Green Development, LLC v. Town of Exeter Zoning Board of Review

• Decision Date: 20 April 2020
• Docket Number: C. A. WC-2018-0519
• Parties: GREEN DEVELOPMENT, LLC A/K/A WIND ENERGY DEVELOPMENT, LLC, Plaintiff, v. TOWN OF EXETER ZONING BOARD OF REVIEW; RICHARD BOOTH, IN HIS CAPACITY AS CHAIRMAN OF THE TOWN OF EXETER ZONING BOARD OF REVIEW; JOSEPH ST. LAWRENCE, IN HIS CAPACITY AS VICE-CHAIRMAN OF THE TOWN OF EXETER ZONING BOARD OF REVIEW; THOMAS MCMILLAN, IN HIS CAPACITY AS A MEMBER OF THE TOWN OF EXETER ZONING BOARD OF REVIEW; RICHARD QUATTROMANI, IN HIS CAPACITY AS A MEMBER OF THE TOWN OF EXETER ZONING BOARD OF REVIEW; TIMOTHY ROBERTSON, IN HIS CAPACITY AS A MEMBER OF THE TOWN OF EXETER ZONING BOARD OF REVIEW; SUSAN FRANCO-TOWELL, IN HER CAPACITY AS AN ALTERNATE MEMBER OF THE TOWN OF EXETER ZONING BOARD OF REVIEW; MARIA LAWLER, IN HER CAPACITY AS TOWN TREASURER: FOR THE TOWN OF EXETER; TOWN OF EXETER, AS A MUNICIPAL ENTITY, AND FRANCIS DIGREGORIO, PERSONALLY Defendants.
• Court: Rhode Island Superior Court

GREEN DEVELOPMENT, LLC A/K/A WIND ENERGY DEVELOPMENT, LLC, Plaintiff,
v.
TOWN OF EXETER ZONING BOARD OF REVIEW; RICHARD BOOTH, IN HIS CAPACITY AS CHAIRMAN OF THE TOWN OF EXETER ZONING BOARD OF REVIEW; JOSEPH ST. LAWRENCE, IN HIS CAPACITY AS VICE-CHAIRMAN OF THE TOWN OF EXETER ZONING BOARD OF REVIEW; THOMAS MCMILLAN, IN HIS CAPACITY AS A MEMBER OF THE TOWN OF EXETER ZONING BOARD OF REVIEW; RICHARD QUATTROMANI, IN HIS CAPACITY AS A MEMBER OF THE TOWN OF EXETER ZONING BOARD OF REVIEW; TIMOTHY ROBERTSON, IN HIS CAPACITY AS A MEMBER OF THE TOWN OF EXETER ZONING BOARD OF REVIEW; SUSAN FRANCO-TOWELL, IN HER CAPACITY AS AN ALTERNATE MEMBER OF THE TOWN OF EXETER ZONING BOARD OF REVIEW; MARIA LAWLER, IN HER CAPACITY AS TOWN TREASURER: FOR THE TOWN OF EXETER; TOWN OF EXETER, AS A MUNICIPAL ENTITY, AND FRANCIS DIGREGORIO, PERSONALLY Defendants.

C. A. No. WC-2018-0519

Superior Court of Rhode Island, Washington

April 20, 2020

For Plaintiff: John O. Mancini, Esq.; Nicholas J. Goodier, Esq.; William M. Dolan, Esq.; Elizabeth M. Noonan, Esq.; Nicholas L. Nybo, Esq.; John Tarantino, Esq.; William K. Wray, Jr., Esq.

For Defendant: Stephen J. Sypole, Esq. Michael DeSisto, Esq

DECISION

LANPHEAR, J.

This matter is before the Court on the appeal of Petitioner Green Development, LLC a/k/a Wind Energy Development, LLC (Petitioner) from a decision of the Town of Exeter Zoning Board of Review (Zoning Board or Respondents). The Zoning Board's decision upheld the findings of the Exeter Planning Commission (Planning Board), which, in turn, denied the Petitioner's application for a master plan approval to construct a ground-mounted commercial solar array within the Town of Exeter. Jurisdiction is pursuant to G.L. 1956 § 45-24-69. For the reasons set forth herein, Petitioner's appeal is denied, and the Zoning Board's decision is affirmed.

I. Facts and Travel

A. The Application and Planning Board Review

In 2016, Petitioner was actively working toward installing several solar energy fields in Exeter, Rhode Island (Town).^[1] Petitioner sought to construct the fields on approximately seven acres of land, designated as Assessor's Plat 68, Block 1, Lot 1, with an address of 84 Exeter Road, Exeter, Rhode Island. Petitioner planned to install a gravel road to service the fields. The lot, in its existing state, contained a church with a parking lot, grassy fields, and a wooded area.

The land that Petitioner sought to construct the fields on is designated RU-4 Zoning District (Rural/Residential), which required a special use permit. Concerning the purpose of RU-4 Districts, the Town Ordinances state the following:

"2.1.3 Rural District, RU-4. The purpose of this [RU-4] zone is to protect land now used for forestry farming and related activities and the natural habitat and wildlife and to preserve the area's rural character. This [RU-4] zone provides land suitable for low density residential development and reserves land for future farming forestry, conservation practices and recreational uses." Town Zoning Ordinances, Art. II, Sec. 2.1.3

To complete these fields, Petitioner needed permission and permits from the Town. First, Petitioner would have to gain approval from the Planning Board and the Zoning Board. In the fall of 2017, Petitioner submitted its application for development to the Planning Board.

Utility scale solar projects were considered a major land development by the Town, which require review in three stages--Master Plan/Comprehensive Plan review, Preliminary Plan Review, and Final Plan review. During the Master Plan Review, the Planning Board reviewed the application in four separate hearings over the span of six months.

During this time, Exeter's Town Planner, Ms. Ashley Sweet, issued a memorandum to the Planning Board recommending that Petitioner's application be denied. Ms. Sweet's memorandum stated that the project consisted of 7160 solar panels covering 7.07 acres of the 15-acre lot, which already contained a church, an outbuilding, and parking areas. Ms. Sweet found that the project would simply be too large--it was poised to occupy a majority of the field and all of the wooded area on site. Ms. Sweet was also concerned that the site would be visible from the public road.

Ms. Sweet further found that the project failed to comply with lot coverage requirements stipulated by the Town Zoning Ordinances--the project would result in 23.2% lot coverage, while the Zoning Ordinances only allow 15% coverage on RU-4 zoned parcels. As such, Ms. Sweet found Petitioner's calculations and assessments to be inaccurate. Lastly, Ms. Sweet found that the solar panels were "structures" under the Zoning Ordinances. This designation was significant because "structures" must be considered when calculating lot coverage. Overall, Ms. Sweet believed the project to be an industrial use, which is verboten in an RU-4 zone.

After Ms. Sweet's memorandum was published, the Planning Board continued to consider the application during its meetings. The Planning Board heard from Kevin Morin, an engineer from DiPrete Engineering, who was contracted by Petitioner. Mr. Morin submitted an environmental community impact study in support of the application. Mr. Morin testified that the project would raise tax revenue to the Town, as well as provide alternative energy. Mr. Morin also stated the project would be shielded from the view of the public by vegetation. However, Mr. Morin explained that the project would not create additional costs for schools and other community facilities.

On February 27, 2018, at a meeting of the Planning Board, Board Member Francis DiGregorio explained that he was worried that the project would not "complement the rural nature of the area." Resp't's Mem. 3. He believed that the scale of the project did not comply with the Town Comprehensive Plan and the project would mingle the solar panels with the church buildings.

On March 10, 2018, the Planning Board visited the site where Petitioner sought to construct the project accompanied by a representative of Petitioner, Mr. Mark DePasquale, who advocated for the project. Mr. DePasquale testified that the project would leave most of the natural land undisturbed.

After the Planning Board's site visit, Mr. DiGregorio again expressed objection to the project, stating that the project could not go forward because it would be an industrial use in a residential zone. Shortly thereafter, Ms. Sweet drafted a memorandum that stated the proposed project was industrial in nature and therefore not allowed in a residential zone. The minutes of the March 27, 2018 Planning Board meeting state the project is inconsistent with the Town Master Plan. Petitioner took objection to both Mr. DiGregorio's objection and Ms. Sweet's memorandum. Petitioner wrote to Attorney Peter Ruggiero, the Town's Assistant Solicitor, stating that Ms. Sweet was rendering her personal opinion on the project, in violation of Petitioner's due process rights.

At the May 22, 2018 meeting of the Planning Board, Petitioner moved for a continuance in order to request a variance from the Zoning Board. The Planning Board denied Petitioner's motion. Mr. DiGregorio testified that Petitioner's motion was a distraction and the Planning Board could issue a decision that evening.

On June 26, 2018, in response to Mr. DiGregorio's comments, Petitioner's counsel, Attorney John Mancini, delivered correspondence to Mr. DiGregorio and Ms. Sweet, expressing Petitioner's disapproval of their respective comments and alleging personal biases. Petitioner requested that Mr. DiGregorio and Ms. Sweet recuse themselves from the matter. Petitioner also alleged that Mr. DiGregorio and Ms. Sweet were conferring with independent counsel, Attorney Kelly Morris. Petitioner asserted that this was inappropriate. At that evening's Planning Board meeting, Attorney Ruggiero advised the Planning Board that personal bias is not to be considered. Mr. DiGregorio and Ms. Sweet denied all allegations of bias and did not recuse themselves.

At the June 26, 2018 meeting, the Planning Board unanimously denied Petitioner's application. It found that the project was inconsistent with the Town Comprehensive Plan.^[2]Petitioner timely appealed the Planning Board's decision to the Zoning Board.

B. Amendment to the Town Zoning Ordinances

On July 16, 2018--in between the Planning Board's decision and the Zoning Board's decision--the Exeter Town Council, by a vote of 3-2, passed an amendment to the Town Zoning Ordinances. This amendment changed the zoning designation of fifteen lots to permit the construction of solar projects as a matter of right--Petitioner no longer needed permission from the Zoning or Planning Board for its project. However, the Planning Board objected to the amendment, finding that it did not comply with the Town's Comprehensive Plan.

In November of 2018, after the election of several new Town Council members, a subsequent amendment was enacted that revoked the July amendment allowing the construction of solar projects by right. Petitioner nevertheless sought to continue its project as a matter of right under the July amendment. This Court denied that request in Green Development, LLC v. Town of Exeter, No. WC-2018-0636, 2019 WL 1348609 (R.I. Super. Mar. 21, 2019).

C Appeal to the Zoning Board

Petitioner submitted its appeal to the Zoning Board on August 3, 2018. The Zoning Board conducted a hearing on September 13, 2018, where Petitioner argued that the Planning Board improperly decided its application because it complied with the Town Comprehensive Plan.

The Zoning Board considered the following questions:

"(a) Whether the Planning Board properly denied the application on the ground that it was inconsistent with the Exeter Comprehensive Plan as set forth in Paragraph One of its Decision

"(b) Whether the Planning Board properly denied the application on the

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