Plaintiff: Jeremiah C. Lynch III, Esq.
Defendant: Kevin P. Gavin, Esq.; Jennifer Reid Cervenka,
Esq.; Randall T. Weeks, Jr., Esq.
Couyghen, J. Magistrate Justice.
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.
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.)
Zoning Ordinance for the Town of Portsmouth (Ordinance) does
not provide for solar farms in any of the Town's
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
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.)
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.)
hearing arguments on the subject, a Board Member moved as
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
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.)
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
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.
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
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,
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
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.
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.
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
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 ...