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United States Investment & Development Corp. v. The Platting Board of Review of City of Cranston

Superior Court of Rhode Island

December 27, 2017

UNITED STATES INVESTMENT & DEVELOPMENT CORPORATION
v.
THE PLATTING BOARD OF REVIEW OF THE CITY OF CRANSTON; MICHAEL SMITH, JAMES MORAN, KEN MASON, P.E., MARK MOTTE, GENE NADEAU, ROBERT STROM, FREDERICK VINCENT, LYNNE HARRINGTON, KIMBERLY BITTNER, in their capacities as Members of the City Plan Commission of the City of Cranston; DAVID CAPUANO, in his capacity as Treasurer for the City of Cranston; DANIEL PAGLIARINI, Trustee; and RES AMERICA DEVELOPMENT, INC.

         Providence County Superior Court

          For Plaintiff: Joelle C. Rocha, Esq.

          For Defendant: William Landry, Esq. Andrew Tugan, Esq.

          DECISION

          LICHT, J.

         United States Investment & Development Corporation (hereinafter, the Appellant) appealed from a decision of the City of Cranston Zoning Board, sitting as the Platting Board of Review of the City of Cranston (hereinafter, the Platting Board). The Platting Board's Decision (hereinafter, the Decision) unanimously upheld the January 14, 2016 decision of the City Plan Commission of the City of Cranston (hereinafter, the Plan Commission) granting combined Master/Preliminary approval to an application for approval of a proposed solar energy array, named Hope Farm 10 MW Solar Array (hereinafter, the Solar Array), to Daniel Pagliarini (hereinafter, Mr. Pagliarini) and RES America Development, Inc. (hereinafter, RES). The Appellant timely appealed the Platting Board's Decision to this Court pursuant to G.L. 1956 § 45-23-71.

         I

         Facts and Travel

         Mr. Pagliarini is the owner of the subject property located at 840 Hope Farm Road, Cranston, Rhode Island, and otherwise known as Lot 12 on Assessor's Plat 23 and Lot 66 on Assessor's Plat 24. (Compl. ¶ 5.) Collectively, the combined parcels contain approximately seventy-five acres. (Certified R., Item J, at 5.) The property is zoned A-80 and solar farm arrays are a permitted use in the A-80 zone. (Certified R., Item A, at 21.) The majority of the property has operated as a commercial nursery and is partially planted with corn. (Certified R., Item D, at 1.) An electric transmission line runs through the eastern portion of the property in a right-of-way of National Grid. Id.

         On November 16, 2015, Mr. Pagliarini and RES submitted a Master/Preliminary Plan application to the Plan Commission seeking approval of the Solar Array. (Certified R., Item A, at 10.) The proposal is for a 10-megawatt solar array consisting of 938 ground-mounted solar panels, a gravel driveway providing access to the equipment, a security fence, and stormwater management areas. Id. Each panel is 11' x 63', for a total surface area of 650, 034 square feet or 14.9 acres. Id.

         On December 1, 2015, the Plan Commission held a hearing on both the Master Plan application and the Preliminary Plan application. (Certified R., Item H.) The documents before the Plan Commission included a project narrative prepared by the project engineers, a Stormwater Management Report, a Long Term Stormwater Management System Operation and Maintenance Plan and Source Control and Pollution Prevention Plan, and a Soil and Erosion and Sediment Control Plan. (Certified R., Items A, E, F, and G.)

         John Starbuck (hereinafter, Mr. Starbuck), an engineer with VHB, was the project manager on the project and testified, among other things, that all of the construction proposed is "within existing disturbed farm areas, agricultural areas" and outside of the wetlands. (Certified R., Item H, at 9-10.) Further, Mr. Starbuck confirmed that "[t]he entire area that we're working is currently agricultural farmland." Id. at 34-35. Mr. Starbuck's testimony also affirmed that a "drainage analysis consistent with the Rhode Island DEM ground storm water design and installation standards manual" was completed and that the analysis "complies with all the requirements of that manual." Id. at 35. In regard to footings for the project, Mr. Starbuck testified that years from now, the footings could be pulled up and nothing would be left in the ground, other than underground conduit for the electrical services, which could also be removed. Id. at 44.

         Cranston Principal Planner Jason Pezzullo (hereinafter, Mr. Pezzullo) presented the findings of a detailed City Planning Department Staff Report, which recommended that the Plan Commission approve the Master/Preliminary Plan. (Certified R., Item A, at 21; Item H, at 87-89.) The City Planning Department Staff Report noted that "[a] meadow will be established under the solar array that can better support meadow wildlife." (Certified R., Item A, at 14.) The Staff Report further opined that "[t]he majority of the existing agricultural areas onsite have been tilled and predominately do not have existing vegetation", but that these areas of erosion will be "restored with permanent vegetation that will remain for the life of the project, " thereby improving the habitability of the area for meadowland wildlife. Id. at 13-14.

         Peter Lapolla (hereinafter, Mr. Lapolla), the City's Planning Director, testified extensively about the solar farm's consistency with the Comprehensive Plan. His testimony will be discussed in greater detail below. The Plan Commission had no testimony before it that the proposed Master/Preliminary Plan or its resulting land use was inconsistent with the City's Comprehensive Plan. Appellant did not attend any of the hearings before the Plan Commission on this matter or present any testimony for the record in opposition to the application. (Certified R., Item L, at 4.)

         The Plan Commission voted to approve the applications on a 6-1 vote and its decision was recorded on January 14, 2016. (Certified R., Item I.) Specifically, the Plan Commission found that

"[t]he proposed Master/Preliminary Plan and its resulting land use is consistent with the City of Cranston Comprehensive Plan's Future Land Use Map which designates the subject parcel as Residential - Less than one unit per acre. The City Council specifically authorized Solar Power as a use allowed by-right in land zoned A-80. The use is therefore consistent with the Comprehensive Plan." Id. at 2.

         Appellant, a Rhode Island corporation and owner of Lot 11 on Assessor's Plat 23, which abuts the subject property owned by Mr. Pagliarini (Compl. ¶ 1), filed a timely appeal of the Plan Commission's decision to the Platting Board. (Compl. ¶ 10.)

         The Platting Board held hearings related to this appeal on May 11, 2016 and November 9, 2016. (Certified R., Items J and K.) Counsel for the Appellant argued as follows:

"And that's the essence of the appellant's position, that there's a clear error here because the proposal to do an industrial use doesn't comport with the zoning ordinance, which dictates what can happen on that property, and it doesn't comport with the Comprehensive Plan, multiple ...

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