The proposed 0 Layfette St. solar project near the Holy Cross Cemetery does not meet the requirements for a Yarmouth zoning special exemption, according to legal counsel, meaning the project can’t proceed without zoning changes.

On Feb. 28, the Planning Board heard a proposal from New Leaf Energy for a solar panel farm next to the Holy Cross Cemetery on land leased from the Roman Catholic Diocese of Portland. The 12-acre undeveloped parcel for the project is located near the Riverside Cemetery and Royal River. The developers estimate the solar project would produce 3 million kilowatt hours of clean energy annually.

Residents of the area widely opposed the project at its introduction. Concerns ranged from the project disturbing visitors to the surrounding cemeteries, disrupting the surrounding wetlands and woods, and the project being an “eyesore” for the nearby neighborhood and decreasing property values.

“I and my neighbors, many of my neighbors, do not feel that a commercial solar energy project belongs in this neighborhood. It’s a residential district, and we feel that it would irreparably damage the character of the surrounding neighborhood,” said Stacey Chase.

Through written and verbal comment, no Planning Board members or Yarmouth residents spoke in favor of the proposed project.

At the time, the Planning Board wasn’t sure whether the proposed project would be allowed under the location’s current zoning. In the area, which is zoned Medium-Density Residential District, Low-Density Residential District and Shoreland Overlay Zone, a project would have to be considered a public utility or essential service to qualify for an exemption to the zoning regulations. Solar farms are not explicitly listed in the list of public utilities, and there has not been a precedent set in Yarmouth as to whether these projects qualify for this exception.

The board decided to seek legal advice on the exemption. Attorney Ben McCall, of Jensen Baird, advised that a commercial solar farm at this location, given current zoning, would be inappropriate and would leave the town vulnerable to litigation. He cited a 2023 York County Superior Court case which ruled that solar arrays are not public utilities.

He also said solar projects do not qualify as an “essential service,” the other pathway for a zoning exemption. Essential services account for structures needed to transmit public utilities, such as cable and power lines.

McCall suggested that the town adopt zoning amendments that define commercial solar use, explicitly allow solar projects in specified zones, and adopt performance standards and a review procedure for these projects. At the Planning Board meeting on March 26, Zwirko said that over the past several months she and sustainability staff have been working on a zoning amendment that defines solar use and permittable zones. They will sent the amendment to the Climate Action Committee for initial review soon before it is moved to the Planning Board.

The zoning amendment process requires the Planning Board to make a recommendation to the Town Council, which has the authority to adopt amendments. If the amendment proceeds, the changes could be adopted as early as June or as late as fall, said Zwirko. No dates have been set for the Planning Board or Town Council review, both of which are public hearings with opportunity for written or verbal testimony from the community.

For the 0 Lafayette Street project in particular to move forward, Medium-Density Residential District, Low-Density Residential District and Shoreland Overlay Zones would have to be amended to allow for commercial solar use as a permitted use or special exemption.

New Leaf Energy told Zwirko that it would like to participate in the public process on zoning amendments and later resubmit their application in compliance with whatever is adopted, if appropriate.