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Digregorio v. Lawler

Superior Court of Rhode Island, Washington

January 8, 2020

FRANCIS DIGREGORIO, Plaintiff,
v.
MARIA LAWLER, IN HER CAPACITY AS THE TREASURER OF THE TOWN OF EXETER and KEVIN P. MCGOVERN, DANIEL W. PATTERSON, RAYMOND A. MORRISSEY, JR., CALVIN A. ELLIS, AND FRANCIS T. MAHER, JR., IN THEIR CAPACITIES AS MEMBERS OF THE EXETER TOWN COUNCIL Defendants,
v.
GREEN DEVELOPMENT, LLC A/K/A WIND ENERGY, LLC Intervenor.

          For Plaintiff: Kelley N. Morris, Esq.

          For Defendant: James P. Marusak, Esq.

          For Intervenor: John O. Mancini, Esq. Nicholas J. Goodier, Esq.

          DECISION

          LANPHEAR, J.

         Plaintiff Francis DiGregorio (Mr. DiGregorio) appeals the passage of an amendment to Exeter's Zoning Ordinance (the Amendment) contending that it is inconsistent with the specific provisions and goals of Exeter's Comprehensive Plan and therefore invalid. The Amendment restricts certain solar power projects. Defendant Town of Exeter (the Town) agrees that the Amendment is not consistent with the Comprehensive Plan. Interpleader Green Development, LLC (Green) denies that the Amendment is invalid; Green asserts that the Amendment is, in fact, consistent with the Comprehensive Plan. Both the Town and Mr. DiGregorio have moved for summary judgment. This Court has jurisdiction pursuant to G.L. 1956 § 45-24-71.

         I

         Facts and Travel

         Green is in the business of developing commercial-scale renewable energy projects, including those that involve solar power. By 2016, Green was working toward installing large solar energy fields in Exeter. Green Development, LLC v. Town of Exeter, WC-2018-0636, 2019 WL 1348609 at *1 (R.I. Super. Mar. 21, 2019).

         On January 2, 2018, Green submitted a Petition to the Town seeking to amend the Zoning Ordinance. The Petition sought to allow the development of utility-scale, ground-mounted solar photovoltaic facilities (Solar Projects) by right in certain areas. Green was the largest owner and operator of renewable projects in Rhode Island and had already filed applications to develop Solar Projects in Exeter at the time the Amendment was submitted. Def.'s Mot. Summ. J. Ex. B-6.

         The Amendment was referred to the Planning Board for study and recommendation. The Planning Board held a hearing at which both Mr. DiGregorio and a representative for Green were present and had an opportunity to speak. Def.'s Mot. Summ. J. Ex. B-2. On May 29, 2018, the Planning Board provided its findings and recommendations to the Town Council. In its recommendation, the Planning Board found the Amendment did not comport with the Comprehensive Plan.

         The Town Council held a public hearing on the Amendment on April 2, 2018. The hearing was continued to July 9, 2018. On July 16, 2018, the Town passed the Amendment by a vote of 3-2.[1] The Amendment changed the zoning designation of fifteen lots to permit-by-right development of Solar Projects; in other words, the applicant would not need to obtain permission from the Zoning Board or Planning Board to develop Solar Projects. These lots were all located in RU-3 and RU-4 Zoning Districts.

         Under the Zoning Ordinance, an RU-3 designation "provide[s] adequate land suitable for low density residential rural development blended with forestry, farming and recreational activities." An RU-4 designation "protect[s] land now used for forestry, farming and related activities and the natural habitat and wildlife and to preserve the area's rural character. This zone provides land suitable for low density residential development and reserves land for future farming, forestry, conservation practices and recreational uses." The Comprehensive Plan designates these lots as either "Low Density/Environmental," "Medium Low Density," or "Open Space."[2]

         Green now proposes to develop approximately sixty-five megawatts of utility-scale solar photovoltaic facilities on four lots included in the Amendment. It promptly submitted four applications to the Town seeking approvals for the Solar Projects on lots that were rezoned under the Amendment.

         In November 2018, several Town Council members were replaced in the local election, including two of the three individuals who had supported the Amendment. Green Development, 2019 WL 1348609 at *3. On February 4, 2019, the Town Council amended the Zoning Ordinance and replaced the Amendment with a version it deemed to be in compliance with the Town's Comprehensive ...


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