Shelburne voters to weigh in on changes to Floodplain District, battery energy storage bylaws

SHELBURNE — Residents will consider four bylaw revisions at May’s Annual Town Meeting, including regulations pertaining to vegetation control around battery energy storage systems and requiring a special permit for development in the Floodplain District.

During a public hearing on the proposed changes on Tuesday, Planning Board members said the amendments would make the town’s bylaws consistent with changes in language and maps that are used by the state and federal governments.

Floodplain District

Planning Board Chair John Wheeler said that with the Federal Emergency Management Agency (FEMA) having updated its floodplain maps, the town needed to update its bylaws to reflect those changes. The current zoning bylaws designate the maps dated July 2, 1980, as those dictating the location of the Floodplain District.

He said the state provided the town with a more than 20-page-long model bylaw on regulating construction in the Floodplain District, with goals of protecting human life and the environment, and minimizing potential expenditures for flood control projects and flood relief efforts. The board, with the help of John Taylor, a Zoning Board of Appeals member and Shelburne fire chief, was able to condense the bylaw to nine pages.

The amended bylaw would change the Floodplain District from what is designated on the 1980 maps to “the most recent published map.” The Conservation Commission is the permitting authority for any new construction in the Floodplain District.

Conservation Commission member John Harrington told Planning Board members that he hoped the board could delay bringing the bylaw to Town Meeting to give the commission more time to learn about the implications the bylaw would have on its duties.

“We didn’t feel like we knew enough about what our responsibility would be,” Harrington said. “It says we, the Conservation Commission, will be responsible for granting permits for all development in the 100-year flood zone, but it doesn’t say what criteria we would use.”

Planning Board member Faith Williams added that she, too, would like more time to review the bylaw, so the board could better explain the changes and implications to voters.

“I certainly do not feel competent to stand up in front of a Town Meeting and explain, other than we have to, why we’re doing this,” Williams said.

Wheeler suggested the board move forward with the bylaw as required to maintain compliance with FEMA regulations and the National Flood Insurance Program, and so residents can find out if they now live within the Floodplain District and if they should look into getting flood insurance. He added that board members should continue to work with Taylor to get their questions answered and see if any major changes would be necessary.

Battery energy storage systems

The Planning Board is also recommending changes to the battery energy storage system bylaw that was passed by voters last year, specifically striking the sentence “except in case of invasive plants listed by the Massachusetts Invasive Plant Advisory Group, herbicides may not be used to control vegetation” at battery energy storage systems.

The board is proposing amending the language to say plant species must be controlled using best management practices and effective methods that are least detrimental to the environment. The Planning Board is suggesting mowing, grazing, and the use of pervious pavers or geotextile materials, after being told by the state Attorney General’s Office that the town could not ban herbicides.

The AG’s office partially approved the initial version of the bylaw last November, and wrote to the town that the bylaw was in compliance with state law, with the exception of the line barring the use of herbicides except in instances of controlling invasive species. Deputy Director of the Municipal Law Unit Nicole Caprioli wrote that banning herbicides preempts the Massachusetts Pesticide Control Act.

“A town bylaw that regulates the application of pesticides in a way that interferes with the purpose of the act is preempted. … A bylaw that ‘contemplates the possibility of local imposition of conditions on the use of a pesticide beyond those established on a statewide basis under the act’ is preempted,” Caprioli wrote. “Because the bylaw text in Section 23.6.5 is preempted by state law, we disapprove it.”

Williams said vegetation should be controlled around any potential battery energy storage system installations. In the event of a fire, any surrounding vegetation could spread the flames and make the fire more difficult to control.

“For me, common sense says what we want to do is prescribe that vegetation is controlled in this area due to the threat for fire,” Williams said. “Fire will spread much more easily if it’s growing uncontrollably. “

Other changes

The Planning Board is also proposing changes to the definitions of “manufactured home,” “multi-family housing” and “mobile homes,” by removing the definition of “mobile homes” and replacing it with “manufactured home.”

“We are recommending that the town update our zoning to reflect changes at the state and federal level related to mobile homes, so that bylaws are in compliance with current regulations and to make this type of housing possible,” Wheeler said. “They’re doing this in a lot of towns. I saw one town doing the same thing, taking out their mobile home definition, just because it conflicts with the state.”

Similarly to mobile homes, manufactured homes would be barred except in manufactured home parks, which require a special permit. Temporary mobile dwellings, which can include trailers, RVs, campers or traditional mobile homes, would be allowed on a temporary basis, by right, in the Residential/Agricultural, Commercial and Industrial zones, and with a special permit in the Village Residential and Village Commercial zones.