Freepoint Solar LLC v. Richmond Zoning Bd. of Review

Citation274 A.3d 1
Decision Date11 May 2022
Docket Number2020-207-M.P.,WC 20-6
Parties FREEPOINT SOLAR LLC v. RICHMOND ZONING BOARD OF REVIEW et al.
CourtUnited States State Supreme Court of Rhode Island

Christine E. Dieter, Esq., for Plaintiff.

Karen R. Ellsworth, Esq., for Defendant.

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

Justice Long, for the Court.

The Town of Richmond (the town) petitioned1 this Court for the issuance of a writ of certiorari to review a Superior Court judgment rendered in favor of the plaintiff, Freepoint Solar LLC (Freepoint). The Superior Court reversed a decision of the Town of Richmond Zoning Board of Review (the zoning board) that denied Freepoint's application for a special-use permit to construct a solar energy system. This Court issued the writ and ordered the parties to appear and show cause why the issues raised in this case should not be summarily decided. After considering the parties’ written and oral submissions and reviewing the record, we conclude that cause has not been shown and that this case may be decided without further briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

Facts and Procedural History

In November 2016, Freepoint entered into a binding option to lease 36 Woodville Road in Richmond (the site) for the purpose of constructing a solar energy system (the project). Freepoint's plan was to build a 4.99MW(DC)/4.5 MW(AC) nameplate capacity ground-mounted photovoltaic (PV) solar facility on the site. The site was zoned R-3, which, at the time Freepoint submitted its application, permitted solar energy systems by special-use permit. During the time period relevant to this case, special-use permits for solar energy systems were specifically governed by § 18.34.030 of the Town of Richmond Code of Ordinances. Accordingly, in November 2018, Freepoint applied to the zoning board to obtain a special-use permit to construct the project.

In its application, Freepoint addressed how the project met the requirements of § 18.34.030 of the zoning ordinance. Relevant to our review, Freepoint specifically addressed the requirement in § 18.34.030-A, which mandated that the entire lot on which the solar energy system was to be located be within two miles of a utility substation (the utility substation requirement). See Town of Richmond Code of Ordinances § 18.34.030-A (May 15, 2018) ("The entire lot on which the solar energy system is located shall be within two (2) miles of a utility substation."). In satisfaction of the utility substation requirement, Freepoint represented that "[t]he entire subject parcel is located within two miles of a substation located in the vicinity of 530 Church Street, in Wood River Junction, RI and shown on Figure 3 in Appendix A." The specific substation referenced was operated by Amtrak (the Amtrak substation).

Over the course of 2019, the zoning board held multiple meetings on the application, both public hearings and work sessions. As was typical, the application was initially referred to the Town of Richmond Planning Board (the planning board). The planning board subsequently provided an advisory "Development Plan Review" concerning the project. In that advisory, the planning board made findings of fact and recommended approval of the application subject to certain conditions, none of which are at issue on review before this Court. Notably, the planning board found that "[b]y code, the property is located within two miles of a substation (located at 530 Church Street, Wood River Junction)."

In May 2019 the zoning board held both a public hearing and a public work session on Freepoint's application. At those meetings, the zoning board, members of the public, and Freepoint representatives discussed concerns regarding, among other items, decommissioning costs, the potential for glare to negatively affect neighbors, the effect of the project on the character of the area and neighboring property values, ways to ameliorate the visual impacts of the project, and the project's compliance with the special-use permit requirements and the town's comprehensive plan. The issue of the utility substation requirement came up briefly while the zoning board discussed the special-use permit requirements, but that discussion focused on the requirements for ameliorating the visual impacts of the project.

At a second public hearing, in July 2019, a member of the public, William Boger, commented:

"Section [18.34.030-A] is a concern. I did a little bit of research on this. This is the section that reads in the Zoning Ordinance for, specifically for solar energy systems. The entire lot on which a solar energy system is located shall be within two miles of a utility substation. The Zoning Ordinance does not provide a definition of utility substation. * * * National Electric Code provides [a] definition of a utility substation as a substation which is a composite of switches and gears—it's electrical switching equipment. When the word utility is tagged on to utility substation, the utility then is the company that owns and maintains being a provider of that utility. By that definition, National Grid, being the provider of electricity in this area, would be the logical source for a utility substation."

Following Mr. Boger's comment, the zoning board and members of the public discussed the meaning of "utility substation" extensively. For the first time, the zoning board questioned the purpose and intent behind the utility substation requirement, lamenting the lack of definition for "utility substation" in the zoning ordinance. At the close of the meeting, the matter was continued.

A third public hearing on the application took place on October 28, 2019, after a formal request by Freepoint to reopen the matter for further public comment. The meeting was called to give Freepoint an opportunity to present evidence regarding whether the Amtrak substation was a "utility substation" for purposes of § 18.34.030-A of the zoning ordinance. Freepoint provided an expert witness, Jeffrey Fenn, to testify about substations.

Mr. Fenn testified that "[t]he primary item in a substation that defines it different[ly] from another facility is the transformer[,]" and he provided the National Electric Safety Code and the New IEEE Standard Dictionary of Electrical and Electronics Terms definitions of substation, each of which, in summary, defined "substation" as an assemblage of equipment, including a transformer, through which energy is passed for switching and transforming power. Mr. Fenn testified that the Amtrak substation was within two miles of the project, and that it was a substation with three transformers. Finally, Mr. Fenn clarified that, when discussing substations that are characterized by the presence of a transformer, he was referring to "utility substations," as distinguishable from, for example, a water department substation. Freepoint also asked the zoning board to take administrative notice of the Rhode Island Public Utilities Commission enabling act definition of "public utility." See G.L. 1956 § 39-1-2(a)(20) (defining "public utility" as used in title 39 of the general laws to include, among other items, "every company operating or doing business in intrastate commerce and in this state as a railroad, street railway, [and] common carrier").

No evidence was presented that contradicted Mr. Fenn's testimony. However, after Freepoint's presentation, Richmond Town Solicitor Michael Cozzolino spoke on behalf of the town. The solicitor represented that "[i]t's the Town's position, the term ‘substation’ was intended to be limited to National Grid substations within the Town." To support this assertion, Mr. Cozzolino presented a DVD containing a recording of the town council meeting on July 25, 2017, at which the town council first passed § 18.34.030-A of the zoning ordinance; he also provided a map that was used at that meeting, which showed various utility substations in the Town of Richmond. After viewing the video, the solicitor argued, "[I]f you listen to that, in conjunction with the maps that were submitted, it's clear that the Council intended for the utility substations to be limited to those three National Grid ones that were submitted with that particular zoning amendment."

Freepoint objected to the solicitor's comments, asserting instead that the meaning of the ordinance was clear on its face. Freepoint also took issue with the solicitor's characterization of the video from the town council meeting, arguing that (1) at no point did the town council modify the word "utility" by use of any language pertaining to National Grid, and (2) discussions about the utility substation requirement at that town council meeting had focused on the economic viability of projects. In a closed session after the hearing, the zoning board decided to defer decision on Freepoint's application.

Finally, in December 2019, the zoning board met to render a decision on Freepoint's application. Deliberations prior to the vote centered on the utility substation requirement—that is, whether the Amtrak substation qualified as a "utility substation" for purposes of § 18.34.030-A of the zoning ordinance. The zoning board voted on two motions: one motion to grant the special-use permit, and one motion to deny the special-use permit. The former garnered three out of five votes in favor of granting the special-use permit, while the latter garnered two votes in favor of denying the special-use permit. However, because the town's zoning ordinance required a minimum vote of four in favor to grant a special-use permit, the motion to grant the permit failed and the application was denied.

Freepoint appealed the zoning board's decision to the Superior Court. Freepoint asserted that the zoning board's decision was clearly erroneous, arbitrary and capricious, and contrary to the law and the evidence. Freepoint alleged that the zoning board erred by (1) not applying the plain meaning of the ordinance, (2...

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  • In re Block Island Power Co.
    • United States
    • Rhode Island Supreme Court
    • February 10, 2023
    ...define the term "related facilities," it did qualify it in a way that extinguishes any ambiguity. See Freepoint Solar LLC v. Richmond Zoning Board of Review , 274 A.3d 1, 6 (R.I. 2022) (reasoning that "where the Legislature has not defined or qualified the words used within the statute" it ......

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