease or value of real property located on Route 6A and to reconvene in open session for the purpose of adjourning and that the Chair declare that an open meeting may have a detrimental effect on the litigating or negotiating position of the body, and to reconvene in open session. The vote was 4-0-0, with Mr. Galligan, Mr. Runyon, Mr. Mathison & Ms. Reed all voting aye by roll call. The Chair declared that an open meeting may have a detrimental effect on the negotiating position of the body.
Meet in Executive Session to consider the purchase, exchange, lease or value of real property located on Route 6A
Mr. Galligan stated that there is nothing to report in open session from executive session.
Public Comment (use Joint Zoom Meeting to participate in public comment)
No public comment was heard.
Pre-Town Meeting with Moderator, Town Counsel and Town Clerk
Town Moderator David Lyttle, Town Counsel Attorney Michael Ford, Town Clerk Cynthia May & Assistant Town Clerk Kelly Darling were present.
Due to the pandemic, the Select Board had made the decision to hold the Special Town Meeting outdoors. Given the fact that the school property is unavailable, the location will be in the parking lot at Nauset Beach. Mr. Kelly reviewed the set up for parking, adding that everyone will remain in their vehicles, with the exception of checking in. In the event of inclement weather, the Town Moderator will decide if the meeting would need to be postponed to the rain date. The warrant index will be updated further if there are any changes that occur between now and the meeting.
Mr. Kelly and the Board briefly reviewed each of the warrant articles.
1 Orleans Select Board October 21, 2020
Mr. Mathison reported that the Dredge Advisory Committee, after meeting with representatives from Barnstable County, will be asking to indefinitely postpone article 17 to fund engineering services for potential purchase of dredging equipment.
a. Demonstration on electronic voting at the Special Town Meeting
Mark Fite from Option Technologies was present. Option Technologies provides interactive technology that allows people to participate in live meeting events. Mr. Fite reviewed the different services that the company offers. Implementing electronic voting provides privacy for voters, speeds up voting and allows for less controversy. All handsets will be sanitized and then placed in a plastic bag. After the meeting, the handsets are removed from the bags, the bags are discarded and the handsets are sanitized again. All CDC COVID-19 protocols are in place. The voting pads are very easy to use and voters will be provided a handout and a chance to test them out before the meeting starts. If anyone experiences an issue with the handsets, volunteers will be in each of the parking zones to assist.
Mr. Galligan asked if voters need to bring an ID. Assistant Town Clerk Kelly Darling responded that the only voters who will need to show ID are people who are voting for the first time in Orleans, new Massachusetts residents, or in some rare cases, if someone has been inactive as a voter. Today is the deadline to register to vote during Town Meeting.
Mr. Runyon asked what happens if someone presses the wrong button. Mr. Fite responded that they can press their button to vote again. If you have doubt that your vote may have not gone through the first time, you can re-vote. It will only tally one vote per question per handset. Ms. Doane asked if the vote would be delayed if someone has technical difficulties with their handset. Mr. Fite responded that they would work with the Town Moderator on this issue. The voting would close and then they would deal with the individual that was having the technical issue.
Mr. Lyttle noted that people attending the meeting have 60 seconds to vote. He asked how long after that 60 seconds would he receive notification of the vote decision. Mr. Fite responded that it would only take a few seconds for the final numbers to be tabulated.
A question was asked if there is a plan if more than 300 vehicles attend the meeting. Mr. Kelly and Mr. Galligan both responded that there is overflow parking and that non-residents could park in the Hubler lot and Town Officials would park on the road by the Hubler lot.
Martin Culik asked if one person could pick up handsets for everyone in their vehicle. Ms. May responded that each voter would need to check in just as they normally would at a Town Meeting.
Attorney Ford stated that all registered voters have the right to be at Town Meeting and to participate. The Town will need to make sure that all vehicles that want to attend, can be accommodated for parking and participation.
Mr. Lyttle wondered if having the meeting broadcast through the radios as well as on the loud speakers would cause a sound delay. Mr. Kelly responded that when the onsite visit was held, there didn’t seem to be an issue. If everyone is going to use their car radios, the loudspeakers could be turned down, or even shut off if not needed. Mr. Runyon added that some cars can’t be run in the auxiliary setting indefinitely.
2 Orleans Select Board October 21, 2020
b. Public question and answer period (use Join Zoom Meeting to participate in Q & A)
David Slack was present remotely with respect to Article 31 and noted the corrections that need to be made.
A discussion took place on Articles 37 & 38. A question was raised that if Article 37 doesn’t pass, would a vote still need to take place on Article 38. Mr. Runyon stated that he would be inclined to still have a vote on Article 38, even if Article 37 didn’t pass.
Another question was raised about changing the order of warrant articles. Mr. Kelly reviewed the process of making a motion to change the ordering or articles.
Ken Heritage was present remotely and asked if the town has evaluated the possible purchase of a used pumper truck rather than a new one for $675,000. Mr. Galligan responded that the Finance Committee met the Fire Chief and Deputy Fire Chief to review questions relating to this warrant article. Mr. Galligan will contact Fire Chief Deering to make sure that he is best prepared to answer questions on the Town Meeting floor.
Questions about revenues and expenditures with enterprise funds were discussed.
Public Hearing-Following proposed general bylaw changes for Special Town Meeting
Mr. Galligan read the public hearing notice.
a. Article 31-Amend General Bylaw Ch. 140-Right to Farm
Mr. Kelly reviewed the proposed amendments to the bylaw.
Judy Scanlon was present remotely and vocalized her support for this amendment.
b. Article 38-Rescind General Bylaw Ch. 64-Prohibiting Marijuana Retail Sales
Mr. Kelly reviewed the proposed amendments to the bylaw.
c. Article 40-Amend General Bylaw Ch. 94 Art V. Non-Payment of Fees & Taxes
Mr. Kelly reviewed the proposed amendments to the bylaw.
Mr. Runyon moved to close the public hearing, 2nd by Ms. Reed. The vote was 4-0-0 with Mr. Galligan, Mr. Runyon, Mr. Mathison & Ms. Reed all voting aye by roll call.
Vote to adopt budget policy for FY22
Ms. Reed noted that she is aware that we want to ask the schools to justify their budgets, but she wishes that the language in the policy would speak to more of a partnership. She would like this to be something that is worked on in future discussions.
3 Orleans Select Board October 21, 2020
Mr. Runyon moved to adopt the FY22 budget policy as revised, 2nd by Ms. Reed. The vote was 4-0-0 with Mr. Galligan, Mr. Runyon, Mr. Mathison & Ms. Reed all voting aye by roll call.
Approval of applications for Expanded Temporary Alterations to Premise during COVID-19 Emergency
Mr. Runyon moved to approve expanded outdoor dining applications that include the sale and consumption of liquor on premises as recommended by the Town Administrator for the following restaurants:
1. BELLAS CC LLC dba La Bella Vita 2. Dragon City Restaurant, Inc. dba Double Dragon 3. FoodFirst711 LLC dba Toast to the Coast 4. Four Mermaids Enterprises, Inc. dba Barley Neck Inn 5. Hang Ten, Inc. dba Old Jailhouse Tavern 6. Nauset Pizza Inc. dba Whisk Breakfast and Lunch Café 7. Orleans Bowling Center Inc. dba Orleans Bowling Center 8. Rock Harbor Grill, Inc. dba Rock Harbor Grill 9. True Blue Atlantic, Inc. dba Mahoney’s Atlantic Bar & Grill 10. Orleans Seafood, inc. dba Cookes Seafood
All applications for expanded premises approved pursuant to Governor Baker’s COVID-19 Order #50 are effective through sixty (60) days after the end of the state of emergency and revert to their original licensed premises on that date, and are in accordance with the Town of Orleans Rules and Regulations of the Liquor Licensing Authority under M.G.L. Chapter 138, 2nd by Mr. Mathison. The vote was 4-0-0 with Mr. Galligan, Mr. Runyon, Mr. Mathison & Ms. Reed all voting aye by roll call.
Vote to sign State Election warrant
Ms. Reed pointed out that the Town Clerk had previously requested that the polling hours be reduced.
Ms. Reed moved to sign the 2020 State Election Warrant, subject to the polling hours as confirmed by the Town Clerk, 2nd by Mr. Runyon. The vote was 4-0-0 with Mr. Galligan, Mr. Runyon, Mr. Mathison & Ms. Reed all voting aye by roll call.
Request from Mark Berson for town meeting article to consider a “Town Flag”
Mark Berson was present remotely and is asking the Select Board to consider a Town Flag. John Kelsey was present remotely and reviewed the request. Mr. Kelsey is the designer and producer of the flag. He discussed the ideas behind the request.
Mr. Kelly stated that this request should go to a town meeting vote.
Mr. Berson added that the town might want to ask for input from the Fire Department, Police Department and the schools.
4 Orleans Select Board October 21, 2020
Ms. Reed would like to it to be made clear that the flag is a gift to the town and the design would be as submitted.
Town Administrators Report
Mr. Kelly reported on a FY21 Community Compact Cabinet Information Technology Grant Program application was submitted by the MIS Department on October 9, 2020 in the amount of $196,000 to digitize the paper files in the Building Department, Conservation Office and Town Clerk’s Office using a Laserfiche technology that will improve vital record storage efficiency and create a searchable database with public access. A FY 21 Municipal Road Safety Grant Program funding application was submitted by the Police Department on October 13, 2020 in the amount of $12,000 to purchase a new traffic data recorder and 33 hours of overtime for each of the 5 Enforcement Campaigns – Winter Impaired Driving; April Distracted Driving; May Click It or Ticket; Summer Speed; and Summer Impaired Driving.
The Board was provided with an information flier for the virtual public meeting scheduled for Thursday, November 5 at 5:30 pm to present the Complete Streets Prioritization Plan: Improving Safety & Accommodating All Users.
Liaison reports
Mr. Galligan reported that the Board of Water & Sewer Commissioners discussed the free DEP PFAS testing that is being offered. He also noted that the Water Department has received an application to install a new cell tower structure on Quanset Road at well site # 7. Mr. Kelly responded that he has already spoken to Tom Daley regarding this application, that cell towers are not permitted in a residential zone. Even if a variance were to be granted, the maximum height would be 75’.
Items for future agendas
Ms. Reed stated that it is coming to her attention that more and more of planning will need to be multi-board staked. She would like to include this in future discussions when reviewing Select Board goals.
Adjourn
Ms. Reed moved to adjourn the meeting of the Select Board in open session, 2nd by Mr. Runyon. The vote was 4-0-0 with Mr. Runyon, Mr. Galligan, Mr. Mathison & Ms. Reed voting aye by roll call.
Respectfully Submitted, Jennifer Clarke ______Andrea Reed, Clerk Documents in October 21, 2020 Packet:
5
SELECT BOARD OFFICE OF THE TOWN AGENDA ACTION REQUEST ADMINSTRATOR November 4, 2020
FY21 PROPERTY TAX CLASSIFICATION HEARING
REQUESTED BY: Board of Assessors
DESIRED ACTION: Vote to allocate the local property tax levy among five property classes for FY21
PROPOSED MOTION: TBD ACTION TAKEN: Moved By: ______Seconded By: ______Condition(s):
VOTED: Aye _____ Nay______Abstain ______
TOWN OF ORLEANS PROPERTY CLASSIFICATION HEARING
On Wednesday, November 4, 2020 at 6:30 p.m., the Select Board will hold a public hearing via remote Zoom meeting in accordance with Chapter 369 of the Acts of 1982 amending Chapter 797 of the Acts of 1979 regarding allocating the local property tax levy among the five property classes for fiscal year 2021.
The Board of Assessors will provide all information and data relevant to making a final determination on allocations of the tax burden among the four classes of real property: residential, open space, commercial/industrial and one class of personal property as set forth in Chapter 40, Section 56. Options open to the Town will be provided and the Chairperson will recognize any taxpayers wishing to present oral or written information on their views. If you are unable to attend and wish to express your views in writing, they should be received in the Selectmen’s Office, 19 School Road, Orleans, MA 02653 on or before noon on Wednesday, October 28, 2020.
Kevin Galligan, Chair Orleans Select Board
SELECT BOARD OFFICE OF THE TOWN AGENDA ACTION REQUEST ADMINSTRATOR November 4, 2020
FY21 GOALS – TOWN ADMINISTRATOR, FINANCE DIRECTOR, POLICE CHIEF AND FIRE CHIEF
REQUESTED BY: Select Board
DESIRED ACTION: Review and vote to approve proposed goals for FY21
PROPOSED MOTION:
ACTION TAKEN: Moved By: ______Seconded By: ______Condition(s):
VOTED: Aye _____ Nay______Abstain ______
Office of the Town Administrator
To: Select Board From: John F. Kelly, Town Administrator Date: October 19, 2020 Re: FY21 Goals and Objectives
The following are my proposed goals and objectives for completion in FY21:
Goal 1: Develop the FY22 Budget Policy and prepare the annual operating budget in accordance with the Policy guidelines set by the Select Board. Specific: Include timely analysis and recommendations to enable Select Board to make informed decisions on the various options, additions and deletions to be considered during the budget review process. Measurable: The submitted FY22 budget can be compared to the Board’s policy guidelines to determine compliance. Achievable: Requires adherence to the Charter requirements for the development and submission of the budget. Relevant: Primary responsibility of the Town Administrator under the Charter. Time-bound: Budget submission to Board in January and final adoption in March 2021.
Goal 2: Complete negotiations on new collective bargaining agreements with Orleans Managers, Clerical & Technical and Steelworkers Unions. Specific: Current agreements will expire on June 30, 2021 and negotiations on new 3-year contracts should begin in January 2021. Measurable: Contract proposals and costs will be developed for approval by Board; an agreed upon comprehensive Classification/Compensation Study involving all three unions was completed in October 2019 to serve as baseline information for negotiations. Achievable: Executive Session strategy sessions will be scheduled with Select Board and Labor Counsel in advance of meeting with unions in January. Relevant: Primary responsibility of the Town Administrator under the Charter. Time-bound: Completion by May 2021 Town Meeting.
Goal 3: Complete preparation and implement seasonal parking enforcement program in May 2021. Specific: Includes developing and promulgating parking rules, regulations and fines for Town ways, parking lots and Landings and coordination with Police Chief on hiring and equipping a new Seasonal Parking Enforcement Officer(s). Measurable: Specific areas for inclusion in the parking regulations will be approved by the Select Board. Achievable: Assumes $30,000 to fund the program is approved at the Special Town Meeting on October 31, 2020. Relevant: Comprehensive seasonal parking enforcement program needed to manage available resources. Time-bound: Completion by May 1, 2021.
Goal 4: Develop an expanded bi-weekly Town Administrator’s Report. Specific: Includes timely updates on departmental activities, including grants; summary information on Town Administrator actions including contracts executed, staffing changes and communications with regional and state officials of local importance. Measurable: Expanded report can be viewed and revised as needed or requested. Achievable: Yes. Relevant: Yes, a suggested area to improve upon in my recent performance evaluation. Time-bound: Begin in Nov. 2020.
2 | Page
Town of Orleans Director of Municipal 19 School Road Orleans Massachusetts 02653-3699 Finance Cathy L. Doane, CPA Telephone (508) 240-3700 – Fax (508) 240-3388
To: Select Board John Kelly, Town Administrator From: Cathy L. Doane Date: October 8, 2020 Subject: FY 21 Goals and Objectives
Following is a list of my proposed FY 21 goals and objectives for your consideration:
Goal 1: Develop FY 22 Budget
• Specific: 1. Aid in the development of the FY 22 budget policy guidelines and work with the Town Administrator to present a FY 22 budget within the parameters set by the Select Board. 2. Produce the 5-year Financial Plan and update it throughout the year as economic conditions dictate. 3. Lead the creation of Enterprise Funds for FY 22 adoption. • Measurable: Results will be measurable based on the quality of presentations delivered and documentation provided as compared to directives given. • Achievable/Time-bound: Specific in the Town’s Charter and/or a schedule determined by the Town Administrator and the Select Board.
Goal 2: Provide Support and Guidance to Select Board during Fiscal Stability Work Sessions
• Specific: 1. Identify options to sustain/improve Town’s financial stability to include review/modification of financial policies and viable options to minimize future override reliance. • Measurable: Results will be measurable based on the quality of discussions and presentations delivered. • Achievable/Time-bound: Contingent upon schedule determined by Select Board.
Goal 3: Provide Guidance/Leadership to Mitigate FY 21 Financial Impact of Covid-19
• Specific: 1. Analyze and provide timely updates of FY 21 revenue status. 2. Provide recommendations to Select Board and Town Administrator to mitigate any financial impact during FY 21. 3. Maximize the reimbursement of Covid-19 related expenses from state and federal government agencies.
• Measurable: Results will be measurable based on the quality of presentations delivered, Select Board adoption of recommendations, and end of year financial results. • Achievable/Time-bound: Provided throughout the year and through presentation of year end results.
Goal 4: Recognize Staff Accomplishments and Encourage Continuing Education to Maintain a High Quality of Customer Service
• Specific: 1. Require my staff to submit annual goals and conduct annual performance reviews measuring accomplishments and overall customer service aptitudes. 2. Support ongoing education through in-house, web-based, and offsite training opportunities. • Measurable: Documentation will be available. • Achievable/Time-bound: Goals and performance reviews are documented annually. Availability of training opportunities will be contingent upon new Covid-19 protocols and budget constraints.
ORLEANS POLICE DEPARTMENT SCOTT W. MACDONALD 99 ELDREDGE PARK WAY CHIEF OF POLICE ORLEANS MASSACHUSETTS 02653-3307 TEL. 508-255-0117 FAX. 508-240-1374 MEMORANDUM
September 15, 2020
TO: ORLEANS SELECT BOARD
SUBJECT: FY 2021 GOALS
I have prepared three professional goals for fiscal year 2021. In developing these goals, I applied the S.M.A.R.T. method, which is the acronym for Specific, Measurable, Attainable, Relevant, and Time-bound.
Goal #1: EXPAND DEPARTMENT’S COMMUNICATIONS PLATFORMS
• Specific: Acquire additional communications platform that targets local residents. • Measurable: Upon acquisition, a database of local residents that request notifications will be collected and used to deliver information. • Attainable: The department’s Communications Team will be responsible for completing this task. • Relevant: The Orleans department’s policing philosophy has a strong emphasis on community engagement. Although existing social media platforms reach thousands of “followers”, a new email based platform will supplement our social media presence and provide additional opportunities for the department to engage directly with our citizens by providing timely alerts, public service announcements, and general information about the department. • Time-bound: This goal will be completed by the conclusion of FY2021.
Goal #2: ADDRESS INSTITUTIONAL VULNERABILITY
• Specific: 1. Identify critical department functions. 2. Develop cross-training programs for backup personnel on all shifts. 3. Define and formalize workflow. 4. Develop functional organization chart with backup assignments. • Measurable: Identify primary, secondary, tertiary responsibilities for all staff. • Attainable: At a department meeting, personnel will be tasks with identifying potential organizational vulnerabilities. Action plans will then be developed to remedy vulnerabilities. • Relevant: Ensures that no critical department function is left vulnerable to a single individual’s absence or departure. • Time-bound: This goal will be completed by the conclusion of FY2021.
Goal #3: CONFORM TO MASSACHUSETTS POLICE REFORM LEGISLATION
• Specific: The House and Senate passed versions of police reform legislation, which appear in H 4886 and S 2820. A conference committee with members from both bodies is currently working on a final version to be signed into law by the Governor. • Measurable: Orleans Police policies and procedures will be revised and/or developed to conform will newly established Massachusetts police reform mandates. • Attainable: The department’s strategic planning working group and accreditation manager will be responsible achieving this goal. • Relevant: Improving police officer standards & accountability is a priority for the Orleans Police Department • Time-bound: This goal will be completed by the conclusion of FY2021 or as mandated by newly enacted law.
Respectfully Submitted,
Scott W. MacDonald Chief of Police
Orleans Fire-Rescue Department 58 Eldredge Park Way, Orleans MA 02653
Non-Emergency number 508-255-0050 Fax number 508-240-0855 George E. Deering, IV Timothy M. Gula Chief of Department Deputy Fire Chief
To: Orleans Select Board
Re: FY2021 Fire Department Goals
Four goals have been developed for the Fire Department for this fiscal year.
Goal #1 Conduct Strategic Planning process and implement Strategic Plan
Specific: The Orleans Fire Department will participate in strategic planning process. This process will be used to establish our mission and vision, our core values and determine our strategic goals for the next 5 years.
Measurable: Completion of a full strategic plan and supporting document that is available to department staff and the community.
Achievable: Through a participatory process of department staff and stakeholders, we will engage in a comprehensive planning process.
Relevant: A strategic or master plan is a critical tool for the department to ensure high quality delivery of service. As new leadership has come into the department and was outlined in the ESCI Staffing study, a strategic plan is crucial to the long-term success of the department. (Recommendations 2, 4,5, and 21).
Time bound: The process is started and is scheduled for completion in January 2021.
Goal #2 Implement Officer and staff meetings and enhance department communications
Specific: The Orleans Fire Department Officers and Staff will schedule regular officer’s meetings. Command staff will meet twice a month, and full department meetings will occur at least twice a year. Each meeting will have an agenda.
Measurable: Consistent and regular meetings planned and held for department command staff.
Achievable: Command staff meetings will be held a predetermined and regularly scheduled time twice a month. Full department meetings will be scheduled at 6-month intervals.
Relevant: Communication is a key to success of the department. Regularly meeting with department decision makers in a formal structured manner will assist in ensuring two-way communication amongst all staff. The ESCI staffing study recommended regular meetings (recommendation #8)
Timebound: Regular command staff meetings have been implemented (every other Tuesday). A full department staff meeting will be scheduled when practical, due to COVID, a remote type meeting may be implemented in December of 2020 and again in June 2020.
Goal # 3: Reorganize command structure to implement Lieutenant position
Specific: In recognition of the increasing complexities of emergency responses and multiple, simultaneous incidents, an additional supervisory rank will be added to each shift.
Measurable: Implementation of Lieutenants as part of depart rank structure.
Achievable: Contract language changes have been completed. Administration of a competitive three part promotional testing process is scheduled for December 2020. Final job descriptions are being revised in cooperation with IAFF local 2675.
Relevant: The benefits of additional supervision and safety to our staff and citizens is tremendously important. This also creates a career ladder for our personnel, which has an impact on morale.
Time bound: Lieutenants will be appointed on January 1, 2021.
Goal #4 Evaluate and re organize training programs during pandemic
Specific: Adoption of online Fire and Emergency Medical training programs to maintain operational readiness and certifications.
Measurable: Data collected to show attendance, skills completion, and training criteria met.
Achievable: Many of our training programs have shifted to remote/online formats, including paramedic and EMT recertifications, online fire training (with neighboring departments), and firefighter recruit training.
Relevant: In response to COVID-19, we must shift from our traditional training models to a model that continues to ensure meeting appropriate standards and readiness, while ensuring the health of our staff and community.
Timebound: Implementation of online and remote training, as much as appropriate, will be ongoing starting in October 2020.
SELECT BOARD OFFICE OF THE TOWN AGENDA ACTION REQUEST ADMINSTRATOR November 4, 2020
POLICE DEPARTMENT AUTHORIZATION TO HIRE
REQUESTED BY: Chief Scott MacDonald
DESIRED ACTION: Vote to authorize the advertisement for a replacement for an Office scheduled to retire
PROPOSED MOTION: ACTION TAKEN: Moved By: ______Seconded By: ______Condition(s):
VOTED: Aye _____ Nay______Abstain ______
ORLEANS POLICE DEPARTMENT SCOTT W. MACDONALD 99 ELDREDGE PARK WAY CHIEF OF POLICE ORLEANS MASSACHUSETTS 02653-3307 TEL. 508-255-0117 FAX. 508-240-1374
October 29, 2020
TO: ORLEANS SELECT BOARD
SUBJECT: HIRING PROCESS: POLICE OFFICER
I’m seeking authorization from the Board to initiate a Police Officer hiring process. Although the department is currently at its authorized strength of twenty-two, two are classified as Student Officers and will not be available for shift work until early summer 2021. A third Officer is out on injury and not expected to return to work. Detective Melissa Marshall will be retiring in January 2021 and I was advised earlier this week that Officer Michael Lotti has chosen to retire earlier than he planned and will be leaving prior to December 2020.
It has not yet been confirmed, but there may be a police academy in Plymouth starting sometime in February 2021. We will have to act quickly to completed a hiring process to secure seats in the February academy. The goal of the hiring process is to establish a list of qualified candidates to fill vacancies as necessary. At this time, I’m requesting authorization to hire two candidates to replace Detective Marshall of Officer Lotti.
I look forward to meeting with the Board on November 4th and I’ll be happy to respond to any questions or concerns you may have.
Respectfully Submitted,
Scott MacDonald Chief of Police
SELECT BOARD OFFICE OF THE TOWN AGENDA ACTION REQUEST ADMINSTRATOR November 4, 2020
REQUEST FOR LICENSE EXTENSION FOR TOWN HALL ANNEX
REQUESTED BY: Center for Culture and History in Orleans
DESIRED ACTION: Request for extension of license agreement for space in the Town Hall Annex
PROPOSED MOTION: Vote to approve extension of the license agreement through June 30, 2021.
ACTION TAKEN: Moved By: ______Seconded By: ______Condition(s):
VOTED: Aye _____ Nay______Abstain ______
John Kelly
From: John Kelly Sent: Thursday, October 22, 2020 1:30 PM To: [email protected] Cc: 'Cris Harter'; Molly Bates Subject: RE: Annex License Extension for the CHO/OHS
Jay, I will add your request to the Select Board’s agenda for Nov. 4 for consideration. Thanks. John
John F. Kelly Town Administrator
19 School Road Orleans, MA 02653 508‐240‐3700 x 2415 [email protected]
From: [email protected]
Hi John,
I am contacting you now, as suggested, to officially request a 6‐month extension of the existing license agreement (attached) between the Town and the Centers for Culture and History in Orleans (the CHO) for use of the Town Hall Annex building as temporary storage and office space. This extension would continue all provisions of the current agreement through June 30, 2021, including the $220 monthly payment for heat and electricity.
As you know, work has begun – albeit a month later than expected ‐‐ on moving and updating the Hurd Chapel. Assuming no additional major delays, our best estimate for occupancy is late April, 2021. It likely will take our volunteers most of May and June to move all items from the Annex to the Hurd considering social‐distancing and other COVID‐19 precautions remain in place.
The CHO Board of Directors greatly appreciates the Town’s support, and respectfully requests this license extension.
Sincerely,
‐Jay Stradal, Board Chair
1
SELECT BOARD OFFICE OF THE TOWN AGENDA ACTION REQUEST ADMINSTRATOR November 4, 2020
VOTE TO SIGN INTERIM LOAN NOTE FOR DOWNTOWN SEWER PROJECT
REQUESTED BY: Treasurer/Collector and Bond Counsel
DESIRED ACTION: Sign the interim loan note to finance the Downtown Sewer Construction Project
PROPOSED MOTION: Refer to the motions in your packet drafted by bond counsel and vote to sign the interim loan note using your signature stamps.
ACTION TAKEN: Moved By: ______Seconded By: ______Condition(s):
VOTED: Aye _____ Nay______Abstain ______
October 28, 2020
Scott Walker Treasurer/Collector Town of Orleans 19 School Road Orleans, MA 02653-3699
Dear Scott: (Massachusetts Clean Water Trust Interim Loan) We have now received loan closing instructions from the Massachusetts Clean Water Trust with respect to an Interim Loan relating to Financing Agreement No. CW-19-33. The closing for the Interim Loan will take place after we receive the executed documents, and disbursements will be made to you after the closing date based upon requisitions submitted to DEP and the Trust. We have been asked to have all necessary documents presigned. Copies of the Financing Agreement and the Project Regulatory Agreement have been sent to you by the Trust. Please send me copies of the executed signature pages. For your reference, I have downloaded from the Trust’s website the “Terms and Conditions” referenced in the Financing Agreement, and have included them in this package for your review. The “Terms and Conditions” are an essential part of the Financing Agreement and the Town is required to comply with these provisions. This document should be attached to the Financing Agreement and kept in the Town’s file for this loan. Please call me if you have any questions regarding the “Terms and Conditions” to the Financing Agreement. The Note and three copies each of the closing Certificate and the Selectmen’s Vote are enclosed. Each should be signed and the Note and Certificates must be sealed. Please return all of them to me as soon as convenient. These documents will be held in escrow until the closing. We will then return one complete set of documents to you. If you have any question about the procedures or the documents, please call me. Sincerely,
Kara K. Adams Enclosures
cc: Hilltop Securities, Inc.
83875963v.1
Atlanta | Austin | Boston | Brussels | Chicago | Cincinnati | Dallas | Hartford | Houston | London | Los Angeles Miami | New Orleans | New York | Princeton | Providence | San Francisco | Stamford | Washington DC | West Palm Beach KKA 10/27/20
(Please Note: The following statements are an essential part of the permanent note record. Read them carefully before signing this certificate. Advise Locke Lord LLP of any inaccuracy.)
Town of Orleans, Massachusetts
$59,409,200 Interim Loan Note
CERTIFICATE
We, the members of the Select Board, and the Treasurer of the Town of Orleans, Massachusetts (the “Town”), certify that we have signed the $59,409,200 0 percent Interim Loan Note (the “Note”) of the Town dated November 1, 2020 and payable on the Closing Date. The Note bears the Town seal, which is also affixed to this certificate.
We further certify that Financing Agreement No. CW-19-33 with the Massachusetts Clean Water Trust (the “Trust”), dated as of August 5, 2020 providing for the Interim Loan evidenced by the Note, and the Project Regulatory Agreement with the Department of Environmental Protection dated as of August 1, 2020 relating to the Project financed by the Note have been signed by the Treasurer or other duly authorized Town official and we hereby confirm those Agreements. Capitalized terms used in this certificate and not otherwise defined shall have the same meanings given those terms in the Financing Agreement and Chapter 29C of the General Laws (the “Enabling Act”). The Financing Agreement and the Project Regulatory Agreement are sometimes referred to collectively in this certificate as the “Agreements”.
We, the members of the Select Board of the Town, certify that we have authorized the use of any facsimiles of our signatures that may be printed on the Note.
We, the members of the Select Board and the Treasurer, also certify as follows:
1. Authority. The Note is issued pursuant to the Enabling Act, Chapter 44 of the General Laws (the “Applicable Bond Act”) and the following votes of the Town:
(a) $47,382,800 - under a vote of the Town passed May 13, 2019 (Article 16), which authorized a total borrowing of $47,382,800 and excluded from the limitations of Proposition 2 1/2, so-called on May 21, 2019 (Question 1); and (b) $12,026,400 - under a vote of the Town passed June 20, 2020 (Article 42), which authorized a total borrowing of $12,218,000 and excluded from the limitations of Proposition 2 1/2, so-called on June 23, 2020 (Question 3).
Execution of the Agreements was further authorized by a vote of the Select Board passed November 4, 2020 (the “Select Board Vote”).
2. Other Debt. No other debt has been incurred under those votes of the Town.
3. Representations under Section 2 of the Terms and Conditions to the Massachusetts Clean Water Trust Financing Agreement.
(i) The Town is a Local Governmental Unit as defined in the Enabling Act with full legal right and authority under the Enabling Act and the Applicable Bond Act to authorize, execute and deliver the Agreements, to execute, issue and deliver the Note, to undertake the Project, to operate its System and to carry out and consummate all transactions contemplated by the foregoing.
(ii) The Town has duly and validly authorized the execution and delivery of the Agreements and the Note and all approvals, consents and other governmental proceedings necessary for the execution and delivery of any of the foregoing or required to make them the legally binding obligations of the Town that they purport to be in accordance with their terms have been obtained or made.
(iii) No action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body is pending or, to our knowledge, threatened seeking to restrain or enjoin the execution or delivery or performance of any of the Agreements or the Note or the construction or operation of the Project; or contesting or adversely affecting the validity of the Agreements or the Note or the power of the Town to assess and collect taxes, rates and charges to pay the Payments and all other costs and expenses of the Project and the System; and neither the corporate existence of the Town nor the title to office of any of us or any other Authorized Officer of the Town executing the Agreements or the Note is being contested.
(iv) The authorization, execution and delivery of each of the Agreements and the Note, and performance of each of them, will not constitute a breach of, or a default under, any law, ordinance, resolution, agreement, indenture or other instrument to which the Town is a party or by which it or any of its properties is bound.
(v) The Financing Agreement and the Note are valid general obligations of the Town, for the payment of which its full faith and credit are pledged, enforceable in accordance with their terms and the terms of the Enabling Act and the Applicable Bond Act, and payable as to principal, premium, if any, and interest, if any, (to the extent not paid from other sources) from taxes which may be levied upon all taxable property within the territorial boundaries of the Town, without limit as to rate or amount.
-2- 4. No Default. As of this date, no Event of Default or Default, as applicable, and no event which with the passage of time or the giving of notice may become or may be declared to be an Event of Default or a Default, has happened and is continuing under either of the Agreements.
5. Loan Questionnaire. The statements and information set forth in the Loan Questionnaire submitted by the Town to the Trust in connection with the Interim Loan are true and correct in all material respects on this date as if made on this date.
6. Special Conditions. The Town hereby acknowledges the special conditions set forth in Exhibit C to the Project Regulatory Agreement and the Town has satisfied or expects to satisfy all of such conditions and is not aware of any circumstances adversely affecting its expectation of satisfying those conditions.
7. Use of Project and Note Proceeds.
(a) Reimbursement. The proceeds of the Note may be used, in part, to reimburse the Town for capital expenditures previously made for the Project. Any such expenditures were made pursuant to G.L. c. 44, §20A and the rules and regulations of the State Director of Accounts and any such expenditure was documented by a “Report of Advance of Funds in Lieu of Borrowing” filed with the Director. Any such expenditures were made within 18 months prior to this date. At the time of the filing of any report referred to above the Town reasonably expected to reimburse the expenditures with the proceeds of a borrowing.
(b) Prior Bonds or Notes. No proceeds of the Note will be used to pay or retire any bonds, notes or other evidence of indebtedness previously issued by the Town.
(c) No Sale of Project. The Town does not expect to sell any Project prior to repayment of the Note.
(d) Use in Trade or Business. Not more than 5% of the gross proceeds of the Note are to be used (directly or indirectly) in any trade or business carried on by any person other than a state or local governmental unit. (Use in a trade or business includes all activities carried on by the federal government (including its agencies and instrumentalities), by so-called Section 501(c)(3) organizations and by all other nongovernmental entities other than natural persons, but does not include use as a member of or on the same basis as the general public.) The Town does not have or plan to have any contract or other arrangement not applicable to the general public under which a party, other than the Commonwealth or a local governmental unit, is to have the use of the Project or is to make payments based on costs of the Project rather than system costs.
(e) Private Loans. None of the gross proceeds of the Note are to be used by the Town directly or indirectly to make or finance loans to others. (The foregoing representation does not preclude the financing of a Project whose costs are to be paid by betterment assessments over a period of years.)
-3- We, the members of the Select Board, the Treasurer and the Town Clerk, further certify as follows:
(a) Authorization, Execution and Delivery of Documents. The Financing Agreement, the Project Regulatory Agreement and the Note have been duly authorized, executed and delivered. None of those instruments has been amended or supplemented since its date (except such amendments or supplements which have been approved by the Trust or the Department, as applicable) or repealed and each such instrument remains in full force and effect as of this date.
(b) Open Meeting Law. Except for the town meetings called pursuant to G.L. c.39, §10, all proceedings essential to the issue of the Note and the authorization of the bonds and deliberations of a quorum relating thereto have been taken at a meeting or meetings open to the public; notice of each such meeting was filed in my office and publicly posted in the time and manner set forth in the General Laws, as amended, in effect at the time of each such meeting (Chapter 39, §23B for proceedings occurring prior to July 1, 2010 and Chapter 30A, §§18-25 for proceedings occurring on or after July 1, 2010) and as further suspended, supplemented, amended or modified by the Executive Order of the Governor of The Commonwealth of Massachusetts Suspending Certain Provisions of the Open Meeting Law, Chapter 30A, §20 dated March 12, 2020 (the “Executive Order”) or, if applicable, in accordance with an alternative method of notice prescribed or approved by the Attorney General as set forth in 940 CMR 29.03(2)(b); no deliberations, decision or vote in connection with the Note or bonds were taken in executive session and no vote was taken by secret ballot; and the official record of each such meeting was made available to the public and remains available to the public as set forth in G.L. c.39, §23B or c.30A, §§18-25, as further suspended, supplemented, amended or modified by the Executive Order, as applicable.
(c) Signatures and Incumbency. The signatures of the member of the Select Board and the Treasurer as appearing below are the genuine, electronic, or facsimile signatures of the persons who held those offices when the Agreements and the Note were signed and when they were delivered.
(d) Proceedings. No proceeding essential to the execution, delivery or issue of the Agreements and the Note has been repealed or amended except as stated in paragraph (1) above, and no proceedings have been taken relating to the Agreements and the Note other than those certified to Locke Lord LLP.
(e) Bylaws. The bylaws or votes described below are the only bylaws or standing votes of the Town affecting the authorization, sale or issue of the Note, or the authorization, execution or delivery of the Agreements, and there has been no change therein affecting those matters in any way except as may be indicated below:
Town of Orleans, Massachusetts By-Laws, as certified to Locke Lord LLP on October 9, 2020.
-4- (f) Home Rule. The Town has not further amended its home rule charter adopted May 6, 1987, as amended through June 23, 2020, and the Town has not amended or repealed any special law relating to the Town through the use of home rule procedures except by adoption of the charter.
(g) Development Districts. The Town has not established any development districts pursuant to G.L. c.40Q.
(h) Select Board Vote. Attached hereto is a true copy of the Select Board Vote, which has not been amended or repealed and remains in full force and effect on this date.
[The balance of the page is intentionally left blank.]
-5-
8. Execution of Counterparts and Delivery by Electronic Means. This certificate, as well as any other certificates or documents relating to the Note (collectively, the “Documents”), may be executed in several counterparts, each of which shall be regarded as an original and all of which shall constitute one and the same document. Delivery of an executed counterpart of a signature page to a Document by electronic mail in a “.pdf” file or by other electronic transmission shall be as effective as delivery of a manually executed counterpart signature page to such Document. Electronic signatures on any of the Documents shall be deemed original signatures for the purposes of the Documents and all matters relating thereto, having the same legal effect as original signatures.
Dated: (Date of delivery of and payment for the Note - to be left blank until delivery)
______Treasurer
______
______Town Clerk
______
______Select Board (Town Seal)
83875902v.1
-6- No. 1 $59,409,200
United States of America The Commonwealth of Massachusetts
TOWN OF ORLEANS INTERIM LOAN NOTE
PRINCIPAL AMOUNT: Fifty-Nine Million Four Hundred Nine Thousand Two Hundred Dollars
The Town of Orleans, Massachusetts (the “Borrower”), for value received, promises to pay to the Massachusetts Clean Water Trust (the “Trust”), upon presentation and surrender hereof, the Principal Amount specified above, or such lesser amount as shall have been advanced from time to time to the Borrower on account of this note in accordance with the Financing Agreement hereinafter referred to, on the Closing Date (as defined in the Financing Agreement) at the principal corporate trust office of U.S. Bank National Association, in the City of Boston, Massachusetts. The date and amount of each advance made on account of this note shall be endorsed on the Schedule of Advances on the reverse hereof by an authorized officer of the Trust. No interest shall accrue and be payable on the Principal Amount of this note.
This note is issued pursuant to Chapter 29C and Chapter 44 of the General Laws as amended for the purpose of financing costs of a water pollution abatement project in anticipation of the proceeds of a loan to the Borrower under and pursuant to Financing Agreement No. CW- 19-33 dated as of August 5, 2020 between the Trust and the Borrower (the “Financing Agreement”). This note shall mature on the Closing Date (as defined in the Financing Agreement) and is a general obligation of the Borrower and the full faith and credit of the Borrower are pledged to the payment of the principal of this note.
Dated: November 1, 2020 TOWN OF ORLEANS, MASSACHUSETTS
By: ______Treasurer
Countersigned:
______
______
______
______
______Select Board
(TOWN SEAL)
SCHEDULE OF ADVANCES
Signature of Date Amount Authorized Officer of the Trust
______
______
______
______
______
______
______
______
______
______
______
______
83875971v.1
VOTE OF THE SELECT BOARD
I, the Clerk of the Select Board of the Town of Orleans, Massachusetts, certify that at a meeting of the board held November 4, 2020, of which meeting all members of the board were duly notified and at which a quorum was present, the following vote was passed, all of which appears upon the official record of the board in my custody:
VOTED: (1) that the Town shall issue a bond or bonds in an aggregate principal amount not to exceed $59,600,800 (the “Bonds”) pursuant to Chapters 29C and 44 of the General Laws and votes of the Town passed May 13, 2019 (Article 16)), which authorized a total borrowing of $47,382,800, and June 20, 2020 (Article 42), which authorized a total borrowing of $12,218,000, for the construction of sewers and other water pollution control facilities identified in such votes (the “Project”);
(2) that in anticipation of the issuance of the Bonds the Treasurer is authorized to issue an interim loan note or notes (the “Notes”) from time to time in an aggregate principal amount not to exceed $59,600,800;
(3) that each Bond or Note shall be issued as a single registered security, and sold to the Massachusetts Clean Water Trust (the “Trust”) at a price determined pursuant to the Financing Agreement;
(4) that the Treasurer is authorized to determine the date, the form, the maximum interest rate and the principal maturities of each Bond and Note, and to execute a Financing Agreement (or Agreements) with the Trust with respect to the sale of the Bonds and Notes, such date, form and maturities and the specific interest rate or rates of the Bonds and Notes to be approved by a majority of the Select Board and the Treasurer and evidenced by their execution of the Bonds or Notes;
(5) that any certificates or documents relating to each Bond and Note (collectively, the “Documents”), may be executed in several counterparts, each of which shall be regarded as an original and all of which shall constitute one and the same document; delivery of an executed counterpart of a signature page to a Document by electronic mail in a “.pdf” file or by other electronic transmission shall be as effective as delivery of a manually executed counterpart signature page to such Document; and electronic signatures on any of the Documents shall be deemed original signatures for the purposes of the Documents and all matters relating thereto, having the same legal effect as original signatures
(6) that all action taken to date by the Town and its officers and agents to carry out the Project and its financing, including the execution of any loan commitment or agreement by the Treasurer, are hereby ratified, approved and confirmed; and
(7) that the Treasurer and the other appropriate Town officials are each hereby authorized to take any and all actions necessary or convenient to carry out the provisions of this vote, including execution and delivery of the Financing Agreement(s) and the Project Regulatory Agreement(s) relating to the Project.
I further certify that the vote was adopted at a meeting open to the public, that no vote was taken by secret ballot, that notice stating the place, date, time and agenda of the meeting (which agenda included the adoption of the above vote) was filed with the Town Clerk and a copy thereof posted in a manner conspicuously visible to the public at all hours in or on the municipal building that the office of the Town Clerk is located or, if applicable, in accordance with an alternative method of notice prescribed or approved by the Attorney General as set forth in 940 CMR 29.03(2)(b), at least 48 hours, not including Saturdays, Sundays and legal holidays, prior to the time of the meeting and remained so posted at the time of the meeting, that no deliberations or decisions in connection with the sale of the Bonds or Notes were taken in executive session, and that the official record of the meeting was made available to the public promptly and remains available to the public, all in accordance with G.L c.30A, §§18-25, , as amended, further suspended, supplemented or modified by the Executive Order of the Governor of The Commonwealth of Massachusetts Suspending Certain Provisions of the Open Meeting Law, Chapter 30A, §20 dated March 12, 2020. I further certify that the vote has not been amended, supplemented or revoked and remains in effect on this date.
Dated: November 4, 2020 ______Clerk of the Select Board
83875890v.1
TERMS AND CONDITIONS
TO THE
MASSACHUSETTS CLEAN WATER TRUST
FINANCING AGREEMENT
The following Terms and Conditions are a part of and incorporated into each Financing Agreement (“Financing Agreement”) entered into by and between the Massachusetts Clean Water Trust (together with its successors and assigns, the “Trust”) and each borrower (“Borrower”) pursuant to which the Trust provides financial assistance.
Section 1. Definitions. All capitalized, undefined terms used in these Terms and Conditions and in the Financing Agreement shall have the same meanings given such terms in Section 1 of the Enabling Act and words importing the singular number shall include the plural number and vice versa. In addition, the following words and phrases shall have the following meanings:
“Additional Security” means any additional or special security for the Loan made or Local Governmental Obligations purchased by the Trust, and any moneys, revenues, property, or rights pledged, transferred, or otherwise made available to secure repayment of such Loan or Local Governmental Obligations, including any security agreement, resolution, indenture, trust agreement, pledge, deed, mortgage, or other instrument of security, all as described in Schedule B of the Financing Agreement;
“Administrative Fee” means the fee for the administrative expenses of the Trust relating to the Loan made or Local Governmental Obligations purchased by the Trust calculated as set forth in Schedule A of the Financing Agreement and payable on the Repayment Dates and in the amounts set forth in Schedule C of the Financing Agreement (as such schedule may be amended from time to time in accordance herewith);
“Applicable Authority” means the general or special laws of the Commonwealth or other governing instrument of the Borrower, identified in Schedule A of the Financing Agreement;
“Application” means an application submitted by the Borrower to the Trust and the Department for financial assistance for all or any part of the Costs of the Project, as more fully described in the related Project Approval Certificate;
“Authorized Officer” means the officer or officers of the Borrower, the Trust or the Department, as the case may be, identified in Schedule A of the Financing Agreement;
“Bond Purchase Obligation” shall have the meaning set forth in the recitals to the Financing Agreement;
“Bonds” means the bonds, if any, issued by the Trust that fund or are secured, in part, by the Loan made or Local Governmental Obligations purchased by the Trust and payments to be
1 Terms & Conditions March 2020
made by the Borrower under the Financing Agreement, all as more fully described in the Master Trust Agreement and the applicable Supplemental Master Trust Agreement;
“Business Day” means any day other than a Saturday, a Sunday or any other day on which banks doing business in the Commonwealth are authorized or required to be closed for business;
“Closing Date” shall have the meaning given such term in Section 6 hereof;
“Code” means the Internal Revenue Code of 1986, as amended, and all Treasury Regulations promulgated thereunder to the extent applicable to the Loan, the Bonds or the Local Governmental Obligations;
“Continuing Disclosure Agreement” means the agreement, if any, between the Borrower and the Trust or, as applicable, the trustee under any Borrower’s bond resolution or trust agreement, as it may be amended from time to time, under which the Borrower agrees for the benefit of the owners of the Bonds to provide annual reports and notices of certain events in order to assist the underwriters of the Bonds to comply with the provisions of Rule 15c2-12(b)(5) adopted by the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended;
“Department” means the Department of Environmental Protection of the Commonwealth, or any body, agency, officer, or other instrumentality of the Commonwealth that shall hereafter succeed to the powers, duties, and functions of the Department as they relate to the purposes of the Trust under the Enabling Act;
“DEP Regulations” means the regulations of the Department applicable to the Program appearing in 310 CMR 44.00 and, as applicable, 310 CMR 15.00, in each case as such regulations may be amended from time to time;
“Discount Rate” means a rate of interest equal to the “Bond Buyer 20 Bond Index” rate on the date of the Department’s determination that certain costs of the Project are ineligible for financial assistance, pursuant to section 4(c) hereof;
“Drinking Water Revolving Fund” means the fund established and set up on the books of the Commonwealth in accordance with Section 2QQ of Chapter 29 of the General Laws of the Commonwealth;
“Enabling Act” means Chapter 29C of the General Laws, as amended from time to time, under which the Trust is organized and established for the purpose of assisting Eligible Borrowers in the Commonwealth to initiate, acquire, construct, improve, maintain and operate Water Pollution Abatement Projects and Drinking Water Projects;
“Event of Default” means any of the events or circumstances specified in Section 9(a) hereof;
“Federal Act” means, as applicable, (i) Title VI of the Federal Water Pollution Control Act (Pub. L. 92-500, commonly known as the Clean Water Act), as amended by the Federal
2 Terms & Conditions March 2020
Clean Water Act of 1987 (Pub. L. 100-4), as the same may be further amended from time to time, and all regulations of the United States Environmental Protection Agency applicable thereto as amended from time to time; or (ii) Title XIV of the Federal Public Health Service Act (commonly known as the Safe Drinking Water Act), as amended by the Safe Drinking Water Act Amendments of 1996 (Pub. L. 104-182), as the same may be further amended from time to time, and all regulations of the United States Environmental Protection Agency applicable thereto as amended from time to time;
“Federal Capitalization Grant” means amounts provided to the Trust under one or more agreements between the Trust and the United States of America acting by and through the United States Environmental Protection Agency to be applied in accordance with the applicable Federal Act to fund Loans made, or Local Governmental Obligation purchased, by the Trust:
“Fiscal Year” means the period beginning on July 1 in any year and ending on June 30 in the next succeeding year;
“Initial Obligation Amount” means the amount set forth as the Initial Obligation Amount in Schedule C to the Financing Agreement;
“Interest Rate” means the rate so designated and set forth in Schedule A of the Financing Agreement;
“Interim Loan” shall have the meaning given such term in Section 10 hereof;
“Interim Loan Interest Rate” means the rate, if any, so designated and set forth in Schedule A of the Financing Agreement;
“Interim Loan Note” shall have the meaning given such term in Section 10 hereof;
“Interim Loan Project Account” means the portion allocable to the Project of the applicable Interim Loan Accounts established pursuant to the Master Trust Agreement;
“Local Bond Counsel” means an attorney or firm of attorneys (who may be counsel to any party under the Financing Agreement) of nationally recognized standing in connection with the issuance of obligations similar to the Local Governmental Obligations, selected by the Borrower and satisfactory to the Trust;
“Master Trust Agreement” means the Master Trustee Agreement dated as of January 1, 2015 between the Trust and U.S. Bank National Association, as Master Trustee (the “Master Trustee”);
“Origination Fee” means the fee for the expenses of the Trust relating to the origination of the Loan made or the purchase of the Local Governmental Obligations by the Trust, payable in the amount and on the Payment Date set forth in Schedule C of the Financing Agreement (as such schedule may be amended from time to time in accordance herewith), but in no event shall such fee be greater than 2.6% of the Initial Obligation Amount;
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“Payment Dates” means January 15 and July 15 of each year (commencing on the first such date indicated on Schedule C of the Financing Agreement) or, if any such day is not a Business Day, the next succeeding Business Day;
“Payments” means the payments to be made by the Borrower in repayment of the Loan or the Local Governmental Obligations, as applicable, and the interest, if any, payable thereon, which payments shall be made on the Payment Dates and in the amounts set forth in Schedule C of the Financing Agreement (as such schedule may be amended from time to time in accordance herewith);
“Participating Members” means all cities, towns, districts, commissions or other political subdivisions or instrumentalities of the Commonwealth, if any, which are members of the Borrower or which, by law, contract or otherwise, are service recipients of a System;
“Prepayments” means all payments made by or for the account of the Borrower which reduce or eliminate the principal balance due on the Loan or the Local Governmental Obligations, as applicable, by reason of the prepayment of all or any part of the principal prior to the due date thereof;
“Principal Obligation” means, at any time of calculation, the aggregate unpaid principal amount of the Loan or the Local Governmental Obligations, as applicable, which shall equal the Initial Obligation Amount less all Payments and all Prepayments on account of the principal amount thereof then or theretofore made or provided for by or for the account of the Borrower and received by or for the account of the Trust;
“Program” means the financial assistance program of the Trust established pursuant to the Enabling Act as more fully described in the Master Trust Agreement;
“Project” means each of the Water Pollution Abatement (including, without limitation, any Title 5 Project) or Drinking Water Projects of the Borrower identified in Schedule A of the Financing Agreement and more fully described in the applicable Project Approval Certificate, as the same may be amended from time to time as provided in the related Project Regulatory Agreement;
“Project Account” means the portion allocable to the Project of the Project Fund established pursuant to the Master Trust Agreement;
“Project Approval Certificate” means a certificate issued by the Department in accordance with the Enabling Act and the DEP Regulations approving a Project and the costs thereof to be financed or refinanced by the Loan or Local Governmental Obligations, as more fully described in Schedule A of the Financing Agreement;
“Project Completion Certificate” means the Project Completion Certificate delivered by the Borrower pursuant to the applicable Project Regulatory Agreement;
“Project Cost” or “Costs” means any cost of a Project approved by the Department pursuant to the Enabling Act, the applicable Federal Act and/or the DEP Regulations for
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payment or reimbursement from proceeds of the Loan or an Interim Loan, as applicable, as more fully described in the applicable Project Regulatory Agreement;
“Project Regulatory Agreement” means an agreement between the Department and an Eligible Borrower, executed and delivered to the Trust by such Borrower concurrently with the execution and delivery of the Financing Agreement associated with a Loan made or Local Governmental Obligation purchased to finance a Project approved by the Department; that contains provisions relating to the Department’s regulation and supervision of the Project in accordance with 301 CMR 45.00;
“Supplemental Master Trust Agreement” means any of the supplements to the Master Trust Agreement providing for the issue of Bonds by the Trust.
“System” shall mean the water pollution abatement facilities or drinking water facilities under the control of the Borrower, as identified, if applicable, in Schedule A of the Financing Agreement, and all improvements and additions thereto including, without limitation, the Project;
“Title 5 Project” means a Project for which the Borrower has developed, or been requested by its Participating Members to administer, a community septic management program, constituting a Water Pollution Abatement Project within the meaning of the Enabling Act, to assist eligible homeowners to upgrade failing septic systems and otherwise to comply with the requirements of 310 CMR 15.00 et seq. (“Title 5”) through underlying betterment agreements with such homeowners; and
“Water Pollution Abatement Revolving Fund” means the fund established and set up on the books of the Commonwealth in accordance with Section 2L of Chapter 29 of the General Laws of the Commonwealth.
Section 2. Representations. (a) The Borrower represents and warrants to the Trust as follows:
i) The Borrower is a Local Governmental Unit or other Eligible Borrower, as defined in the Enabling Act, with full legal right and authority under the Enabling Act and the Applicable Authority to authorize, execute, and deliver the Financing Agreement and each Project Regulatory Agreement, to execute, issue and deliver the Local Governmental Obligations, or other evidence of indebtedness, to undertake each Project, to operate its System, if any, and to carry out and consummate all transactions contemplated by the foregoing;
ii) The Borrower and, to the extent required by the Enabling Act or the Applicable Authority, each Participating Member thereof, if any, has duly and validly authorized the execution and delivery of the Financing Agreement, each Project Regulatory Agreement, and the Local Governmental Obligations, or other evidence of indebtedness, and all approvals, consents, and other governmental or corporate proceedings necessary for the execution and delivery of any of the foregoing or required to make them the legally binding obligations of the Borrower that they purport to be, in accordance with their terms, have been obtained or made;
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iii) No action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, other than as disclosed to the Trust and the Department, is pending or, to the knowledge of the Authorized Officers of the Borrower executing the Financing Agreement, threatened (1) seeking to restrain or enjoin the execution and delivery of the Financing Agreement, any Project Regulatory Agreement, any Additional Security, or the Local Governmental Obligations, or other evidence of indebtedness, or the construction or operation of any Project or (2) contesting or affecting the validity of the Financing Agreement, any Project Regulatory Agreement, any Additional Security, or the Local Governmental Obligations, or other evidence of indebtedness, or the power of the Borrower and, to the extent provided by law, each Participating Member thereof, if any, to pledge and apply any revenues or to assess and collect, as applicable, betterments, taxes, rates and charges to pay such Payments and all other costs and expenses of any Project and the System, if any; and neither the corporate existence of the Borrower nor the title to office of any Authorized Officer of the Borrower executing the Financing Agreement, any Project Regulatory Agreement, any Additional Security, or the Local Governmental Obligations, or other evidence of indebtedness, is being contested;
iv) The authorization, execution and delivery of the Financing Agreement, each Project Regulatory Agreement, any Additional Security, and the Local Governmental Obligations, or other evidence of indebtedness, and performance of each thereof, will not constitute a breach of, or a default under, any law, ordinance, resolution, agreement, indenture or other instrument to which the Borrower is a party or by which it or any of its properties is bound; and
v) The Financing Agreement, the Loan and any Additional Security are, and when executed and delivered the Local Governmental Obligations, or other evidence of indebtedness, if any, will be, (1) valid general obligations of the Borrower, for the payment of which its full faith and credit are and will be pledged, enforceable in accordance with their terms and the terms of the Enabling Act and the Applicable Authority, and payable as to principal, premium, if any, and interest (to the extent not paid from other sources) from (a) taxes which may be levied upon all taxable property within the territorial boundaries of the Borrower, subject only to the limit imposed by Chapter 59, Section 21C of the General Laws of the Commonwealth to the extent applicable to the Local Governmental Obligations, provided that taxes levied on certain taxable property located within a development district, if any, established by the Borrower pursuant to Chapter 40Q of the General Laws may be restricted and unavailable to pay debt service on the Local Governmental Obligations or (b) sums which may be annually apportioned and assessed by the Borrower on its Participating Members pursuant to the Applicable Authority, or (2) valid obligations of the Borrower, enforceable in accordance with their terms and the terms of the Enabling Act and the Applicable Authority, payable from any Additional Security and secured by a valid pledge of and lien on and perfected security interest in such Additional Security, all to the extent provided therein and in Schedule B to the Financing Agreement.
(b) The Trust represents and warrants to the Borrower as follows:
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i) The Trust has the full legal right and authority under the Enabling Act to authorize, execute and deliver the Financing Agreement;
ii) The Trust has duly and validly authorized the execution of the Financing Agreement; and, at or prior to the Closing Date, all approvals, consents, and governmental proceedings necessary to make the execution and delivery of the Financing Agreement the legally binding obligation of the Trust have been obtained or completed;
iii) No action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body is pending or, to the knowledge of the Authorized Officers of the Trust executing the Financing Agreement, threatened seeking to restrain or enjoin the execution and delivery of the Financing Agreement, or contesting or affecting the validity thereof or hereof; and neither the existence of the Trust nor the title to office of any Trustee of the Trust or any Authorized Officer of the Trust executing the Financing Agreement is being contested;
iv) The authorization, execution and delivery of the Financing Agreement, and performance thereof, will not constitute a breach of, or a default under, any law, resolution, agreement, indenture or other instrument to which the Trust is a party or by which it is bound; and
v) The Financing Agreement is a valid obligation of the Trust, enforceable in accordance with its terms and the terms of the Enabling Act.
Section 3. The Loan or Bond Purchase Obligation. (a) On the terms and conditions provided herein, in the Financing Agreement, and in the Project Regulatory Agreement, the Trust hereby agrees (i) to make and disburse the Loan to the Borrower and the Borrower agrees to accept the Loan or (ii) to purchase the Local Governmental Obligations from the Borrower and the Borrower agrees to issue and sell the Local Governmental Obligations to the Trust, in each case in an aggregate amount equal to the Initial Obligation Amount; provided, however, that if the Project Regulatory Agreement is revoked or otherwise terminated by the Department for any reason prior to the disbursement of proceeds of the Loan to the Borrower or the purchase of the Local Governmental Obligations from the Borrower, then the obligation of the Trust to make and disburse the Loan to the Borrower, including without limitation the obligation of the Trust to make and disburse any Interim Loan or to purchase the Local Governmental Obligations from the Borrower, shall be null and void and the Financing Agreement shall terminate. For purposes of compliance with provisions of the applicable Federal Act restricting the use of moneys within the Water Pollution Abatement Revolving Fund and the Drinking Water Revolving Fund, any Local Governmental Obligations purchased pursuant to a Bond Purchase Obligation shall be deemed to be held for the credit of the Water Pollution Abatement Revolving Fund.
(b) In addition to the conditions provided in Section 6 hereof, the Borrower acknowledges that the obligation of the Trust to make the Loan or to purchase the Local Governmental Obligations and to disburse the proceeds thereof to the Borrower in whole or in part as provided in Section 7 hereof is conditional upon the receipt by the Trust on or before such date of moneys available to the Trust for such purpose in amounts sufficient to fund the amount
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of the Loan to be disbursed on such date. Subject to compliance with the applicable Federal Act, the Enabling Act and the Master Trust Agreement, the Trust shall draw upon and apply such lawfully available funds as promptly as practicable and as lawfully permitted and shall deposit or cause the Master Trustee to deposit the amounts so received or so much thereof as the Trust shall direct in the Project Accounts at the times and in the amounts directed by the Trust until the aggregate amount so deposited equals the Initial Obligation Amount (or such lesser amount). Amounts deposited in the Project Accounts shall be applied as provided herein and in the Master Trust Agreement.
(c) The Borrower agrees to issue and deliver the Local Governmental Obligations, or other evidence of indebtedness, to the Trust on the Closing Date in aggregate principal amount equal to the Initial Obligation Amount. Subject to Section 11 hereof, the Local Governmental Obligations, or other evidence of indebtedness, shall be issued in such form as shall be approved by the Trust and shall be payable on the Payment Dates and in the aggregate amounts as to principal and interest corresponding to the Payments required under the Financing Agreement. Except as otherwise provided in Section 4 hereof, the Principal Obligation, and the corresponding principal amount of the Local Governmental Obligations, or other evidence of indebtedness,, shall mature and bear interest in the amounts for each Payment specified in Schedule C of the Financing Agreement.
(d) Each Payment made by or for the account of the Borrower under the Financing Agreement shall satisfy the corresponding obligation of the Borrower to pay the principal and interest, if any, then due on the Local Governmental Obligations, or other evidence of indebtedness, as the same becomes due on the applicable payment dates therefor, and each payment of principal and interest made by the Borrower on the Local Governmental Obligations, or other evidence of indebtedness, shall satisfy the obligation of the Borrower to pay the corresponding Payment then due under the Financing Agreement.
(e) Unless otherwise provided in the Local Governmental Obligations, or other evidence of indebtedness, the obligation of the Borrower to pay on each Payment Date the Payments then due in accordance with the Financing Agreement and the principal and interest, if any, then due on the Local Governmental Obligations, or other evidence of indebtedness, is (i) a general obligation of a Local Governmental Unit Borrower payable, as to principal, premium, if any, and interest (to the extent not paid from other sources) from (1) taxes which may be levied upon all taxable property within the territorial boundaries of the Borrower, subject only to the limit imposed by Chapter 59, Section 21C of the General Laws of the Commonwealth to the extent applicable to the Local Governmental Obligations, provided that taxes levied on certain taxable property located within a development district, if any, established by the Borrower pursuant to Chapter 40Q of the General Laws may be restricted and unavailable to pay debt service on the Local Governmental Obligations or (2) sums which may be annually apportioned and assessed by the Borrower on its Participating Members pursuant to the Applicable Authority, or (ii) a general or special obligation of an Eligible Borrower payable from any Additional Security as set forth therein or in the Financing Agreement and secured by a valid pledge of and lien on and perfected security interest in any Additional Security, all as provided in Schedule B to the Financing Agreement.
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Section 4. Payments. (a) Except as otherwise provided in this Section 4, the Principal Obligation shall be repaid by the Borrower, and Payments on account of such Principal Obligation and interest thereon, if any, shall be payable by the Borrower, on the Payment Dates and in the amounts set forth in Schedule C of the Financing Agreement. In addition to such Payments payable under the Financing Agreement, the Borrower shall pay to the Trust the Administrative Fee and the Origination Fee on the Payment Dates and in the amounts set forth in Schedule C of the Financing Agreement, which fees shall be subject to annual appropriation by the Borrower. The Trust and the Borrower acknowledge and agree that the schedule of Payments set forth in Schedule C of the Financing Agreement results in the Loan being the financial equivalent of a loan to the Borrower at the Interest Rate.
(b) The Trust shall provide the Borrower with written notice of each Payment, Administrative Fee and the Origination Fee due under the Financing Agreement not less than ten (10) Business Days in advance of the applicable Payment Date (provided failure by the Trust to provide such notice or any defect therein shall not diminish the obligation of the Borrower to pay such Payment, Administrative Fee and the Origination Fee in the amounts and at the time provided herein). On or prior to each Payment Date, the Borrower shall pay to, the Master Trustee for the account of the Trust, by wire transfer to such account or otherwise in such manner as the Trust may from time to time designate to the Borrower, (i) the Payment then due as set forth in Schedule C of the Financing Agreement, as such schedule may be amended from time to time as provided in this Section 4, and (ii) the Administrative Fee due on such Payment Date set forth in said Schedule C, and (iii) on the first Payment Date, the Origination Fee then due on the Loan or Local Governmental Obligations set forth in said Schedule C. Except as otherwise provided in Section 9(e) hereof, all such payments made by the Borrower under the Financing Agreement shall be applied, first, to the interest, if any, on the Loan or Local Governmental Obligations then due and payable, second, to the principal amount of the Loan then due and payable, third, to the Administrative Fee then due and payable and, fourth, to the Origination Fee then due and payable. Any portion of a Payment or Administrative Fee or Origination Fee not paid in full when due shall bear interest under the Financing Agreement until paid at twelve percent (12%) per annum.
(c) The Borrower acknowledges that the Department, in the exercise of its audit procedures under each Project Regulatory Agreement, may reclassify certain Project Costs paid from amounts deposited in a Project Account as ineligible for financial assistance under Section 6 of the Enabling Act. In such event, unless the Borrower shall elect to repay such amount to the Project Account as hereinafter provided, on and after the date of such determination by the Department, a portion of the Principal Obligation (determined on a Pro-Rata Basis as hereinafter defined), equal to the amount of such ineligible Project Costs, shall bear interest at the Discount Rate at the time of such determination. As used in this Paragraph (c), the term “Pro-Rata Basis” means the portion of each Payment allocable to the principal amount of the Loan payable under the Financing Agreement subsequent to the date of a determination by the Department as described in this Paragraph (c) as is equal, as nearly as practicable, to the ratio by which the amount of ineligible Project Costs paid from the applicable Project Account bears to the total Principal Obligation then outstanding. Upon any such occurrence the Trust shall recalculate the Payments thereafter payable with respect to the Loan, shall certify such amounts to the Borrower and shall amend Schedule C of the Financing Agreement to reflect the increased Payments thereafter payable under the Financing Agreement, and shall surrender the Local Governmental
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Obligations, or other evidence of indebtedness, to the Borrower in exchange for an amended or substitute Local Governmental Obligations, or other evidence of indebtedness, reflecting such change in Payments. Notwithstanding the foregoing, within thirty (30) Business Days of receipt by the Borrower from the Department or the Trust of written notice that an amount of Project Costs paid from a Project Account has been determined by the Department pursuant to the applicable Project Regulatory Agreement to be ineligible for financial assistance under Section 6 of the Enabling Act, the Borrower may (and shall upon demand of the Department with respect to any such amount determined by the Department to be ineligible for funding under the applicable Federal Act) repay such amount to the Trust for redeposit in the Project Account and the amount so repaid shall be deemed to not have been disbursed from the Project Account for ineligible Project Costs for purposes of this Paragraph (c).
(d) The Borrower further acknowledges that the Department, in the exercise of its rights under the Project Regulatory Agreement, may terminate the Project Regulatory Agreement after disbursement to the Borrower of some or all of the amounts deposited in a Project Account. In such event, the obligation of the Trust to disburse amounts on deposit in a Project Account to the Borrower shall terminate and the Borrower shall repay to the Trust the amount theretofore disbursed from the Project Account within thirty (30) days of receipt by the Borrower from the Trust of written notice that the Project Regulatory Agreement has been terminated by the Department and, until so repaid, such amount shall bear interest at the Interest Rate.
(e) Notwithstanding any provision of the Financing Agreement to the contrary, the Borrower and the Trust acknowledge and agree that Schedule C of the Financing Agreement incorporates a schedule of Payments calculated based on the assumption that the Closing Date will be the date indicated in Schedule A of the Financing Agreement. If the Closing Date is different from the date indicated in said Schedule A, the Trust will amend Schedule C to the Financing Agreement (and deliver to the Borrower a copy thereof together with the notice of change in the Closing Date the Trust is required to provide to the Borrower pursuant to Section 6(a) hereof) to adjust the Payments to take into account the actual Closing Date and the accrual of interest on the Loan or Local Governmental Obligations from such date.
(f) Notwithstanding anything in the Financing Agreement or in the Project Regulatory Agreement to the contrary, all amounts received by the Borrower on or after the Closing Date in payment or prepayment of the obligations of homeowners under the underlying betterment agreements made in connection with a Title 5 Project shall be applied by the Borrower either (i) to assist eligible homeowners to upgrade failing septic systems and otherwise to comply with Title 5 through additional betterment agreements with homeowners, or (ii) to pay or provide for all or a portion of the Payments due on the Loan under the Financing Agreement.
Section 5. Prepayments. (a) The Principal Obligation shall not be subject to prepayment at the option of the Borrower prior to maturity without the prior written consent of the Trust.
(b) The Principal Obligation, and the corresponding principal amount of the Loan or the Local Governmental Obligations, shall be subject to prepayment in part to the extent of any balance remaining in a Project Account upon the receipt by the Trust of the applicable Project Completion Certificate as provided in Section 7(d) hereof at a prepayment price equal to (i) the Principal Obligation so prepaid plus interest, if any, accrued thereon to the prepayment date, plus
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(ii) an amount equal to all costs of the Trust incurred in connection with such prepayment (including without limitation trustee’s fees and expenses, reasonable attorney’s fees, and costs, if any, of any corresponding redemption of Bonds, if applicable).
(c) The Principal Obligation, and the corresponding principal amount of the Loan or the Local Governmental Obligations, shall be subject to prepayment at the request of the Trust in whole or in part upon not less than thirty (30) days’ notice to the Borrower to the extent of any balance remaining in a Project Account upon a date designated by the Trust, which date shall be not earlier than twenty (20) months or later than twenty-four (24) months following the Closing Date, at a prepayment price equal to the Principal Obligation so prepaid plus interest, if any, accrued thereon to the prepayment date. In the event that the Loan or Local Governmental Obligation is prepaid pursuant to this Section 5(c) and the Project has not been completed, the Trust shall, upon the request of the Borrower and approval of the Department, execute and deliver to the Borrower an additional Financing Agreement providing for a replacement loan, or the purchase by the Trust of a replacement Local Governmental Obligation from the Borrower, in a principal amount not greater than the Principal Obligation of the Loan or Local Governmental Obligation so prepaid and with a schedule of Payments thereon which will result in such replacement loan, in the case of a replacement loan, being the financial equivalent of a loan to the Borrower at the Interest Rate.
(d) Unless the Trust shall otherwise agree, any balance in a Project Account, and any Prepayment under the Financing Agreement of less than all of the Principal Obligation, shall be applied to the prepayment of the portion of each Payment that is allocable to the principal of the Loan or Local Governmental Obligations in accordance with the ratio that the amount of such Payment that is allocable to principal bears to the aggregate amount of all Payments that are allocable to principal. Upon any prepayment of the Loan or Local Governmental Obligations in part, the Trust shall amend the schedule of Payments set forth in Schedule C to the Financing Agreement to reflect such prepayment.
Section 6. Closing. (a) In addition to the conditions provided in Section 3 of these Terms and Conditions, the obligation of the Trust to make and fund the Loan is expressly conditional upon the receipt by the Trust on or before the Closing Date (which date shall be the date set forth in Schedule A of the Financing Agreement or such earlier or later date as may be designated by the Trust by written notice delivered to the Borrower not less than twenty (20) days prior to such earlier date or, if the Closing Date is to be a later date, not less than twenty (20) days prior to the date set forth in Schedule A of the Financing Agreement) of the following, each in form and substance satisfactory to the Trust:
i) Copies, certified by an Authorized Officer of the Borrower, of all governmental or corporate proceedings of the Borrower authorizing the Loan or issuance of the Local Governmental Obligations and the execution and delivery of the Financing Agreement, each Project Regulatory Agreement and the Local Governmental Obligations, or other evidence of indebtedness;
ii) A certificate or certificates of Authorized Officers of the Borrower confirming as of the Closing Date the representations and warranties of the Borrower in Section 2 hereof;
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iii) A certificate of Authorized Officers of the Borrower as to the due authorization, execution and delivery of the Financing Agreement, each Project Regulatory Agreement, any Additional Security, and the Local Governmental Obligations, or other evidence of indebtedness, and to the effect that (x) none of the foregoing instruments have been amended or supplemented since their date (except such amendments or supplements which have been approved by the Trust or the Department, as applicable, or which under the terms of the applicable instrument may be executed and delivered or adopted by the Borrower without the consent of the Trust or the Department) or repealed and that each such instrument remains in full force and effect as of the Closing Date, and (y) as of the Closing Date, no Event of Default or Default, as applicable, and no event which with the passage of time or the giving of notice may become or may be declared to be an Event of Default or a Default, shall have happened and shall be continuing under the Financing Agreement or any Project Regulatory Agreement or any Additional Security;
iv) An opinion of Local Bond Counsel to the effect that the Financing Agreement, each Project Regulatory Agreement, any Additional Security and the Local Governmental Obligations, or other evidence of indebtedness, and the execution and delivery thereof, as applicable, have been duly authorized by the Borrower in accordance with the Applicable Authority; the Financing Agreement and each Project Regulatory Agreement and any Additional Security have been duly and validly executed and delivered by the Borrower, as applicable, and each constitutes a valid and binding obligation of the Borrower enforceable in accordance with its terms; the Local Governmental Obligations, or other evidence of indebtedness, and any Additional Security have been duly and validly executed by or on behalf of the Borrower and delivered to or upon the order of the Trust in accordance with the Financing Agreement and the Applicable Authority; and the Local Governmental Obligations, or other evidence of indebtedness, and any Additional Security constitute, as applicable, (1) valid and binding general obligations of the Borrower enforceable in accordance with their terms and payable as to principal, premium, if any, and interest (to the extent not paid from other sources) from (a) taxes which may be levied upon all taxable property within the territorial boundaries of the Borrower, subject only to the limit imposed by Chapter 59, Section 21C of the General Laws of the Commonwealth to the extent applicable to the Local Governmental Obligations, provided that taxes levied on certain taxable property located within a development district, if any, established by the Borrower pursuant to Chapter 40Q of the General Laws may be restricted and unavailable to pay debt service on the Local Governmental Obligations or (b) sums which may be annually apportioned and assessed by the Borrower on its Participating Members pursuant to the Applicable Authority, or (2) valid and binding obligations of the Borrower enforceable in accordance with their terms and the terms of any Additional Security and entitled to the benefits thereof and the Applicable Authority (in rendering the foregoing opinion, such counsel may take an exception on account of bankruptcy, insolvency and other laws affecting creditors’ rights generally and to the exercise of judicial discretion in accordance with general equitable principles);
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v) The Local Governmental Obligations, or other evidence of indebtedness, in such denominations and registered to such registered owners, as the Trust shall designate pursuant to Section 11 hereof;
vi) To the extent required under Section 8(f) hereof, a Continuing Disclosure Agreement, duly executed by the Borrower, in form and substance satisfactory to the Trust; and
vii) Such further instruments, certificates and opinions as the Trust or its counsel may reasonably request to confirm, as of the Closing Date, the truth and accuracy of the statements made herein and in each Application by the Borrower and compliance, as of the Closing Date, by the Borrower with the provisions hereof and of each Project Regulatory Agreement, the Enabling Act, the Applicable Authority, and the applicable Federal Act.
(b) In addition to any other conditions expressly provided herein, the obligation of the Borrower to accept the Loan and/or issue the Local Governmental Obligations, or other evidence of indebtedness, to the Trust on the Closing Date is expressly conditioned upon the delivery to the Borrower or to the Master Trustee, if applicable, on or before the Closing Date of the following, each to be in form and substance satisfactory to the Borrower and to be made available to the Borrower upon its request:
i) Copies, certified by an Authorized Officer of the Trust, of all governmental proceedings of the Trust authorizing the Loan and the execution and delivery of the Financing Agreement;
ii) A certificate or certificates of an Authorized Officer of the Trust confirming as of the Closing Date the representations and warranties of the Trust in Section 2 hereof; and
iii) An opinion or opinions of counsel to the Trust (who may also be counsel to the Borrower) to the effect that the Trust is duly created and validly existing under the Enabling Act and has the right and power thereunder to execute the Financing Agreement and, if applicable, to make the Loan; the Financing Agreement and the execution and delivery thereof by the Trust have been duly and lawfully authorized by the Trust; and that the Financing Agreement has been duly and lawfully executed and delivered by the Trust, is in full force and effect and is valid and binding on the Trust and enforceable in accordance with its terms (subject to bankruptcy, insolvency, reorganization, moratorium and other laws affecting creditors’ rights generally and to the exercise of judicial discretion in accordance with general equitable principles).
Section 7. Disbursement of Proceeds. (a) On the Closing Date the Trust shall credit to the payment of the principal of the Interim Loan, if any, such portion of the proceeds of the Loan or Local Governmental Obligations as shall be necessary to pay such principal in full after credit for any proceeds of the Interim Loan remaining on deposit on such date in any Interim Loan Project Account. Any proceeds of the Loan or Local Governmental Obligations remaining after payment of the principal of the Interim Loan, if any, shall be deposited in the Project Account
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and applied by the Trust to finance or refinance Costs of the Project as provided herein, in the related Project Regulatory Agreement and in the Master Trust Agreement. Only amounts on deposit in the Project Account representing moneys of the Trust deposited therein as provided in the Financing Agreement and the Master Trust Agreement shall be available to pay Costs of the Project. Amounts in the Project Account shall be invested by the Trust, and all earnings on investment or deposit of amounts in the Project Account shall be applied by the Trust as provided in the Master Trust Agreement. The Borrower shall have no interest in such earnings.
(b) So long as no Event of Default shall have happened and be continuing hereunder or under the Financing Agreement, but subject to Section 3(b) and Section 10 of these Terms and Conditions, within a reasonable period of time from receipt by the Trust of one or more requisitions in form satisfactory to the Trust signed by an Authorized Officer of the Borrower and approved by the Department as provided in the applicable Project Regulatory Agreement, the Trust shall disburse or direct the Master Trustee to disburse to or for the account of the Borrower as directed in such requisitions the amount or amounts set forth therein and approved by the Department solely to finance or, to the extent provided in the applicable Project Regulatory Agreement, refinance Costs of the applicable Project.
(c) Notwithstanding anything herein or in any Project Regulatory Agreement to the contrary, if all or any portion of the Project Costs financed under the Financing Agreement shall have been paid by the Borrower from the proceeds of outstanding notes or other temporary indebtedness issued or incurred in anticipation of the Loan or Local Governmental Obligations, any amount paid to the Borrower pursuant to this Section 7 in reimbursement for such Costs shall be held and applied by the Borrower (unless otherwise approved by the Trust) solely to pay or provide for the principal of such notes or other indebtedness when due in accordance with the Enabling Act and the Applicable Authority. The Borrower acknowledges that the Trust shall have no responsibility for the holding, investment or application of any amounts paid to or for the account of the Borrower for such purpose. Notwithstanding anything herein to the contrary if on the Closing Date any Interim Loan shall be outstanding and unpaid under Section 10 of the Financing Agreement, the Trust shall apply to the payment of the principal of the Interim Loan such portion of the proceeds of the Loan or Local Governmental Obligations as shall be necessary to pay such principal in full after credit for any proceeds of the Interim Loan remaining on deposit on such date in any Interim Loan Project Account allocable to the Borrower pursuant to Section 10.
(d) Upon receipt by the Trust of the Project Completion Certificate for a Project described in the related Project Regulatory Agreement, any balance remaining on deposit in the applicable Project Account not then payable to or for the account of the Borrower in accordance with the Project Completion Certificate shall be applied at the direction of the Borrower with the prior approval of the Trust to (i) additional Costs of the applicable Project upon amendment of the definition thereof approved by the Department or (ii) the prepayment of the Principal Obligation as provided in Section 5(b) hereof.
(e) Notwithstanding anything herein or in any Project Regulatory Agreement to the contrary, the Trust shall not be required to deposit in each Project Account established in accordance with the Financing Agreement an amount in the aggregate in excess of the eligible Costs of the applicable Project to be financed or refinanced by the Loan or the Local
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Governmental Obligations as set forth in the applicable Project Approval Certificate and the related Project Regulatory Agreement. In addition, the Trust shall not be required to make any deposits to a Project Account or to direct the Master Trustee to disburse therefrom any amount to or for the account of the Borrower while an Event of Default shall have occurred and be continuing hereunder or under the Financing Agreement or, if directed by the Department, while a Default (as defined in the related Project Regulatory Agreement) shall have occurred and be continuing under the related Project Regulatory Agreement. If an Event of Default shall have occurred and be continuing hereunder or under the Financing Agreement, the Trust may apply amounts on deposit in any Project Account to remedy such default as provided in Section 9(b) hereof and the amount available under the Financing Agreement for Project Costs will be correspondingly reduced.
Section 8. Particular Covenants of the Borrower. The Borrower covenants and agrees as follows:
(a) The Borrower is duly authorized under the Enabling Act, the Applicable Authority and all other applicable law to authorize the execution and delivery of the Financing Agreement, each Project Regulatory Agreement, any Additional Security, and the Local Governmental Obligations, or other evidence of indebtedness, to accept the Loan, to undertake each Project and to perform and consummate all transactions contemplated by the foregoing. For so long as the Loan or the Local Governmental Obligations shall be outstanding, the Borrower shall comply with the provisions hereof and each Project Regulatory Agreement and any Additional Security and all provisions of law applicable to the Loan, each Project, any Additional Security, and the Local Governmental Obligations, or other evidence of indebtedness, including without limitation the Enabling Act, the Applicable Authority, the applicable Federal Act and the DEP Regulations, and shall take all actions necessary to fulfill its obligations under the Financing Agreement and under any of the foregoing.
(b) At the date hereof and at the Closing Date, no mortgage, pledge, lien, security interest or other encumbrance exists or will exist in or upon, or is or will be otherwise outstanding with respect to (1) any Project or the System, if any, or any part thereof or (2) all or any part of, as applicable, the betterments, rates, charges or other revenues derived by the Borrower from its ownership and operation thereof or (3) any Additional Security. For so long as the Loan or the Local Governmental Obligations shall be outstanding, without the prior written consent of the Trust, the Borrower shall not mortgage, pledge, grant any lien on or security interest in or otherwise encumber or permit the encumbrance of, any Project or the System, if any, or, as applicable, the betterments, rates, charges or other revenues derived by the Borrower from its ownership and operation thereof or any part thereof or any Additional Security unless simultaneously therewith the Borrower shall grant to the Trust to further secure its obligations under the Financing Agreement and the Local Governmental Obligations, or other evidence of indebtedness, a mortgage, pledge, lien on or security interest in such property superior to such new encumbrance.
(c) The Borrower shall apply the proceeds of the Loan or the Local Governmental Obligations solely to the payment or reimbursement of Project Costs, or to the refinancing of the same as provided in each Project Regulatory Agreement, or as otherwise provided herein and in each Project Regulatory Agreement.
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(d) The Borrower acknowledges that by accepting the Loan or selling the Local Governmental Obligations it may be a sub-recipient of federal financial assistance under the federal Single Audit Act of 1984, as amended by the Single Audit Act Amendments of 1996 (the “SAA”). The Borrower further acknowledges that a Project financed or refinanced under the Financing Agreement may be designated by the Trust as a project to which the SAA shall apply. In such event, the Borrower shall conduct a single audit of its use of federal financial assistance for the Project in accordance with the reporting requirements of Office of Management and Budget Circular A-133. Whether or not a Project is so designated, for so long as the Loan or the Local Governmental Obligations shall be outstanding the Borrower shall maintain all records and accounts pertaining to the Loan or the Local Governmental Obligations, each Project and the System, if any, for such period and as otherwise required by the applicable Federal Act, the DEP Regulations and each Project Regulatory Agreement and shall furnish to the Trust and the Department all reports thereon at the times and in the form required by the applicable Federal Act, the DEP Regulations and each Project Regulatory Agreement or as otherwise reasonably requested by the Trust or the Department. The Borrower shall permit the Trust or any party designated by it upon reasonable prior notice to the Borrower to examine, visit and inspect each Project and the System, if any, and to inspect and make copies of any accounts, books and records of the Borrower pertaining to the Project, the System, if any, the Loan or the Local Governmental Obligations.
(e) If any Event of Default described in clause (i) of Paragraph (a) of Section 9 hereof shall occur and be continuing, the Borrower shall promptly upon request of the Trust provide such information to the Trust as shall be necessary for the Trust to exercise the rights provided in Section 11 of the Enabling Act with respect to the Local Aid Distributions of the Borrower and, as applicable, any Participating Member thereof and any parent governmental unit of the Borrower and any such Participating Member. In addition, the Borrower shall provide written notice to the Trust if at any time while the Loan is outstanding any Participating Member of the Borrower shall fail to pay to the Borrower all or any part of any assessment levied by the Borrower on account of any Payment and such failure shall not be cured within ten (10) Business Days of the due date of such assessment, such notice to be provided to the Trust no later than the close of business on the Business Day next preceding the expiration of such grace period.
(f) The Trust shall provide written notice to the Borrower if at any time the Borrower shall constitute an obligated person with respect to the Bonds within the meaning of Rule 15c2- 12(b)(5) adopted by the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended. Thereafter, for so long as the Borrower shall constitute an obligated person, the Borrower will comply with and carry out all of the provisions of the Continuing Disclosure Agreement applicable to it and the Local Governmental Obligations. The Trust shall have no liability to the owners of the Bonds or any other person with respect to such disclosure matters. Notwithstanding any other provision of the Financing Agreement, failure of the Borrower to comply with the Continuing Disclosure Agreement shall not be considered an Event of Default under the Financing Agreement; provided, however, that the Trust may (and at the request of the owners of at least 25% in aggregate principal amount of the Bonds outstanding shall), or any owner (including a beneficial owner) of the Bonds may, take such actions as may be necessary or appropriate, including seeking mandate or specific performance by court order, to cause the Borrower to comply with its obligations under this clause (f).
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(g) (i) With respect to a Project for construction that is not a Title 5 Project, the Borrower agrees to comply with the prevailing wage rate requirements of the so-called “Davis- Bacon Act” made applicable by Section 513 of the Clean Water Act (33 U.S.C. 1372) or Section 1450(e) of the Drinking Water Act (42 U.S.C. 300j-9(e)), as applicable. The Borrower shall be responsible for monitoring compliance of contractors and subcontractors concerning federal wage rates under the Davis-Bacon Act requirements. In this regard, the Borrower shall review certified payrolls, conduct employee interviews and complete any other actions required to determine such compliance, using forms approved by the Department;
(ii) With respect to a Clean Water Project for a treatment works (other than a Title 5 Project) or a Drinking Water Project for public water systems, the Borrower agrees to comply with the requirements of Section 436 of Public Law 113-76 (the “American Iron and Steel Requirement”), except as described below. The Borrower acknowledges and agrees that the American Iron and Steel Requirement includes, among others, the requirement that all of the iron and steel products used in the Project are to be produced in the United States unless (i) the Borrower has requested and obtained a waiver from the United States Environmental Protection Agency with respect to the Project or (ii) the Department has advised the Borrower in writing that the American Iron and Steel Requirement is not applicable to the Project; and
(iii) With respect to a Clean Water Project for repair, replacement or expansion of a treatment works, the Borrower agrees (1) to develop and implement a fiscal sustainability plan applicable to the Project that includes: an inventory of critical assets that are a part of the treatment works; an evaluation of the condition and performance of inventoried assets or asset groupings; a certification that the Borrower has evaluated and will be implementing water and energy conservation efforts as part of the plan; and a plan for maintaining, repairing and, as necessary, replacing the treatment works and a plan for funding such activities; and (2) to certify, as a condition of the final disbursement of the proceeds of the Loan, that the Borrower has developed and implemented a plan that meets the requirements under clause (1).
(h) The Borrower will maintain accounts with respect to the Project according to generally accepted accounting principles as issued by the Governmental Accounting Standards Board (GASB), including the standards relating to the reporting of infrastructure assets pursuant to GASB Statement No. 34, or any successor thereto.
(i) For so long as the Loan or Local Governmental Obligations shall be outstanding, the Borrower shall duly observe and comply with each of the additional covenants and conditions set forth in Schedule B of the Financing Agreement.
Section 9. Defaults and Remedies.
(a) The occurrence of any of the following events shall constitute, and is herein defined to be, an Event of Default under the Financing Agreement and the Local Governmental Obligations, or other evidence of indebtedness:
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(i) if the Borrower shall fail to pay when due all or any part of any Payment payable under the Financing Agreement or applicable Local Governmental Obligations, or other evidence of indebtedness;
(ii) if the Borrower shall fail to pay when due any installment of the Administrative Fee payable under the Financing Agreement or the Origination Fee or any portion thereof and such failure shall continue for a period of thirty (30) days after written notice thereof shall be given to the Borrower by the Trust;
(iii) if the Borrower shall fail to perform and observe any other covenant, agreement or condition on its part provided in the Financing Agreement or in the Local Governmental Obligations, or other evidence of indebtedness, or in any Additional Security and such failure shall continue for a period of thirty (30) days after written notice thereof shall be given to the Borrower by the Trust; provided if such failure cannot be remedied within such thirty (30) day period, it shall not constitute an Event of Default under the Financing Agreement if corrective action satisfactory to the Trust is instituted by the Borrower within such period and diligently pursued until the failure is remedied;
(iv) if any representation or warranty made by or on behalf of the Borrower in the Financing Agreement or in any Application or in any Additional Security shall prove to have been incorrect or to be misleading in any material respect as and when made;
(v) if (x) an order, judgment or decree is entered by a court of competent jurisdiction (a) appointing a receiver, trustee, or liquidator for the Borrower or the whole or any substantial part of any Project or the System, if any, (b) granting relief in involuntary proceedings with respect to the Borrower under the federal bankruptcy act, or (c) assuming custody or control of the Borrower or of the whole or any substantial part of any Project or the System, if any, under the provision of any law for the relief of debtors, and the order, judgment or decree is not set aside or stayed within sixty (60) days from the date of entry of the order, judgment or decree or (y) the Borrower (a) admits in writing its inability to pay its debts generally as they become due, (b) commences voluntary proceedings in bankruptcy or seeking a composition of indebtedness, (c) makes an assignment for the benefit of its creditors, (d) consents to the appointment of a receiver of the whole or any substantial part of any Project or the System, if any, or (e) consents to the assumption by any court of competent jurisdiction under any law for the relief of debtors of custody or control of the Borrower or of the whole or any substantial part of any Project or the System, if any, or (z) legislation shall be enacted by the Commonwealth (a) appointing a receiver or trustee for the Borrower or the whole or any substantial part of any Project or the System, if any, or (b) assuming custody or control of the Borrower or of the whole or any substantial part of any Project or the System, if any, or (c) providing for a moratorium upon the payment of the principal of or interest on the Loan or Local Governmental Obligations;
(vi) if the Borrower shall fail to pay when due (whether at maturity or upon redemption or otherwise) any principal of or interest on any indebtedness of the Borrower for borrowed money, other than the Loan, if any, and the Local Governmental
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Obligations and indebtedness described in Chapter 40D of the General Laws of the Commonwealth; and
(vii) if a Default shall occur under a Project Regulatory Agreement (as defined therein) and the Department shall request that the Trust declare an Event of Default under the Financing Agreement.
(b) In addition to its other remedies provided herein, if an Event of Default specified in clause (i) or clause (v) of Paragraph (a) of this Section 9 shall occur and be continuing, the Trust may proceed to enforce its rights under the Financing Agreement and under the Local Governmental Obligations, or other evidence of indebtedness, by exercise of the following remedies in such order of priority as the Trust shall determine in its discretion:
(i) if any Payments shall be due and unpaid under the Financing Agreement, the Trust may exercise the rights provided in Section 11 of the Enabling Act with respect to the Local Aid Distributions of the Borrower and, as applicable, any Participating Member thereof and any parent governmental unit of the Borrower and any such Participating Member;
(ii) if any Payments shall be due and unpaid under the Financing Agreement, the Trust may apply to such default any or all amounts allocable to the Borrower then on deposit in any Project Account; or
(iii) by notice to the Borrower the Trust may declare the Principal Obligation of the Loan and all Payments payable thereon, and the corresponding principal amount of the Local Governmental Obligations, to be immediately due and payable and, upon such declaration, the Principal Obligation and all interest, if any, accrued thereon shall be and become immediately due and payable, anything herein or in the Local Governmental Obligations, or other evidence of indebtedness, to the contrary notwithstanding.
(c) If an Event of Default specified in clause (vii) of Paragraph (a) of this Section 9 shall occur and be continuing, the Trust shall, if directed by the Department, exercise on behalf of the Department any and all remedies available to the Department upon a Default under the applicable Project Regulatory Agreement.
(d) Notwithstanding anything herein to the contrary, if any Event of Default under the Financing Agreement or in any Additional Security shall occur and be continuing, the Trust may proceed to protect its rights under the Financing Agreement, and may seek to compel compliance by the Borrower with the terms and provisions hereof and of the Local Governmental Obligations, or other evidence of indebtedness, by suit or suits in equity or at law, for the specific performance of any covenant, term or condition hereof or of the Local Governmental Obligations, or other evidence of indebtedness, or in aid of the execution of any power herein granted, and, except as herein limited, may exercise any other right or remedy upon such default as may be granted to the Trust under the Enabling Act, the Applicable Authority or under any other applicable provision of law.
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(e) During the continuance of an Event of Default, the Trust shall apply all amounts received upon the exercise of its rights and remedies under the Financing Agreement as follows and in the following order:
(i) to the payment of the reasonable and proper charges (including attorneys’ fees) of the Trust and the Department incurred in the exercise of any right or remedy under the Financing Agreement or under any Project Regulatory Agreement;
(ii) to the payment and satisfaction of all interest then due and unpaid under the Financing Agreement upon any defaulted Payments as provided in Section 4(b) hereof;
(iii) to the payment and satisfaction of all Payments then due and unpaid under the Financing Agreement, as such Payments may be adjusted as provided in Section 4 hereof, and, if the amount available is not sufficient to pay all Payments then due and payable under the Financing Agreement, first to the payment of the portion of the Payments due and unpaid representing interest on the Loan or Local Governmental Obligations and second to the portion of the Payments due and unpaid representing the principal of the Loan or Local Governmental Obligations and, in either case, ratably in order of the due dates thereof;
(iv) to the reimbursement to a Project Account of any amounts withdrawn therefrom as provided in clause (iii) of Paragraph (b) of this Section 9;
(v) first, to the payment and satisfaction of all interest then due and unpaid under the Financing Agreement upon any due and unpaid Administrative Fees as provided in Section 4(b) hereof, and, second, to the payment and satisfaction of all Administrative Fees then due and unpaid under the Financing Agreement; and
(vi) first, to the payment and satisfaction of all interest then due and unpaid under the Financing Agreement upon any due and unpaid Origination Fee as provided in Section 4(b) hereof, and, second, to the payment and satisfaction of the Origination Fee or the portion thereof then due and unpaid under the Financing Agreement.
(f) No remedy conferred upon or reserved to the Trust is intended to be exclusive and every such remedy shall be cumulative and shall be in addition to every other remedy given under the Financing Agreement or in any Additional Security or now or hereafter existing at law or in equity. No delay or omission to exercise any right, remedy or power accruing upon any Event of Default shall impair any such right, remedy or power or shall be construed to be a waiver thereof, but any such right, remedy or power may be exercised from time to time and as often as may be deemed expedient.
Section 10. Interim Financing.
(a) Subject to the availability to the Trust of moneys for such purpose and the provisions of Section 3(a) hereto, if the date of the Closing set forth in Schedule A of the Financing Agreement is more than forty five (45) days subsequent to the date of execution and delivery of the Financing Agreement by the Trust, the Trust (upon not less than ten (10) Business Days prior notice from the Borrower) agrees to provide interim financing (an “Interim Loan”) to the
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Borrower to pay or provide for all or any part of the eligible Costs of any Project (i) incurred by the Borrower on and after the date of execution and delivery by the Borrower of the Financing Agreement or (ii) incurred by the Borrower prior to the date of its execution and delivery of the Financing Agreement and either (x) paid by the Borrower from the proceeds of notes or other obligations issued by the Borrower in anticipation of the Loan or of the issuance and sale of the Local Governmental Obligations to the Trust, or (y) paid by the Borrower from other moneys available to the Borrower under a valid declaration of official intent to reimburse such payment from the proceeds of the Loan or the Local Governmental Obligations. The Interim Loan shall be evidenced by a note (the “Interim Loan Note”) issued by the Borrower to the Trust pursuant to the Applicable Authority in form and substance satisfactory to the Trust and otherwise as hereinafter provided. The Interim Loan and the Interim Loan Note, when executed and delivered, shall be (1) a valid and binding general obligation of the Borrower enforceable in accordance with its terms and payable as to principal, premium, if any, and interest (to the extent not paid from other sources) from (a) taxes which may be levied upon all taxable property within the territorial boundaries of the Borrower, subject only to the limit imposed by Chapter 59, Section 21C of the General Laws of the Commonwealth to the extent applicable to the Interim Loan Note, provided that taxes levied on certain taxable property located within a development district, if any, established by the Borrower pursuant to Chapter 40Q of the General Laws may be restricted and unavailable to pay debt service on the Interim Loan Note or (b) sums which may be annually apportioned and assessed by the Borrower on its Participating Members pursuant to the Applicable Authority, or (2) a general or special obligation of the Borrower (as provided in any Additional Security) payable from any Additional Security, if any, and any other moneys, funds, and accounts provided in the Financing Agreement and secured by a valid pledge of and lien on and perfected security interest in any such Additional Security, all as provided therein and in Schedule B to the Financing Agreement.
(b) The Interim Loan Note shall be dated the date of its execution and delivery by the Borrower, shall mature and be payable on the Closing Date for the Loan or Local Governmental Obligations (subject to renewal at the option of the Trust to one or more dates not later than three (3) years subsequent to such date of execution and delivery or, if later, the expected completion date of the applicable Projects as determined by the Department), shall be in principal amount equal to the aggregate amount of proceeds thereof from time to time disbursed to or for the account of the Borrower and shall be in such maximum aggregate principal amount as shall be requested by the Borrower not exceeding the lesser of (i) the aggregate eligible Costs of each Project which have been or are expected to be expended at or prior to the maturity date of the Interim Loan Note (as set forth in the applicable Project Regulatory Agreement) and (ii) the Initial Obligation Amount set forth in Schedule C of the Financing Agreement (or such lesser amount as shall equal the total eligible Costs of the Projects approved by the Department at the date of the Interim Loan Note). The principal amount of the Interim Loan Note from time to time outstanding shall bear interest from the date or dates of disbursement thereof to or for the account of the Borrower until repaid at the Interim Loan Interest Rate set forth in Schedule A of the Financing Agreement, calculated on the basis of actual days and a 365/366 day year, payable at maturity.
(c) Upon execution and delivery by the Borrower of the Interim Loan Note, the Trust shall, subject to the availability to the Trust of moneys for such purpose, deposit from time to time in the Interim Loan Project Account amounts (representing proceeds of the Interim Loan)
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sufficient in amount and time of deposit to satisfy each requisition for payment or reimbursement of Costs of the applicable Project submitted to the Trust by the Borrower. For purposes of this Section 10, all provisions of Section 7(a) and (c) hereof applicable to the Project Account and the requisition and disbursement therefrom of proceeds of the Loan or the Local Governmental Obligations, shall be equally applicable (to the extent not inconsistent herewith) to the Interim Loan Project Account and the requisition and disbursement therefrom of proceeds of the Interim Loan. Notwithstanding the foregoing, the Borrower acknowledges that the Department, in the exercise of its rights under the Project Regulatory Agreement, may terminate the Project Regulatory Agreement after disbursement to the Borrower of some or all of the amounts deposited in the Interim Loan Project Account. In such event, the obligation of the Trust to disburse additional proceeds of the Interim Loan to the Borrower shall terminate and the Borrower shall repay to the Trust the amount theretofore disbursed from the applicable Interim Loan Project Account, together with interest thereon at the Interim Loan Interest Rate, within thirty (30) days of receipt by the Borrower from the Trust of written notice that the Project Regulatory Agreement has been terminated by the Department.
(d) Notwithstanding anything herein to the contrary, the obligation of the Trust to make and fund the Interim Loan is expressly conditional upon the receipt by the Trust of the following, each in form and substance satisfactory to the Trust:
(i) A certificate or certificates of Authorized Officers of the Borrower as to the due authorization, execution and delivery of the Financing Agreement, any Additional Security, the Project Regulatory Agreement and the Interim Loan Note, and confirming as of the date of execution and delivery of the Interim Loan Note the representations and warranties of the Borrower in Section 2 hereof applicable to the Interim Loan, and to the further effect that (x) none of the foregoing instruments have been amended or supplemented since their date (except such amendments or supplements which have been approved by the Trust or the Department, as applicable, or which under the terms of the applicable instrument may be executed and delivered or adopted by the Borrower without the consent of the Trust or the Department) or repealed and that each such instrument remains in full force and effect as of such date, and (y) as of such date, no Event of Default or Default, as applicable, and no event which with the passage of time or the giving of notice may become or may be declared to be an Event of Default or a Default, shall have happened and shall be continuing under the Financing Agreement or any Project Regulatory Agreement;
(ii) The Interim Loan Note duly executed by Authorized Officers of the Borrower;
(iii) An opinion of Local Bond Counsel to the effect that the Financing Agreement, each Project Regulatory Agreement, any Additional Security, and the Interim Loan Note have been duly authorized, executed and delivered by the Borrower in accordance with the Applicable Authority and each constitutes a valid and binding obligation of the Borrower enforceable in accordance with its terms and the terms of the Enabling Act and the Applicable Authority; the Interim Loan Note has been duly and validly executed by or on behalf of the Borrower and delivered to or upon the order of the Trust in accordance with the Financing Agreement and the Applicable Authority; and
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the Interim Loan Note constitutes (1) a valid and binding general obligation of the Borrower enforceable in accordance with its terms and payable as to principal, premium, if any, and interest (to the extent not paid from other sources) from (a) taxes which may be levied upon all taxable property within the territorial boundaries of the Borrower, subject only to the limit imposed by Chapter 59, Section 21C of the General Laws of the Commonwealth to the extent applicable to the Interim Loan Note, provided that taxes levied on certain taxable property located within a development district, if any, established by the Borrower pursuant to Chapter 40Q of the General Laws may be restricted and unavailable to pay debt service on the Interim Loan Note or (b) sums which may be annually apportioned and assessed by the Borrower on its Participating Members pursuant to the Applicable Authority, or (2) a general or special obligation of the Borrower (as provided in any Additional Security) payable from any Additional Security and any other moneys, funds and accounts provided in the Financing Agreement and secured by a valid pledge of and lien on and perfected security interest in any such Additional Security (in rendering the foregoing opinion, such counsel may take an exception on account of bankruptcy, insolvency and other laws affecting creditors’ rights generally and to the exercise of judicial discretion in accordance with general equitable principles); and
(iv) An Interim Loan Origination Fee in an amount equal to one-tenth of one percent (.1%) of the maximum aggregate principal amount of the Interim Loan Note, but not less than $500 or more than $1,000.
Section 11. Assignment, Transfer and Exchange. (a) The Borrower acknowledges that the Trust may pledge and assign the Financing Agreement or all or part of its rights under the Financing Agreement, and the right, title and interest of the Trust in and to all or part of the Loan, the Local Governmental Obligations and Payments thereunder and under the Financing Agreement or any Additional Security to the Master Trustee in accordance with the Master Trust Agreement and in connection with any such assignment may transfer to the Master Trustee the Loan, the Local Governmental Obligations and any or all Payments and the Local Governmental Obligations attributable thereto, and the Borrower by its execution and delivery of the Financing Agreement expressly consents to any such assignment and transfer.
(b) In connection with any assignment by the Trust provided herein, the Borrower further agrees to deliver the Local Governmental Obligations, or other evidence of indebtedness, to the Trust on the Closing Date, or on any date thereafter when the Local Governmental Obligations, or other evidence of indebtedness, may be assigned, exchanged or transferred in accordance with its terms and the terms of the Financing Agreement, in such denominations, registered to such owners, in one or more series, and otherwise in such form and tenor as the Trust may request to evidence the Loan, if any, made, and the Payments payable, under the Financing Agreement, separately or as a whole, or in part one or in part the other, or in any combination thereof, provided that the aggregate principal amount payable on the Local Governmental Obligations, or other evidence of indebtedness, shall not exceed the Principal Obligation payable under the Financing Agreement on the Loan plus interest, if any, accrued and to accrue thereon as provided therein and herein.
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(c) Except as hereinabove provided, so long as any Event of Default shall not have occurred under the Financing Agreement and be continuing, the Trust shall not assign the Financing Agreement or the Loan, if any, made hereby, or transfer or sell the Local Governmental Obligations, without the prior written approval of the Borrower.
(d) The Borrower may not assign the Financing Agreement or the Loan, if any, or the Local Governmental Obligations, or any of its rights or obligations under the Financing Agreement or hereunder, without the express prior written consent of the Trust.
Section 12. Action by Parties. Where the Financing Agreement shall provide for any direction, consent, approval or other action to be taken or made by the Borrower, the Trust or the Department hereunder or under the Financing Agreement, such direction, consent, approval or other action shall be sufficiently taken or made for all purposes of the Financing Agreement if taken or made by Authorized Officers of the Borrower, the Trust or the Department, as the case may be.
Section 13. Notices. All notices, consents, certificates and other communications under the Financing Agreement shall be sufficiently given when delivered by hand or courier or sent by signed electronic mail or registered or certified mail, postage prepaid, addressed to the Addresses for Notice set forth in Schedule A of the Financing Agreement or to such further or different address as any of the parties to the Financing Agreement or the Department may designate in writing to the other notice parties indicated in said Schedule A.
Section 14. Severability. In the event any provision of the Financing Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof.
Section 15. No Right of Set-Off. By their execution and delivery of the Financing Agreement, the Trust and the Borrower agree that, except as otherwise provided in the Financing Agreement, neither the Trust nor the Borrower shall have any right to set-off and apply any amount at any time held, and other indebtedness at any time owing, by the Trust to or for the account of the Borrower, or by the Borrower to or for the account of the Trust, as applicable, against any and all of the obligations of the Borrower or the Trust, as applicable, now or hereinafter existing on the Local Governmental Obligations, or other evidence of indebtedness, or otherwise under the Financing Agreement.
Section 16. Amendment of Financing Agreement and Other Instruments. Except as expressly provided herein or in the Financing Agreement with respect to the amendment of Schedule A, Schedule B and Schedule C of the Financing Agreement, the Financing Agreement and the Local Governmental Obligations, or other evidence of indebtedness, may not be amended, modified or changed in any respect except in writing signed by the parties to the Financing Agreement. No such amendment, modification or change of the Financing Agreement which, in the reasonable opinion of the Department (expressed in a certificate of an Authorized Officer of the Department delivered to the Trust prior to the execution and delivery of such amendment, modification and change by the Trust), materially and adversely affects the rights and obligations of the Department under any Project Regulatory Agreement, shall be effective until the Department shall have consented in writing thereto. The Trust shall deliver a copy of
24 Terms & Conditions March 2020
any such proposed amendment, modification or change of the Financing Agreement to the Department at least ten (10) days prior to the execution and delivery thereof by the Trust.
Section 17. Term. (a) The term of the Financing Agreement shall be from the date of execution and delivery thereof by the parties to the Financing Agreement until all Payments, all Administrative Fees and the Origination Fee payable under the Financing Agreement shall have been paid in full or provision for the payment thereof shall have been duly provided for in accordance with this Section 17.
(b) Notwithstanding anything in Paragraph (a) of this Section 17 to the contrary, prior to the payment of all Payments payable under the Financing Agreement at the times and in the manner provided herein, the Borrower may defease its obligations under the Financing Agreement and under the Local Governmental Obligations, or other evidence of indebtedness, and upon such defeasance shall be discharged from its obligations, covenants and agreements under the Financing Agreement and under the Local Governmental Obligations, or other evidence of indebtedness, if the Borrower shall deposit with the Master Trustee for the account of the Trust either moneys in an amount sufficient, or Defeasance Obligations (as defined in the Master Trust Agreement), the principal installments of and/or interest on which when due, without reinvestment, will provide moneys which, together with the moneys, if any, deposited with the Master Trustee at the same time, will be sufficient, to pay (i) all Payments payable under the Financing Agreement at the times and in the amounts provided herein on the scheduled Payment Dates therefor, (ii) all Administrative Fees payable to the Trust under the Financing Agreement accrued to such date of deposit, (iii) the Origination Fee or any portion thereof that has not previously been paid to the Trust and (iv) any and all other amounts incurred or reasonably expected to be incurred by the Trust in effecting such defeasance.
Section 18. Pledge and Financing of Loans or Local Governmental Obligations to with Proceeds of Bonds; Additional Borrower Requirements. Notwithstanding anything in Section 10 hereto to the contrary, at the sole option of the Trust, upon not less than ten days prior notice to the Borrower, the Trust may finance any Loan or Local Governmental Obligations with proceeds of Bonds issued by the Trust and pledge such Loan or Local Governmental Obligations as security for such Bonds, provided that no such pledge and financing shall increase or otherwise adversely affect the obligations of the Borrower by changing the payment terms of the Loan or Local Governmental Obligations or the interest thereon or the security therefor, without the prior written consent of the Borrower. Upon such a pledge and financing of a Loan or Local Governmental Obligations by the Trust a Borrower may have to comply with certain additional requirements, including, without limitation:
(i) to update its Loan Questionnaire by completing and signing a Verification Form;
(ii) to sign such other documents as determined by bond counsel for such Bonds to be necessary and appropriate;
(iii) to make such certifications as determined by bond counsel for such Bonds to be necessary and appropriate, including: (1) that it will not take, or permit to be taken, any action or actions that would cause any Bond, to which a Loan or a Local
25 Terms & Conditions March 2020
Governmental Obligation is pledged, to be an “arbitrage bond” within the meaning of Section 148 of the Code or a “private activity bond” within the meaning of Section 141(a) of the Code or that would cause any such Bond to be “federally guaranteed” within the meaning of Section 149(b) of the Code, or that would otherwise cause any amounts payable with respect to such Bonds to become included in the gross income of a holder of such Bonds for federal income tax purposes; and (2) that it will take all actions, maintain all records and accounts, and make all reports requested by the Trust or required by any provision of applicable law or the Project Regulatory Agreement, necessary to comply with, or necessary to permit the Trust to comply with, the provisions of Section 148(f) of the Code.
Section 19. Execution in Counterparts. The Financing Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Electronic signatures shall be deemed original signatures for purposes of the Financing Agreement and all matters related thereto, with such electronic signatures having the same legal effect as original signatures. The parties to the Financing Agreement agree that the Financing Agreement, any amendment hereto or any other document necessary for the consummation of the transaction contemplated by the Financing Agreement may be accepted, executed or agreed to through the use of an electronic signature in accordance with applicable law and as so accepted, executed or agreed, will be binding on all parties to the Financing Agreement.
Section 20. Applicable Law. The Financing Agreement, including these Terms and Conditions and all schedules to the Financing Agreement, shall be governed by and construed in accordance with the laws of the Commonwealth.
Section 21. Further Assurances. The Borrower shall, at the request of the Trust, authorize, execute, acknowledge and deliver such further resolutions, conveyances, transfers, assurances and other instruments as may be necessary or desirable for better assuring, conveying, granting, assigning and confirming the rights, covenants and agreements granted or made or intended to be granted or made by the Financing Agreement and the Local Governmental Obligations, or other evidence of indebtedness.
Section 22. Prior Financing Agreements. Except as otherwise provided herein, the Financing Agreement merges and supersedes all prior negotiations, representations, and agreements between the parties relating to the subject matter of the financing of the Project and the Financing Agreement, including these Terms and Conditions and constitutes the entire agreement between the parties in respect to the Financing Agreement and hereof.
26 Terms & Conditions March 2020
111 Huntington Avenue 9th Floor Boston, MA 02199-7613 Telephone: 617-239-0100 Fax: 617-227-4420 www.lockelord.com
October 16, 2020
Massachusetts Clean Water Trust One Center Plaza, Suite 430 Boston, Massachusetts 02108
We are serving as bond counsel to the Town of Orleans, Massachusetts (the “Borrower”) in connection with a proposed loan (the “Loan”) to be made to the Borrower by the Massachusetts Clean Water Trust (the “Trust”) in accordance with Loan Commitment No. CW-19-33 (the “Loan Commitment”) from the Trust to the Borrower and a Financing Agreement between the Trust and the Borrower substantially in the form described in the Loan Commitment (the “Financing Agreement”). The Loan is to be evidenced and secured under the Financing Agreement by the issuance by the Borrower to the Trust of not in excess of $59,409,200 aggregate principal amount of the Borrower’s Sewer Bonds (the “Local Governmental Obligations”) under M.G.L. c.44 and votes of the Borrower passed on May 13, 2019 (Article 16) which authorized a total borrowing of $47,382,800 and June 20, 2020 (Article 42) which authorized a total borrowing of $12,218,000 and excluded from the limitations of Proposition 2 ½ (so-called) by votes of the Borrower passed May 21, 2019 (Question 1) and June 23, 2020 (Question 3).
We are now prepared to render our opinion substantially to the effect set forth in Paragraph F(iv) of the Loan Commitment regarding, among other things, the execution and delivery by the Borrower of the Financing Agreement and the Project Regulatory Agreement (as defined in the Loan Commitment) and the issuance of the Local Governmental Obligations. The rendering of our opinion is dependent upon the due execution and delivery by the Borrower of the Financing Agreement and the Project Regulatory Agreement.
This green light letter supersedes our green light letter addressed to you and dated February 4, 2020.
LOCKE LORD LLP cc: Hilltop Securities, Inc.
Atlanta | Austin | Boston | Brussels | Chicago | Cincinnati | Dallas | Hartford | Hong Kong | Houston | London | Los Angeles 82394322v.2Miami | New Orleans | New York | Princeton | Providence | San Francisco | Stamford | Washington DC | West Palm Beach
SELECT BOARD OFFICE OF THE TOWN AGENDA ACTION REQUEST ADMINSTRATOR November 4, 2020
VOTE TO SUBMIT ANNUAL REPORT FOR GREEN COMMUNITIES
REQUESTED BY: Town Administrator
DESIRED ACTION: Authorize the Town Administrator to submit the Annual Green Communities Report on behalf of the Town.
PROPOSED MOTION: Vote to authorize the Town Administrator to submit the Green Communities Annual Report for the Town of Orleans.
ACTION TAKEN: Moved By: ______Seconded By: ______Condition(s):
VOTED: Aye _____ Nay______Abstain ______
John Kelly
Subject: Annual Report Draft - Town Administrator Action Requested - to Sign the Front Sheet
From: John Kelly Sent: Wednesday, October 21, 2020 4:33 PM To: Kevin Galligan
Kevin, I took a look and the signature certification requires that the person signing has been authorized by the Chief Executive, which in Orleans is the Select Board. Since it is due on Friday, Nov. 6, we could add it to the SB agenda for Nov. 4? I can also look back to see if the SB previously designated me as the official signer for Green Communities docs to see if that might cover the annual reporting as well. John
John F. Kelly Town Administrator
19 School Road Orleans, MA 02653 508‐240‐3700 x 2415 [email protected]
From: Kevin Galligan
John: I also looked this over and if you do need my signature please go ahead and use my signature stamp.
Thanks everyone for the great work on many projects and energy savings for the Town.
Kevin
On Wed, Oct 21, 2020 at 4:14 PM Ron Collins
Hi John:
Margaret educated me on a couple of questions I had in various sections. It looks good.
Can you or the Select Board Chair sign the first page? And return it to Margaret?
Thanks, RC
1 From: Margaret Song
FYI that there could be minor updates with weather‐normalization (as a follow‐up question from DOER). That always ends up on the follow‐up list.
Otherwise, if you are ok with this, the first tab needs a date filled in and a signature from Mr. Kelly.
Best regards Margaret ‐‐ Kindly note that I use this gmail account for public correspondence and under MA General Laws most email correspondence is deemed a public record.
2 GREEN COMMUNITY ANNUAL REPORT
Annual Report Tab Coloring Key Community input required Examples Guidance
1) In order for a municipality to maintain its Green Community Designation and be eligible for the next available Green Communities Competitive Grant, reports must be submitted no later than 5:00 PM November 6, 2020 for the reporting period July 1, 2019 – June 30, 2020
Late reports WILL deem a community ineligible for the 2021 Competitive Grant.
2) Please be certain to address all areas in full. If certain requested information does not apply, then please note it as “N/A."
3) Please follow the instruction for reporting on each Criteria on the individual Criterion Excel Sheets.
4) If you have any questions on these reporting requirements, contact your DOER Green Communities Regional Coordinator (RC). The objective is to have a dialogue with Green Communities staff BEFORE the report is due so that minimal follow-up with the municipality is required after the due date.
5) Submit your community's full Excel file electronically as Excel via email with any other supporting files to Grant Administrator Jane Pfister - [email protected] and your Regional Coordinator. This page must be signed, made into a PDF, and submitted as a separate file. Please submit only one Excel file for the annual report. DOER will not accept multiple spreadsheets
6) NOTE: In the case of any criteria violations( e.g. a vehicle purchased that does not meet the fuel efficient vehicle policy), the municipality will be asked to provide a corrective action plan. A first-time violation will be factored into consideration when DOER awards funds under the next available Green Communities funding opportunity. A second violation may prohibit the municipality from being eligible for any funds in the next available Green Communities funding opportunity.
8) Fields highlighted in yellow should be completed by Green Communities.
9) Review the "AR Compliance Checklist" tab and ensure that no items are missing. If any items cannot be provided please offer an explanation. Annual Report is complete.
December-18 PLEASE NOTE: For a municipality designated December 2018, the reporting period Date Designated: is 18 months, Jan 1, 2019 - June 30 2020
Date of Annual Report Submission
Name of Preparer of Annual Report Ron Collins Facilities Manager, Dept of Title Public Works and Natural Municipality Name Orleans
I confirm that I have reviewed this report and verify all information is true. Signature of Chief The Chief Executive Officer is defined as the manager in any city having a manager Executive Officer and in any town having a city form of government, the mayor in any other city, and the board of selectmen in any other town unless some other officer or body is designated to perform the functions of a chief executive officer under the provisions of a local charter or laws having the force of a charter. Any signatures of designees will be considered an attestation that the signatory has been designated the designee by the municipality. GREEN COMMUNITY ANNUAL REPORT Required Values
All values that are required to be reported in this annual report are listed here. If an input appears in red, the "Note" column will explain which cell or cells are missing a value. Click the input item name to go to the item in the corresponding input tab. Prior to submitting this annual report please review this tab to make sure no required items are missing. If any item cannot be completed, please provide an explanation.
Inputs Overall Annual Annual Report is complete Report Status Tab Item Status Note Explanation Type of as-of-right siting approval received Complete Type of expedited permitting approval received Complete 1) Have any significant changes been made to the zoning district(s) for which the community received Green Communities designation? Complete 2) Have any significant changes been made to site plan, design, or other development review criteria or any permit review procedures that would impact the ability Crit 1 & 2 to permit qualifying clean energy uses as-of-right and in a timely manner? Complete 3) Since your last Annual Report, or Designation Application (if first Annual Report) have any clean energy projects applied for approval under the zoning for which the community received Green Community Designation? Have any clean energy project been approved for construction? Complete Table 1 Complete Is Regional School District (RSD) energy included? Complete
What is the name of the RSD? Complete How is RSD energy included? Complete % or names of RSD building energy included Complete
Does the community use MEI? Complete Date MEI was last verified Complete Does the community use an EMS Agreement? Complete Crit 3 - Overview Date EMS filed with DOER Complete Does the community use conventionally net meter renewable energy produced within the community? Complete Brief narrative of changes seen and anticipated. Complete Has the community had any building stock changes since it's baseline year? Complete Have any building stock changes occurred since your last Annual Report? Complete Building stock change narrative Complete Building Stock Building stock change calculator complete for all Change building stock changes that have occurred since the Calculator baseline year Complete Does the Community use Calendar Year (CY) or Fiscal Year (FY)? Complete Baseline Year Complete Building Stock Change Adjustment - Current year Complete Regional School Prorated - Baseline year Complete
Regional School Prorated - Current Year Complete TOTAL ENERGY CONSUMPTION (NO Weather Normalization) - Baseline year Complete Crit 3 - Table 2 TOTAL ENERGY CONSUMPTION (NO Weather Progress Normalization) - Current year Complete Weather Normalized Consumption (without building stock adjustment) - Baseline year Complete Weather Normalized Consumption (without building stock adjustment) - Current year Complete Building Stock Change Adjustment (weather - normalized) - Current year Complete Regional School Prorated (weather-normalized) - Baseline year Complete Regional School Prorated (weather-normalized) - Current year Complete
Crit 3 -Tbl 3 for Select plan year Complete Non-MEI Users Subtotal for buildings Complete Total energy consumption Complete Crit 3 - Table 4 ECMs Enter at least one ECM Complete If the community uses renewable energy, complete Crit 3 - Table 5 RE Table 5 Complete
1) Replaced an exempt or non-exempt vehicle? Complete
2) Acquired a new exempt or non-exempt vehicle, and/or conducted inter-departmental vehicle transfers? Complete 3) Installed an electric vehicle charging station? Complete 4) Installed idle-reduction technology on any vehicles? Complete 5) Implemented anti-idling technology and/or campaigns? Complete 6) Implemented a driving monitoring system that Crit 4 - Vehicle records miles driven and/or fuel consumption? Complete Policies 7) Implement a fuel use reporting system for operators on fuel efficiency ? Complete 8) Implement any other policies and/or technologies not listed above? Complete Narrative for #8 Complete 9) Does the community met Criterion 4 through alternative compliance? Complete Narrative for #9 Complete 10) For communities that met Criterion 4 through alternative compliance, provide as a status regarding the success of these programs and policies. Complete If the community replaced an exempt or non-exempt vehicle during FY fill out Table 6 (Acquistions and Crit 4 - Vehicle Retirements) Complete Inventory If the community has acquired a new vehicle or transferred a vehicle in the FY fill out Table 6 (Acquisitions) Complete Is the stretch code still in effect? Complete Were any residential occupancy permits issued since Crit 5 - Stretch your last Annual Report or Designation Application (if Code compliance first Annual Report)? Complete How many occupancy permits were issued for new commercial construction over 100,000 sq.ft.? Complete X2A6T
Criteria 1 and 2 Type of as-of-right siting approval received: X2A0T R&D and MFR
Type of expedited permitting approval received: X2A1T Local
X2A2T
REGULATIONS (zoning & permitting): 1) Since your last Annual Report, or Green Communities Designation Application (if first Annual Report) Have any significant changes been made to the zoning district(s) for which the community received Green Communities designation? Significant changes, such as changes to the geographic extent of the district, allowed uses, and dimensional requirements, would impact the ability to construct a qualifying clean energy use in the district. Overlay districts, such as water NO protection districts that impose special permitting requirements, count as significant changes. If yes, submit the same documentation required for designation for CR1 to verify that you still meet the requirements (applicable sections of the zoning by-law, definitions, as well as a revised zoning map.) Select YES or NO in the dropdown on the right.
X2A3T 2) Have any significant changes been made to site plan, design, or other development review criteria or any permit review procedures that would impact the ability to permit qualifying clean energy uses as-of-right and in a timely manner? Significant changes would be anything that pertains to the “by-right” nature of the zoning or to the amount of time necessary to review required permits. NO If yes, attach a letter from municipal counsel that describes the changes, illustrates any potential impact on the siting of clean energy projects, and affirms continued compliance with the Green Communities As-of-Right Zoning and Expedited Permitting criteria. Select YES or NO in the dropdown on the right.
NARRATIVE:
PERMITTING:
X2A4T 3) Since your last Annual Report, or Designation Application (if first Annual Report) have any clean energy projects applied for approval under the zoning for which NO the community received Green Community Designation? Have any clean energy project been approved for construction? Select YES or NO in the dropdown on the right. If YES, fill out or update Table 1 below:
Table 1 Expedited Permitting Projects During Reporting Year (Please add rows as required) Click here to view a sample version of this table. Type (Generation (Capacity), R&D, As-of-right PROJECT and/or designated Date NAME Manufacturing) location Applicant Project Description Status Submitted Decision Date
X2A5T
To insert additional rows, select this row, right-click, and select "Insert."
10. Orleans-gc-annual-report-template Click here to return to Table 1
Table 1: SAMPLE Expedited Permitting Projects Type (Generation (Capacity), As-of-right PROJECT R&D, and/or designated Project Date NAME Manufacturing) location Applicant Description Status Submitted Decision Date
Renewable Peak Six 1.5 MW wind Energy (wind) Performance turbines on 16 Project Hilltop Wind 9 MW landfill , LLC. acres of land approved 11/1/2016 1/21/2018
10. Orleans-gc-annual-report-template Criterion 3 Instructions: Complete Steps 1-7 Below
1. Read and complete all questions below.
2. Complete Table 2: Progress Go to Table 2 Complete Table 2 for baseline year and reporting year, located 3 tabs to the right. ALL categories are required, with the exception of open space.
Fuel use from all vehicles, including those characterized as exempt AND non-exempt under Criterion 4, must be included. Renewable Energy is a fuel source and the amount of renewable energy consumed by the Green Community must be included.
If you are using MEI. note that there is a report available (entitled Annual Report Table 2). This contains the data you need to enter into Table 2 . Please review the data in MEI and, if accurate, enter it into Table 2, located 3 tabs to the right. Note also that if you click on the "years" down arrow on that MEI report, you can choose which year is your baseline year.
Regional School District
X4A0T Does the community include energy from a Regional School District in their total energy consumption? No
X4A1T
X4A2T
X4A3T
3. Complete Table 3: Energy Use (NON-MEI Users) Go to Table 3
X4A4T Does the community use MassEnergyInsight (MEI) to provide data for Table 2? Yes
X4A5T Please provide the date the information in MassEnergyInsight was last verified. By including a date, you are confirming that the information in MEI is accurate and complete 10/16/2020 (including all fuels and renewable energy) and that you wish to report your Green Community annual energy usage directly through MEI. REMEMBER to load all diesel, gasoline, heating oil and propane energy usage, as well as renewable energy usage that is NOT virtually net-metered, into MEI prior to providing a date that your data is complete. Also, confirm that Table 3 in MEI matches the data provided in Table 2.
4. Complete Table 4: Energy Conservation Measures (ECMs) Go to Table 4
Update your ECMs in Table 4 by: 1) listing measures that were completed since you submitted last Annual Report or Green Communities Designation as applicable, 2) listing new measures planned or in progress, 3) and providing an ECM type in Column F. All ECMs should be included in Table 4, NOT only ECMs funded by Green Communities grants.
X4A6T No Does the community use an Energy Management Services (EMS) Agreement?
X4A7T
5. Complete Table 5: Renewable Energy Projects Go to Table 5
X4A8T
Does your Green Community use any energy produced by renewable energy within your community? For Update your conventionally net-metered (aka "behind example, solar PV systems installed on school or municipal buildings and the building uses the electricity the meter") RE projects in Table 5 by: 1) changing any generated, or a biomass boiler installed in a municipal building . Please select YES or NO in the dropdown on NO status dates, and 2) adding any new RE projects. the right. if YES, complete Table 5 and be sure to include the renewable energy consumed in the building's MassEnergyInsight account or whatever energy tracking tool your community uses
6. Provide a Narrative Provide a brief narrative explaining changes seen and what is anticipated for the next year. Any notes on successes or Sample Narrative: Our buildings have a 12 percent decrease in energy use and the vehicles have a 4 percent reduction. We are challenges are welcome. Also include changes in building also intending to implement a large retrofit at the drinking water treatment plant this year that should yield a significant level of operating hours as well as building use, and/or significant savings. We are seeing an uptick in energy use in our library, now that it open 10 more hours a week. Our top 3 energy-using changes in municipal fleet operations. Identify top 3 buildings are our high school (68 EUI), middle school (88 EUI) and town hall (78 EUI). Energy use in all three buildings has been buildings in terms of energy consumption and note how fairly consistent over the past year. The middle school boiler has reached the end of useful life and is scheduled to be replaced in 2 efficient these buildings are by reporting their kBtu/sf years. We have implemented projects in the Town Hall and would have expected larger savings. We are investigating this. numbers. MEI users can find this information by looking NARRATIVE: at the "Buildings to Target" report; provide a brief X4A9T Since designation, the overal use has dropped about 2% (without building changes included). The vehicle and statement addressing change in the past year and, if water/sewer categories have dropped significantly, and the building categories has seen some variability (partially due to applicable, describe plans for improving building the building stock changes described below). In the building category, the top energy-using buildings are the Orleans performance next year Elementary School (EUI 56.6), DPW/NR Building (EUI 38.6), and the Police Station (EUI 155.5). The DPW/NR building is fairly new, and the EUI is pretty efficient, but the Town continues to look at all opportunities to reduce usage in the buildings.
7. Building Stock Changes
X4A10T Has the community had any building stock changes since it's baseline year? Yes Please complete the Building Stock Change Calculator. Include all building stock changes that have occurred since the baseline in the current year.
X4A11T Have any building stock changes occurred since your last Annual Report or Designation (if first Annual Report)? Yes
Please describe any building stock changes that have NARRATIVE:
X4A12T occurred since your last Annual Report, or Designation Please note that after the baseline year, the Harbor Master’s office and garage was removed from the town’s inventory, and the Appliction (if first Annual Report). Include the year and Parks Office and Garage is expected to be removed, and the staff will be moving into the new DPW building. whether any changes are a replacement, addition, removal or renovation. The adjustments to energy usage should be entered on Table 2, Lines 16 and 20. You may use the Building Stock Changes Calculator provided. Guidance for Reporting Building Stock Changes in Annual Report
For changes in building stock (including additions, new construction, demolition, replacement or acquisition), PLEASE CONSULT WITH DOER TO DETERMINE THE PROPER TREATMENT OF THEIR ENERGY USE IN THE FUTURE ANNUAL REPORTS. In general, the guidance provided in the table below will be followed. However, due to the unique nature of many building projects, a community should consult with DOER regarding building stock changes prior to submission of its Green Communities Annual Report. Please contact your Regional Coordinator to initiate this conversation. You may find the “Building Stock Change Calculator” on the next tab over helpful.
Building Stock Changes Summary Guidance
New or Altered Building Energy How to Report? Included in Energy Consumption vs. Baseline? Retrofit/Renovation Yes Annual report Addition Yes, pro-rated by square footage Annual report New Construction No Separate monitoring Removal/Demolition Up to community’s discretion Annual report Replacement of an Existing Building Yes Annual report Acquisition of an Existing Building Only if desired Separate monitoring or add to baseline in annual report
• Retrofit/Renovations: Retrofits and Renovations will be factored into the 20% reduction and do not alter the energy use baseline. These do not increase building square footage and renovations should be done such that the renovated space becomes more efficient.
• Additions: The energy load for a building and its addition will be counted towards the 20% reduction target but will be pro-rated based on the “new” building square footage. For example, if a 10,000 sq. foot building added 5,000 sq. feet, then 66.67% of the energy usage for the building would be accounted for in monitoring the community’s progress towards meeting its 20% energy reduction target.
Sample Building from Energy Baseline size (sq ft) 10,000 plus addition 5,000 Report this in Annual Report Table 2 “Building Stock Change TOTAL new building size 15,000 Adjustment” as a negative % Prorated energy use = (10,000/15,000) x 100 66% number Total Energy Use (MMBtu) 1,650 Prorated Energy use (1,650 x 0.66) 1,100 Subtract this amount from building use 550
• New Construction: The additional energy load from these buildings will NOT be added into the energy use baseline and therefore the additional load will NOT be factored into the 20% reduction target. Municipalities using MassEnergyInsight should flag the building to “exclude from baseline.” However, a municipality will be expected to monitor the performance of this building, using MassEnergyInsight or another tool, under its annual Green Communities reporting to verify that it is performing as designed and modeled.
• Removal/Demolition: For buildings that are removed from the building stock, the community has the option to adjust the energy use baseline by subtracting that building’s energy use and revising the 20% reduction target accordingly. This will occur ONLY for buildings that are not replaced by a new building or leased space (see below).
• Replacement of an Existing Building: For buildings originally included in the baseline that go offline and are replaced by a new building, the energy use baseline will not change and the new building will be included in the 20% reduction target. If the new building is larger than the replaced building, then the energy use will be pro- rated according to the difference in their square footages. For example, if a 50,000 sq foot building was replaced with an 80,000 sq foot building, then 62.5% of the energy bills for the building would be accounted for in monitoring the community’s progress towards meeting its 20% energy reduction target.
Sample Building from Energy Baseline
original size (sq ft) 50,000 Report this in Annual Size of new building 80,000 Report Table 2 “Building Stock Change Adjustment” % Prorated energy use = (50,000/80,000) x 100 62.5% as a negative number Total Energy Use (MMBtu) 7,500 Prorated Energy use (4800 x 0.625) 4,688
Subtract this amount from building use 2,812
• Acquisition of an Existing Building: If a municipality acquires an old building (i.e., not new construction) after the baseline year, and that building is not replacing a building already included in the baseline, the additional load from such a building will not be required to be included in the consumption profile and therefore the additional load will not be factored into the 20% reduction target. HOWEVER, one of the following two should occur:
o The municipality should address these buildings separately in its Annual Report, noting what their baseline energy use was when they were acquired and what measures are planned for their improved energy performance.
o As an alternative, if a municipality so chooses, it can add the load from these buildings into the energy use baseline when they were acquired and include them in the 20% reduction target. (A municipality may choose to do this because it may provide a better opportunity for them to achieve the 20% reduction target). A municipality choosing to do this must provide an explanation in its Annual Report.
• Petition to Modify Energy Use Baseline: At any time, a municipality can petition DOER to consider modification of its baseline. For example, a municipality may replace an existing smaller school with a new school that is significantly larger, with a pool added, etc, and it may wish to adjust its baseline to take this added square footage and energy use data into consideration. DOER reserves the right to approve or deny any such petition. INSTRUCTIONS on how to calculate your prorated energy use for building stock changes All building stock changes that have occured since the baseline year should be reported here. Please keep track of the prorated use for every year you are reporting on. If you submitted an Annual Report last year, you only need to report on this current reporting year. If this is your community's first Annual Rep year and past years as needed. If your community did not submit an Annual Report last year, report on last years' building stock changes as needed.
USE THIS CALCULATOR FOR ALL BUILDING STOCK CHANGES This Building Stock Changes Calculator is for both new buildings and building additions. Different information is to be entered depending on whether you are entering data for a new follow the instructions in Row 11 for each column. You are only required to enter information into the yellow cells in the table. The green cells in the table will populate when the relevan The orange cells in the worksheet (columns M and P) are the numbers that will be used to adjust the Total Energy Use for the year, and will automatically populate in Table 2 Progress (t Starting with the current reporting year, enter any new buildings and building additions that occurred. Start with Building One, if you have more than one applicable building in a given ye Please change the generic "BUILDING ONE" label to the actual name of the building (e.g. Senior Center, High School, Police Station).
Building Stock Changes Calculator
Enter the name of If NEW the building in the If NEW BUILDING, If NEW BUILDING, Non Weather- BUILDING - Difference to be appropriate cell, enter the OLD enter the NEW Normalized energy enter the used to adjust e.g. change BUILDING'S sq. BUILDING'S sq. use (MMBTU) - this number 12. If Non-Weather- "BUILDING ONE" footage, if footage, if THIS COLUMN can be found in ADDITION, enter Weather-Normalized energy use Weather Normalized total - to "High School". ADDITION, enter ADDITION, enter the WILL MassEnergyInsight the # of months Non Weather- (MMBTU) - This can be found in Normalized Total Prorated This will populate Name should the building's sq. building's sq. POPULATE - Energy Reduction the addition was Normalized MassEnergyInsight - Annual Prorated Total Non-Weather Non-Weather the apropriate cell match the name in footage BEFORE footage AFTER the % of energy to Plan Guidance online during the Prorated energy Building Energy Use - Weather energy use Normalized Energy Normalized in Table 2 - MEI. the addition addition include Table 3 (MMBtu) reporting yr.? use (MMBTU) - Normalized (MMBTU) Use Energy Use Progress 2020
X6A0T DPW/NR 5,262 41,500 13% 1,635 12 207 1,657 210 BUILDING TWO 0% 0 0 BUILDING THREE 0% 0 0 BUILDING FOUR 0% 0 0 BUILDING FIVE 0% 0 0 1635 207 -1428 2019 DPW/NR 5,262 41,500 13% 538 12 68 1,692 214 BUILDING TWO 0% 0 0 BUILDING THREE 0% 0 0 BUILDING FOUR 0% 0 0 BUILDING FIVE 0% 0 0 538 68 -470 2018 BUILDING ONE 0% 0 0 BUILDING TWO 0% 0 0 BUILDING THREE 0% 0 0 BUILDING FOUR 0% 0 0 BUILDING FIVE 0% 0 0 0 0 0 X7A12T
Criterion 3 Step 2: Complete Table 2 - Progress
Table 2 Instructions: 1) Enter your community's baseline year (including whether it's a Fiscal Year or Calendar Year); 2) Enter total MMBtus per category (Rows 10-15) for the baseline year and the current reporting year. In MassEnergyInsight, this information is available in the "Annual Report Table 2" report; 3) If this is your community's first Annual Report, enter the energy consumption for past years as needed; 4) If your community did not submit an Annual Report last year, enter energy data for 2019 and 2020; 5) If your baseline includes a proportion of energy consumed by a regional school district, provide the pro-rated energy use in Row 18 for non weather-normalized use and Row 22 for weather-normalized use. Attach a worksheet (add a tab to this workbook) listing the buildings, their total energy use, and calculations on how you arrived at their prorated use; 6) If your community needs to pro-rate energy use due to building stock changes, use the calculator provided on the tab to the left and enter the resulting numbers in Row 17 for non weather-normalized data, and in Rows 21 for weather-normalized data.
WEATHER NORMALIZED DATA - DOER is requiring Green Communities to assess their progress using weather-normalized data through a DOER- approved weather normalization methodology. Qualifying methods include use of MassEnergyInsight or Energy Star Portfolio Manager. Please contact your Regional Coordinator for assistance if you use a different energy-tracking tool. Enter weather-normalized total energy consumption in Table 2, Row 20. In MassEnergyInsight, this information is available in the "Annual Report Table 2" report
Does the Community use Calendar Year (CY) or Fiscal Year (FY)? X7A0T FY
Table 2: Timeline of Annual Municipal Energy Use
Baseline 2018 2019 2020 For Most Recent Year: Change vs. Baseline MMBtu MMBtu MMBtu MMBtu (%)
X7A1T 2016 2018 2019 2020
Null Enter baseline year consumption in column D Buildings 8,089 8,296 10,230 9,685 -19.7% Open Space 35 33 32 29 17.1% Street & Traffic Lights 40 40 57 40 0.0% Vehicles 7,019 7,420 6,748 6,299 10.3% Water/Sewer 3,754 3,107 2,584 2,523 32.8%
X7A2T Building Stock Change Adjustment 0 -470 -1428
X7A3T X7A4T Regional School Prorated
X7A5T X7A6T TOTAL ENERGY CONSUMPTION (NO Weather Normalization) 18,937 18,896 19,181 17,148 9.4%
X7A7T X7A8T Weather Normalized Consumption (without building stock adjustment) 19,667 20,244 20,589 19,072 3.0%
X7A9T Building Stock Change Adjustment (weather - normalized) 0 -1477 -1447
X7A10T X7A11T
Regional School Prorated (weather-normalized)
TOTAL ENERGY CONSUMPTION (Weather-Normalized) 19,667 20,244 19,112 17,625 10.4% NOTE: IF USING MASSENERGYINSIGHT, there is NO need to complete this table. Table 3: Annual Municipal Energy Use in Native Units and MMBtu - Plan Year
Please enter "0" for any fuels not used
Electric Renewable Thermal Renewable Electricity Natural Gas #2 Distillate Fuel Oil Propane Gasoline Diesel Energy Energy
kWh MMBtu Therms MMBtu Gallons MMBtu Gallons MMBtu Gallons MMBtu Gallons MMBtu kWh MMBtu Therms MMBtu Total MMBtu
School 0 0 0 0 0 0 0 0 0
Town Hall 0 0 0 0 0 0 0 0 0
Police Station 0 0 0 0 0 0 0 0 0 0
X8A0T
SUBTOTAL FOR BUILDINGS 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Drinking Water/Wastewater Treatment Plant 0 0 0 0 0 0 0 0 0
Pumping in Aggregate 0 0 0 0 0 0 0 0 0
Open Space* 0 0 0 0 0 0 0 0 0
Vehicles in Aggregate 0 0 0 0 0 0 0 0 0 0 Street and Traffic Lights in Aggregate 0 0 0 0 0 0 0 0 0
X8A1T
TOTAL ENERGY CONSUMPTION 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 For use in next Table 4 - ECMs Project Type Definition/Includes:
Behav & Training Behavioral programs, building operator training, etc. Building Control HVAC controls, energy management systems (NO vending misers) Exterior Lighting Streetlights, traffic lights, parking lots/garages, exterior lighting Interior Lighting Interior lighting & controls Fuel Conversion Conversion from one heating fuel type to another (often oil to natural gas) Hot Water Hot water heaters, pipe insulation, showerheads, faucet aerators, efficient dish washers HVAC Heating or cooling equipment, economizers, destratification fans, dehumidifiers, duct Pump/Motor/Drive Pumps, motors, variable frequency/speed drives Refrigeration Refrigeration and controls, including vending misers Retrocommission Retrocommissioning and submetering projects Vehicles Energy-savings vehicles & their operations: GPS, anti-idling retrofits, routing software, Weatherization Insulation, air-sealing, windows, etc. Comprehensive Large-scale retrofit of the entire building or multiple systems. Examples: building renovations, lighting + HVAC + EMS Other Use this only if types above do not fit
Status Type Definition/Includes: Complete Project is complete & operational. Active Project is actively underway - procurement completed and in any stage of construction. Planned Identified project that will be pursued; may be in budgeting or procurement. Abandoned Project is not completed and will no longer be pursued. Criterion 3 Step 4: Update Table 4 - ECMs at were listed as "planned" or "active" in last Annual Report or Energy Reduction Plan and add new l ECMs, not only ECMs funded by Green Communities grants. Table 4 Click here to view a sample version of this table Energy Conservation Measures Data jects that were listed as "planned" or "active" in last Annual Report or Energy Reduction Plan and add new projects. Status Energy Data Financial Data Reference Data
Projected Projected Projected Projected Projected Status Date Projected Status (select Annual Annual Annual Annual Annual Projected Total Green Funding Energy Conservation ECM Type (select one (Month -year Annual Oil Utility Source for Building/Site Name one from drop- Electricity Natural Gas Propane Gasoline Diesel Annual Cost Installed Community Net Cost ($) Source(s) for Measure Name from drop-down) completed or Savings Incentives ($) Projected Savings down) Savings Savings Savings Savings Savings Savings ($) Cost ($) Grant ($) Net Costs planned) (gallons) (kWh) (therms) (gallons) (gallons) (gallons)
Town Hall LED Lighting Interior Lighting Complete Mar-19 25,175 $3,902 $24,125 $0 $24,125 Orleans Fire Orleans Fire Department Lighting Upgrade Interior Lighting Complete Jun-19 6,365 $987 $6,419 $0 $6,419 Department.pdf Orleans Elementary Orleans Elementary LED Lighting Interior Lighting Complete Jul-19 58,370 $9,047 $47,014 $0 $47,014 School Lighting.pdf Orleans Transfer Transfer Station LED Lighting Interior Lighting Complete Nov-19 582 $99 $838 $251 $586 Station Office.pdf Namskaket Bath House LED Lighting Interior Lighting Complete Nov-19 42 $7 $132 $0 $132 Orleans Council on Council on Aging LED Lighting Interior Lighting Complete Dec-19 13,402 $2,077 $13,325 $0 $13,325 Aging.pdf Orleans Water Water Treatment Facility LED Lighting Interior Lighting Complete Jan-20 1,550 $240 $3,085 $158 $2,926 Treatment Facility.pdf Vehicles Fleet Replacement Vehicles Complete Jan-20 165 $423 $23,550 $9,290 $0 Orleans Community Community Building LED Lighting Interior Lighting Complete Feb-20 3,989 $618 $3,305 $859 $2,446 Building.pdf Orleans Elementary Low Flow Spray Valve Interior Lighting Active 114 $131 $150 $50 $100 Orleans Elementary.pdf Programmable Orleans Water Water Treatment Facility Interior Lighting Active 1,474 $251 $360 $60 $300 Thermostat Treatment Facility.pdf Orleans Transfer Transfer Station Ductless Mini-Splits Building Control Active 4,490 $763 $6,000 $5,000 $1,000 Station Office.pdf High Efficiency Air Orleans Water Water Treatment Facility Other Active 2,333 $397 $5,470 $3,470 $2,000 Dryer Treatment Facility.pdf
To insert additional rows, select this row, right-click, and select "Insert."
TOTAL Projected Savings 117,772 114 0 0 165 0 18,942 133,773 19,139 100,374 0
TOTAL MMBtu SAVINGS 434 401.8364945 11.4 0 0 20.46 0 Table 4 Click here to return to Table 4 SAMPLE Energy Conservation Measures Data
ECMs Status Energy Data Financial Data Reference Data
Projected Projected Status Date Projected Projected Projected Projected Annual Annual Projected Green Funding Energy Conservation ECM Type (select one Status (select one (Month -year Annual Annual Natural Annual Oil Annual Diesel Total Installed Source for Projected Category Building/Site Name Propane Gasoline Annual Cost Community Utility Incentives ($) Net Cost ($) Source(s) for Measure Name from drop-down) from drop-down) completed or Electricity Gas Savings Savings Savings Cost ($) Savings Savings Savings Savings ($) Grant ($) Net Costs Savings (kWh) (therms) (gallons) (gallons) planned) (gallons) (gallons)
http://www.energystar.go Town Capital Green School Lighting Retrofit Interior Lighting Complete Feb-20 95,252 0 0 0 0 0 $8,000 $25,000 $0 $12,500 $12,500 v/ia/business/downloads/ Plan FY2011 Buildings BP Checklist.pdf Buildings Town Hall Air Sealing Weatherization Active Dec-20 0 230 0 0 0 0 $1,100 $3,500 $1,750 $1,750 $0 N/A A-Z Energy Audit, 2008 Town Hall New Boiler HVAC Planned Nov-22 0 17,122 0 0 0 0 $5,000 $50,000 $35,000 $15,000 $0 N/A Boilers-to-Go Quote, 2009 Buildings Town Operating LED Signals Today Quote, Street Lights LED Conversion Exterior Lighting Active Jan-21 6,000 0 0 0 0 0 $2,500 $5,000 $0 $2,500 $2,500 Budget 2009 FY2011 Town Bond Energy Masters Buildings Drinking Water Treatment Plant 2 Variable Speed Drives Pump/Motor/Drive Complete Mar-20 500,000 0 0 0 0 0 $40,000 $200,000 $0 $100,000 $100,000 FY2016 Technical Study, 2010 Town Anti-idling retrofit for 2 Operating Vehicles Vehicles Planned Aug-20 0 0 400 400 400 400 $4,500 $6,000 $0 $0 $6,000 green.autoblog.com police cruisers Budget FY2018 TOTAL 601,252 17,352 400 400 400 400 $61,100 $289,500 $36,750 $131,750 $121,000 Projected Savings
TOTAL MMBtu SAVINGS 4,662 2,051 2,412 50 50 50 50 GUIDANCE FOR REPORTING RENEWABLE ENERGY GENERATION AS ENERGY CONSUMPTION The following scenarios apply to renewable energy systems that are interconnected to the electric grid. It is possible that more than one scenario applies to the same renewable energy system; for example, a solar PV system may generate less energy than its building uses in the winter (scenario 1), but generate more energy than its building uses in the summer (scenario 2). Ideally, calculations should be done for each month.
1) Do you have Conventional Net Metering? If yes, see RE Scenario 1 and RE Scenario 2
2) Do you have Virtual Net Metering? If yes, see RE Scenario 3
3) Do you live in an MLP? If yes, see RE Scenario 4
RE Scenario 1: Conventional Net Metering, System Generation < Building Use = Importing Power
If the building uses more electricity than the RE system generates, your electric meter registers postitive. The building is importing power from the electric company. Then a Green Community should add in the amount of RE generation. This means the total building energy use = total kWh on electric bill + kWh generated by RE.
For example: Total Grid Electricity on electric bill (kWh): 3,000 Total Net Metering Credits on electric bill (kWh): 0 Total generated by the RE system (kWh): +7,000 Total building use (kWh): 10,000
Find and Calculate: Find the kWh generated each month from your RE system. Contact your Regional Coordinator if you are having trouble finding the kWh generated each month.
Action: Load the building renewable energy usage into MassEnergyInsight. Create a separate account for each RE system at each building. Load the RE generation for each month by going to “Upload a Spreadsheet.” Choose “solar electric” or “wind power.” Upload your usage data. If not using MassEnergyInsight, report to DOER in your Annual Report .
RE Scenario 2: Conventional Net Metering, System Generation > Building Use = Exporting Power
If the RE system generates more electricity than the building uses your electric meter registers negative. The RE system is exporting power to the electric company. Then a Green Community should not add in the amount of generation over and above what the building used. This means the total building energy use = kWh generated by RE – kWh credited to electric bill for net metering. ** Contact your Regional Coordinator if you have negative use on your electric bill **
For example: Total Grid Electricity on electric bill (kWh): 0 Total Net Metering Credits on electric bill (kWh): -1,000 Total generated by the RE system (kWh): +7,000 Total building use (kWh): 6,000
For help locating net metering credits on your electric bill go to: https://www.nationalgridus.com/non_html/MA_DG_First_Bill.pdf https://www.eversource.com/Content/ema-e/residential/programs-services/interconnections-net-metering/net-metering-faq
Find and Calculate: Find the total kWh generated each month from your RE system. Find the net metering credits in kWh applied to your electric bill each month. Subtract the net metering credits in kWh from the total RE generated. This is your building’s NET use of renewable energy generated. Contact your Regional Coordinator if you are having trouble finding the KWh generated and credited each month.
Action: Load the NET building renewable energy usage into MassEnergyInsight. Create a separate account for each RE system for each building. Load the RE generation for each month by going to “Upload a Spreadsheet.” Choose “solar electric” or “wind power.” Upload your usage data. Or, report to DOER in your Annual Report.
RE Scenario 3: Virtual Net Metering
If a building is virtually net metered, in which the RE system has its own separate meter but the financial credits are applied to a different building, then the actual amount of electricity use of the building will be on its electric bill. For example, a municipality may have built a solar PV array on a closed landfill. The PV system has a meter but does not link to any buildings that consume a substantial amount of energy. (The PV system will be linked to its inverter and perhaps to a small shed or security lights.) The financial value of the electricity that is generated by the landfill solar PV system is applied to an account for electric use at the town hall and to an account for electric use at the library. The electric bills for the town hall and library thus will show the amount of electricity that is actually used by those buildings, but only charge for the amount of electricity above and beyond what was generated by the solar PV system on the landfill. See DOER’s Net Metering page for more details on credits for renewable generation.
Information Needed: Written confirmation of virtual net metering documenting there is a separate meter used for the RE system with only a small load-side usage. The load-side usage should be reported to MassEnergyInsight under Scenario 2 above.
Action: Generation does not impact baseline and should NOT be loaded into MassEnergyInsight. Provide information needed as noted above. Report load-side usage under Scenario 2 above.
RE Scenario 4: RE Generation to Control Rates (for MLPs)
If an MLP uses its RE generation to control its system-wide rates and does not use the RE for a specific municipal building, either directly or through virtual net metering, then the amount of RE generation does not need to be included.
Information Needed: Written confirmation of RE generation for system-wide benefit with no virtual net metering. The load-side usage should be reported to MassEnergyInsight under Scenario 2 above.
Action: Generation does not impact baseline and should NOT be loaded into MassEnergyInsight. Provide information needed as noted above. X13A1T
Please refer to Guidance on Reporting Renewable Energy Generation and Only Include Projects with Conventional Net Metering (scenario 1 and scenario 2) in Table 5 Criterion 3 Step 5: Complete Table 5 - Renewable Energy
Thermal Energy Data Project Description Status and Timing Electricity Data Financial Data Reference Info (representing consumption)
Annual Resource Type Site Type Town Procuring Project Status Size of Green Funding Source for Year Completed Electricity Annual Natural Annual Wood Annual Wood Annual Cost Total Installed Project Name (select from (select from drop Energy Output? (select (select from System (kW, Community Other Grant ($) Net Cost ($) Source(s) for Net Projected (i.e., 2016) Generation Gas (therms) (cords) (pellets) Savings ($) Cost ($) drop down) down) from drop down) drop down) DC) Grant ($) Costs Savings (kWh)
X13A0T Soltrex online PV Y - conventional net City Capital Sample Data - City Hall Solar PV, Roof Municipal Building Complete 2016 26.5 26,507 $302 $439,632 $0 $337,500 $102,132 systems portfolio metered Funds dashboard
To insert additional rows, select this row, right-click, and select "Insert."
TOTALS 0 0 0 0 TOTAL RENEWABLE ENERGY PRODUCTION (MMBtu) 0 0 0 0 0 0 0 0 Criterion 4 - Purchase Fuel Efficient Vehicles
Since your last Annual Report OR Green Communities Designation (if first Annual Report) has your municipality…
X14A0T 1) Replaced an exempt or non-exempt vehicle? YES
X14A1T 2) Acquired a new exempt or non-exempt vehicle, and/or conducted inter-departmental vehicle transfers? YES NOTE: Inter-departmental transfers must comply with MPG requirements of Fuel Efficiency Policy
If the answer to #1 and/or #2 above is "yes", Please provde a list of all vehicles (Both exempt and non-exempt) for ALL departments, including schools (as appropriate), that were acquired, retired and/or transferred in since your last Annual Report or Designation Application (if first Annual Report). Please do not report any exempt off-road vehicles, trailers, etc. In the spreadsheet on the following tab (Crit 4 -Table 6), 1) List in the top table all vehicles acquired or transferred since the last annual report, noting which vehicles they are replacing, and/or 2) List all vehicles removed from the municipal fleet in the bottom table
3) Installed an electric vehicle charging station during the reporting period? X14A2T YES
4) Installed idle-reduction technology on any vehicles during the reporting period? X14A3T NO
5) Implemented anti-idling technology and/or campaigns during the reporting period? X14A4T NO
6) Implemented a driving monitoring system that records miles driven and/or fuel consumption during the reporting perio X14A5T NO
X14A6T 7) Implement a fuel use reporting system for operators on fuel efficiency during the reporting period? NO
X14A7T 8) Implement any other policies and/or technologies not listed above during the reporting period? NO Estimate annual fuel savings from each new technology or policy in the yellow box below. Also attach any new vehicle policies and technologies adopted by the municipality to this annual report.
X14A8T 9) Does the community meet Criterion 4 through alternative compliance? NO Changes in Vehicle Inventory
Provide a list of all vehicles (both exempt and non-exempt) for ALL departments, including schools, that were acquired, retired, and/or transferred to other departments since your last Annual Report or Designation Application (if this is your community's first Annual Report). Please do not report any exempt off-road vehicles, trailers, streetsweepers, etc. NOTE: For the purposes of the program, municipalities must use the EPA combined fuel economy estimate listed at FuelEconomy.gov for vehicles with a GVWR < 8,500 pounds. If the vehicle is not listed on FuelEconomy.gov then list N/A for MPG rating.
List new acquisitions in this table
If the vehicle is a replacement, what vehicle did it replace? Used for Please reference vehicle listed in > 8500 Emergency ADMIN ONLY "Vehicles Retired" table below. If Drive System pounds? COMBINED MPG Rating Vehicle Function Response? Exempt or Is this a new transferred from another Market Class (choose Month/Year (choose from (choose from (Click here for (i.e. DPW, Police, (choose from drop- Non- Meets GC Fuel Efficiency acquisition? department, indicate which one. Make Model from drop-down list) Model Year acquired drop-down list) drop-down list) fueleconomy.gov) Inspector) down list) Exempt? Rating?
X15A0T Yes Fire F350 - Row 50 Ford F350 Pickup Truck 2017 October-2018 4WD Y N/A Fire and Rescue Y Exempt N/A, Vehicle is exempt Yes Water Ford F250 - Row 45 Chevrolet Silverado Pickup Truck 2017 October-2018 4WD Y 25 Water N Exempt N/A, Vehicle is exempt Yes DPW Explorer - Row 44 Chevrolet Silverado Pickup Truck 2018 October-2018 4WD Y 25 DPW/Parks N Exempt N/A, Vehicle is exempt Yes N/A Ford F150 Pickup Truck 2018 October-2018 4WD N 24 Fire and Rescue Y Exempt N/A, Vehicle is exempt Yes Police Ford Taurus - Row 48 Ford Explorer Sport Utility Vehicle or SUV 2018 October-2018 4WD N 23 Police Y Exempt N/A, Vehicle is exempt Yes Police Ford Explorer - Row 52 Ford Explorer Sport Utility Vehicle or SUV 2018 October-2018 4WD N 23 Police Y Exempt N/A, Vehicle is exempt Yes Police Ford Explorer - Row 53 Chevrolet Silverado Pickup Truck 2019 February-2019 4WD Y 25 Water N Exempt N/A, Vehicle is exempt Yes N/A Chevrolet Silverado Pickup Truck 2019 February-2019 4WD Y 25 Parks/Beach N Exempt N/A, Vehicle is exempt Yes N/A Ford F550 Pickup Truck 2019 February-2019 4WD Y N/A Fire and Rescue Y Exempt N/A, Vehicle is exempt Yes N/A Ford Explorer Sport Utility Vehicle or SUV 2020 December-2019 4WD N 23 Police Y Exempt N/A, Vehicle is exempt Yes Police Chevrolet K2500 - Row 43 Ford F150 Pickup Truck 2020 January-2020 4WD N 24 Police Y Exempt N/A, Vehicle is exempt Yes Town Ford Focus - Row 49 Toyota Prius Car 2020 January-2020 4WD N 46 Conservation N Non-Exempt Yes Yes N/A Toyota Prius Car 2020 January-2020 4WD N 46 Assessors N Non-Exempt Yes Yes Transfer Station Chevrolet K3500 - Row 47 Chevrolet Silverado Pickup Truck 2020 January-2020 4WD Y 25 DPW N Exempt N/A, Vehicle is exempt Yes N/A Ford F350 Pickup Truck 2020 May-2020 4WD Y N/A Fire and Rescue Y Exempt N/A, Vehicle is exempt
List vehicle retirements in this table
Used for Vehicle Function before Emergency ADMIN ONY > 8500 retirement Response? Exempt or Was this vehicle removed from Month/Year Drive System: pounds? (Y or (i.e. DPW, Police, Fire) (choose from drop- Non- the fleet? Make Model Market Class Model Year Purchased 2WD, 4WD, AWD N or NA) down list) Exempt? Yes International 4400 Other 1993 4WD Y Fire & Rescue Y Exempt Yes Chevrolet K2500 Pickup Truck 2002 4WD Y Police Y Exempt Yes Ford Explorer Sport Utility Vehicle or SUV 2004 AWD N DPW, Natural Resources, Highway and N Non-Exempt Yes Ford F250 Pickup Truck 2005 4WD Y Water Department N Exempt Yes Peterbilt Dump Truck Other 2008 4WD Y DPW, Natural Resources, Highway and N Exempt Yes Chevrolet K3500 Pickup Truck 2008 4WD Y Transfer Staton N Exempt Yes Ford Taurus Car 2013 4WD N Police Y Exempt Yes Ford Focus Car 2008 4WD N Town N Non-Exempt Yes Ford F350 Pickup Truck 2010 4WD Y Fire & Rescue Y Exempt Yes International Ambulance Other 2012 4WD Y Fire & Rescue Y Exempt Yes Ford Explorer Sport Utility Vehicle or SUV 2012 4WD N Police Y Exempt Yes Ford Explorer Sport Utility Vehicle or SUV 2017 4WD N Police Y Exempt Changes in Vehicle Inventory
Provide a list of all vehicles (both exempt and non-exempt) for ALL departments, including schools, that were acquired, retired, and/or transferred to other departments since your last Annual Report or Designation Application (if this is your community's first Annual Report). Please do not report any exempt off-road vehicles, trailers, streetsweepers, etc. NOTE: For the purposes of the program, municipalities must use the EPA combined fuel economy estimate listed at FuelEconomy.gov for vehicles with a GVWR < 8,500 pounds. If the vehicle is not listed on FuelEconomy.gov then list N/A for MPG rating.
List new acquisitions in this table
If the vehicle was transferred, what Used for vehicle did it replace? Please reference Emergency vehicle listed in "Vehicles Retired" table Drive System > 8500 pounds? COMBINED MPG Rating Response? ADMIN ONLY Is this a new below. If transferred from another Market Class (choose from Month/Year (choose from drop- (choose from drop- (Click here for Vehicle Function (choose from Exempt or Non- acquisition? department, indicate which one. Make Model drop-down list) Model Year acquired down list) down list) fueleconomy.gov) (i.e. DPW, Police, Inspector) drop-down list) Exempt? Meets GC Fuel Efficiency Rating? YES Crown Victoria in row 42 Ford Focus Car 2018 August-2017 2WD N 31 Inspector/Assessor shared car N Non-Exempt Yes YES New Vehicle; no replacement Ford Explorer Sport Utility Vehicle or SUV 2017 April-2018 AWD N 19 Police CRUISER Y Exempt N/A, Vehicle is exempt YES Taurus in row 43 Ford Explorer Sport Utility Vehicle or SUV 2018 April-2018 AWD N 19 Police CRUISER Y Exempt N/A, Vehicle is exempt YES chevy dump row 44 Ford F550 Pickup Truck 2018 April-2018 4WD Y N/A DPW N Exempt N/A, Vehicle is exempt Transferred Transferred from Engineer Dept. Cheverlet Silverado Pickup Truck 2014 July-2014 4WD N 18 Parks and Recreation N Non-Exempt Yes YES Chevy Silverado (above) Cheverlet Equinox Sport Utility Vehicle or SUV 2018 July-2018 AWD N 20 Engineer N Non-Exempt Yes
List vehicle retirements in this table
Used for Vehicle Function before Emergency retirement Response? ADMIN ONY (i.e. DPW, Police, Fire) (choose from Was this vehicle removed from the Month/Year Drive System: 2WD, > 8500 pounds? Exempt or Non- drop-down list) fleet? Make Model Market Class Model Year Purchased 4WD, AWD (Y or N or NA) Exempt? YES Ford Crown Victoria Car 1999 July-1999 2WD N Assesor Y Exempt YES Ford Taurus Car 2005 January-2005 2WD N police cruiser N Non-Exempt YES Chevy dump Pickup Truck 2006 Y DPW N Exempt Criterion 5 - Minimize Life-Cycle Costs in New Construction
X17A0T Is the stretch code still in effect? YES
X17A1T Were any residential occupancy permits issued since your last Annual Report or Designation Application (if first YES Annual Report)?
How many occupancy permits were issued for new commericial X17A2T 0 construction over 100,000 sq.ft.?
Please provide in the space below any anecdotal information about your community's experience with the Stretch Code (e.g. local banks loaning more to people purchasing stretch code homes, satisfied homeowners, frustrated builders, etc.).
DOER will access HERS scores reported to ResNet to ensure compliance Other Notes
Please provide in the space below any information about additional measures taken by the community that are consistent with its status as a designated Green Community(e.g. additional as-of-right siting put in place since designation for renewable or alternative energy generation, R&D, or Manufacturing facilities).
Please provide in the space below what percentage of your municipality's electricity consumption is supported by renewable energy generation? Of this percentage, how much of this is onsite generation? How much of this is net metering? How much of this is through the purchase of Renewable Energy Certificates (RECs)?
In FY19, the Orleans Capped Landfill Solar Array produced 697,104 kWh. It is assumed that FY20 is similar. The electric usage in FY20 was 1,630,150 kWh, which means that the usage is offset by about 43%.
SELECT BOARD OFFICE OF THE TOWN AGENDA ACTION REQUEST ADMINSTRATOR November 4, 2020
SPECIAL TOWN MEETING POST-MORTEM
REQUESTED BY: Select Board
DESIRED ACTION: Discussion
PROPOSED MOTION: N/A
ACTION TAKEN: Moved By: ______Seconded By: ______Condition(s):
VOTED: Aye _____ Nay______Abstain ______
SELECT BOARD OFFICE OF THE TOWN AGENDA ACTION REQUEST ADMINSTRATOR November 4, 2020
REVIEW OF ANNUAL SELECT BOARD GOALS
REQUESTED BY: Select Board
DESIRED ACTION: Review and discuss update
PROPOSED MOTION: TBD
ACTION TAKEN: Moved By: ______Seconded By: ______Condition(s):
VOTED: Aye _____ Nay______Abstain ______
EXPANDED Orleans Select Board Goals for FY ‘21 Adopted: August 12, 2020
1. Public Safety SB: Lead Staff: Lead Status as of 11/4/2020 1.1. Manage COVID-19 through frequent public communication and respond to needs of SB: K. Galligan • Regular SB Meetings continue to include Health, Fire-Rescue, Police and other town Staff: J. Kelly COVID-19 updates departments and schools consistent with State and Federal guidelines.
1.2. Develop a plan to consistently ensure compliance/enforcement with town’s regulations, including but not limited to: signs, zoning, parking, animal control, noise, lighting & construction. Further, encourage and provide resources for traffic calming measures.
2. Fiscal Stability
2.1. Use Fiscal Stability work sessions to assess • Next FSWS scheduled for 11/18 all options and provide policy guidance for staff to reduce the amount of Override that will be necessary to address the estimated $1 million short-fall in 2021-2022 budget.
2.2. Explore options for creating enterprise fund • STM 10/31/20 Votes model accounts for key town departments, including the Transfer Station and Beaches. If recommended, submit implementation warrant article(s) to present at May 2021 Town Meeting.
1 EXPANDED Orleans Select Board Goals for FY ‘21 Adopted: August 12, 2020
2.3. Create/reactivate the Long Term Capital Planning Task Force to work with Finance Director to plan for future capital expenditures with the goal of using debt drop-off to keep tax rate as stable as possible.
3. Improve Delivery of Government Services
3.1. Revise town website for easier navigating • Wastewater Infrastructure page created and option of interactive communication SB: A. Reed • Online burn permits start 1/15/21 with the public, including opportunities such Staff: S. Eaton, P. VanDyck • Permits already online are: Express as internet permit applications. Building Permits, Electrical & Plumbing, Beach and Transfer Station and Shellfish Permits.
3.2. Encourage informal, multi-board/committee SB: A. Reed • Brainstorm session set of 11/12/20 communication around town-wide Staff: J. Kelly, G.Meservey initiatives.
3.3. Ensure Select Board Liaisons report regularly to the Select Board, so board members and the public are informed about all the work being done by committees and boards on behalf of the Town.
3.4. Create policy for staffing committees and boards to effectively match volunteers with
2 EXPANDED Orleans Select Board Goals for FY ‘21 Adopted: August 12, 2020
services needed.
3.5. Create Orleans specific job description for minimum required Select Board responsibilities and obligations.
3.6. Create a “Digital Ombudsman” to receive SB: A. Reed • Ask the Select Board page created questions and complaints from citizens Staff: S. Eaton • STM 10/31/20 Info and FAQs interacting with town government to be monitored by all Select Board members and Town Administrator to ensure resolution.
4. Environmental Sustainability
4.1. Evaluate all town owned waterway access points for convenient and safe public access, while also addressing issues around ongoing sea level rise. This should include consideration of parking regulations, fees and enforcement.
4.2. Request the Renewable Energy Committee research and recommend further measures along with funding opportunities for further reductions in the Town’s carbon footprint.
5. Planning for the Future of Orleans
5.1. Kick-off the Charter Review Committee and SB: K. Galligan • Oct 5 kick-off meeting held
3 EXPANDED Orleans Select Board Goals for FY ‘21 Adopted: August 12, 2020
set a time frame when recommended Staff: J. Kelly changes would be brought to Town Meeting.
5.2. Oversee multiple phases of advancement of SB: K.Galligan • Downtown Sewer Project weekly the Comprehensive Wastewater Staff: T.Daley, R.Collins meetings began 9/24/2020 Management Plan, including Downtown Sewer Facilities construction, Meetinghouse Pond sewer design, Permeable Reactive Barriers, the Oyster Pilot Project and opportunities for cleaning freshwater ponds.
5.3. Support the Nauset Estuary Stakeholder Group workplan to bring comprehensive permitting proposal to Town Meeting for appropriation.
5.4. Use multiple tools to engage residents in conversations about all aspects of Town life to create a vibrant year-round community.
5.5. Identify resources to leverage investment in new facilities and infrastructure (e.g., improved cellular & internet coverage) including federal, state, county and private grants, agencies and local resource partners.
4
SELECT BOARD OFFICE OF THE TOWN AGENDA ACTION REQUEST ADMINSTRATOR November 4, 2020
BOARD CORRESPONDENCE
REQUESTED BY: Select Board
DESIRED ACTION: Discuss and/or vote on the following items: a. Email on Thoughts about the direction of Orleans b. Emails on PV Roof Top Arrays in the OKHHD
PROPOSED MOTION: TBD ACTION TAKEN: Moved By: ______Seconded By: ______Condition(s):
VOTED: Aye _____ Nay______Abstain ______
John Kelly
Subject: Thoughts about the direction of Orleans from a concerned citizen
From: John Kelly Sent: Sunday, October 18, 2020 8:56 AM To: [email protected] Cc: Peter Gryzmolowicz
Andrea, If the Board is going to be considering the letter, it would be better to include it as correspondence on the Nov 4 meeting agenda. I will place a copy in the mail folder and the packet. John
Sent from my Verizon, Samsung Galaxy smartphone
‐‐‐‐‐‐‐‐ Original message ‐‐‐‐‐‐‐‐ From: andrea shaw reed
Hi John, Peter reached out to me so that he could get his letter in front of the whole SB. Forwarding to you so it can be included as correspondence in a future packet or sent out separately, as you see fit. Peter did not want to address the SB through public speak but would rather that we read his letter when we have time to consider it. Let me know if the procedure is simply for me to forward to everyone, copying commail or have you distribute. Still on training wheels. a
Dear Andrea Reed;
I am a 71 year old going on 72 very quickly. Most of my life, I have lived in New Jersey. But my wife and I have been visiting the Cape for decades. Her family has as well. There is a deep love by us for the Cape for all of the
1 obvious reasons, i.e. the natural beauty, the crisp intoxicating ocean air, the microclimate, the people, the splendor of birds singing happily from their perches in the trees, and last but not least, the sweet smell of pine from those majestic pine trees that abound.
Yes, the Cape is a world unto itself. And a good one at that.
My wife and I, like many others, decided to enjoy our eventual retirement on Cape Cod instead of somewhere in the South. We bought a small cottage in 2006. Demolished it in 2009 and built our dream “cottage” in 2010. We permanently moved to Orleans in 2017 and have never looked back and have not regretted our move for the most part.
I guess you are now wondering what do I mean by, “ for the most part”.
Orleans seemed to be a great great place to spend the rest of our lives here. And we still feel that way “ for the most part”. Every town in America has a personality which is exhibited by the people as well as the structures, design, and cleanliness of the homes, businesses, and streets. How a community keeps up their Main street; how a community shows it’s prided by attending to their properties; and how they keep their homes and buildings well maintained, speaks volumes about that town to others who visit that town. Visitors are very conscious of their surroundings and are very perceptive and ingest everything that they see and experience. They make judgments about what they experienced and saw. The very one thing that Orleans cannot afford is for people who have traveled long distances to vacation or just visit Orleans to go back to their families and friends and tell them that Orleans has very little to offer. Instead, they tell friends and family to go to Chatham.
A long time ago, a family friend who has had a house in Orleans for well over 40 years, overheard a resident complaining about the tourists. It got to a point whereby this family friend had to interject. He turned towards that resident and said in a nonthreatening respectful manner, “ Miss, although it does get somewhat annoying during the tourist season, however, never ever forget that since Orleans does not have a very good ratable tax base, it is the tourist that financially supports our community and helps to keep our taxes in check”. Well, that resident demurred and walked away quietly. Everyone probably remembers President Bill Clinton’s campaign mantra. Remember? “It’s the economy stupid”. Well, allow me to change that so that it applies more to Orleans, i.e. “ It’s all about the tourists”. The visitors and the tourists are Orleans’s ratables.
Orleans, being an Olde Cape Cod town, has thousands of visitors each year. They all come here for their own personal reasons. Many of those reasons are the same reasons why my wife and I and her family have been
2 coming to the Cape over the years. That was then. However, with us now being permanent residents and are now afforded the opportunity to truly assess the livability quotient, we ask ourselves, “ has the complexion of the Town of Orleans changed over time?”
I am now beginning to wonder in which direction is Orleans going to focus in order to build a stable, exciting destination town in the future. How is Orleans going to develop over time? I believe that Orleans needs to begin to focus on community fundamentals such as enhancing the perception that our visitors have when they visit Orleans as well as the tax paying residents. What do we want? We want those who visit Orleans and/or vacation in Orleans to use superlatives when describing Orleans. We all would hope that they will excitedly espouse to their family and friends the natural beauty, the friendliness of our people, the cleanliness, the restaurants, the shopping experience, and the overall pleasure of enjoying their time in Orleans.
Unfortunately, I do believe that superlatives will not be used to describe Orleans. And here is why I say that, in my opinion.
One day after getting my car washed at the car wash in town, I started to look around that area and all I saw was a parking lot that looked disgustingly unkempt that has garbage strewn on it, as well as weeds and grass growing through the cracks in the macadam. And then there are all of those empty storefronts. Depressing to say the least. So I started to count the number of empty storefronts . I continued to count the empty storefronts from that parking lot to the traffic lights by Shaw’s. But I did not stop there. I continued to count the empty storefronts as I walked from Shaw’s to the Governor Pence Inn. The total number of empty storefronts that I counted was 38. Empty storefronts is a blight on the community. To me as well as to others, seeing that many empty storefronts is indicative of a financially unstable community.
The above paragraph is probably no great surprise to all of you on the Select Board. But that does not make it any less important to try and rectify. I do understand that trying to get new ratables into town is very difficult with all fo the other important issues that need to be addressed before Orleans can attract viable businesses. The installation of the sewer system is a good beginning. The remodeling of downtown is another excellent step in the right direction. Although, I do believe that the Town made a huge error in not putting the utilities underground. The new landscaping as well as the rock walls as well as the nice lamp posts lend a welcoming feeling. However, as one looks at all of the renovation and improvements, it is all lost when one sees the overgrowth of weeds in the disturbed areas as well as between the bricks in the walkway as well as along the new granite curbing.
3 I knew that would happen. I had every expectation that the town would not keep the new brick walkways free from invading weeds. I had every expectation that the grass will start covering the edges of the beautiful new brick sidewalk. I had every expectation that Orleans will not be cleaning up the dead leaves along the curbing. I had every expectation that within a very short period of time all of the money for the renovation and the remodeling will all be for naught. The Town of Orleans did not keep the downtown area clean and manicured before all of this work was done. So why would I expect that things would be different after the renovations. As a tourist looks around, what does that tourist see? They see new curbing, a new brick walkway, newly planted bushes, plants, flowers and trees. That’s very very nice. Then what do they see? They see two foot high weeds growing in all of the disturbed areas. No grass. Just weeds. What does one see? One sees high weeds growing along the entire length of the new granite curbing. And 6A is even worse. Not pretty at all. So I ask, “ where is the DPW?”
Speaking of the DPW, Here is a true story of an interaction that I had with a couple of Orleans DPW Workers when we first moved to Orleans. As I would walk along Main street and RT 6A, I noticed the fact that there are no receptacles in order for people to throw their garbage away except the one that is hidden at the garden area where the info building is situated. As I was passing TD Bank, there were a couple of DPW workers who are probably fine, hard working men. So I told them that I walk this way every morning and I noticed that there are no garbage cans for people to throw their garbage. His answer astonished me. He said that, “ It’s too much work to empty them”. Huh?
Due to my position as a technical rep for a device company for the past 10 years after retirement, I had the distinct opportunity to travel the country checking patients with pacemakers and defibrillators. That exposed me to many cities and towns across America. I saw some beautiful towns and cities. I saw some cities that were not very appealing. I visited communities with some beautifully renovated downtowns that were also well maintained and manicured.
There is one city in particular that I absolutely loved to visit over and over again and which made a lasting good impression on me. That city was San Antonio, Texas. San Antonio has a river running thru it. I am certain that many years ago, the banks of that river were not developed to the extent that this area is today. The city elected officials had a vision. They planned a community around that natural resource. Today, that River Walk, as they refer to it, is a beautifully developed area on both sides of the river overflowing
4 with cafes, restaurants, ice cream parlors, and all kinds of stores. They had a vision and turned that vision into a Shangra-La reality.
Orleans also has many beautiful natural resources. Gorgeous natural areas which can be turned into water view walkways. Just one area that I have thought of as being a perfect spot for development with a wood plank walkway with lighting would be that area by Goose Hummock. It’s a natural for such a walkway. What a view!! I can just see throngs of families and couples strolling along that walkway taking in the natural splendors of Orleans. I can see beautiful cafes with the aroma of fresh brewed coffee and baked goods waffling through the air as vacationers are sitting at outside tables completely relaxed and breathing in that intoxicating ocean air. Just close your eyes and picture that scene!! Splendid!!!
I think that all of you get my drift by now. I am pleased to call Orleans home. But I am not exactly pleased with what I have seen as I have walked and driven around town. Orleans can be so much more. Orleans can be so much better. But it takes some thinking out of the box with an exciting vision. It will take a new direction of investment in order to capitalize on the natural beauty of the area in which Orleans is situated.
Orleans can be the talk of the Northeast. Orleans can be the “go to” place for relaxation, good shopping, the re-energizing of one’s spirit and senses, a mecca of meditation, and a reinvigoration of one’s inner soul. I want to hear people talk and write about the unbelievably fantastic town that Orleans is. Orleans has the ability to have 5 stars next to it’s name as a Cape Cod destination.
With great confidence in Orleans, Sincerely,
Peter Gryzmolowicz 9 Briar Spring Rd. Orleans, MA 02653 973-670-6322
5 John Kelly
Subject: FW: OKH research by Senator Cyrs Attachments: OKHRHD Solar Memo_9.14.2020 (1).pdf; Old_Kings_Hwy_Permit_Request_Record (1).xlsx; Final Report IOP Solar HDCs.pdf; Senator Cyr Presentation.pdf; Report Memo IOP Solar HDCs.pdf
From: andrea shaw reed
Hi John and Richard, Ron forwarded the information below to me about the research coming from Senator Cyr's office. It speaks for itself but I think given the charge of the OKHC and how they must adhere to it, impacts on residential solar and commercial projects approvals need to be better understood by Orleans residents. A future SB discussion may be solely about clarifying the role of OKHC and helping residents understand the why of their process. a
‐‐‐‐‐‐‐‐‐‐ Forwarded message ‐‐‐‐‐‐‐‐‐ From: RONALD MGRDICHIAN
Andrea, here is a recent communication which may shed some light on the issue. ron m ‐‐‐‐‐‐‐‐‐‐ Original Message ‐‐‐‐‐‐‐‐‐‐ From: James Wilson
Hi Commissioners, I am forwarding to you a copy of material sent to me by Senator Cyrs Chief of Staff Pat Johnson. Jim
1 ‐‐‐‐‐‐‐‐‐‐ Original Message ‐‐‐‐‐‐‐‐‐‐ From: "Johnson, Patrick (SEN)"
Jim:
Great to reconnect.
Could you confirm that you have received this email? Given the number of attachments I want to make sure it goes through.
1) Attached is a memo a former intern in our office (Meghan Blumstein) and I put together on Old Kings Highway District solar applications. Meghan is a doctoral student at Harvard: https://chemistry.harvard.edu/news/science‐ public‐good
2) Also attached is an excel of data that Meghan meticulously assembled on OKH solar decisions. Using records from your website.
And here is an interactive map that Meghan put together that maps OKH commission solar decisions: https://mblumstein.shinyapps.io/solar_map/. Note: You can only click the icons to see details on each if you only have one checkbox selected.
Look forward to discussing this. All of this research is purely meant on our end to be fact finding. As we discussed last October, I don't want anyone to feel like our office has any predetermined goals here or to be offended by anything that is listed or written. We want to work with you to take the time necessary to find a positive outcome. So things in the memo like the Solar City approval rates in Dennis are just what we found in the data that seemed important to us, based on that being referenced by one resident in their appeal documents. Also for the policy options at the end, our preference is the first one listed, and it is listed intentionally first. We know that OKH Commissioners would not favor several of the listed options, but we wanted to list all that our office had discussed as options.
Also: in 2017 we also worked with students from the Harvard IOP Policy Program on this issue: https://iop.harvard.edu/iop‐now/sunny‐days‐iop‐policy‐program.
Their research is not quite as detailed and accurate as Meghan's, but their final report is also attached for your reading enjoyment. As is a shorter summary document and a power point presentation.
Let me know when works for you to talk next. And stay well!
Best,
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Pat Johnson 508‐241‐6200 (cell)
‐‐ Pat Johnson, Chief of Staff State Senator Julian Cyr Cape and Islands District State House, Room 309 Boston, MA 02133 617‐722‐1570 www.SenatorCyr.com
3 John Kelly
Subject: Certificate of Appropriateness Concerning Installation Of Solar Panels at 114 Rock Harbor Road, Orleans, MA
From: mrmerg
John, item 5 of part B recommendations to applicants addresses energy conscious design which calls out solar panels. also, sec. 4 last paragraph addresses changes to rules and regulations. ron mgrdichian
Sent from my Sprint Samsung Galaxy S® 6.
‐‐‐‐‐‐‐‐ Original message ‐‐‐‐‐‐‐‐ From: John Kelly
Andrea, The Old Kings Highway Historic District comprises 5 towns each with their own elected local committee. I have seen the OKH regulations that apply to PV rooftop projects and believe they are applicabe District wide. I am not familiar with the process to amend OKH regulations. I can add the letter as Board correspondence to the Nov 4 agenda and include a copy in the mail folder and meeting packet. John
Sent from my Verizon, Samsung Galaxy smartphone
‐‐‐‐‐‐‐‐ Original message ‐‐‐‐‐‐‐‐ From: andrea shaw reed
Hi John, Richard has written a letter with a balanced overview of an issue that is local and Cape-wide within the entire OKHD that I think the
1 whole SB should be aware of. He has also given his approval to share it with us. Future packet or separate email for distribution? I wait for your command. a ‐‐‐‐‐‐‐‐ Original message ‐‐‐‐‐‐‐‐ From: Richard Iandoli
VIA EMAIL
Ronald Mgrdichian, Chair John Smith Jr. Stefan P. Galazzi Richard Weeks Jamie Demas
Town of Orleans Old King's Highway Regional Historic District Committee 19 School Road, Orleans, MA 02653
Dear Mr. Chair and Members of the Committee,
I am writing concerning the Committee's August 6, 2020 decision to deny the issuance of a Certificate of Appropriateness for the installation of solar panels at our home at 114 Rock Harbor Road.
I am not challenging your decision, nor appealing it, nor seeking reconsideration. I am writing only to ask that going forward, the Board expand the criteria used in its decision making concerning solar panels. I ask you to consider that the possibilities of preservation are broader than the very important aspects of history, style, architecture, design, color etc.
By way of background, please let me offer you some details about my history. I work in Boston. For 15 years, our office was located in Boston's Bay Village historic district. During those years, we often hosted the Bay Village historic committee's meetings in our conference room. We moved to Bay Village in large part because of the beauty of the miniature town houses in that district built on stilts in the old bay. We were ardent supporters of maintaining the character of the historic district.
We moved about 12 years ago to the Charlestown Navy Yard. Our office is in the historic Cooper's Building about 3 blocks from the U.S.S. Constitution. The barrels for water and provisions for that and other Navy ships were made in our building for many decades. Our building is on the National Historic Registry and is now an office building. Again, we chose to move there in important part because of the beauty and historic nature of the building and the surrounding Navy Yard. 2
It is from this perspective that I write to you. I support historic preservation.
So, I urge you to add climate preservation to your deliberations, without which much of the Old King's Highway historic district will likely not survive intact for another hundred years.
We have been at 114 Rock Harbor Road for only 10 years. Recently, Captain Cass' restaurant was flooded for the first time that we know. At very high tide and without storm surge, the sea water now often covers the jetties in the harbor and the loading dock of the commercial fishermen's pier. This did not happen 10 years ago.
Our building was built circa 1780. Several nearby buildings were built around that same time. These historic buildings need to be preserved in their entirety, not only in design and historic character.
We believe that moving quickly to the use of non‐carbon‐based fuel sources is an essential element in the very preservation of these historic buildings and of hundreds of others in the long expanse of the Old King's Highway.
We chose to add solar panels as a way of participating in that civic venture of preservation. We chose to add enough panels so that we might reduce our own carbon‐based energy use to net zero but also supply clean power back into the grid, so that others who cannot afford panels would benefit as well. We chose to do this as our small part in preserving the climate of our Cape waters and lands; and to preserve our historic home and the Old Kings Highway Historic District as well.
We ask you to consider setting new 'climate change' preservation criteria as you balance the many important historic preservation elements of our district. A process to determine those criteria would be a good public exercise. Just as a for instance, you may want to require applicants to offer data about roof sizes and which roof or rooves face south or west, whether the panels would produce enough power to add energy to the grid for others or would make the applicant's building carbon net‐zero. There are undoubtedly many such factors to consider.
We believe there can be a great joy in such an expanded preservation stewardship and leadership.
Thank you for your consideration.
Best wishes in your important work.
Richard Iandoli
617‐448‐9500 [email protected]
3
MEMO: Solar Panel Permitting in Old King’s Highway Regional Historical District FR: Meghan Blumstein; Pat Johnson Date: July 31, 2019__ REV. September, 14 2020
BACKGROUND
The cost of renewable energy options, particularly solar panels, have significantly declined over the past decade, which, coupled with the imperative need to cut fossil fuel emissions, have led to a rise in the installation of solar panels across the cape. Many homeowners see solar panels as a way of both saving long-term costs on energy, while helping the environment. However, much of Cape Cod also is enveloped by historical districts, whose goal is to preserve the “cultural […] and aesthetic tradition” of the region. These historical districts require residents under their purview to request a “Certificate of Appropriateness” (COA) from their town’s historical commission in order to make any changes to their homes. This includes seeking a COA for the installation of solar panels. However, many historical commissions, particularly those that are part of the Old King’s Highway Regional Historical District, have been resistant to the rising interest in renewable energy options.
The Old King’s Highway Regional Historical District was initially formed in 1973 and consists of a town-level commission for each town in the district (Sandwich, Barnstable, Brewster, Dennis, Yarmouth, and Orleans) as well as a regional appellate board. The mission, according to the enabling language (amended in 1982) is as follows:
“The purpose of this act is to promote the general welfare of the inhabitants of the applicable regional member towns so included, through the promotion of the educational, cultural, economic, aesthetic and literary significance through the preservation and protection of buildings, settings and places within the boundaries of the regional district and through the development and maintenance of appropriate settings and the exterior appearance of such buildings and places, so as to preserve and maintain such regional district as a contemporary landmark compatible with the historic, cultural, literary and aesthetic tradition of Barnstable county, as it existed in the early days of Cape Cod, and through the promotion of its heritage.”
1
This broad mandate has thus left much up to the interpretation of the local commissions. The courts of Massachusetts have often sided with the historical commissions in past decisions when constituents appealed their cases beyond the regional appellate board into the county, then state courts.
The wide mandate and power that local historic district commissions have has made some homeowners upset in recent years. They have complained of unfair practices by the commissions, such as inconsistent decisions and favoritism. Thus, we sought to investigate the basis of these claims by combing through the OKH historic commission meeting minutes and decisions to amass a dataset of solar panel permit requests, approvals and denials, as well as the reasoning, or lack thereof, of commission decisions in the OKH district.
OVERVIEW OF FINDINGS
1. 80% of Solar Power “Certificates of Appropriateness” were approved across the Old King’s Highway Regional Historic District (OKHRHD) over a 9 year period a. Overall, 347 permits were requested between 2010 and 2019 (although several years are missing from a few towns, see table 1) and 281 of these were approved. 2. However, not all towns approve at the same rate. Yarmouth and Dennis deny about 35-45% of all solar power applications, while Barnstable, Brewster, Orleans, and Sandwich deny <15% a. Despite all having the same by-laws and enabling language, all commissions clearly approach each application very differently 3. The most common reason cited for panel permit denial was “the panel is visible from the road/public byway” a. In the language of the law, an architectural feature is defined as: i. the architectural style and general arrangement of such portions of the exterior of a building or structure so designed to be subject to view from a way or public space; including kind, color, and texture of the building materials of such portion or type of all windows, doors, lights, and signs and other fixtures to such portion.
2
b. This broad definition has led most commission members to permit panels if you cannot see them from the road and to deny them if you can 4. 44% of applications for panels on the front roof are denied, while only 2% in the rear roof are denied a. Most permit denials are for applications requesting to put panels on the front roof. In almost all of these cases, the front roof is the south facing roof and thus would capture the most energy, making the front roof the only feasible roof for panels. b. However, it’s important to note that less than half of front roof panels are denied, thus lending credence to the argument that decisions are inconsistent and arbitrary. If visibility is the criteria, far more front panels should have been denied. 5. The Regional Appeals Board is very stringent, only 19% of solar decisions (3/16) were overturned from 2010-2019 a. If panels were visible from anywhere, they were denied, even if a small portion. These hearings were also often combative, as noted in the meeting notes. 6. Variation in Dennis: Nathan Tissot of Solar City/Tesla has significantly beat the background denial rate of the commission; 0% (0/10) of his permits were denied, while the commission had an average denial rate of 31% at the time for applicants with other solar providers. a. We tracked Nathan Tissot’s permits after reading a complaint from a constituent about Tissot’s unexplained success with the Dennis historic commission. b. Additionally, Tissot did not have more success than the average rate in any other town, further highlighting his good success in Dennis. c. Records from Dennis of Tissot’s decision either include no information but his name (excluding the customary where the panels are located and explanation of why they were approved/denied) as well as the occasional comment on how his plans actually did not meet he board’s criteria, yet they were unanimously approved. Examples include: i. Notes panels are actually visible, but approved (https://www.town.dennis.ma.us/sites/dennisma/files/minutes/okh_1.11.17. pdf) ii. Panels are visible and do not meet approval criteria, and two members dissent, but overruled by other 3, so plan is approved
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(https://www.town.dennis.ma.us/sites/dennisma/files/minutes/okh_10.24.1 8.pdf) 7. An average of 8.5 solar panels were denied each year in the Old King’s Highway Historic District, resulting in an average loss of 65,500 kWh per year of energy. This is equivalent to the energy needs of about 9 average sized homes in Massachusetts or 192,500 electric vehicle miles a. https://www.epa.gov/greenpower/green-power-equivalency-calculator-calculation s-and-references
MAPS ILLUSTRATING PERMIT DECISIONS Interactive Map found at: https://mblumstein.shinyapps.io/solar_map/
TABLES
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Table 1. A summary table of all solar permit applications by town in the Old King’s Highway Historical District. Data was obtained by reading through historical commission minutes and recording the instances of solar panel applications and the resultant decision. Availability of minutes was variable by town, thus the length of the historical record varies (First Year of Data Available). Note Barnstable and Brewster had the highest number of permit applications, while Dennis and Yarmouth have the highest percent of panel denials, denying around 30-45% of applicants. First Year Number of of Data Number Number Number Percent Applications Available Approved Denied Withdrawn Denied BARNSTABLE 129 2010 104 20 5 16% BREWSTER 96 2015 90 1 5 1% DENNIS 59 2010 38 18 3 31% ORLEANS 6 2016 6 0 0 0% SANDWICH 33 2016 33 0 0 0% YARMOUTH 24 2014 10 11 3 46%
Table 2. A summary table of solar permit applications that were for panels on the front, rear, or side of the roof as well as ground mounted installations, as well as their resultant decisions. Note the commission minutes often did not note the location of the panels, thus many applications fall in the “unclear” category, making our dataset incomplete. Note also, there is a small amount of double counting as a handful of applications requested panels on 2-3 faces of their home (eg. rear and side, front and rear). However, with the data given, it is apparent that roughly 44% of the permit applications for panels on the front roof are denied. Front Ground Rear Side Unclear Approve 42 7 135 28 93 Deny 34 0 3 3 11 Withdrawn 2 0 3 0 9 Total 78 7 141 31 113 Percent 44% 0% 2% 10% 10% Denied
Table 3. A summary table of solar permit applications that were for panels on the front, rear, or side of the roof as well as ground mounted installations, as well as their resultant decisions; broken down by town. Note the commission minutes often did not note the location of the
5 panels, thus many applications fall in the “unclear” category, making our dataset incomplete. Note also, there is a small amount of double counting as a handful of applications requested panels on 2-3 faces of their home (eg. rear and side, front and rear). However, with the data given, it is apparent that Yarmouth, Dennis, and Barnstable are particularly stringent about front facing solar panels, but not always consistent. Town Front Rear Side Ground Unclear Approve 21 61 13 4 18 Deny 18 2 1 0 0 BARNSTABLE Withdrawn 1 2 0 0 3 Total 40 65 14 4 21 Percent 45% 3% 7% 0% 0% Denied Approve 12 55 6 2 16 Deny 1 0 0 0 0 BREWSTER Withdrawn 1 0 0 0 3 Total 14 55 6 2 19 Percent 7% 0% 0% 0% 0% Denied Approve 5 5 2 0 27 Deny 8 1 0 0 9 Dennis Withdrawn 0 0 0 0 2 Total 13 6 2 0 38 Percent 62% 17% 0% 0% 24% Denied Approve 0 0 0 0 6 Deny 0 0 0 0 0 Orleans Withdrawn 0 0 0 0 0 Total 0 0 0 0 6 Percent 0% 0% 0% 0% 0% Denied Approve 2 8 0 1 23 Deny 0 0 0 0 0 Sandwich Withdrawn 0 0 0 0 0 Total 2 8 0 1 23 Percent 0% 0% 0% 0% 0% Denied Approve 2 6 1 1 2 Deny 7 0 2 0 2 Yarmouth Withdrawn 0 1 0 0 1 Total 9 7 3 1 4
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Percent 78% 0% 67% 0% 50% Denied
Table 4. This summary table is an attempt at quantifying favoritism in the commission decisions, which some have alleged. A defendant from Dennis cited in an Appeals case that Nathan Tissot of Solar City/Tesla always got his permits in Dennis, regardless of the application. We thus noted every permit that N. Tissot argued on an owner’s behalf and did in fact find that his denial rate was much lower in Dennis than the background rate, although the sample size is very small. Tissot's Number Number Background Denial of Permits Approved Rate Denial Rate Barnstable 0 0 0% 16% Brewster 28 27 4% 1% Dennis 10 10 0% 31% Orleans 0 0 0% 0% Sandwich 1 1 0% 0% Yarmouth 5 2 60% 46%
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POLICY HISTORY & AMENDMENTS Year Title Summary Links Chap. 470. An Act Establishing The Old King's Highway Regional Historic 1973 District And The Old Enabling Act link King's Highway Regional Historic District Commission In Barnstable County. Chap. 298. An Act Making Certain Change name from 1975 Corrective Changes In link The Old King's Route 3 to Route 6 Highway Regional Historic District. Put the following question on the ballot Chap. 271. An Act in local elections in Ascertaining The Will OKH region: "Should Of The Voters In The areas within the Old Old King's Highway King's Highway 1976 Regional Historic Regional Historic link District Relative To District be allowed to Excluding Areas Within be exempted from said Said District From Said District if it is District. determined that such areas lack historical significance?" Chap. 273. An Act Authorizing The Town Of Eastham To Town of Eastham 1976 Withdraw From The leaves the OKHDHD link Old King's Highway Regional Historic District. Commissions may establish exempt areas Chap. 503. An Act within their districts if Further Regulating The these areas lack Authority Of The Old historical significance, 1977 link King's Highway such that inhabitants Regional Historic would not need District Commission. permission to make changes to their homes
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An Act Authorizing The Town Of Harwich To Harwich leaves the 1977 Withdraw From The link Old King's Highway OKHRHD Regional Historic District. Chap. 436. An Act Authorizing The Town Of Bourne To Bourne leaves the 1978 Withdraw From The link OKHRHD Old King's Highway Regional Historic District. Chap. 631. An Act Further clarification of Further Regulating The how board should be 1979 Old King's Highway link internally structured Regional Historic and appointed District Commission. Several language amendments, including Chap. 338. An Act Relative To The Old a stipulation to consider the energy King's Highway Regional Historic advantage of solar panels and definition of 1982 District And The Old link an architectural feature King's Highway Regional District to define as any portion of the exterior Commission In Barnstable County. of the home that can be viewed form a public way or place. Chap. 220. An Act Relative To The Old How to appoint 2007 link Kings Highway alternates Regional Historic District.
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POLICY OPTIONS
Any amendments made to the 1973 OKH Historic District enabling act by the legislature and signed into law by the Governor would also automatically be applied to the OKHRHD (ie. they do not need to vote to adopt).
1. Work with the OKHRHD leadership on efforts for them to clarify their policies on solar panels within the district. a. Front roof mounted solar to be allowed on non-main streets? b. Commission action to create certain portions of the district where COA applications are not necessary for any solar panel installation. 2. Legislative action to strengthen the c. 338 amendment in 1982, which has a provision which states “The committee shall consider the energy advantage of any proposed wind or solar device.” a. This provision is often cited by town commissions as something they considered, but board members will often cast doubt on the energy efficiency claims of the proposed panels. After their “consideration” of the matter, they are free to act in any way they wish, and unfortunately often do. 3. Change who is allowed to make exempt areas or create new exempt areas of solar panel installation, possibly related to Chapter 40A, section 9Bs zoning provisions. a. The commission currently has the ability to create exempt areas by 2/3 vote of the board members. This requires members to vote to give up power over part of their domain, which seems unlikely. 4. Redefine the word architectural feature, such that it is one that is seen from 6A, not just any public byway or space. a. Current Language (1982 amendment): Redefine exterior architectural feature, current defined as: the architectural style and general arrangement of such portions of the exterior of a building or structure so designed to be subject to view from a way or public space; including kind, color, and texture of the building materials of such portion or type of all windows, doors, lights, and signs and other fixtures to such portion.
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b. Proposed Change: Redefine exterior architectural feature, current defined as: the architectural style and general arrangement of such portions of the exterior of a building or structure so designed to be subject to view from the Old Kings Highway (Route 6A); including kind, color, and texture of the building materials of such portion or type of all windows, doors, lights, and signs and other fixtures to such portion. 5. Redefine the word architectural feature to explicitly exempt solar panels from the purview of OKHRHD review. 6. A change in the law that requires better record keeping, such that the placement of the panels (rear, front, side, ground) and requirement that justification of the decision to approve/deny is always stated. 7. Legislation explicitly calling for a ballot question within the member towns on the purview of the OKHRHD to oversee solar. a. DIfficulty is how to narrow to just OKHRHD territory/precincts. b. Could also be done by residents creating a non-binding policy question on the ballot. 8. Organized community meetings - either in person or via remote participation - of residents in the OKHRHD on solar policies within the district. To help instruct Cape legislators on the wishes of residents of the district on this topic.
11 Harvard Institute of Politics Technology and Innovation Policy Group December 12, 2017
Summary of Solar Energy & Historic District Committees Report
1) Solar in MA a) Industry trends, relevant legislation, current/proposed projects, and public opinion on solar 2) Historic District Committees (HDCs) a) Legal framework i) Federal and state designations of “historic significance” have little to no regulatory power, especially compared to the immense power given to locally authorized HDCs. Chapter 40C of Massachusetts General Law provides the foundation for HDC regulatory authority, which typically includes the ability to review and deny any development project in the district related to any exterior-facing or publicly visible structures. Interestingly, Section 7 of Chapter 40C actually already contains a specific carve-out for solar energy projects, calling on HDCs to “consider the policy of the commonwealth to encourage the use of solar energy systems” when reviewing applications. Another point to keep in mind is that HDCs exist underneath town councils in terms of bureaucratic organization, and thus town councils have the ability under Chapter 40C to regulate, limit, or further expand the powers of their HDCs. b) Structure i) HDCs are generally composed of 3-7 members, usually drawn from a pool of local historians, architects, residents, and realtors. Solar applications are generally presented on behalf of homeowners by “agents” (the solar installation company itself) with experience and expertise regarding the HDC application process. 3) Recommendations a) Maximizing application success under current guidelines i) A review of HDC decisions and interviews with key stakeholders revealed six main factors that increased the success of solar applications: a) minimal visual impact on surrounding neighborhood, b) physical uniformity with the rest of the building, c) limited public accessibility to the building, d) preservation of the building’s historical features, e) carefully planned panel positioning, and f) specification of relevant panel materials b) Legislative framing i) Environmental (1) Most residents already recognize that climate change is problematic, and agree that something should be done about it, but just not in their backyards. To address this, stress the urgency of taking action to combat climate change and pollution by tying it to the fact that the Cape and Islands are uniquely vulnerable to its devastating environmental and ecosystem effects as a coastal district. ii) Economic (1) Since the Cape and Islands is a net importer of energy, increased solar panel installation will increase the district’s energy independence, thereby reducing the cost of purchasing energy and building/maintaining the infrastructure to import it. Solar panels also generate savings for residents by increasing the energy available to them and reducing the need to utilize energy from the electricity grid, as well as increasing property values. Additionally, there are roughly $25,000 in existing federal and state subsidies that homeowners can take advantage of when installing panels, and broader awareness for these incentives might help increase solar panel installations. c) Legislative recommendations i) State (1) Establish statewide standards, non-binding or binding, that provide direction to local HDCs on the criteria they should consider when reviewing solar applications. (2) Restructure Section 11 of Chapter 40C to provide for expedited review of solar applications in accordance with some standardized policy. (3) Amend Section 7 of Chapter 40C to more explicitly require that HDCs give special consideration for solar panel installations. ii) Local (1) Pass local ordinances allowing for “exempt areas” from HDC oversight, modeled after the policy of Old King’s Highway Historic District. (2) Organizationally combine HDCs with their corresponding local historical commissions (HCs) (3) In addition to the already-existing process that allows town councils to overrule HDC decisions based on procedural errors, give town councils the power to also overrule HDC decisions based on the substance of those decisions. 4) Appendix a) Potential locations for solar development outside of the airports in Nantucket and Martha’s Vineyard Solar Energy in the Cape and Islands Harvard Institute of Politics Technology Policy Group Co-Chairs: Michael Wornow & Neha Reddy Commissioner: Senator Julian Cyr
December 12, 2017 Commission
▰ In the Cape and Islands district (shaded gray on left), Historic District Committees (HDCs) often control approval of solar panel installation ▰ What state/local solutions can help make HDCs more solar-friendly without interfering with their ability to preserve a town’s history? ▻ What can homeowners do? ▻ What can solar installers do? ▻ What can legislators do? Overview of MA Solar Industry
▰ State solar industry rankings ▻ 2nd most jobs (~15,000) ▻ 6th highest energy capacity ▰ Cape and Islands ▻ 221 solar-related jobs ▻ Barnstable has highest solar capacity in state Historic District Committee (HDC) Overview
▰ Over 200 historic districts in MA ▰ Structure ▻ 3-7 members, ▻ Usually local architects, historians, realtors, and residents ▰ Purpose ▻ Preserve and protect historic resources and aesthetics ▻ Encourage new designs compatible with existing buildings ▰ Legal Framework ▻ Chapter 40C of Massachusetts General Laws ▻ Authority over all development that could impact historicity of town ▻ Section 7, Chapter 40C carve-out for solar projects ▻ (Limited) oversight by town commissions Environmental & Economic Benefits of Solar The two pipelines that Nantucket uses to import its electricity
Projected savings from renting a 5 kW solar panel array
Vulnerability of Cape Cod seashore to environmental degradation MA offers healthy economic incentives for solar Recommendations Maximizing Application Success Black Blue
▰ Review of publicly available HDC decisions ▰ Interviews with homeowners, solar installation companies
▰ Aspects of successful applications: Black panels had more success than their bright blue counterparts 1. Minimal visual impact on surrounding neighborhood 2. Physical uniformity of panels with rest of building 3. Limited public accessibility to building 4. Preservation of building’s historical features Placing panels on secondary structures 5. Careful panel positioning also increased HDC success 6. Specification of relevant panel materials Standardized HDC Guidelines
▰ Problem ➢ Inconsistency between different HDCs in interpretation of guidelines ➢ Inconsistency among a single HDC’s decisions ▰ Impact ➢ Frustrated homeowners ➢ Increased costs for solar installation companies and time wasted ▰ Solution ➢ Create standardized set of guidelines for solar projects Recommended Legislative Changes
▰ State 1. Establish standardized application review guidelines 2. Amend Section 11, Chapter 40C, for expedited review of solar projects 3. Extend Section 7, Chapter 40C, to more explicitly require HDCs to give special consideration to solar
▰ Local 1. Create “exempt areas” free from HDC oversight 2. Combine HDCs with local historic commissions 3. Allow town councils to overrule HDC decisions on substance rather than just procedure Acknowledgements
▰ Senator Julian Cyr ▰ Chief of Staff Pat Johnson ▰ Theresa Verbic ▰ Anne Ziaja ▰ Tech Policy Group Members ▻ Wesley De Silvestro ▻ Thomas Xin ▻ Jess Eng ▻ Katherine Liu ▻ Austin Fuller ▻ Lucy Wang Working with Historic District Committees to Increase Solar Energy in the Cape & Islands
Technology & Innovation An analysis and evaluation of the Massachusetts Policy Group solar industry, policies of local historic district committees, and relevant state and local laws, concluding with recommendations for better balancing the needs of key stakeholders.
POLICY BRIEF December 2017
Authors Michael Wornow, Chair Neha Reddy, Chair Wesley De Silvestro Thomas Xin Jessica Eng Katherine Liu Austin Fuller Lucy Wang 1
TABLE OF CONTENTS
Section 1: Overview of Solar in MA ...... 3 I. INTRODUCTION ...... 3 II. OUTLOOK FOR RENEWABLE ENERGY IN MA ...... 4 A. Federal Efforts ...... 4 B. State Efforts ...... 4 C. Cape and Islands District Efforts ...... 6 III. SOLAR INDUSTRY IN MA ...... 7 A. Jobs ...... 7 B. Energy Capacity ...... 7 C. Solar Energy in the Cape and Islands ...... 8 IV. CURRENT SOLAR PROJECTS IN MA ...... 9 A. Recent Major Solar Projects ...... 9 B. Current Large-Scale Solar Projects ...... 9 C. Proposed/Future Projects & Challenges ...... 10 D. Solar Projects in the Cape and Islands ...... 10 V. PUBLIC OPINION ON SOLAR ...... 12 A. General Public Opinion ...... 12 B. Cape and Islands: Media/Press on Solar ...... 12 C. Cape and Islands: Utilities on Solar ...... 13 D. Cape and Islands: Townships on Solar ...... 13 VI. CONCLUSION ...... 15 Section 2: Historic District Committees (HDCs) ...... 16 I. INTRODUCTION ...... 16 II. LEGAL FRAMEWORK ...... 17 A. Legal Theory and Judicial Rulings ...... 17 B. Federal Laws & Powers ...... 18 C. State Laws & Powers ...... 18 D. Local Historic Commissions ...... 19 E. Local Historic District Committees ...... 20 III. STRUCTURE OF HISTORIC DISTRICT COMMITTEES ...... 22 A. Definition and Purpose ...... 22 B. Structure ...... 22 C. Member Appointments ...... 23 D. Regulations and Application Process ...... 23 E. Role of Agents in Application Process ...... 24 V. CONCLUSION ...... 25 Section 3: Recommendations ...... 26 I. INTRODUCTION ...... 26 II. APPLICATION PROCESS ...... 27 A. Maximizing Application Success under Current Guidelines ...... 27 2
B. Recommended Guidelines for Historic District Commissions ...... 30 III. LEGISLATIVE FRAMING ...... 33 A. Environmental Framing ...... 33 B. Economic Framing ...... 37 IV. LEGISLATIVE RECOMMENDATIONS ...... 42 A. State-Level Legislation ...... 42 B. Local-Level Legislation ...... 44 V. CONCLUSION ...... 47 Section 4: Appendix ...... 48 I. POTENTIAL SOLAR DEVELOPMENT SITES ...... 48 Nantucket ...... 48 Martha’s Vineyard ...... 49 Works Cited ...... 50
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Section 1: Overview of Solar in MA
I. INTRODUCTION
In this section we will give background information on the state of renewable energy and the solar industry in Massachusetts. This includes a brief summary of the state’s recent history in addressing climate change, as well as the status and capacity of the state’s solar industry and its prospects for growth in the future. Current and planned projects relating to solar development are also discussed, as well as information about general public opinion on solar and climate change, with specific data about the Cape and Islands district as well.
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II. OUTLOOK FOR RENEWABLE ENERGY IN MA
Massachusetts has demonstrated an extensive commitment towards combating climate change via renewable energy over the past several decades, positioning itself as a national leader in the process and setting the foundation for continued engagement with the issue for the foreseeable future.
A. Federal Efforts
The issue of addressing climate change through encouragement of the adoption of renewable energy first broke major ground on the national scale in 2014, when the Obama administration introduced the Clean Power Plan which would, by 2030, both force power plants to slash emission levels by 32% and was projected to double U.S. solar and wind capacity (U.S. Environmental Protection Agency, 2014). However, in October 2017, President Trump and EPA administrator Scott Pruitt officially repealed the plan, withdrawing support for what had seemed like promising federal backing of renewable energy and of aggressive national action to tackle climate change (K., 2017).
B. State Efforts
In the midst of national discord surrounding climate change, however, Massachusetts has been and has continued to pursue state action independent of the federal government both before and after the Clean Power Plan was proposed and then repealed. In 2008, Governor Deval Patrick signed the Global Warming Solutions Act (GWSA) into law, one of the first statewide efforts in the U.S. to create a comprehensive regulatory framework with the goal of mitigating climate change (“Global Warming Solutions Act Background”). That same year, Massachusetts overhauled its energy marketplace through the Green Communities Act, which required utility companies to contract with renewable energy developers as well as increased incentives for municipalities to purchase energy efficient technology (TRC, Noble and Wickersham LLP, and Megdal and Associates, 2009). The Massachusetts Department of Environmental Protection also stepped up enforcement of energy standards in 2008, adding new regulations for the reporting of greenhouse gas emissions to help achieve the GWSA’s target goals (“Global Warming Solutions Act Background”). 5
After succeeded by succeeding Governor Patrick in 2015, Governor Charlie Baker has largely kept his predecessor’s policies, like the GWSA, in place, even passing additional legislation such as the Act to Promote Energy Diversity in August 2016, which requires utilities to contract for 1,200 megawatts (MW) of energy from a Class I renewable resource (wind, solar, hydropower) and established the commercial Property Assessed Clean Energy program (PACE) for subsidizing the cost of renewable projects like solar panel installations (Press Office of Gov. Charlie Baker, 2016). Not all observers, however, have had a completely positive view of the new administration’s efforts in addressing climate change. For example, the Union of Concerned Scientists (UCS), an environmentalist group, gave the Baker Administration a B+ for its environmental/energy policies, but specifically singled out the administration’s limited efforts towards reducing natural gas pipelines and transportation-driven emissions as deserving of a D grade (Charles River Watershed Association et al., 2017). And while political issues may get in the way of the state further prioritizing renewable energy in the budget, the UCS report still praises Massachusetts for being third in the nation in terms of commitment towards promoting clean energy and taking legislative action on the subject (Union of Concerned Scientists, 2017). Indeed, renewable energy, particularly solar energy, is flourishing in the Bay State, which ranks seventh in the nation for cumulative installed solar capacity (Solar Energy Industries Association, 2017). Massachusetts has even, in a sense, “transcended” national politics as well, signing onto an interstate alliance in 2017 that commits itself to meeting the goals of the Paris Agreement despite the U.S.’s withdrawal from the treaty (LeBlanc, 2017). These goals are largely in line with the 2008 Global Warming Solutions Act, which also aims to reduce statewide greenhouse gas emissions overall by 80% in 2050 from 1990 levels. So far, Massachusetts has made progress towards meeting these goals, with 2014 emissions down 21% from 1990 levels (a drop from 94.4 million metric tons of CO2 to 74.6) (“Global Warming Solutions Act Background”). This focus on reducing greenhouse gas emissions has had positive implications for the state economy as well. The Solar Foundation found that Massachusetts had the second-highest number of solar industry jobs of any state in 2016, trailing only the clean energy juggernaut of California (The Solar Foundation, 2016). In August 2017, Secretary of Energy and Environmental Affairs Matthew Beaton stated: “We feel as though we have enough confidence in our numbers, the modeling numbers, the assumptions that we made, and the conservative nature that we will be over and above the goal of 25 percent,” in reference to the GWSA’s first target of 25% reduction in greenhouse gas emissions by 2020. Massachusetts has a long way to go until it will reach its 80% overall reduction goal, but has made substantial progress so far and established itself as a national leader for renewables in the process. One key challenge that remains for Massachusetts is continuing the trend of lowering greenhouse gas emissions despite already having some of the most aggressive environmental regulations of any state in the nation. This means that most of the low-hanging fruit relative to other states’ actions regarding climate change have, in a way, already been picked, and further reductions in greenhouse gas emissions and pollution will require a higher level of political will 6
and commitment to pass. Unfortunately, this comes at a time in our nation’s history when party polarization regarding climate change is only worsening, which may translate to future skepticism and gridlock for Massachusetts as it tries to achieve its energy goals (Funk and Kennedy, 2016). Interim goals must still be set for 2030, 2040, and the other years leading up to 2050. Additionally, many argue that more intense regulation should be put into law encouraging electric vehicles and further providing for phasing out non-renewables (Gellerman, 2017).
C. Cape and Islands District Efforts
Senator Cyr has positioned himself as progressive with regards to climate change action, which is in line with his district’s needs considering the effects that sea level rise and global warming might have on his coastal district. The Environmental League of Massachusetts Action Fund, Massachusetts Sierra Club and Massachusetts Clean Water Action all endorsed Cyr in his 2016 election to the State Senate, citing his experience and pro-environment and pro-renewable- energy positions (Environmental League of Massachusetts Action Fund, 2016). In the 190th General Court, Senator Cyr introduced legislation related to the issues of renewable energy, energy sector job creation, and net metering, affirming his commitment to this policy area (S.1834 and S.1835, 2017). Based upon his political positions and actions, Senator Cyr has demonstrated a vision of his district’s future that is devoted to renewable energy, committed to addressing climate change head on, and prepared for whatever the coming decades may hold for the Cape and Island.
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III. SOLAR INDUSTRY IN MA
Overall, our group’s findings paint a very positive outlook for the future of solar energy in Massachusetts, as historical trends and statistical analyses indicate that the solar industry will continue to grow in Massachusetts and the Cape and Islands, with job growth, capacity, and production all expected to rise in the future.
A. Jobs
As of 2016, there were 380 solar companies registered in Massachusetts (The Solar Foundation, 2016). These firms provide a total of 14,582 jobs in solar energy, providing 1 out of every 304 jobs in Massachusetts. In fact, Massachusetts ranks second in terms of total jobs and first in the number of solar jobs per capita of any state (The Solar Foundation, 2016). In spite of high levels of recent growth, however, the industry as a whole in Massachusetts actually lost jobs over the past year, decreasing in size by about 3%, or 500 workers. The Solar Energy Industries Association blamed this decreased growth on the State Legislature failing to raise the cap on net metering profits, resulting in about $78 million worth of stalled projects (Chesto, 2017). Despite these recent losses, however, experts expect solar companies to continue to be attracted to developing in Massachusetts due to generous subsidy packages, so it is possible that these losses may be reversed in the future (Schoenberg, 2017).
Figure 1. Breakdown of Massachusetts’ national ranking and solar energy statistics (The Solar Foundation, 2016)
In terms of the breakdown of installation types, the Solar Foundation reports that solar companies spend roughly 75% of their time on residential installations, 16% on commercial development solar projects, and 10% on utility-scale solar energy (The Solar Foundation, 2016).
B. Energy Capacity
Massachusetts ranks sixth in the nation in total solar capacity, currently at 1,743 MWh (Solar Energy Industries Organization, 2016), which is enough energy to power roughly 230,000 8
homes (The Solar Foundation, 2016). MWh stands more megawatt hours, and is used to measure the amount of energy produced by solar installations throughout Massachusetts. In the future, the total solar capacity of the state should be expected to rise. Admittedly, this data point is in part reliant on past trends, which have shown a steady increase in the state’s solar capacity over the past seven years (“Installed Solar Capacity in Massachusetts”). Additionally, Massachusetts’ newly implemented SMART program is expected to have a significant positive impact on Massachusetts’ future solar capacity by further incentivizing solar panel installation through subsidies for people looking to install solar panels (“Solar Massachusetts Renewable Target (SMART) Final Program Design”). Massachusetts recently set a statewide goal of having an additional 1,600 MW of solar energy capacity installed by 2020 (“Solar Massachusetts Renewable Target (SMART) Final Program Design”). Solar also has the opportunity to account for much more of the state’s energy production. Based on the average energy output measured of solar projects from 2013, solar energy could theoretically account for 47% of Massachusetts annual electricity generation if installed on all potential buildings, totaling 26 TWh generated annually (Gagnon, Margolis, Melius, Phillips, and Elmore, 2016). Potential buildings in this case refers to buildings that both 1) receive enough sunlight to generate solar energy and 2) have the right roof angle to install solar panels.
C. Solar Energy in the Cape and Islands
According to a 2016 report by The Solar Foundation, there are currently 221 jobs in the Cape and Islands related to solar energy, accounting for 1.52% of the total solar workforce in Massachusetts (The Solar Foundation, 2016). In fact, Barnstable was deemed by the International City/County Management Association in 2016 to have the highest solar capacity in Massachusetts, with the third highest number of solar installations of any municipality in the state (CapeCod.com, 2016).
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IV. CURRENT SOLAR PROJECTS IN MA
A. Recent Major Solar Projects
In Massachusetts, over 15% of the state consumes solar and wind power for at least part of its total energy production. Additionally by 2016, Massachusetts ranked sixth in the country for the construction and distribution of solar power (United States Energy Information Administration, 2017). One specific project, a 3-megawatts (MW) solar installation in Boston called 100 Meadow Solar, can provide electric power to more than 649 Boston homes. This is not limited to individual homes; several large retail stores and community sites in Massachusetts also rely on solar, including Bed Bath and Beyond and FedEx (SEIA). Completed in January 2017, Conti Solar revealed the company’s largest community solar project located in Oxford, MA. Conti Solar partnered with BlueWave Capital in order to develop the 16.5-MW Barrett Street Project for clean energy and agriculture promotion. This project will also save around 15,000 tons of carbon dioxide emission annually (Bebon, 2016). More recently, solar developers including Conti Solar and Republic Services have built solar arrays on closed landfills to transform them into full-fledged solar energy facilities (Conti Solar, 2017). In September 2017, Republic Services unveiled a 13.5-MW solar project on three former landfills, or brownfields, in East Bridgewater, Plainville and Randolph. This project is intended to generate electricity for more than 1,900 Massachusetts households and mitigate the damaging effects of carbon dioxide waste from about 2,000 homes (Rosengren, 2017).
B. Current Large-Scale Solar Projects
Solar projects may often begin after natural disasters destroy infrastructure in cities and towns because it gives the city a reason to evaluate and revamp outdated energy technology. In 2012, in Springfield, MA, a gas explosion destroyed a significant number of downtown buildings and major streets and forced many residents to evacuate (The Republican Newsroom, 2012). After the destruction in downtown Springfield, government officials discussed innovative and environmentally friendly plans to rebuild a part of the city’s main energy source. As a result, Conti Solar began constructing a solar project in downtown Springfield with the goal of providing electricity for about 2,000 families. Conti Solar estimates that this project will finish in December 2017 and begin providing services starting in 2018 (Kinney, 2017).
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C. Proposed/Future Projects & Challenges
In 2015 in Amherst, MA, a solar installation on top of a landfill on Belchertown Road received a number of complaints from neighbors. Residents initially complained about potential contamination from leaching the landfill. Although the landfill project would be at least 400 feet from homes and would have a 6-inch clay cap, some residents consider these precautions insufficient (Serreze, 2016). Residents have demanded that contractors address safety issues regarding the landfill before implementing solar energy. Additionally, other residents have complained that the project would endanger drinking water supply as well as the habitat of local wildlife, including the grasshopper sparrow. Due to the influx of complaints, the site specific project terminated in December 2015 (Lennartz, 2016).
D. Solar Projects in the Cape and Islands
On September 27, 2017, leaders in the Cape and Islands district met to discuss the feasibility of transitioning to renewable energy for the entire district. This conference, called the 100 Percent Renewable Energy Summit, featured government officials, businesses, and community leaders debating the feasibility and implementation of solar and offshore wind sites (Cape Cod Today Staff, 2017). Another major project in the district was the 2015 installation of the Barnstable Municipal Airport solar array (Spillane, 2015). This grid provides power to around 1,200 Massachusetts homes in the area while saving the town energy around $149,000 in yearly maintenance and utility fees (Hellerstein, Jamshed, and Elrick, 2016). Due to the town’s membership in the Cape & Vineyard Electric Cooperative (CVEC), Barnstable has received substantial support for installing solar arrays at this particular airport and five other municipal locations (Spillane, 2015). The ultimate goal of these installations is to increase green energy projects and reduce the town’s expenditures on energy costs. A notable solar energy proposal in the Cape Cod district regards the U.S. Army Corps of Engineers’ property (US Army Corps of Engineers). Proposals for the Cape Cod Canal Field Office and the New Bedford Hurricane Protection Barrier would provide a steady stream of renewable energy for workers and residents in the respective areas. This proposal by the Corps could also serve as a template for future local solar proposals and installations, especially considering that these projects are projected to save the government about $180,000 annually after installation. The proposals initially spanned six to eight acres, but, after reexamining the scope of the project as well as the area’s decreasing reliance on electric power, the project leaders downsized. These projects last received significant media coverage in May 2017, but they are projected to be installed by 2018 and begin providing energy by 2019 (Genter, 2017). 11
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V. PUBLIC OPINION ON SOLAR
A. General Public Opinion
Interest in solar energy in general is quite high in New England, with 40% of residents reporting that they have “already installed solar panels at home” or “have given serious thought” to the idea of installing them (Kennedy, 2016). For Massachusetts specifically, public opinion also heavily favors solar. A 2013 poll conducted by Princeton Research Associates found that 70% of Massachusetts voters believe that solar is important to the economy, and 60% support Massachusetts’ statewide goal of installing an additional 1,600 MW of solar energy capacity by 2020 (MassSolar, 2015) The MassINC Polling Group also conducted public opinion polls in 2014 and 2015 focused on state energy policies, and found that “the only energy options to win majority support were renewables, with solar power as the most popular, followed by wind and hydroelectric” (MassINC Polling, 2015). Thus, after conducting its own poll of Massachusetts voters, the Massachusetts Energy Consumers Alliance declared that it was clear from polling data that solar energy, and renewables in general, have widespread public support (Gibbons, 2016). B. Cape and Islands: Media/Press on Solar
Articles from both the Barnstable Patriot and The Cape Cod Times show that, while there is a desire in these communities to have more green energy, there are also some reservations about developing renewable energy projects in their towns. Our group looked at articles published over the past few years from both newspapers related to energy/climate change, and found a distinct trend in these papers advocating in favor of policy change to address climate change, indicating that there is local support to take action against climate change, which could lead to an increase for support in solar energy (Manatis, 2017). However, some residents still have reservations about solar energy with regard to the potential threat it might pose to local wildlife and aesthetic disruption it poses to certain areas. In 2012, there was a proposal for an 11-acre solar farm near Mosswood cemetery in Cotuit. An opinion article was later published in the Barnstable Patriot against the wind farm, citing concerns over the displacement of the indigenous wildlife that called the area home (Barnstable Patriot Staff, 2012) Eventually, the planned solar installation was struck down by Cotuit town councilor Jessica Grassetti, who cited the “immediate vocal and written opposition” facing the solar project, including the aforementioned concerns over wildlife and aesthetic disruption it would pose to a burial ground (Grassetti, 2012). (Note: this decision was not made by a historic district commission.) 13
Another concern among residents is that advancements in other energy sources could render technologies like solar and wind obsolete in the near future, potentially rendering solar projects wasted investments (Gauvin, 2013).
C. Cape and Islands: Utilities on Solar
Overall, utilities seem enthusiastic about increased solar usage due to their heavy involvement in the expansion of solar energy (Barnstable Patriot Staff, 2011). In 2013, The Cape and Vineyard Electric Cooperative was able to develop several solar projects throughout the Cape and Islands district (Cassidy, 2013). More recently, in 2016, power giant NRG Energy gained approval for a solar field in the town of Sandwich that will ultimately have the capacity to generate 1.5-MW, or enough energy to power 1,500 homes. (Manatis, 2017) Additionally, because the Cape and Islands region is a net importer of electricity (meaning that utilities must build and maintain expensive infrastructure to bring in energy from other regions), solar panels would allow for more energy to be produced locally, cutting costs and allowing utilities to reduce prices by not having to rely so heavily on importing energy (Manatis, 2017).
D. Cape and Islands: Townships on Solar
Our group wasn’t able to find any publicly available polls for the specific counties in the Cape and Islands district. However, in 2014, more than 340 city and town officials across Massachusetts signed a letter asking Governor Baker to support solar, including many towns in the Cape and Islands district. Signers included officials from Barnstable, Brewster, Chatham, Dennis, Harwish, Mashpee, Provincetown, and Truro in Barnstable County; Aquinnah, Edgartown, and West Tisbury in Dukes County; and Nantucket in Nantucket County. Officials from Eastham, Orleans, Wellfleet, and Yarmouth in Barnstable County did not sign; nor did those from Chilmark, Gosnold, Oak Bluffs, and Tisbury in Dukes County. In total, across all of the towns in the Cape and Islands district, officials from 13 signed the letter (Hellerstein, 2014). However, while there is general enthusiasm for increased solar development, there has been some apparent confusion amongst residents whether they themselves can develop solar energy. Lauren Sinatra, the energy coordinator of Nantucket, said in an interview with our group that one of the main issues that her department has had in expanding solar energy in Massachusetts is not resistance from historic committees, but residents themselves who are unaware of the issue. That is not say that residents don’t desire solar energy in their towns; rather, they just don’t have information available to them on how to go about installing a solar panel on their building, or whether they can even install one at all. 14
Another important point that Ms. Sinatra raised in her interview that should be kept in mind when considering historic district commission oversight is that resident generally view the mission of historic district commissions, to preserve the traditional aesthetics of a town, in a positive light, and thus attempts to limit the power of these respected local historic district committees could be viewed negatively by town residents. 15
VI. CONCLUSION
Generally speaking, the solar industry seems to be thriving in Massachusetts. Job creation numbers are high and expected to increase, and solar continues to power ever more of the state, making it one of the most renewable energy friendly states in the nation. Projects in development right now are expected to increase the solar capacity of Massachusetts even more, and state and local governments appear amenable to increasing green energy development. The people of Massachusetts also seem enthusiastic about increased solar energy capacity, and energy utilities seem willing to build the projects that make that possible.
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Section 2: Historic District Committees (HDCs)
I. INTRODUCTION
Historic district committees (HDCs) can be established by a municipality in order to better protect and maintain the historic resources and traditional aesthetics within its community. HDCs represent the strongest legal protection that can be afforded to historic places in order to guarantee their preservation. According to the Massachusetts Historical Commission, there are currently over 200 historic districts across the state. This section first breaks down the federal, state, and local laws governing HDCs, as well as brief background information on the judicial rulings which justify HDC regulatory power. Next, the actual structure of HDCs is discussed, along with a summary of the logistics/procedures of filing a solar application with an HDC.
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II. LEGAL FRAMEWORK
Existing as an independent colony itself well before the establishment of the United States, Massachusetts has a long, rich history that has naturally made it home to countless historical sites and treasures throughout the state. To help protect these historical resources and ensure their existence for generations to come, legal provisions have been put in place at the federal, state, and local levels empowering the government to take action to preserve the historical heritage of the state. In general, the breadth of this regulatory authority and enforcement of these powers are strongest at the local level, while gradually reducing in strength at the state, regional, and national levels. This hierarchical system allows for granular control of protecting historical resources, by devolving the majority of authority to the citizens and stakeholders geographically closest to the resources themselves.
A. Legal Theory and Judicial Rulings
The concept of a “historic district,” whose establishment is to protect the traditional look and feel of the historic properties in its community, came to prominence in the U.S. in the 1930s. The first historic district in the U.S. was created in Charleston, South Carolina, in 1931. This “Old and Historic District” was established by a local ordinance that called for the formation of a board of reviewers to oversee the architectural development of the district, and served in a very similar capacity as the role filled by modern historic districts - to approve and potentially reject changes to any “exterior architectural features of buildings, structures, and sites visible from a public street” (Massachusetts Historical Commission, 2003). It wasn’t until 1955, however, after the Massachusetts Supreme Judicial Court ruled that a proposed historic district at Beacon Hill, Boston, was Constitutional that historic districts began to emerge in Massachusetts (Opinion of the Justices to the US Senate, 1955). Following this Supreme Judicial Court opinion, historic districts were then separately created through Special Acts of the Legislature in Beacon Hill, Nantucket, Lexington, and Concord over the following five years. In 1960, however, the Massachusetts State legislature passed Chapter 40C of Massachusetts General Law, also known as the “Historic Districts Act,” which granted municipalities the authority to create local historic districts capable of regulating architectural development that would affect the historic resource of a community. And despite various challenges over the years to the broad powers given to the government through the establishment of an HDC for controlling the ability of people to freely exercise their property rights, the U.S. Supreme Court has consistently ruled in favor of broad powers for the government to utilize to control public and private land use. In Berman v. Parker (1954), for example, the U.S. Supreme Court ruled that cities are allowed to use local zoning ordinances based on “aesthetic[s]” to control what structures can be built on certain land. This 18
decision then laid the foundation for Penn Central Transportation Co. v. City of New York (1978), which definitively established the legal theory justifying the use of governmental power to “place restrictions on the development of individual historic landmarks” as part of “a comprehensive program to preserve historic landmarks and historic districts.” The case primarily concerned whether historic district-mandated restrictions on property development constituted a “taking” violating the Fifth Amendment right to “just compensation” and/or the Fourteenth Amendment right to “due process,” arguments which the Supreme Court rejected in favor of permitting the government to “promote the general welfare” by preserving historical resources through reasonable historic district regulation (Penn Central Transportation Co., 1978). Thus, although there have been several court cases in Massachusetts concerned with the ability of a local historic district committee to prevent private property development, for the most part the legal issue of HDCs has been legally settled in the U.S. in favor of granting HDCs broad regulatory powers (Massachusetts Historical Commission, 2003).
B. Federal Laws & Powers
At the federal level, little regulatory authority is available to determine how privately or state-owned historical resources can be managed or administered. The National Register of Historic Places (NRHP) was established with the passage of the National Historic Preservation Act (NHPA) in 1966. The NHPA outlines an official process for nominating a property or place as a historical resource and defines the criteria that properties must meet (National Historic Preservation Act, 1966). If a district or property is listed under the NRHP, it essentially just means that the federal government has deemed it “significant and thus worthy of protection,” but unless an action that threatens that property or district involves federal involvement of some kind (e.g. federal funding, permits, etc.), then the federal government has no power to prevent the alteration or destruction of that historic place. For example, if a federal contractor wanted to bulldoze a historic building listed under NRHP, then the federal government could prevent the demolition of that building. If the company was contracted by a state or a town, however, or another private company which owned the land, then the federal government would not have any power to prevent demolition of the historic site. Thus, federal-level protection is the weakest form of protection offered for historic sites (Toolbox, National Park Service). In 1976, however, the federal tax code was modified so that income-producing historic properties that fell under the NHPA would be eligible for certain tax incentives (Fisher, 1998). In this way, the federal government indirectly protects historical resources by providing economic incentives to promote their preservation.
C. State Laws & Powers
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Even greater authority for the protection of historic resources exists at the state level. The state of Massachusetts began to recognize the importance of preserving historical resources in the mid-to-late 20th century, starting with the 1955 Supreme Judicial Court ruling that historic districts were Constitutional and the passage of Chapter 40C of Massachusetts General Law in 1960, which authorized municipalities to establish local historic districts. After creating this judicial/legislative foundation, one of the first tangible steps Massachusetts took towards its goal of preserving state history was establishing the Massachusetts Historical Commission (MHC) in 1963 under Chapter 9, Section 26 of the Massachusetts General Laws (“The Massachusetts Historical Commission”). The MHC was ordered to be composed of a variety of relevant stakeholders appointed from historical/architectural societies throughout Massachusetts, including the Massachusetts Archaeological Society, the Boston Society of Architects, and the Massachusetts Historical Society. The main duties of the MHC were to provide advice to the Secretary of State “on matters relating to the historical and archaeological assets of the commonwealth and [to] assist him in compiling and maintaining an inventory of such assets” (MGL c.9 § 26). The language of Section 26 limited the MHC to providing recommendations, compiling advice, and assisting other relevant authorities in matters related to historical resources. True regulatory authority over municipalities and property development, however, was not vested in the MHC.
D. Local Historic Commissions
Instead of vesting the MHC with significant regulatory power, Massachusetts instead chose to concentrate the authority to control historic resources at the local level. Chapter 40, Section 8D of the Massachusetts General Laws gave cities and towns the ability to establish local historic commissions (HCs) for “the preservation, protection and development of the historical or archaeological assets of such city or town” (MGL c.40 § 8D). And while the creation of local HCs is entirely optional, the Massachusetts Department of State reports that virtually all cities and towns in the state have opted in to enacting their own commissions. Authorized by local legislative bodies such as a city council, the primary purpose of a local HC is to manage an inventory of the town’s historical resources, administer the use of state funds for the preservation of these resources, engage in public relations with local citizens concerning local historical properties, and to provide information/advice about the status of the town’s historical resources. Traditionally, however, HCs lack any form of regulatory authority, and are mainly tasked with performing auxiliary advisory or administrative roles at the local level. However, some towns have established local bylaws and ordinances that vest additional authority in their historic commissions. Common examples of this are demolition delay bylaws, scenic road bylaws, or village center zoning which allow the local HCs to play more of a regulatory role in protecting their town’s historical resources (“Local Historical Commissions in Massachusetts”).
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E. Local Historic District Committees
The crown of regulatory authority for historic resources rests upon historic district commissions (HDCs). HDCs are not to be confused with the similarly named local historical commissions. While the latter act in many ways as local extensions of the state-level Massachusetts Historical Commission, HDCs are independent regulatory bodies that have authority within a town’s historic districts. Historic districts are established under Section 3 of Chapter 40C of the Massachusetts General Laws, and are areas of a town that possess significant historic resources which require additional local provisions to ensure their long-term protection (MGL c.40C § 3). Upon the establishment of a historic district, an accompanying HDC is selected via a process outlined in Section 4 of Chapter 40C to govern over the district. The specific duties, responsibilities, and powers of HDCs is covered in greater detail in the following subsection of this report, (2.III) Structure of Historic District Committees, but the crux of HDCs’ authority rests in Section 6 of Chapter 40C: “no building or structure within an historic district shall be constructed or altered in any way that affects exterior architectural features unless the commission shall first have issued a certificate of appropriateness, a certificate of non-applicability or a certificate of hardship with respect to such construction or alteration” (MGL c.40C § 6). In this way, HDCs have unparalleled power to oversee architectural changes within their purview. And once established, HDCs operate mostly independently and without interruption from the town’s council or other legislative body, but Chapter 40C does contain provisions giving regulatory oversight of HDCs to the council of the town that established it. For example, these statutes by default provide for a multi-step appeal process for those dissatisfied with a decision made by their local HDC. Section of the Massachusetts General Laws offers a recommended review process through regional planning agencies to allowed “aggrieved citizens” to double check decisions made by HDCs that they disagree with (Mass. Gen. Laws ch. 40C, § 12). An even more legitimate and commonly offered appeal process exists in the form of the courts. If they appeal within twenty days, residents of a historic district affected by an HDC decision can appeal to their appropriate superior court (Mass. Gen. Laws ch. 40C, § 12A). In this way, many options are available to limit the powers of historic district commissions and ensure they do not have the final say in matters related to their district without any checks and balances in place. And while most towns establish HDCs and allow them to run independently, this is not by lack of choice. City councils delegate the authorities they wish to historic district commissions and can add or remove powers over time through several channels listed in Section 10 of Chapter 40C (Mass. Gen. Laws ch. 40C, § 10). The implications for this are that HDCs exist in relation to their local governing councils. Often, city councils choose to step back and permit HDCs to complete their job and run independently. However, citizens might gain greater leverage and control when attempting to reform HDCs or address their grievances with them 21
through the superior town councils than through the HDC itself. A consideration of this power relationship should always be kept in mind. 22
III. STRUCTURE OF HISTORIC DISTRICT COMMITTEES
A. Definition and Purpose
In order to preserve their historic resources and aesthetics, many towns have incorporated themselves into “historic districts,” which the Massachusetts State Historical Commission describes as one of the “strongest form[s]” of legal protection that a town can utilize to preserve, protect, and develop its traditional appearance (Massachusetts Historical Commission). Over 200 towns and cities across Massachusetts have seen the value in making such a decision and have established one or more historic districts within their communities (“There’s a Difference!”). Each of these historic districts has a historic district commission, a committee of 3-7 members whose primary task is to enforce architectural standards on development projects within their district (MGL c.40 § 8D). The Massachusetts State Historical Commission identifies the three main purposes of historic district commissions as the following:
1) “[T]o preserve and protect the distinctive characteristics of buildings and places significant in the history of the Commonwealth and its cities and towns; 2) [T]o maintain and improve the settings of those buildings and places; 3) [T]o encourage new designs compatible with existing buildings in the district.” (Massachusetts Historical Commission)
For a historic district commission, fulfillment of these aforementioned duties generally takes the form of reviewing and either rejecting or approving any proposed alterations to “exterior architectural feature[s] that [are] visible from a public way” (Massachusetts Historical Commission). Additional duties and functions provided to historic district commissions under Massachusetts General Law include the powers to “hold hearings[,]...enter into contracts with individuals, organizations and institutions for services furthering the objectives of the commission's program[, and] enter into contracts with local or regional associations for cooperative endeavors furthering the commission's program” (MGL c.40 § 8D).
B. Structure
Massachusetts General Law restricts historic district commissions to no less than three and no more than seven members (MGL c.40 § 8D). 23
Depending on local government structure, appointments in cities are made by the mayor or city manager, and appointments in towns are made by the selectmen or town manager. After the initial period in which a historic district commission is first established (under which member term lengths are one, two, or three years), members and alternate members are appointed for terms of three years each. Terms are staggered such that every year approximately one third of (alternate) members’ terms end. Unless a historic district has a small number of residents/property owners, at least one commission member must be resident or property owner from within the district. Additionally, each year, a commission elects “a chairman and vice-chairman from its own number and a secretary from within or without its number” (MGL c.40C § 4).
C. Member Appointments
In addition to the above regulations, many historic district commissions also recommend specific community figures/occupations be appointed to the board. For example, before making any membership appointments to the historic district commission of Edgartown, the town’s Board of Selectmen must submit a written request for two nominees from the following organizations: The Dukes County Historical Society, the local American Institute of Architects chapter, and the Cape and Islands Board of Realtors. Additionally, the Board is obligated to attempt to ensure that a registered architect, realtor, and lawyer are commission members at all times (Edgartown Historic District By-Law). Similarly, Martha’s Vineyard’s Cottage City requires nominees from the Oak Bluffs Historical Commission, Park Commission, and Planning Board, and appoints one of the two nominees submitted by each organization. Additional members include one architect and two residents or owners of property in the district (Cottage City Historic District By-Law). Alternate members are commission members who serve without a nomination from the designated organizations (such as the above stated ones) that nominate appointees. They have the same power as members.
D. Regulations and Application Process
Before a city can file permits of construction or demolition, the historical district commission must first grant a certificate. Certificates are required for any exterior architectural changes in a historic district. When approving applications, some aspects that historic district commissions must consider include a site’s historical and architectural significance, structural composition, and surrounding area. Reasons for application approval or disapproval must be recorded, filed with the city or town clerk, and/or potentially be made publically accessible. Interestingly, Massachusetts General Law actually highlights solar energy systems as deserving special consideration by historic district commissions. Regarding solar energy system 24
applications specifically, Massachusetts state law requires that historic district commissions “consider the policy of the commonwealth to encourage the use of solar energy systems and to protect solar access” (MGL c.40C § 7). As the Massachusetts Department of Energy Resources further explains, an “outright ban” on solar energy systems within a historic district is “inconsistent” with this statute, which “clearly” calls on local historic district commissions to consider the policies and goals of the overall Commonwealth in their decisions (Green Communities, “Regulating Solar Energy Systems at the Local Level in Massachusetts”). Regarding the timeline for the application process, historic district commissions must render a decision on an application within 14 days of its filing, unless a hearing is deemed appropriate in which case the deadline is 60 days. Both the public hearing and application can be waived by the commission if the commission “determines that the exterior architectural feature involved or its category or color, as the case may be, is so insubstantial in its effect on the historic district that it may be reviewed by the commission without public hearing on the application” (MGL c.40C § 11). Within 20 days of a commission’s decision, an affected individual who doesn’t agree with the ruling can appeal for a review “by a person or persons of competence and experience in such matters, designated by the regional planning agency of which the city or town is a member” (MGL c.40C § 12). Reviewer findings must be filed by the city or town clerk within 45 days of the request, and are binding unless the individual further appeals in a superior court. In that case, after hearing all evidence, the superior court may annul a historic district commission’s decision.
E. Role of Agents in Application Process
An “agent,” or contractor, is required to participate in an application to a historic district commission for modifying a building, because they are the ones doing the actual renovations/demolitions to the building. A homeowner can serve as his/her own agent (which happens in cases of minor alterations), but larger building modifications like solar panel installations generally necessitate contractors with experience and expertise. Application paperwork requires agent input and their signatures. During historic district commission meetings, agents generally represent their clients when applications are being reviewed, since contractors know the ins-and-outs of their construction work and usually have prior experience negotiating with historic district commissions.
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V. CONCLUSION
Historic district committees, established under Chapter 40C, all share the same high-level procedural guidelines and general structure. Beyond this common legal foundation justifying the establishment of HDCs, however, the law is incredibly vague with regards to how HDCs are actually supposed to make real-world decisions. Additionally, the relatively few protections/means of recourse afforded to homeowners during the process of submitting an application for HDC review makes the issue of solar panel installation more complicated and frustrating for many than need be. In Section 3, we will draw on the legal/structural background provided in this section to offer a list of actionable recommendations that homeowners, solar panel installation companies, and legislators can take in order to fill in gaps in existing HDC legislations and ensure that the law works as effectively as possible for all major stakeholders.
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Section 3: Recommendations
I. INTRODUCTION
As of now, current policies make it extremely difficult for residents and businesses interested in solar to install. In this final section, we will propose recommendations that will clarify the application process and the legislative considerations regarding HDCs. Looking at previous solar applications, it is apparent that Historic District Committees have histories of approving certain solar panel cases pertaining to line-of-sight visibility, accessibility, and physical uniformity. While these attributes offer ways for HDCs to distinguish between acceptable projects, they are often unclear to the residents or businesses applying. As a result, several improvements to the assessment including historical significance, physical, and visual implementations would make the process for applying more quantifiable and transparent to the public. HDCs should also monitor rejected cases so that residents can revise their proposals to fit into the guidelines. Massachusetts should consider the positive implications of pro-solar efforts in regards to the environment and economy. To make the legislative process more open to HDCs and residents, Massachusetts could work on standardizing and expediting the process solar applications reviews. More local recommendations include exempting areas from HDCs jurisdiction in order to give more power to property owners and ease the review process for HDCs. Finally, HDCs should seek to collaborate with local Historic Committees (HCs).
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II. APPLICATION PROCESS
A. Maximizing Application Success under Current Guidelines
OVERVIEW
As HDCs are local government organizations, their decisions, meetings, and hearings are aggressively regulated by Massachusetts “sunshine” laws, which require HDC proceedings to be made open and available to the public. This allowed our team to compile and review meeting minutes, agendas, and proposal decisions from HDCs throughout Massachusetts (and specifically in the Cape and Islands district) on applications involving solar panel installations. Unfortunately, there is a significant level of inconsistency and seemingly arbitrary decision-making that occurs in some HDC decisions. Problems range from the lack of clarification given to homeowners and solar installers on the guidelines that an HDC will use to evaluate proposals, as well as inconsistent interpretations of those guidelines among different towns’ HDCs, and sometimes even the same HDC from project to project. Through this extensive review of solar panel applications and interviews with three solar installation companies active in the Cape and Islands, however, our group managed to identify six major factors which have a heavy influence on the success of solar energy applications in historic districts. This section describes those factors in-depth, as well as provides advice for how to optimize solar applications to get them approved under these standards.
1. MINIMAL “VISUAL IMPACT” ON SURROUNDING NEIGHBORHOOD
Probably the most significant aspect of a solar energy application is the impact that panel installation will have on the visual aesthetics of the surrounding neighborhood. The Old King’s Highway Historic District Historic Committee defines this as having “minimal visual impact on the surrounding neighborhood,” while Nantucket’s HDC requires proposed projects to “have negligible visual impact upon the site as a whole” (Way, 2009). Generally, this means that solar panels should not be readily visible from a passerby’s line of sight or add visual clutter to the surrounding environment. Unfortunately, however, neither of these guidelines gives an exact definition of what “minimal visual impacts” entails, and thus the assessment of a project’s “visual impact” is inherently subjective. In fact, all three solar energy companies that we interviewed pointed to this evaluation criterion as the most “arbitrary.” One company based in Dennis claimed that they had a case rejected by a local HDC largely because a single corner of the solar panel array (around 5 28
square feet) was visible from the street. A representative from another district’s HDC later told the company that the case would have been approved if the residence were in another district. And despite an appeal, the HDC’s decision was maintained. Another problem with this criterion of “minimal visual impact” is that it does not specify the audience of such “visual impact.” Specifically, one of the other solar companies we interviewed also reported another case in which proposed solar panels would face a dead-end street, and the panels would only be visible to the owners’ neighbors, and yet the proposal was still rejected under this criterion. Thus, though largely subjective, this requirement (according to the solar installers we interviewed) mainly means ensuring that the slope of the panels are the same as that of the roof, the color of the solar panels are black, and that the panels are not placed on the side of roof- facing streets. Landscaping and vegetation are also suggested by the Old King’s County HDC as a means of reducing the visual impact that a solar panel installation will have on its surroundings (OKHRHDC, 2008).
2. PHYSICAL UNIFORMITY (BLENDS IN WITH BUILDING)
Another serious concern of HDCs is the extent to which the addition of solar panels might depart from the traditional look of the building on which they are placed. In 2014 for example, Chilmark Historical Commission in Dukes County unanimously rejected a proposal that attempted to add solar panels to a traditional 18th century schoolhouse, arguing that the building’s historic significance and aged appearance did not merit adding modern-style solar panels (Hodgkinson, 2014). These physical uniformity standards are also strictly applied to buildings that are of lesser historic significance. For example, the Nantucket HDC specified in a review of a proposed solar project that a solar panel array “should be black on a black roof,” without regards to the building’s underlying historical significance, while a bulletin from the HDC of Old King’s Highway advised solar applicants that there be “[n]o change to the appearance of the buildings except for the addition of the panels” (Town of Nantucket, “Meeting Posting” and OKHRHDC, 2008).
3. PUBLIC ACCESSIBILITY
Closely related to the issue of “minimal visual impact” and line-of-sight visibility, public accessibility refers to the extent that a solar panel will be frequently encountered by passerby’s. Homes that are in outlying areas, lack sidewalks in front of them, or are generally isolated from heavy traffic are usually (though not always, as explained previously) assumed to be inaccessible for the greater public and are thus favored by HDCs for approval (Garber, 2017, July 6). 29
Thus, where applicable, solar panel applicants should add information regarding the traffic volume of the streets to which their solar panels would be visible, in order to be able to make an objective argument that their panels would not be accessible from the greater public and thus that the “minimal visual impact” criterion should be weighed less heavily by the HDC.
4. PRESERVES HISTORICAL FEATURES OF BUILDING
Solar systems should also avoid permanently affecting the buildings to which they are added. For example, the Historic Committee of Nantucket requires that ”nothing should be done to a historic resource that can cannot be undone or reversed without permanent damage to the resource” (OKHRHDC, 2008), while the HDC of Old King’s stipulates that solar installations cannot “permanently destroy significant historic features of the building” (Way, 2009). In order to help address this concern of HDCs, a solar applicant should provide information regarding the history of his/her residence when applying for HDC approval. Some examples of relevant information include the following: when the residence was built, if the residence was built or designed by a significant figure, and if any historic events took place in the residence or its neighborhood (“Four Approaches to the Treatment of Historic Properties”).
5. SOLAR PANEL POSITIONING
Solar panels should be installed on the upper two thirds of roofs and aligned with windows (Way, 2009). In addition, Neal Homlgren, CEO of Solar Rising, specifically pointed out that in cases where there are several roofs suitable for solar panel installation, if the roof that can yield the highest solar energy is visible to the public while other secondary ones are not, the homeowner should seriously consider using the secondary roofs for installation instead. The reason for this is that the usage of secondary roofs not visible from public walkways significantly increased the likelihood of project approval, and there are obviously opportunity costs in terms of time, money, and frustration for the homeowner if his/her solar application is rejected.
Figure 2(A) Figure 2(B) Figure 2. Both A and B show that the solar panels are placed on secondary or auxiliary structures, which are recommended by the Nantucket Historic Committee and should be applied to other districts.
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6. SOLAR APPLICATION MATERIALS When submitting application materials to the Historic Committee, solar installation companies should provide the following: - Characteristics of the solar panels, tailored to meet the above recommendations - Figures showing the position of the solar panels in relevance to other structures of the building. Figure 3 shows examples provided by the guidelines of Nantucket. - Figures showing the surrounding streets of the residences, with a focus on the public right-of-the-way.
Figure 3(A) Figure 3(B) Figure 3. Figure 2 A and B show example figures that can be helpful for application. Note that A is recommended as the solar panels are located at the upper two thirds of the roof while B is not recommended as the solar panels are in the primary side of the building (Way, 2009).
B. Recommended Guidelines for Historic District Commissions
Though there are clearly ways to “play the game” and optimize a solar energy project proposal to get it accepted under the status quo standards enforced by historic district commissions, a better and more sustainable solution for encouraging solar energy panel installations in historic districts would be to standardize a new set of guidelines that would both 1) pay attention to the HDC mission of preserving the traditional aesthetics of a town, while 2) simultaneously streamlining the application process for solar panel installations to increase the usage of solar energy in towns across Massachusetts The benefits of establishing a standardized set of guidelines that all HDCs could use to evaluate solar energy projects are numerous. Instead of relying on often subjective interpretations of what qualifies as an acceptable project (which can vary from HDC to HDC and from year to year), a standardized list of rules would increase HDC transparency, consistency across towns and proposals, and help citizens feel more informed and empowered when applying for project approval. 31
The below list of guidelines was inspired by our group’s research, interviews with solar energy companies in the Cape and Islands district, and the National Park Service Historic Properties Standards (“Four Approaches to the Treatment of Historic Properties”).
1. ASSESSMENT OF HISTORIC SIGNIFICANCE
If the answer is positive for any of the following questions with sufficient evidence, the building should be deemed as historically significant, and further assessment should proceed. If not, the building is not historically significant and the proposed installation should be approved. If there is a lack of information for answering any of the questions, the applicant should be notified and the assessment should be suspended until further information is submitted.
● Is the building a rare survivor of significant historic events? ● Is it a work of a prominent architect or craftsman? ● Did an event of importance take place in it? ● Is the age of the building greater than 150 years?
1a. ADJUSTED CRITERIA FOR DEGREE OF HISTORIC SIGNIFICANCE
Many HDCs currently take into account the historic value of buildings when deciding on applications. For example, the Old King’s Highway guidelines require the HDC to take into account “the historical value and significance of the building or structure”( OKHRHDC, 2008). However, the terms “value” and “significance” are not clearly defined. One solar company interviewed by our group reported an example of controversy that can arise from such ambiguity, after the Dennis Historic Committee rejected an application even though the residence in question was built in the 1980s. In addition, town-level local policies can cast further doubt into the justification of historical significance. For example, in Nantucket, all residences are required to go through HDC approval even if a residence is not located in the historic district. Obviously, not all buildings have equal historic significance, however. Thus, the degree of historical significance of a building should be taken into account when weighing each of the following criteria rather than applying them one-size-fits-all to all applications. Less historically significant buildings should have less strict requirements, and the opposite should be true for highly historically significant buildings. Thus, after assessing that a property is historically significant, the HDC must assess what degree of significance that property falls under (low, medium or high), and then adjust the strictness of its review of the following criteria accordingly.
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2. ASSESSMENT OF PHYSICAL IMPLEMENTATION
If the answer is positive for any of the following questions with sufficient evidence, then the proposed alteration should be deemed as undermining the historic significance of the buildings and should thus be rejected. If not, further assessment should proceed. If there is a lack of information for answering any of the questions, the applicant should be notified and the assessment should be suspended until further information is submitted.
● Are the parts of alterations, namely roofs, important for the building’s history specified above? ● Will the alterations in general affect the materials, features or spaces that carry the building’s historic significance?
3. ASSESSMENT OF VISUAL IMPACTS
If the answers are positive for all of the following questions with sufficient evidence, then the proposed alteration should be approved. If not, the proposed alteration should be deemed as having negative visual impacts and should thus be rejected. If there is a lack of information for answering any of the questions, the applicant should be notified and the assessment should be suspended until further information is submitted.
● Is the color of the solar panels and other auxiliary parts black? ● Are the angles between the solar panels and the roof sufficiently small? ● Are the solar panels aligned with windows and/or doors of the building? ● Are the solar panels inconspicuous on the site? ● Is the traffic volume of the roads facing the solar panel installation negligible?
4. REJECTION FEEDBACK/APPEALS
If a proposed installation is rejected, the HDC should detail which criterion triggered the rejection, how the proposal fits into that criterion, and recommend changes to the application that would increase its chances of getting approved on resubmission. The HDC should also then provide the relevant parties with information about the resources available to them for appealing the decision. 33
III. LEGISLATIVE FRAMING
In order to justify legislation that would alter the status quo of HDC application review/structure for the benefit of solar energy development, it will be necessary to offer a strong argumentative framework that gives weight and legitimacy to the intentions behind such proposed changes. Our group identified two primary areas of concern that legislation seeking to ease the process of solar panel installation could point to as justification for modifying HDC policies. The first and most obvious benefit would be the environmental gains received by increasing renewable energy capacity and thereby reducing the Cape and Islands’ dependence on dirty fuels. The second main benefit for the Cape and Islands would be the economic boost received from a rapidly growing regional solar industry and increased energy independence from the rest of New England.
A. Environmental Framing
ENVIRONMENTAL URGENCY: GLOBAL WARMING
Anthropogenic climate change is a pressing and well-documented phenomenon whose existence is supported by overwhelming consensus from the scientific community. Evidence includes but is not limited to data measured from air and sea temperatures, atmospheric water vapor, glaciers, and ice cores (American Geophysical Union, 2013). Anthropogenic climate change itself is caused by the accumulation of greenhouse gases in Earth’s atmosphere as a result of human activities (Oreskes, 2004). Because there is no natural process that quickly removes greenhouse gases such as CO2 from the atmosphere, past and present emissions create lasting present and future consequences. In the past century alone, global temperature has risen by 0.7 degrees Celsius, roughly ten times faster than historically, and models predict a total increase between 2 and 6 degrees Celsius in the next century alone (“How is Today’s Warming Different from the Past?”). In addition to increasing average temperatures around the world, global warming increases the occurrences of extreme weather events, reduces Arctic Sea ice, causes rising sea levels, reduces global biodiversity, and causes ocean acidification (Bradford and Pappas, 2017). Social and economic consequences of anthropogenic climate change include but are not limited to forced migrations, health problems attributed to air pollution, the spread of tropical and water- related diseases, the disruption of food access and availability, and damage to coastal cities (“The Impacts of Climate Change on Human Health in the United States: A Scientific Assessment”). 34
One of the main culprits of climate change is electricity production from fossil fuels, which has harmful environmental impacts both nationally and locally. Coal mining, especially surface mining, destroys land, creates coal dust and noise pollution, and causes water drainage and runoff problems. Natural gas production entails environmental risks such as leaks, blowouts, hydrocarbon emissions, and trace metal emissions (“2.6 Environmental Impact of Electricity Generation and Transmission”). And even if fossil fuels are extracted from different locations, electricity generation from fossil fuels poses its own environmental implications. Fossil fuel power plants are especially harmful due to the emission of air pollutants. In addition to greenhouse gas emissions of CO,
CO2, and hydrocarbons, all of which contribute to global warming, power plants also emit local pollutants, particularly sulfur dioxide (SO2) and nitric oxide (NOx). These emissions contribute to the production of acid rain (“2.6 Environmental Impact of Electricity Generation and Transmission”). In 2016, Massachusetts generated 66% of its electricity from natural gas. Another 5.8% of its electricity came from coal (“Independent Statistics and Analysis”).
ENVIRONMENTAL URGENCY: MASSACHUSETTS
Given its immediate proximity to the sea, Massachusetts, and New England as a whole, is uniquely susceptible to the consequences of global warming. A sea-level rise and coastal flood mapping tool for New England shows that even after accounting for protection from flood control structures, “more than $32 billion in property in the region’s five coastal states is at risk of extreme coastal flooding”. In Massachusetts alone, 47,888 people live on land that would be vulnerable in the event of a four-foot-high flood, and there is a 67% chance of such a flood in Boston by 2030 (Daley, 2014). A 2012 US Geological Survey report notes that sea levels around Massachusetts are rising at three to four times the global average (Russell, 2013). These region-wide changes would be devastating to coastal areas like Cape Cod, Nantucket, and Martha’s Vineyard (United States Geological Survey, 2016; Grigoriadis, 2013; and Durkee, 2011). In Martha’s Vineyard, for example, houses have already been moved or torn down in response to encroaching sea levels caused by the island’s erosion, which could be exacerbated by rising sea levels (Russell, 2013).
ENVIRONMENTAL URGENCY: CAPE AND ISLANDS
In terms of the Cape and Islands district specifically, Harvard University Professor of Environmental Science and Policy John Holdren reported in July 2017 that the district will be uniquely devastated by the effects of climate change (Holdren, 2017). In addition to the 3.6-6.3° F increase in temperature that the Cape will experience over the next century due to global warming, the current progression of climate change is projected to cause catastrophic damage to 35
the Cape’s environment, including “saltwater intrusion into freshwater wetlands and the Cape’s freshwater aquifer,” “more frequent, more intense, longer red tides,” increased coastal erosion, and a higher risk of heat waves with the likelihood of experiencing a severe drought increased by a factor of 5, as well as irreversible changes to the ecosystem, from “damage to native marine species by invasives from warmer regions” to “reduced abundance of Northeast bird species” (Saunders et al., 2012 and Holdren, 2017).
Figure 4. Map showing coastal vulnerability of areas on Cape Cod shoreline (Hammar-Klose et al., 2003).
In fact, the National Resource Defense Council has called human-caused climate change the “greatest threat ever” to the Cape region. And especially considering the fact that the Cape and Islands are highly dependent on tourism for economic revenue, even just small shifts in the Cape’s climate and ecosystem that make it less desirable for visitors could result in devastating economic consequences for residents (according to National Park Service data, the Cape Cod National Seashore alone attracted over 4.65 million visitors in 2010, generating $171 million in spending and directly supporting over 1,800 local jobs) (Saunders et al., 2012). This tourism argument may, in fact, be the most persuasive argument in getting people to more actively support solar energy even if it reduces the traditional aesthetics of a town, for a study by UC Santa Barbara Professors of Political Science Eric Smith and Holly Klick found that arguments pertaining to localized economic impact were the most effective in terms of garnering support for local implementation of renewable energy policies (Smith and Klick, 2007). Arguments of this type will also be discussed later in the Economic Framing subsection. 36
ENVIRONMENTAL BENEFITS OF SOLAR ENERGY
Given the verified link between human greenhouse gas emissions and global warming, turning to renewable sources of energy is an effective way to prevent new emissions that stem from energy generation. Once in use, renewable sources of energy, like solar energy, do not release greenhouse gases or pollute air and water sources. Electricity generation from solar, for example, generally has a small environmental impact. Pollutants are neither produced nor emitted in the energy conversion process, and thus switching from predominantly coal and natural gas to predominantly solar for electricity generation in Massachusetts would have positive global and regional environmental effects. In addition to its positive impact on the environment in general, solar energy would also create substantial, localized environmental benefits.
Positive implications of solar energy include:
● “reduction of the emissions of the greenhouse gases (mainly CO2, NOx) and prevention of toxic gas emissions (SO2, particulates) ● reclamation of degraded land; ● reduction of the required transmission lines of the electricity grids; and ● improvement of the quality of water resources” (Tsoutsos, 2005).
Despite general agreement on the graveness of climate change and the importance of using renewable energy, many people do not feel the urgency to act. Reasons for this disconnect between information and action can range from people holding a general misconception that global warming will not affect them in their lifetimes, to people consciously declaring that projects should happen but “not in my backyard” (NIMBY syndrome). This was most prominently displayed in Massachusetts during the Cape Wind debacle, in which local communities that largely showed strong support for taking action to address climate change refused to support the Cape Wind project due to the disruption it would present to their communities (Smith and Klick, 2007). In summary, solar energy presents an extremely environmentally-friendly way to generate energy for the Cape and Islands. The urgency of climate change coupled with its devastating effects for the uniquely vulnerable Cape and Islands district means that the district must become a leader in its commitment to renewables, and set an example for the rest of Massachusetts and the nation in general for how to properly address climate change for both its own benefit and the benefit of the world. Additionally, in terms of more immediate/localized impacts, relying more heavily on solar energy will reduce the Cape and Islands’ dependence on dirty polluting power plants in Massachusetts, as well as reduce pollution generated from transporting energy, building and maintaining grids and pipelines, and burning fossil fuels in the 37
Cape and Islands itself. For these reasons, pro-solar energy policies are clearly justified for the significant positive impact they have on the environment.
B. Economic Framing
JOB CREATION Massachusetts currently has the seventh largest solar energy capacity in the nation, and the second most solar jobs out of any state. According to the same study, solar supported nearly 15,000 jobs in the state in 2016, and as of 2017, there are more than 495 solar companies in the state (Solar Energy Industries Association, 2017). In Senator Cyr’s district, some of the major solar companies are Cape Light Compact, Eversource, and NationalGrid.
REDUCED ENERGY COSTS
One of the biggest economic benefits of constructing solar panels in the Cape is the critical role that solar energy can play in directly reducing energy costs. In general, renewable sources of power such as rooftop systems have very low marginal costs (Jense and Skytte, 2002). According to a study published in 2016, incorporating solar rooftop systems moves the supply curve to the right in the energy market (Kaufmann and Vaid, 2016). The study, conducted using monthly data on the quantity of natural gas used for electricity in Massachusetts between 2010-2012 and compared it to the capacity of individual rooftop photovoltaic solar panel installations from the State of Massachusetts. Kaufmann and Vaid concluded that solar panels saved Massachusetts rate-payers $184 million from 2010-2012 by increasing the supply of electricity and thus lowering the price of energy (Kaufmann and Vaid, 2016). For Senator Cyr’s district specifically, there are two main energy issues that solar panels would be perfectly suited to address: 1) the dependence of places like Nantucket and Cape Cod on other regions of Massachusetts for their energy needs, and 2) the cyclical nature of seasonal energy demand in these districts. The Cape and Islands are recognized as net importers of energy. Because of this dependence on other regions of Massachusetts for their energy, many towns in the Cape and Islands pay extremely high costs every month for building/maintaining infrastructure necessary for energy transportation. In Barnstable, for example, 47% of a residential NSTAR customer’s bill is spent on “Transmission and Basic Service,” costs that stem from generating and shipping energy in from other regions (Barnstable Patriot Staff, 2013). Nantucket is even worse in this sense, as it relies entirely on two undersea cables that stretch nearly 30 miles to substations on Cape Cod to bring electricity to the island, and this 38
dependence on the mainland for its energy needs has resulted in increased prices for consumers (Graziadei, 2014). Comparing twelve-month plans offered for homeowners, the lowest price of energy is $0.1139/kWh in Nantucket, while in Barnstable, the lowest price of energy for a twelve-month plan is $0.1079 (Choose Energy, 2017). Historically, Nantucket used to be able to provide its own energy, relying on a power plant in downtown Nantucket; however, the power plant was unable to keep up with the island’s increased energy demands during the 1990s, and was thus replaced by the two undersea cables. In light of recent increases in electricity demand, however, there have actually been calls for National Grid, a regional energy supplier, to build a third cable connecting Nantucket to the mainland. The reason for this, according to Lauren Sinatra, the energy coordinator for Nantucket, is that while overall energy demands for the state of Massachusetts grew 0.6% annually from 2009-2014, Nantucket saw an incredible 3.6% annual increase, reaching an then all-time high peak load of 45 MW in the summer of 2013 (a 12.5% increase from the previous year) (Graziadei, 2014).
Figure 5. Map showing the two undersea cables that bring electricity to Nantucket (National Grid, “Nantucket Peak Load”).
In addition to the costs related to relying on third parties to scale up energy production and build/maintain infrastructure necessary to export energy into Nantucket, relying on undersea cables for its electricity needs also poses a significant threat to the security of Nantucket’s energy supply. As George Aronson, the senior energy technical advisor for Nantucket, told reporters, “Last summer [2013], Nantucket actually saw a 45 MW peak and that’s obviously greater than the capacity of either of the cables, and if that combination happens, you lose a cable at exactly the hot point of the summer where your peak is greater than the capacity of the cable, there’s a short term problem and that’s the problem that needs to be addressed” (Graziadei, 2014). As of November 6, 2017, however, National Grid has avoided committing to building a third undersea cable, and has instead suggested the construction of a battery energy storage system (BESS) to delay the need for building a third cable for at least a decade (National Grid, “National Grid Develops Innovative Solution”). These energy dependence problems are compounded by the fact that the island of Nantucket experiences much higher energy demand during the summer induced by an increase 39
in population according to a report by the Town of Nantucket Energy Office (“Nantucket Community Power: Frequently Asked Questions”). Nantucket’s summer population is roughly 50,000-60,000, almost quintupling its year-round population of 12,000 (Town of Nantucket, 2016). This surge in energy demand has real consequences for local residents and visitors alike - data from 2013 for the Cape showed that wholesale energy costs peaked at 2.5x their normal rate over the summer, at $0.50 per kWh (Barnstable Patriot Staff, 2013). Solar panels would help address these issues by increasing the ability of towns in Senator Cyr’s district to provide for their own energy needs and scale up energy production during high-demand summer months. As a form of energy generation solely dependent on sunlight, solar panels naturally increase electricity production during the summer when sunlight is at its peak, which perfectly coincides with the time of year when energy demands in the Cape and Islands are highest. This reduces costs in two ways, by both 1) increasing the supply of local energy available for consumption and thereby reducing costly capacity charges, and 2) reducing the need to import energy from other regions of New England, which themselves have strained energy capacity. By helping move the Cape and Islands toward energy independence, solar panels can thus help reduce the negative impacts of seasonal energy spikes and the costs of importing energy. Many public officials have already recognized the immense potential for solar panels to solve these energy challenges, and have taken action at the local level. For example, in June 2017 the town of Nantucket announced plans to launch “SOLAR,” a rebate program of up to $2,500 for solar photovoltaic systems, in order to make solar panels more affordable for homeowners. And the official press release for the SOLAR program cited the two main energy issues listed above as the motivating reasons behind the program, claiming that it will “increase[] renewable energy generation [to] help...“green” the local electric supply and reduce summer peak load and costly capacity charges, resulting in lower electric supply and distribution costs for Nantucket electric ratepayers” (Town of Nantucket, 2017).
INCREASED PROPERTY VALUES
A study conducted by Lawrence Berkeley National Laboratory of 23,000 home sales from 2002-2013 found that American homeowners are willing to spend a premium of $15,000 when purchasing a home if it has solar panels installed versus a home without them (Prevost, 2015). The counties in Senator Cyr’s district seem particularly well poised to take advantage of this, for the generally higher levels of wealth among Cape and Island residents might increase their willingness invest in residential solar to increase the long-term value of their homes and save on utility bills. According to the U.S. Census Bureau’s American Community Survey, as of 2015 the median property value of a home in Nantucket County is $902,500, Dukes County is $660,800, and Barnstable County is $363,500, while the median value of a home in Massachusetts is $333,100. Coupled with the higher median incomes in all of these 40
counties relative to the rest of Massachusetts, residents in these districts should be willing to take advantage of the short-term cost/long-term benefit tradeoff of solar panel installations.
RESIDENTIAL SAVINGS WITH NET METERING
Under the Net Metering policy, Massachusetts requires that investor-owned utilities buy back excess energy from solar energy producers. EnergySage, an online marketplace for solar energy consumers, reports that by installing a rooftop solar system, the average Massachusetts household paying $100 a month for electricity can save almost $1,800 a year. Over the course of the average lifespan for a solar panel installation (about 20-30 years), that’s estimated to sum up to about $36,000 in savings (Gorey, 2017). And when factoring in the typical amount of rebates and incentives that a homeowner pursues when buying and installing solar panels on his/her roof, the average out-of-pocket cost for a 5 kW solar panel project (the typical size of a residential project) is about $14,000 (Gorey, 2017). Overall, the Massachusetts Department of Energy Resources estimates in a 2013 Task Force Report that over the lifetime of a residential solar panel installation, the total net savings received by the homeowner through Net Metering and decreased energy drawn from the electrical grid is $18,194 (Cadmus et. al., 2013).
RESIDENTIAL ROOFTOP COMPATIBILITY WITH SOLAR
Rooftop solar systems will be especially effective for the residential buildings that span the Cape. Building sizes are demonstrated to affect the suitability of solar energy system installation. Specifically, small buildings, due to their varying slopes and shading conditions, have the highest variability in technical potential while the medium and large buildings on average have at least 10 square meter rooftop area suitable for installation per building (Gagnon et al., 2016). The distance to local transmission lines is important as well, since the loss of energy in the form of electricity increases while the distance to transmission lines increases (Hernandez et al., 2015). Therefore, this factor can be used to argue that roof-top small solar energy system is preferable because the location of energy generation corresponds to that of usage. Smaller solar systems across the Cape will therefore be most suitable for the residential regions on the Cape.
EXISTING FEDERAL & STATE SOLAR ECONOMIC INCENTIVES
There are already a significant number of federal and state-level economic subsidies for solar panels that can directly benefit many of the residents and businesses of the Cape and Islands. 41
On the federal level, the Solar Investment Tax Credit is a 30% federal tax credit for residential, commercial and utility investors in solar energy property (“Solar Investment Tax Credit”). The Department of Energy also provides Energy-Efficient Mortgages for Solar PV systems. The Energy-Efficient Mortgages for Solar PV systems are for homeowners, capped to the lesser 5% of the value of the property, 115% of the median area price of a single-family dwelling, or 150% of the Freddie Mac conforming loan limit (“Energy-Efficient Mortgages”). For individuals in the lower-income tax bracket, the Department of Housing and Urban Development also provides low-income grants through Green Communities (“HUD Incentives to Reduce Utility Costs”). On the state level, Massachusetts also provides an Income Tax Credit for solar installations for up to 15% of the net expenditure on a solar-power system that a resident add to his/her home. Furthermore, the state also has a Sales Tax Exemption and Property Tax Exemption on photovoltaic solar energy systems, as well as the Mass Solar Loan program, benefiting both businesses and consumers (Massachusetts Department of Revenue, 2011; “Renewable Energy Property Tax Exemption”; and Mass Solar Loan, “For Consumers and Residents”). The Renewable Energy Property Tax Exemption has an 100% exemption rate for 20 years. In addition, the Massachusetts Residential Renewable Energy Income Tax Credit gives homeowners 15% of the installed system cost, capped at $1,000. Another program is the Mass Solar Loan program, which provides loan support for income-qualified residents and installers, banks, and credit unions can also apply to become a part of it. Even more programs are underway, such as the development of the Solar Massachusetts Renewable Target (SMART) program (Massachusetts Department of Energy Resources, 2016). According to a 2013 report by the Massachusetts Department of Energy Resources, the net state and federal incentives total for direct ownership of a 5 kW solar panel project (the typical size of a residential project) is $25,972 (Cadmus et al., 2013). Broader awareness of these policies or more encouragement for homeowners to actively take advantage of them might help increase solar panel installations in the Cape and Islands, by emphasizing how the relatively low (and highly subsidized) start-up costs of installation are outweighed by the tremendous savings garnered over the project’s lifetime.
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IV. LEGISLATIVE RECOMMENDATIONS
As previously outlined in Section II of this paper (Historic District Committees), the legal framework that exists for the protection of historic sites is a three-tiered system, composed of a set of interlocking responsibilities provided at the national, state, and local levels. The greatest authority to protect these resources and to enforce provisions relating to them lies at the local level. Our group therefore recommends legislative changes at both the state and local levels, with careful consideration for the local authority and expertise of historic district commissions (HDCs), in order to increase solar panel installations in the Cape and Islands while balancing the important role HDCs play in preserving the historic heritage and tradition of their towns.
A. State-Level Legislation
Recommendation #1: Establish statewide standards, non-binding or binding, that provide direction to local HDCs on the criteria they should consider when reviewing solar applications.
At the state level, the Massachusetts Historical Commission could work with the Department of Energy Resources to provide expert guidance to local HDCs as they review applications that involve adding solar panels to buildings within historic districts. Perhaps the most useful step that could be taken is establishing statewide standardized guidelines to be released on how to review these solar applications. This could help provide clarity to property owners within historic districts and assist them in writing their applications and solar project proposals. The need for standardized guidelines in approaching solar applications was corroborated by interviews with stakeholders in the Cape Cod Area. The founder of a solar provider that reaches 90% of territory in Cape Cod told us in an interview that he was constantly frustrated regarding inconsistency in solar application decisions (Anonymized personal interview, November 20, 2017). In general, solar providers are adept at navigating the local bureaucracy that controls review of solar applications, knowing exactly which types of solar panels they prefer and how to best write the applications. However, the problem often lies in the day-to-day inability to predict how HDCs will respond to an application. As our interviewee shared with us, “Projects that have been approved in the past have also been rejected by the same committees in the present day” (Anonymized personal interview, November 20, 2017). Consumers and solar providers alike are unsure of what to expect from HDCs when they want to install solar panels in historic districts. Statewide standards, even non-binding guidance, would help to alleviate this 43
issue and reduce some of the decision-making paperwork burden of HDCs by standardizing this process.
Recommendation #2: Restructure Section 11 of Chapter 40C in the Massachusetts General Laws (MGL) to provide for expedited review of solar applications in accordance with some standardized policy.
Currently, applications to local HDCs for certificates of appropriateness must be reviewed within 14 days of application submission, and require a public hearing to accompany them (MGL c.40C §11). While Section 11 of the statutes provides HDCs the ability to eliminate the public hearing requirement when the changes are insubstantial (e.g. those that barely changed the exterior architecture), this option is not always exercised. Property owners wishing to submit a solar application can feel burdened by the public hearing requirement and overwhelmed by the complexity of the application process. Massachusetts legislators should consider rewriting Section 11 such that it carves out an expedited application review process for solar applicants. This review process could do away with the public hearing requirement and perhaps establish a standardized checklist (see Recommendation #1) for reviewing these sorts of applications.
Recommendation #3: Amend Section 7 of Chapter 40C in the MGL to more explicitly require that HDCs give special consideration for solar panel installations.
Justification for carving-out out solar energy projects for expedited HDC review already exists in Chapter 40C in Section 7 of the law itself, which specifies that, “[w]hen ruling on applications...for solar energy systems…[an HDC] shall also consider the policy of the commonwealth to encourage the use of solar energy systems and to protect solar access.” In interviews with three solar installation companies operating in the Cape and Islands, however, there was general consensus that the currently vague wording of Section 7 doesn’t provide enough impetus for HDCs to give solar energy systems special/more lenient consideration consistent with Massachusetts’ renewable energy goals. Thus, amending Chapter 40C to give more teeth to the “solar energy system” clause of Section 7, or crafting new legislation extending Section 7 to more explicitly define what an expedited review process would look like and how strictly it should be followed could be an effective means to increase solar installations in HDCs, by building off of a policy that is already enshrined in the law but just not enforceable. This recommendation would nicely complement the previous recommendation about restructuring Section 11’s requirements concerning the logistics of HDC review to provide for a special, streamlined alternative review process for solar energy.
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B. Local-Level Legislation
Recommendation #1: Pass local ordinances allowing for “exempt areas” from HDC oversight, modeled after the policy of Old King’s Highway Historic District.
Through a combination of public input and HDC member consensus, the Old King’s Highway allows for the declaration of 100-acre “exempt areas” that are devoid from the typical regulations found within historic districts as long as alteration of these areas would not significantly affect the historical preservation of the district. Applications for exterior architectural activity in these areas automatically results in authorization by the HDC for the activity to proceed, without any substantial review of the activity itself, along with a Certificate of Exemption (OKHRHDC, 2008). This exemption process could be leveraged similarly in other HDCs to allow for local expedited solar application review. HDCs should consider reducing the 100-acre requirement and to allow for the creation of even smaller exempt areas, such as to allow more property owners in the district access to exemption from the HDC’s policies if applicable. This exemption clause would allow for greater freedom on behalf of property owners and save time for HDCs that would otherwise have to review the associated applications.
Recommendation #2: Organizationally combine historic district commissions (HDCs) with their corresponding local historical commissions (HCs).
In an interview with Lisa Hassler, Cape Cod historic realtor and member of the Sandwich Historical Commission, she pointed to a major issue within historic communities throughout Massachusetts: a disconnect between historical expertise and pragmatic historical preservation (L. Hassler, personal interview, November 8, 2017). In most communities in the state, towns have both a historical commission (HC) and historic district commission (HDC). The former is tasked with providing historical expertise and guidance to the town, whereas the latter actually reviews project applications and has the final legal say on whether a developer can implement his/her desired architectural changes. In her interview with our group, Ms. Hassler explained that this disconnect between HCs and HDCs often causes problems for homeowners: the HDC is often primarily concerned with the aesthetic uniformity of a particular neighborhood, ensuring that no architectural sore thumbs, so to speak, will stick out from the rest of the community. The problem with this approach is that “historical gems,” which depart from the aesthetic nature of surrounding homes/properties but have significant historical value, often get lost in this process, as HDCs advocate for changing that property to blend in with the rest of the neighborhood without realizing the unique historic value and aesthetics of that building. One solution Ms. Hassler provided was to encourage towns to combine HDCs with their HCs, or to facilitate increased dialogue between the two in order to couple the pragmatic application review of HDCs 45
with the historical expertise of HCs (L. Hassler, personal interview, November 8, 2017). In terms of actual legislation, local legislative bodies such as town councils should consider combining and collectively implementing Section 8 of Chapter 40C and the various other relevant sections of Chapter 40C in order to grant powers of review to both local HCs and HDCs. Besides helping to better preserve the historical attributes of the community, this recommendation would also enable joint HC-HDCs to offer more comprehensive advice regarding the best implementation of solar within their historic district in terms of balancing both preservation of history and aesthetics with energy development. This HC-HDC combination might also help assuage the fear of some HDCs that solar panel installations will irreparably damage historic properties, which thus causes HDCs to be stricter in allowing for solar panel installations. For example, Ms. Hassler pointed out that though solar energy is a good cause, the relentless pursuit of meeting energy quotas can sometimes lead solar installers to take shortcuts in terms of project execution (L. Hassler, personal interview, November 8, 2017). For example, solar providers are not always experts at performing architectural work on historic properties, and can harm the historical integrity of a property as they install panels. By bringing more specific awareness as to what the actual historical value of a building is, and whether it even has any historicity/what specifically makes it historically valuable, an HC more closely integrated with an HDC may help both 1) better protect historic properties from damage and 2) increase HDC leniency on solar projects in general. That’s because the additional knowledge and certainty about a town’s history that HCs would bring to the table could help alleviate existing HDC fears that they authorize a project that inadvertently causes damage to a historical property, and thus remove the need for HDCs to overcompensate by constantly overestimating the risk that projects pose to the structural integrity of the buildings they alter. When establishing joint HC- HDCs, local legislative bodies should emphasize the importance of a holistic understanding of exterior architectural changes. This includes not only the impacts that a change could have on the aged structure of a building, but also, perhaps, the positive environmental and energy impacts that something like a solar panel could have in the long-run.
Recommendation #3: In addition to the already-existing appeals process that allows town councils to overrule HDC decisions based on procedural errors, give town councils the power to also overrule HDC decisions based on the substance of those decisions.
Section 12 and 12A of Chapter 40C allows citizens to challenge HDC decisions they disagree with, as long as those decisions fall under the coverage of local ordinance review processes. Citizens can go through a local city council channel (typically the regional planning agency) or a superior court to appeal their decision. While seemingly a powerful check on HDC overreach, this appeals process is actually quite limited in reality. During interviews with our group, three local solar installation companies that had experienced this appeals process stated that they were frustrated with the “procedural” focus of the review. What is meant by 46
“procedural” is that the appellant body tasked with reviewing an HDC decision will only overrule the decision if the HDC had failed to follow the correct procedures/processes in making that decision, not whether the actual substance of the decision or the criteria used to evaluate that project were reasonable (Anonymous, personal interview, October 31, 2017). This means that town commissions truly only decide whether there was an erroneous decision, but not whether there was an erroneous interpretation or application of the relevant guidelines. Thus, an HDC that follows the letter of the law in terms of paperwork, timing, and administration of its decision cannot be overruled by a town commission despite making a substantive or interpretative error of the guidelines it applied to that project review. And especially since the definitions/criteria of HDC guidelines are often unclear and extremely subjective (as explained in the previous Maximizing Application Success under Current Guidelines subsection), town commissions generally lack the ability to overrule HDCs even if their interpretations do not obey common sense. This recommendation calls for giving local bodies that normally oversee HDCs more power to overrule HDC decisions based on their substantive content as well as their procedural accuracy, opening up the criteria that HDCs use in their decision-making process as fair game for review. This would incentivize HDCs to be more fair in the criteria they select, increase transparency and accountability, and give frustrated citizens an effective avenue for responding to HDC decisions with which they disagree. Legislation that gives appellant bodies broader powers to conduct substantive (rather than just procedural) review of HDC decisions would present a balanced check on HDC power and ultimately give more control to the residents of historic districts.
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V. CONCLUSION
To facilitate a smoother application process for individual homeowners and companies, consider the recommendations outlined above. The application process works in the favor of HDCs, but is ultimately is unclear for residents and companies. Massachusetts lawmakers should revamp the application process so that the standards for approval are more accessible to applicants. In order to increase the processes’ feasibility and efficiency, Massachusetts can also work to transfer decision power from the HDCs back to the homeowners. If some or all of these recommendations are implemented, Massachusetts will be closer to a greener and economically healthy future.
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Section 4: Appendix
I. POTENTIAL SOLAR DEVELOPMENT SITES
In our original meeting at the State House, Mr. Johnson had mentioned that if our group had time, it might be interesting to take a brief look at areas in the Cape and Islands district that looked like they might have potential for future solar energy development projects. We ended up identifying two main areas in the district that could potentially support a solar development: one in Nantucket and another in Martha’s Vineyard. Both sites are close to their respective regional airports. Because of this proximity, these sites are near developments that don’t fit the general aesthetics of historic districts, so the addition of solar panels would be in line with the look and feel of their immediate surroundings without threatening the visuals of more historically valuable or protected areas. Additionally, the presence of a solar farm near an airport has already been recognized by many developers as a great location for a solar energy project (Pickerel, 2016). In fact, the world’s largest solar farm is actually directly outside of Indianapolis International Airport, boasting over 76,000 photovoltaic panels and stretching 75 acres (Mack, 2014).
Nantucket
As shown in the images on the next page, the area in and around Nantucket Memorial Airport has little greenery and relatively few houses. Because airports are built on flat land, it is possible that the solar panels may be seen for quite a distance. However, the same could be said for the actual airport itself, so adding solar panels to an already heavily developed/industrialized setting will probably not pose any additional visual clutter not already caused by the airport itself. This visual clutter consideration is important, however, as the entirety of Nantucket is under the jurisdiction of the Nantucket Historic District Commission (Nantucket HDC). The particular reasoning why the Nantucket HDC has rejected solar panel applications in the past is not fully known, but successful applicants’ emphasis on minimal changes to home appearance suggests that visual clutter plays a significant role in Nantucket HDC decisions. This emphasis on aesthetic makes a proposed solar farm near the airport much more likely to be accepted than a solar farm near a residential community, as it would fit in nicely with the more industrialized airport setting. The public of Nantucket, in theory, should also not put up too much resistance to a solar farm development, since their town co-signed a 2014 letter asking the state government to support solar energy (Hellerstein, 2014). This airport development proposal allows the local community to exercise that support without threatening local aesthetic factors deemed important. Nantucket had, in fact, actually tried to create a 25 acre solar development near its airport in 2014, but ceased the project after failing to secure adequate funding (Turer, 2015). As of May 49
2017, the last date at which the town updated its bidding database for a new airport solar development, the town is still soliciting bids from companies willing to develop near its airport (“Bid Postings”, 2017).
Figure 6. Images from Google Maps of brownfield near Nantucket Memorial Airport.
Martha’s Vineyard
The second location we identified, shown in the images below, is a large tract of undeveloped land west of Martha’s Vineyard Airport. Like the Nantucket location, the panels would be on flat land, which could cause problems in terms of visibility. However, the presence of trees in the surrounding area (and potential addition of more greenery) could block at least some of the solar panels from view, especially to the south. Several towns in the county (Aquinnah, Edgartown, and West Tisbury) also cosigned the aforementioned pro-solar letter asking the state government to support solar energy (Hellerstein, 2014). In the past, the HDC in Dukes County has been at least partially opposed to the installation of solar panels, though this resistance seemed largely due to concerns regarding the preservation of town aesthetics in the applications that our group (Hodgkinson, 2014 and Garber, 2017, June 1). Due to the underdevelopment of the area surrounding the proposed solar farm site, as well as its proximity to the airport, it would appear that its impact on the overall visuals of the island would be much more limited compared to installations in residential areas, and thus a preferable site for a solar project.
Figure 7. Images from Google Maps of undeveloped area in Martha’s Vineyard. 50
Works Cited
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SELECT BOARD OFFICE OF THE TOWN AGENDA ACTION REQUEST ADMINSTRATOR November 4, 2020
TOWN ADMINISTRATOR’S REPORT
REQUESTED BY: Select Board
DESIRED ACTION: Review signed letter of Intent for Governor Prence Properties
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SELECT BOARD OFFICE OF THE TOWN AGENDA ACTION REQUEST ADMINSTRATOR November 4, 2020
LIAISON REPORTS
SELECT BOARD OFFICE OF THE TOWN AGENDA ACTION REQUEST ADMINSTRATOR November 4, 2020
TOPICS FOR FUTURE AGENDAS
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