MEGAWATT ENERGY SOLUTIONS LLC; GLENN G. GRESKO
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
Plaintiff: Amy H. Goins, Esq.; Andrew M. Teitz, Esq.
Defendant: Todd J. Romano, Esq.
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
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.)
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.
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.
November 2, 2017 hearing, Appellants provided revised plans
for the project. (Decision ¶ 2.) Appellants did not
address bonds or decommissioning of the project. (Decision
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.
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.
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.
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 ...