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Megawatt Energy Solutions LLC v. Town of Smithfield Zoning Board of Review

Superior Court of Rhode Island

November 7, 2018

MEGAWATT ENERGY SOLUTIONS LLC; GLENN G. GRESKO
v.
TOWN OF SMITHFIELD ZONING BOARD OF REVIEW, by and through its members in their official capacities; ANTONIO S. FONSECA; S. JAMES BUSAM; EDWARD CIVITO; LINDA MARCELLO; JOHN HUNT

          For Plaintiff: Amy H. Goins, Esq.; Andrew M. Teitz, Esq.

          For Defendant: Todd J. Romano, Esq.

          DECISION

          LANPHEAR, J.

         Megawatt Energy Solutions LLC and Glenn G. Gresko (collectively, Appellants) appeal a decision (Decision) of the Town of Smithfield Zoning Board of Review (Board), denying a special use permit that would have allowed a ground-mounted solar array on property located in an R-200 zoning district. Jurisdiction is pursuant to G.L. 1956 §§ 45-24-69 and 45-24-69.1; G.L. 1956 §§ 42-92-1, et seq.

         I

         Facts and Travel

         Glenn Gresko owns property located at 432 Log Road, Smithfield, Rhode Island, otherwise known as Assessor's Plat 50, Lot 27E (Property). (Compl. ¶ 1.) A single-family dwelling and accessory ground-mounted solar array already exist on the Property. (Id. ¶ 9.) In August 2017, Megawatt applied to the Board for a special use permit to install a 250kW ground-mounted solar array which would supply energy to National Grid. (Id. ¶ 7; Decision ¶ 1.) At the time, there was no use code for a solar array in the Smithfield Zoning Ordinance (Ordinance). (Compl. ¶ 10.) Before Megawatt filed the application, the Town's Zoning department informed Appellants that the proposed project would be considered "Utilities, Public or Private" and would require a special use permit in the R-200 Zone. (Id. ¶ 10; Answer ¶ 5.)

         At the September 27, 2017 hearing on Megawatt's application for a special use permit (Application), Appellants explained that the project would be part of the Rhode Island Renewable Energy Growth Program. (Compl. ¶ 13.) Mr. Gresko would lease a portion of his property to Megawatt, who in turn would sell the energy to National Grid. Hr'g Tr. 8, Sept. 27, 2017. Counsel for the Appellants explained that the project met the general standards for a special use permit in addition to those "specific to special use permit for utilities." Id. at 11. At the hearing the Board also read into the record a letter in opposition to the Application. Id. at 4-7. Appellants also presented Stuart Clarke, P.E., an engineer for Megawatt, to answer questions regarding engineering and other technical matters. Id. at 12-17. Walter Mahla, Megawatt's managing partner an expert in solar development, discussed previous projects, vegetation, maintenance, and why this site is well suited for a solar array. Id. at 18-31. Mr. Mahla further discussed the specifics of the lease for the project, the Renewable Energy Growth Program, noise, odor, pollution, safety, and visibility concerns. Id. at 67-88. Glenn Gresko, the owner of the property, testified regarding the existing solar panels on his property and that he wanted to install the solar project. Id. at 34-39. Next, Brian Coutcher, an abutter to the Property, testified in favor of the Project. Id. at 39-42.

         Three neighbors spoke against the Application. Generally, they expressed concern regarding the impact of the Project on the view from their properties, the effect that the Project might have on the neighborhood's character, the environmental ramifications, and the possibility that it could decrease property values in the area. Id. at 50-65. Lastly, Board Member Hunt and Chair Fonseca, noting the lack of a bond and decommissioning plan associated with the project, asked Appellants to provide that information at the following hearing. Id. at 87-89.

         At the November 2, 2017 hearing, Appellants provided revised plans for the project. (Decision ¶ 2.) Appellants did not address bonds or decommissioning of the project. (Decision ¶ 3.)

         For the Appellant, expert Stuart Clarke discussed the revised plans for the Project. Hr'g Tr. 5-13, Nov. 2, 2017. These plans showed where berms and arborvitaes-to screen the project from neighbors' and the public's view-would be installed and planted. (Decision ¶ 2.) They also demonstrated that Appellants re-routed the service road that would provide access to the project to preserve more trees, and that the project's footprint would need to be increased by 1300 square feet to account for 320 watt panels, (instead of 345 watt panels), in order to keep the kilowatt output the same. (Decision ¶ 2.) Expert witness Edward Avizinis, wetland biologist, provided expert testimony on behalf of Appellants that the Project would neither negatively impact wetlands in the area nor harm the environment. Hr'g Tr. 13-17, Nov. 2, 2017. William Sturm, Megawatt's business director, related that the local fire district did not have concerns about the project with respect to fire safety, provided details about his communications with National Grid about the Project, and described various photographs of the site. Id. at 18-32. Nathan Godfrey, a certified appraiser and real estate expert, opined that the Town "embraced solar" and that general character and property values would not be impacted by the project. Id. at 33-57.

         With respect to whether the project was an accessory use or a second primary use on the property, Counsel for the Appellants argued: "I can't build two homes on one lot. But that's the only prohibition. You do not prohibit more than one use on a lot. As long as each of the uses is otherwise permitted in the ordinance, you can have it." Id. at 61:18-22. Mr. Roman countered that two principal uses were not, by his interpretation of the Ordinance, allowed in an R200 zone, "[b]ecause you have a mixed use zone already permitting multiple primary uses. This is an R200 zone which is not obviously a mixed use zone. It's not otherwise specifically permitted by the code. It would be my opinion that it's appropriate as stated in the code." Id. at 62:22-63:1-2.

         The Chair stated that neighbors and abutters to the property submitted another letter in opposition to the Project to the Board and then invited public comment. Id. at 66-68. Mr. and Mrs. Parkhurst opposed the project out of concern that it could decrease property values, change the character of the neighborhood, impact the view from their land, and out of concern for possible environmental issues. Therefore, the Parkhursts asked the Board to reject the Application. Id. at 68-76.

         During deliberations, Mr. Hunt noted that the Appellants did not present anything on a decommissioning plan or a bond for the project, as discussed at the September meeting. Id. at 81-87. The Board also discussed the issue of allowing two primary uses on one R200 lot, and thus "having a multi-use piece of property." Id. at 89. The Board, in a 3 ...


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