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Fontaine v. Edwards

Superior Court of Rhode Island, Newport

July 27, 2018

ROGER FONTAINE and JANE FONTAINE
v.
JAMES EDWARDS, JAMES HALL, JOHN BORDEN, ERIC RAPOSA, BENJAMIN FURIEL and KATHLEEN PAVLAKIS, in their capacity as Members of the PORTSMOUTH ZONING BOARD OF REVIEW, PORTSMOUTH SOLAR, LLC, and SEABURY APARTMENTS, LLC

          For Plaintiff: Jeremiah C. Lynch III, Esq.

          For Defendant: Kevin P. Gavin, Esq.; Jennifer Reid Cervenka, Esq.; Randall T. Weeks, Jr., Esq.

          DECISION

          Van Couyghen, J. Magistrate Justice.

         Before this Court is a zoning appeal pursuant to G.L. 1956 § 45-24-69. Roger and Jane Fontaine (Appellants) appeal a decision (decision) of the Portsmouth Zoning Board of Review (Board), granting a special use permit to Portsmouth Solar, LLC (Portsmouth Solar), to install a solar photovoltaic facility on property located in an R-30 District.

         I

         Facts and Travel

         Seabury Apartments, LLC owns the property located at 259 Jepson Lane, Portsmouth, Rhode Island and otherwise known as Lot 3 on Tax Assessor's Map 60 (Property). (Compl. ¶ 4.) The Property consists of 29.7 acres of vacant land, with the exception of a barn. (Pet. 1; Ex. 7 to Pet.) On December 16, 2016, Portsmouth Solar filed a Petition for a Special Use Permit to install a 2.9 Mega Watt (DC) solar photovoltaic facility (solar farm) on the Property pursuant to Article V(B)(5) and Article VII(A)(1)(b) of the Portsmouth Zoning Ordinance (Ordinance). (Pet. 1.)

         The Zoning Ordinance for the Town of Portsmouth (Ordinance) does not provide for solar farms in any of the Town's districts.

         The Board conducted duly noticed hearings on March 30, 2017 (Tr. I), and May 4, 2017 (Tr. II). As an initial matter, the Board addressed whether a solar farm would be permissible under the Ordinance considering that a solar farm is not specifically mentioned.

         Article V, Section 1 of the Ordinance provides:

Except as otherwise provided in this Ordinance, in each district no building, structure, or land shall be used or occupied except for the purposes permitted as set forth in the accompanying Table of Use Regulations, Section B.
Proposed uses not so listed may be presented to the Zoning Board of Review by the property owner. Such uses shall be evaluated by the Zoning Board of Review according to the most similar use(s) that is (are) listed, as well as the purposes and uses generally permitted in the subject use district. The Zoning Board of Review may approve the proposed use as permitted, or deny the proposed use as not permitted, or allow the proposed use subject to a Special Use Permit. (Art. V, Sec. 1 of the Ordinance.)

         Portsmouth Solar asserted that because a solar farm is similar to a public utility, which is permitted in an R-30 district, then a solar farm also is permitted under the Ordinance in an R-30 district based upon Art. V, Sec. 1. The Appellants disagreed and, instead, likened a solar farm to "a nonregulated power producer . . . engaged in the business of producing, manufacturing, or generating electricity for sale to the public[, ]" and that as such, they contend that it is a prohibited use in an R-30 district. (Tr. I at 14.)

         After hearing arguments on the subject, a Board Member moved as follows:

that the solar farms' Petitioner be allowed to move forward based on Article V, 1, 2. This Board has the right to choose the most similar use under the zoning ordinance, and I believe that the most similar use is a public utility and personally, based on the testimony do not buy the argument that this is a manufacturing use. In my opinion, this is a passive use that does not involve the manufacturing of goods and services. It is more of a passive use, and I would move that the Board move forward with this petition. (Tr. I at 26.)

         Thereafter, the Board unanimously voted to consider the solar farm as if it were a public utility and proceeded to consider the petition for a special use permit. (Tr. I at 26-27.)

         At the hearing, the principal of Portsmouth Solar, Jamie Fordyce, testified that "solar is a passive use" and that each panel is approximately "3 by 5 feet" with the larger capacity panels being "6 feet long." Id. at 29, 30. He described the solar farm as follows:

So there's a racking structure, which is driven posts into the ground in most cases. This - in this case we have a racking system. The panels are angled on a 25 degree tilt. They rest roughly 1.5 feet off the grade and reach up approximately 8 feet. They're arrayed in portrait one over another and along in an array. Id. at 31.

         The project would be surrounded by a six-foot high vinyl chain-link fence, and there would be landscaping to screen the solar farm from neighbors. Id. at 38, 39. The project was certified as "a Distributed Generation Project" by the Public Utilities Commission, which would permit it "to generate electricity for sale to National Grid to be distributed to the public." Id. at 55. Thus, it is clear that this proposal would be a commercial operation. See Black's Law Dictionary 325 (10th ed. 2014) (defining "commercial" as "[o]f, relating to, or involving the buying and selling of goods").

         Professional Engineer Alan Benevides testified next. (Tr. I at 65-92; Tr. II at 282-285.) He testified that the property had been surveyed and that because it is a relatively flat site, there would be few changes in the topography, and that they have made provisions for storm-water quality and quantity. Id. at 67; 71-72. He stated that the proposed solar panels would absorb sunlight and that an antireflective coating on the panels would prevent glare. Id. at 74. In addition, he noted the project would not emit any noise or odors, and it would not use any chemicals, and it would not generate noticeable traffic. Id. at 76, 82.

         Landscape Architect Joshua Wheeler then testified. Id. at 96-117. He stated that he drew up plans to screen the project from view with staggered plantings that would better hide it from the neighbors. Id. at 98, 100. The plants would be native to the area, and the larger trees would be eight feet in height at the time of planting. Id. at 105-06.

         Nathan Godfrey, a Real Estate Appraiser and Consultant, appeared next. Id. at 118-147; Tr. II at 286-290. He testified that he had received a letter from the Rhode Island Historical and Preservation and Heritage Commission, stating that the proposed screening of the project would minimize the effect of the solar array and that it would not have an adverse effect on historical properties. Id. at 123-24. He testified that the project would not generate any noise, glare, odor, and would not pose any traffic concerns. Id. at 126-27. He stated that the solar farm "is as passive as it gets[, ]" that [t]here's simply no element here that would impact an abutting use." Id. at 136-37.

         Lay witness Robert King (Tr. I 153-162; Tr. II at 275-280) objected to the petition, contending that the project would create solar glare. (Tr. I at 156-57.) He also contended that the solar panels are known to entrap various hazardous chemicals. Id. at 159-60. Another lay witness, John Reed, also expressed concern about solar glare. (Tr. II at 169.) He then questioned whether the transformers would emit noise or create blind spots for pilots approaching nearby Newport Airport. Id. at 173, 175.

         Real Estate Expert James Houle testified against the project. (Tr. II at 184-263.) He testified that cracked solar panels create a danger of shock and/or electrocution, and that any chemicals used in the production of the panels could leach out into the soil. Id. at 186, 189. Mr. Houle opined that solar farms are not harmonious to a residential use and likely would diminish surrounding property values by about ten to fifteen percent. Id. at 195-96, 213. He testified that solar farms are more appropriate for either an industrial or a commercial district. Id. at 200. He opined that if the project was approved, then "there's a strong risk the area will take on the feel of an entire industrial zone[, ]" especially considering that National Grid is planning on expanding a nearby substation. Id. at 203. Mr. Houle also opined that the proposed buffering around the site was insufficient. Id. at 204. He testified that in his opinion, the project was not compatible with the Comprehensive Plan, and that "[w]hen you have a use that's really not harmonious with a residential neighborhood, you're creating friction within that neighborhood, and that ultimately goes against the Comprehensive Community Plan, which is to have an orderly growth." Id. at 217-18.

         Lay witness and abutter Thomas Settle testified in favor of the Petition. Id. at 263-268. He testified that although his preference would be for the Property never to be developed, his second choice would be for a solar farm, as he believes "that would be the least amount of impact that development on that property would have." Id. at 264-65. He stated that in the past, a solar farm was installed near a house that he was building in Middletown, and that at the time, he feared it ...


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