Legal questions complicate Hampden self-storage proposal

Oct. 1, 2021 | Sarah Heinonen

HAMPDEN – The public hearing on a proposed self-storage facility ended in more questions than answers after two legal uncertainties arose.

Interim Planning Board Chair John Matthews began the Sept. 29 meeting by addressing an inconsistency in the application for the project at 16 Somers Rd. While attorney Raipher Pellegrino is the listed manager operator, a different representative of the company had signed the paperwork with the town.

Pellegrino explained that the representative was approved by the company stakeholders to sign on their behalf. Seth Wilson, the lawyer for “Save Hampden,” a citizens’ group opposed to the self-storage facility, argued that there would have to have been a recorded vote of that permission. He said the paperwork was out of order at the time of application and, therefore, invalid.

Pellegrino attempted to assuage the board’s concerns by signing the paperwork in front of them and agreeing to provide proof of that vote.    

Pellegrino’s presentation of the project emphasized the planning and care that was taken to assure the project would be as “low impact” on the “environment and the neighbors” as possible. He said the exterior of the house on the property, built circa 1800, would remain largely untouched and would be used as the office for the business. The layout of the project was designed to preserve the two trees on either side of the driveway and three other trees behind and to the side of the house. These actions would “preserve the nature of downtown,” he said.

Mockups of the part of the property facing the road were presented. The company plans to use arborvitaes and a black fence to obscure the storage units from the street. Pellegrino said that the fence, 50 feet from the road, would be in line with the back of the house, making it look like any fenced-in backyard.

The use of permeable asphalt on the majority of paved surfaces was incorporated to minimize wastewater impact, Pellegrino said. The only areas with standard asphalt will be near the house so the foundation is not disturbed. The company plans to use magnesium chloride salt for surface ice control in the winter, rather than sand, which can cause water drainage issues on permeable asphalt. The storage units are planned to be 50 feet from the fence and then there are another 150 feet between the fence and any of the residential neighbors’ wells.

Addressing traffic, Pellegrino said that while there are four standard parking spaces and one accessible space on the site plans, the traffic flow should be less frequent than when the property was an active nursery.

The storage units themselves are dark bronze with hunter-green doors and stand 10 feet in height. The aisles between the rows of units will be lit with “wall packs” at 30-foot intervals. Landscape Architect Carlos Nieto of Berkshire Design Group explained that the lights can be programmed to dim or turn off when motion is not detected. The lights all face in toward the property and can be programmed to dim after the facility’s 10 p.m. closing time, leaving some light for security purposes.

The wall packs and the three lights that are on 15-foot poles near the entrance are “dark sky” compliant, meaning that they will not emit light pollution into the sky. They are also designed to minimize light spilling out from the area they are intended to light.
Matthews asked Pellegrino about the decision to include solar panels on the storage unit roofs. The lawyer responded that the solar panels made the property “able to capture 400 KWh for the community and not see it.”

He continued, “It makes sense long term for the community and for us. It just makes practical sense.”

Matthews explained that there are no performance requirements in the town’s solar bylaw for large-scale roof-mounted solar arrays. He shared that he had served on the solar bylaw committee and that body made the conscious choice not to include language on commercial roof-top arrays. He then quoted the bylaw, “Any use not listed shall be construed to be prohibited.

Pellegrino argued that the language refers to ground-mounted arrays and therefore does not apply to large-scale roof-mounted panels.

Matthews said the Planning Board would not have the authority to grant a special permit on something without defined performance requirements unless they made conditions. Wilson commented that the board is “being generous” in offering to condition something that was otherwise prohibited. Barroso countered that no offer had been made.

Barroso said that the special permit decision had to be made “by the book” because it was a contentious issue. “I’m not willing to stick my neck out for this project,” he said.

Pellegrino said his company would be comfortable moving forward on the storage facility without the solar aspect and that they had applied for the two parts separately for that reason. While they are listed separately on the application cover page, they are not elsewhere in the paperwork. Planning Board member Heather Beattie noted that only one application fee was paid, making it arguably a single request to the board.

Matthews said he was unsure whether it removing one portion of the application from consideration was legal. Pellegrino contended that boards commonly deny parts of proposals.

“To avoid a challenge,” in the form of a legal appeal, “I think the cleanest thing would be to have a withdrawal and resubmit,” Barroso opined.

Pellegrino offered to withdraw only the solar aspect of the application, but Matthews said he would like Town Counsel Rose Crowley to review the options. He offered a continuance. Pellegrino agreed with the stipulation that both the legality of the roof-mounted solar array and the separation of solar from the larger proposal were considered.

Wilson objected to a continuance on the basis that his clients were paying for legal representation and stretching out the process would be a financial hardship. He said that he had “very clear grounds” to make an argument against the entirety of the proposed plan.

“I don’t want to move forward and make a decision on something I’m not qualified for,” Barroso said. Matthews agreed.

“No matter what, this board has to do our due diligence,” Matthews stated. To avoid either side using the solar issue as grounds for appeal and legal action against the town, he decided, “I am not comfortable moving forward at this time.”

Wilson told the board he respected their position and would not object.  

Barroso thanked the people in the audience for remaining respectful and allowing the proceedings to go relatively uninterrupted. He noted the difference between the meeting and the one that had taken place the previous night, in which a steady stream of questions and interjections resulted in disorderly and, at times, tense interactions.

The hearing will be continued on Oct. 12 at 6:15 p.m. in the Town House auditorium. For information on the proposed self-storage facility at 2 Somers Rd., go to

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