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Accessory use? Wind turbines remain up for debate  

Credit:  By Brooklyn Lowery | wayland.patch.com 21 June 2012 ~~

Wind turbines at Wayland Town Center have been in the discussion for weeks and will remain there for at least a few more days.

Do wind turbines qualify as an accessory use when it comes to zoning at the Wayland Town Center location of Stop & Shop?

That’s the question the Wayland Planning Board is mulling as representatives from Stop & Shop argue for permission to erect six, 35-foot tall wind turbines in the parking lot of the grocery store.

Wayland Town Counsel Mark Lanza explained during a Tuesday public hearing that the zoning for Wayland Town Center requires that all principal uses for a property be specifically listed. If the item isn’t listed as a principal use, and wind turbines are not, it should be considered prohibited.

Lanza went on to explain that the only way wind turbines could be considered for the Stop & Shop location was if the board deemed the turbines an accessory use for the property.

“There is no requirement that the town list every accessory use conceivable,” Lanza said. “Accessory uses can evolve over time.”

To determine whether a feature is an accessory use, Lanza explained that three questions should be asked: Is the item incidental or subordinate to the main use? Is the item located on the same site? Is the item customarily or traditionally associated with the main use?

In the case of wind turbines at Stop & Shop, Lanza said he doesn’t believe there’s any question that the first two criteria are satisfied, but his interpretation of a court precedent regarding “customary” use led him to advise that the wind turbines did not satisfy the third criterion.

Lanza said the court defined customary use as something “commonly, habitually and by long practice associated with the primary use.” In this case the question is whether wind turbines are customarily associated with grocery stores, which Lanza argued they are not.

Adam Weisenberg, lawyer for Twenty Wayland, the developer of Wayland Town Center, countered that wind turbines are commonly associated with grocery stores and other commercial properties and should therefore be considered customary.

Weisenberg presented images of wind turbines at several commercial locations, including a Wal-Mart in Worcester and Hyannis Country Garden. He told board members that zoning bylaws are restricted to local communities, but defining “customary” isn’t limited to the Wayland area.

“We submit that on-site wind is sufficiently established … to be customary in commercial settings in order for it to be considered a customary use here,” Weisenberg said.

While a few residents spoke up in opposition to the idea, more expressed their support of installing wind power at Stop & Shop.

Longtime resident Lew Russell said he was “surprised” at the opposition to the plan.

“It does represent change,” Russell said. “But in my 80 years in the town and about 50 years active in the town government, I’ve seen a lot of change. And where would we be without the positive change that has happened over the years.”

Other residents raised concerns over whether wind turbines fit within the expected New England village concept of Wayland Town Center, and, even if they do, whether their efficiency justifies their installation.

Planning Board chairman Kent Greenawalt, however, said the board shouldn’t be concerned with whether the turbines are efficient or aesthetically appropriate in this case. The question was whether the turbines could be considered an accessory use when it comes to the zoning.

For his part, Greenawalt said he was not convinced that the wind turbines qualified. Members Kevin Murphy and Andrew Reck agreed with the chairman’s opinion.

Members Colleen Sheehan and Ira Montague, however, said they believed the wind turbines to fit within the guidelines of an accessory use.

Before the Planning Board could officially vote on the matter, Weisenberg made the offer that Stop & Shop would be willing to construct the turbines with the understanding that if a zoning bylaw was not approved within a set period of time, the grocery store would remove the turbines.

Murphy pointed out that the proposal did not satisfy the issue of whether the wind turbines could be considered an accessory use.

In the end, Weisenberg asked that the board delay making a ruling so that he could speak with decision-makers at Stop & Shop. It’s possible Stop & Shop will spend the money to install the infrastructure for the turbines in hopes of erecting the full turbines should zoning permit them in the future.

The Planning Board voted to continue the public hearing on Tuesday, June 26 at 7:30 p.m.

Source:  By Brooklyn Lowery | wayland.patch.com 21 June 2012

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

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