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Green Development, LLC v. Town of Exeter

Superior Court of Rhode Island, Washington

March 21, 2019

TOWN OF EXETER; MARIA LAWLER, in her capacity as the Treasurer of the Town of Exeter; CALVIN A. ELLIS, in his capacity as Member of the Town of Exeter Town Council; FRANCIS PAUL DiGREGORIO, in his capacity as Member of the Town of Exeter Town Council; ROBERT M. CONN, in his capacity as Member of the Town of Exeter Town Council; MANUEL ANDREWS, in his capacity as Member of the Town of Exeter Town Council; and DANIEL W. PATTERSON, in his capacity as Member of the Town of Exeter Town Council, Defendants.

          John O. Mancini, Esq.; Nicholas J. Goodier, Esq. For Plaintiff:

          James P. Marusak, Esq.; Michael DeSisto, Esq. For Defendant


          LANPHEAR, J.

         Development, LLC's (Plaintiff) request for injunctive and declaratory relief. Plaintiff requests the Court to enjoin the Town of Exeter and its Town Council members (Town) from enforcing an emergency ordinance passed on December 10, 2018 (Moratorium Ordinance) that halted the review of all solar photovoltaic project applications for sixty days because the Moratorium Ordinance is invalid. Jurisdiction is pursuant to Super. R. Civ. P. 65(a) and G.L. 1956 § 9-30-1. For the reasons set forth below, the Court denies Plaintiff's request for injunctive and declaratory relief.


         Findings of Fact

         Plaintiff[1] submitted multiple applications to the Town requesting permission to construct commercial solar fields[2] in the town. Mr. Mark DePasquale is a principal of Green Development, LLC and Wind Energy Development, LLC and testified on their behalf at a hearing on Plaintiff's Motion for Preliminary Injunctive Relief.

         By 2016, the Plaintiff was actively working toward installing solar energy fields in Exeter. To do so, it needed to procure properties' rights to maintain solar energy fields, ensure installation of interconnections from the fields to National Grid's Lafayette substation[3] in East Greenwich, Rhode Island, and procure all of the necessary regulatory permits. Permits were not only needed from the Town of Exeter Planning Commission, but also from National Grid. National Grid's approvals were necessary to ensure the transmission designs were acceptable, and that there would be adequate capacity for transmission of power to the substation and beyond.

         Exeter is one of Rhode Island's largest towns by geographical land area. However, it is dominated by rural and suburban uses and has a relatively small population. Likewise, the Town government is trim. For example, the Town has no town police department, is dependent on volunteer fire companies, and has a limited number of town employees. The Town has only one Town Planner that is part-time and uses a secretary that is shared by other town officials.

         During the period of August 2017 through November 2018, the Town received at least eleven separate applications requesting permission to construct solar fields in Exeter. (Pl.'s Ex. 2). Applicants filed an "Application for Land Development, Subdivision of Land, and/or Development (Site) Plan Review." The Town treated the applications as applications for Master Plan review in an effort to process them promptly and within the time limitations set by state law. (Ashley Sweet Dep. 123-24, Jan. 16, 2019.) This process required the Town Planner to review each of the applications to see if the documents were complete, issue letters of completeness or non-completeness, and then schedule the applications to be reviewed by the Planning Commission. The Commission would first have a pre-application hearing pursuant to G.L. 1956 § 45-23-15 and then a Master Plan Review. Several of these steps have time limitations for the government to respond, which is set by statute. See § 45-23-40. In October and November 2018, the Town received seven new applications. Some eleven applications were pending before the Planning Commission or the Town Planner at various stages of the review process. The Planning Commission and Town Planner were reviewing all of these applications alongside the residential subdivision proposals, zoning reviews and other work of the planners.

         Plaintiff undertook substantial work in order to place these solar energy fields on-line with National Grid, the major electrical transmitter for the area. At the same time, Plaintiff was negotiating a tax treaty with the Town and filing applications with the Rhode Island Department of Environmental Management concerning wetlands on the sites. All of these efforts required a substantial investment. The transmission line from the solar fields was problematic and expensive because National Grid was upgrading the Lafayette substation, and transmission lines needed to be laid before reconstruction of a state road in the area was complete. Even before the Planning Board's final approval, Plaintiff paid at least $1, 175, 474 just for infrastructure and transmission line supplies, along with additional monies for labor and equipment not yet fully tallied. Plaintiff also paid approximately $550, 000 to procure the property rights to the various Exeter properties. In addition, the Plaintiff continues to incur significant bills for reserving space on the transmission lines and for permitting costs. Clearly, Plaintiff paid substantial funds upfront. The costs are detailed in Plaintiff's Exhibit 1.[4] Accordingly, the Plaintiff was negotiating with and applying for interconnection approvals with National Grid while they were applying for local approvals for the solar fields.

         Plaintiff filed numerous applications for review by the Exeter planning officials. Four of Plaintiff's applications had been certified as complete by the Town Planner and, therefore, were ready for Master Plan consideration by the Planning Commission. Those proposals were for properties located at 84 Exeter Road, Ten Rod Road, Tripps Corner Road and 99 Ten Rod Road. (Pl.'s Ex. 2). Plaintiff's Exhibit 2 reflects that the first Master Plan application, 84 Ten Rod Road, was denied by the Planning Commission and is pending appeal. The other three applications, Ten Road Road, Tripps Corner Road and 99 Ten Road, all certified as complete on February 1, 2018, were then pending Planning Board approval. The Planning Board had forty-five days to consider these plans, or the plans would be deemed approved. Sec. 45-23-43 (c) and (d). The town officials were aware of this deadline and strived to place these certifications on their agenda promptly.

         On February 26, 2018, the Plaintiff, through its counsel, notified the Town in writing: "As to the remaining three (3) applications . . ., we agree to a moratorium from the ninety (90) day requirement for action from the Board at which time, we are prepared to go forward with the remaining three (3) applications." (Pl.'s Ex. O.) In following e-mails, the Town Planner confirmed "[Plaintiff's] voluntary suspension of the time clock."[5]

         With the rapid influx of various applications, the Planning Board and the Town Planner grew concerned about the sufficiency of the solar ordinance in effect at the time, including the potential of overdevelopment of solar field installations. (Ashley Sweet Dep. 88, Pl.'s Ex. 7.) At the same time, Plaintiff grew concerned about the success of its applications. At the hearing, Mr. DePasquale testified concerning the limited lot size, and testified that Ms. Ashley Sweet, the Town Planner, appeared to be concerned that the proposed solar projects would not be in compliance with the Town's Comprehensive Plan. Mr. DePasquale also indicated that National Grid was growing concerned with whether Plaintiff's proposed projects would be in compliance with the Town Ordinance.

         The so-called "Green Ordinance"[6] was considered in late spring, and lessened some of the restrictions on the solar-field applications. (Pl.'s Ex. 16.) For example, one of the proposed changes would remove the requirement that a solar field be allowed only by special permit in certain R-4 zones. Another proposed change would permit solar fields in certain R-3 zones where they were previously prohibited completely. The changes proposed in the Green Ordinance would remove many of the restrictions for the Plaintiff's applications.

         On May 29, 2018, the Town Planner sent a memo from the Planning Board to the Town Council expressing her concern for the proposed Green Ordinance. (Pl.'s Ex.7, at 150-153.) Nevertheless, the Town Council adopted the Green Ordinance in July 2018.[7]

         Several Town Council members were replaced in the November 2018 election. Mr. DePasquale testified at the hearing on January 25, 2019 that two of the three councilpersons who had been favorable to Plaintiff's applications were not re-elected. On November 19, 2018, the Plaintiff filed new pre-applications for the three properties that had previously been placed on hold: Ten Rod Road, Tripps Corner Road, and 99 Ten Rod Road.

         By November 27, 2018, the Planning Board Chair and the Town Council Chair had copies of the proposed Moratorium Ordinance. (Sweet Dep. 131.) The Town Planner had assisted in drafting the earlier version of the Moratorium Ordinance. The Moratorium Ordinance was scheduled to be voted on by the Town Council on December 3, 2018, but the crowd was so large that the meeting needed to be moved. (Pl.'s Ex. 23.) When the Town Council reconvened on December 10, 2018, it enacted the temporary Moratorium Ordinance. (Defs.' Ex. 28A, at 8-9.)

         The Plaintiff's new applications submitted on November 19 were still pending before the Planning Board when the Moratorium was enacted. Based on Plaintiff's Exhibit 2, those applications were not certified as complete before the Moratorium took effect.

         On December 11, 2018, the Plaintiff filed a Complaint requesting the Court declare the Moratorium Ordinance invalid and to enjoin the Town from enforcing the ordinance. Specifically, Plaintiff alleges that the Town did not have the authority to enact the Moratorium because it violates state law, the Exeter Town Ordinance, the doctrine of equitable estoppel and Plaintiff's substantive and procedural due process rights. In the alternative, Plaintiff asks that if the Court finds the Moratorium Ordinance valid, the Court find its solar applications are vested and therefore exempt from the Ordinance. Lastly, Plaintiff requests the Court award it costs and reasonable attorneys' fees.

         On January 22, 2019, Plaintiff filed a Motion for Preliminary Injunctive Relief and supporting memoranda. Plaintiff asserts that the Court should enjoin enforcement of the Moratorium Ordinance because it is unlawful for the reasons stated in its Complaint, the Plaintiff will suffer irreparable harm if it is enforced, and the balance of the equities tips in its favor. (Pl.'s Mem. Supp. of Mot. for Prelim. Inj.) In response, the Town contends that the Plaintiff cannot show a likelihood of success on the merits because the Moratorium Ordinance was enacted in compliance with the Town Ordinance, state statutes, and constitutional requirements. (Defs.' Mem. Supp. of Obj. to Pl.'s Mot. for Prelim. Inj.) The Town also contends that the Plaintiff will not suffer irreparable harm if the Court denies injunctive relief because the Moratorium Ordinance does not affect the Plaintiff's vested rights, and leaves the Plaintiff administrative remedies. Id. Lastly, the Town asserts that the Town's equities outweigh the Plaintiff's.

         On January 24 and 25, 2019, the Court conducted a hearing on Plaintiff's Motion for Preliminary Injunctive Relief. At the hearing, the parties presented testimony and introduced exhibits.



         When deciding on a motion for a preliminary injunction, the Court must consider "whether the moving party (1) has a reasonable likelihood of success on the merits, (2) will suffer irreparable harm without the requested injunctive relief, (3) has the balance of the equities, including the possible hardships to each party and to the public interest, tip in its favor, and (4) has shown that the issuance of a preliminary injunction will preserve the status quo." Iggy's Doughboys, Inc. v. Giroux, 729 A.2d 701, 705 (R.I. 1999).


         Likelihood of Success on the Merits



         Plaintiff alleges that its vested rights have been impaired by the Moratorium Ordinance and its effect and that the vesting clause in the Moratorium Ordinance is illegal. (Pl.'s Mem. Supp. Mot. for Prelim. Inj. 24.) Rights in property which are vested are constitutionally protected and cannot be taken without, at the very least, notice and opportunity to be heard. Fuentes v. Shevin, 407 U.S. 67 (1972). The Court does not need to struggle with the question of whether a mere application creates a vested right as the town ordinances make it explicitly clear:

"General provisions; creation of vested rights. Applications for development that are substantially complete and have been submitted for approval to the appropriate review agency in the Town of Exeter prior to enactment of the new zoning ordinance or any amendment to the Exeter zoning ordinance shall be considered vested." Exeter, R.I., Code of Ordinances, ch. 1.3, art. I, § 3.H.

         This ordinance fits nicely within the parameters of state law, which sets strict deadlines for the processing of Master Plan developments by local planning offices. Section 45-23-40(b) of the Rhode Island General Laws requires that an application be certified by the local planner as complete or incomplete within twenty-five days of its submission. If the town planner does not act within 25 days, the application is deemed complete. Section 45-23-40(e) requires approval or rejection of the Master Plan by the local planning commission within ninety days of the certificate of completeness. Local planning officials are on a statutorily designed tight schedule. Even though the application is still in the review stages, the ordinance above clarifies that certain rights vest once the application is certified as complete. Exeter's statutory scheme provides significant protections to mere applicants at an early stage.

         The Moratorium Ordinance challenged here provides parallel protection. The language of the Moratorium Ordinance specifically provides that applications which are certified complete "shall be considered vested and may proceed under applicable regulations in effect at the time of certification of completeness." (Moratorium Ordinance, Pl.'s Ex. A § 5.) Oddly, Plaintiff claims that this Moratorium Ordinance is unlawful because its language is inconsistent with the Zoning Ordinance and state statutes. (Pl.'s Mem. Supp. of Mot. for Prelim. Inj. 24-25.) However, Plaintiff fails to specify how any vested rights are harmed by the Moratorium Ordinance, though the Court acknowledges that whether vested rights are harmed may depend on the town's interpretation of vested rights after the ...

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