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Recently, we discussed applications of Rhode Island laws and regulations related to green energy developments, particularly solar developments. On April 20, 2020, the R.I. Superior Court issued a decision related to solar developments and zoning requirements, which we will review here.

The Exeter Solar Project

Green Development (referred to hereinafter as Green) has been developing various renewable energy projects in the state since 2009. Beginning in 2016, Green planned to construct and operate several solar arrays in Exeter, within a rural/residential zoning district. The town’s zoning requirements state that district RU-4’s purpose 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.”

Planning Board Decision and Zoning Board Appeal

 The Town Planner recommended to the Planning Board that the application be denied, because it was too large for the lot and did not meet several town zoning requirements. The Planning Board considered this information, as well as concerns that the project would not accord with the “rural character” meant to be preserved in the zoning district and that it was in fact an industrial project. In 2018, despite Green’s allegations of personal biases, the town Planning Board denied the project’s application. Green then appealed to the Zoning Board in 2018, arguing the denial was improper because the project fully complied with the Town Comprehensive Plan. It was again, on the whole, denied.

Green Appeals to the Superior Court

As is customary, the next step is an appeal is to the Superior Court, which Green did. In the opinion, Superior Court Associate Justice Jeffrey Lanphear held that there was in fact ample evidence in the record that documented the project’s failure to comply with the Town Comprehensive Plan. The opinion states that evidence existed to show: the project did not further Exeter’s goal in the zoning requirements (maintaining the rural nature of the district), had potential negative environmental impacts, and did not meet the lot coverage needs of the zoning requirements. On the allegations of personal bias by the Town Planner and a member of the Planning Board, the opinion held strongly against these claims. The opinion states that the Superior Court “. . . [found] nothing that it believes seriously impaired the impartiality or swayed the judgment of [the Town Planner or the Planning Board member].”

In Footnote 8 within the opinion, the Superior Court wrote that “[t]his Court disfavors naming public officials in their personal capacity when the matter spurs from actions taken in their official capacities—such lawsuits may serve to have a chilling effect on public officials, who may worry about taking controversial actions out of fear of being sued” (internal citations omitted).

Takeaways

There are two big-picture takeaways from this case. First, it is critical to a project application’s approval that the various town ordinances are met, and that the project complies with the Town Comprehensive Plan. It is likely very important for any project to coordinate closely with the town officials to ensure this. Second, whether or not a town official should recuse himself or herself from any decision is a high bar, as detailed in the Superior Court’s opinion: “the preconceived or settled opinion of the adjudicator must ‘“seriously”’ impair his or her impartiality or sway his or her judgment.”

To address these issues early on in your project planning and application means that you save an abundance of time, energy, and capital. You can better forecast the outcome so that you are more certain of the obstacles you may face. For more on this, see our previous land use and zoning requirements blog posts or contact us today at 401.477.0023.

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