Johnston considers moratorium on solar fields

Too little, too late?

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Johnston Town Council is considering a moratorium on solar development in town.

However, legal opinions differ over whether the moratorium would cover pending plans for five new solar fields in Johnston, proposed recently by Cranston-based Green Development.

Last month, District 5 Town Councilman Robert Civetti asked solicitor William J. Conley Jr. to look into examples of similar moratoriums in other municipalities.

Conley handed Town Council a memorandum summarizing his findings.

“I’d like to just reiterate the request I had the last meeting,” Civetti said at last week’s meeting. “I thank Mr. Conley for providing us with some information regarding the moratorium on solar farms … I think that that’s a very sensitive issue, a time-sensitive issue at this point.”

The Johnston Planning Board previously granted approval to Green Development’s master plans for five new solar fields. The firm now faces special-use permit approval from the Johnston Zoning Board (the matter was delayed a month at the zoning board’s last meeting but is expected to be decided at their next monthly meeting scheduled for April 28).

Civetti, who represents the district that includes the mostly wooded area proposed for solar development, requested Conley draft the moratorium and schedule a meeting to occur before the zoning board votes.

“Through the chair, I would like to request that the town counsel have a special meeting scheduled for either April 25, 26 or 27,” Civetti said last Monday night. “Because as you know, April 28 we have a zoning board that’s looking to make a decision that could impact this town for years to come.”

As of press-time Wednesday, the meeting date and time had not yet been set or advertised.

“I’d like to see us get together as a council for a special meeting to not only discuss the moratorium, whether we approve or reject, but let’s talk about it,” Civetti urged his fellow town councilors. “And obviously council votes as they feel necessary. But also I’d like to attend that (part-time Town Planner) Tom Deller attend that meeting, where we could get an update on the Comprehensive Plan. I think that you all know that our Comprehensive Plan is outdated. “

Last updated in 2014, Johnston’s town-wide Comprehensive Plan does not directly tackle the construction of modern solar panels in residential neighborhoods.

“So currently we have a couple boards that are operating, and trying to perform their fiduciary responsibility to the benefit of the town, but I don’t think they have the tools in place to perform that duty. So I think we need to coordinate it all,” Civetti said. “In regards to Mr. Conley’s information, I think the moratorium could be suitable or applied.”

Civetti said he’s like to see the council vote to “extend the moratorium until such time as we have a Comprehensive Plan that’s … approved by council, through all the proper channels.”

“So I would like to run that through you Mr. President,” Civetti said to Town Council President Robert Russo. “Again, to schedule a meeting for April 25, 26, or 27 so that we could have some decision made before the zoning board has to (vote at its meeting) on (April) 28.”

“So the purpose of that meeting, you want a moratorium drafted?” Russo asked Civetti.

“I would like to get a moratorium drafted, so that the council could discuss it, residents could be heard as far as, you know, why they feel it’s necessary and we can take the appropriate action,” Civetti answerd.

Conley asked permission to address the council.

“At the direction of the council, I did provide an initial or preliminary memorandum to you, based on the council’s directive at your last meeting to provide information on a moratorium,” the town’s lawyer explained.

He tried to present an “understanding or an expectation what can done between now and the next meeting, if you’re contemplating considering moratorium.”

“As I understood the charge to be from the council at our last meeting, I saw it as trying to preliminarily answer two questions: Can the Town Council enact a moratorium stopping consideration of new solar projects?” Conley said. “And secondly, would such a moratorium affect the applications or the applicants that were specifically discussed and referenced: Green Energy, that appeared before the Planning Board?”

Conley told Town Council that they could enact a moratorium, but legal precedent indicates the move could be toppled in court if the town did not meet certain standards while drafting the ordinance.

“I advised the council that the council is within its rights to consider enacting a moratorium ordinance on new solar projects, but there are certain factors, certain standards that must be met to do that,” Conley explained.

Conley examined another Rhode Island town’s struggle with solar development.

“The Town of Exeter enacted a moratorium back in December of 2018,” Conley told the council. “And that moratorium was affirmed, subject to a legal challenge by the Superior Court, but that decision was … really helpful to us in giving us the standards and factors that we must consider and meet in enacting that moratorium. By way of context, I’m looking at the Exeter experience. Exeter was facing a sudden and a really significant rise, a spike in applications for solar fields, from many applicants. And without a moratorium, the town planner had represented that it would be impossible to respond to the applications within the time period required by law because there were so many of them in the pipeline.

And so, the town passed a moratorium ordinance that it characterized as an emergency ordinance to meet those circumstances. And the moratorium ordinance that was passed, reviewed and approved by the board had a 60-day time limit on it. And the idea was that was going to buy additional time for those applications in the pipeline to be processed.”

The Exeter ordinance was unsuccessfully challenged in court by none other than Green Development, the same firm applying for special-use permits to raze forestland and construct solar fields in Johnston.

“Green in fact, the party applying here in Johnston, was the party that challenged that ordinance with an injunction and the Superior Court actually upheld the moratorium but said some interesting things in doing that,” Conley explained. “It found that that specific moratorium did not violate Green’s due process rights, number one because it did not apply to applications of Green’s that were already in the system.  In other words, it couldn’t apply to applications that had already been made. And so, because it didn’t apply to any of Green’s applications that had already been filed, the moratorium didn’t violate Green’s due process rights in that regard.”

Conley also discussed a second moratorium example from Cranston that had nothing to do with solar development. When Johnson & Whales wanted to expand dormitories in Cranston, the City Council enacted an ordinance that was ultimately rejected by the court, because it was determined the moratorium “would target a specific project.”

“What we kind of learned … A moratorium which is temporary, with a fixed length and an end-date, is something we probably want to consider,” Conley told Johnston Town Council. “We also need to be able to identify the moratorium to a specific reason, not just that we don’t like that project. It has to be because there are some other land use considerations that need to be addressed for the time period of the moratorium, and it can’t interfere with vested rights.”

“Vested rights” are key to determining whether the current proposal by Green Development in Johnston would be covered by the moratorium, according to Conley’s analysis.

“For instance, in the Exeter case, it was critical to the court’s analysis that the moratorium didn’t attempt to impede or interfere with the application that had already been processed,” Conley said. “For our purposes … the moratorium for the meeting coming up, it’s going to be important that we gather information from our zoning and planning departments on the specific reasons why a moratorium is necessary for the Town Council.”

Conley said he could reach out to those departments the next day.

“And get some guidance on a time period that would be reasonable to address those health and safety matters,” Conley continued. “And the council in the passing of a … time-limited and scope-limited moratorium ordinance would need to rely on those findings … for us to feel confident that we would survive a legal challenge.”

The question of “vested rights” can be complicated, Conley told the Town Council.

“When does an application become vested?” Conley asked. “That’s also a little bit interesting because when you look at state law the statute regarding these issues essentially says that zoning ordinances become vested when their application is ‘substantially complete’ in the process. But it doesn’t give us a lot of guidance on what it means to be ‘substantially complete.’”

The Town of Johnston, however, has a somewhat expedited view of “vested rights,” according to Conley.

“Our ordinance says, that in the context of this project, that it’s vested when they receive that approval that they got from the planning board,” Conley told Civetti and the rest of Town Council. “The reason behind that … is that when you look at our ordinances … essentially says that a major subdivision land development project vests when it receives master plan approval … Even though they identify vesting at different places in the process, what’s probably going to be most critical to that analysis or is most critical to that analysis, there’s substantial authority that as soon as its complete … it’s vested.”

Conley told Town Council that the Johnston Planning Board’s approval of master plans for Green Development’s five new solar farms gives the firm “vested rights” and the moratorium would not affect the project.

“You can’t change the rules of the game after you start,” Conley said. “The applicant has a vested property right in seeing the municipality process that under the rules that were in place at the moment its application was completed. Now our ordinance is a little bit later in that process, but it’s not to say that our ordinance as written if challenged on that basis … might not be subject to some vulnerability in that regard. But regardless, it’s probably not an issue here since that approval has been received by the Planning Board.”

Time is running out with only a week remaining until the Zoning Board’s April 28 meeting. An ordinance needs to be written, publicly advertised, vetted, debated and approved before it takes affect.

“I am a little bit concerned about the timetable we’re setting,” Conley told Town Council “I understand why there’s that sense of urgency. If council chooses to move forward to that I’ll reach out to planning tomorrow and ask them for their help.”

Conley also took some time to stand up for the members of the town’s Planning Board, whom he said have come under recent attack following their decision to approve the solar project master plans.

“Unfortunately there has been some castigation aimed at the Planning Board, actually accusing them of engaging in deceitful practices in the process of this application,” Conley said last week. “That’s very concerning because obviously if there’s a legal challenge we can’t be in a position where we have public officials engaging (in) any kind of deceitful conduct. That’s very concerning; a very serious allegation. I want to inform the council that I’ve looked at that record. I’ve read the transcript. I’ve followed the process that we used in processing that. I’ve conferred with legal counsel for the Planning Board. And I’m prepared to stand before you tonight and say that your Planning Board acted with the utmost integrity.”

Conley assured Town Council that his review of the proceedings revealed no wrongdoing.

“Your Planning Board followed the procedures they were supposed to follow,” Conley explained. “They held hearings in accordance with those procedures. They made findings of fact based on the record that was before them. And they did nothing to impugn that process or their own reputations either. They acted … according to process and with the utmost integrity. And I just think that given those accusations are out there and are used as a basis for attacking this process, that it’s important to make clear on the record that there is no reason to believe that those public servants, those volunteers who perform those public duties, engaged in any dishonest or deceitful conduct.”

That said, Conley indicated he planned to move forward with drafting the moratorium ordinance.

“So, with your permission, I’ll reach out to planning tomorrow,” Conley said. “Tell them, based on the council’s directions, you wish to proceed with that date, within that time period, hopefully bring it back to you for consideration of moratorium ordinance.”

Further complications arose when Town Council was informed, by Conley after he consulted with the Town Charter, that an ordinance cannot be approved at a meeting other than the Town Council’s regular monthly meeting.

“Every ordinance, other than an emergency ordinance,” Conley said. “So if we had findings of fact that could establish as an ‘emergency ordinance’ you could do it at other than a regular meeting. But otherwise it needs to be referred to a regular meeting.”

Whether the ordinance could possibly be approved and enacted prior to the April 28 Zoning Board meeting remains unclear.

Following the April 11 Town Council meeting, Conley clarified his legal opinion whether a moratorium — even if it’s approved by the next Zoning Board meeting — would affect Green Development’s pending applications. Again, he affirmed, in his opinion, the moratorium would not stop the project.

“They have a vested right,” Conley repeated. “They’re vested. Yes, they’re vested.”

Civetti, asked after the meeting about the hypothetical legal futility of enacting an ordinance that would not cover the project concerning so many of his constituents, he answered: “Subject to opinion I guess.”

“I’m not an attorney, but I know there’s attorneys that looked at it and said that’s not the case,” Civetti said. Civetti argues the Johnston case will be different because it involves a “land use issue” and “not a major subdivision.”

“Should we put a moratorium in place or not?” Civetti asked. “(I’ll) leave that up to legal to decide if it applies or doesn’t apply … But for us to sit back and not do anything and expect a Planning Board and Zoning Board to comply with a Comprehensive Plan that essentially … is outdated by — it expired in 2014 — so eight years outdated plan that doesn’t talk anything about renewable energy, how can we really expect the planning board members and zoning board members to make an educated decision or fulfill their fiduciary responsibility?”

Civetti also praised the Planning Board and their dedication.

“I’m not knocking them,” Civetti insisted. “I think they do a great job. I appreciate their service. But we’re asking them to judge something when there’s no guidelines to go by … that’s all I’m trying to do. Let’s put a moratorium in place that will deal with how this should go through.”

According to Green Development, the five solar fields will be constructed on land totaling 324.86 acres. Of those 324.86 acres, approximately 133.15 acres will be surrounded by fencing, with solar panels occupying around 41 percent of the acreage. A substantial area will be cleared of trees, and some topography altered, across the five parcels in Johnston’s west-end.

Many residnets living along Rollingwood Drive can see pink ribbons tied around tree trunks framing their backyards. The pink ribbons mark the future fence line that the developer plans to build around the solar fields.

A small group of abutters have hired attorney Matthew J. Landry, of the Providence law firm Blish & Cavanagh LLP, to help fight the solar field construction.

The five proposed solar projects include — a 1.0 Megawatt solar field, called, GD Johnston Elmgrove II, at 25 Elmgrove Ave. (AP 51 Lot 4, zoned R40); GD Johnston Harilla I, a 2.25 MW solar field at 28 Harilla Lane (AP 51 Lots 9 & 11, zoned R40); GD Johnston Winsor I, a 4.0 MW solar field at 46 Winsor Ave. (AP 60 Lot 4, zoned R40); GD Johnston Winsor II, a proposed 8.0 MW solar field at 86 Winsor Ave. (AP 60 Lots 2, 20, 86, zoned R20 & R40); and GD Johnston Winsor III, a proposed 24.0 MW solar field at 112 Winsor Ave. (AP 59 Lot 15, zoned R40).

Solar development is a special use for residential zones and permitted under Johnston’s zoning laws. If the Zoning Board votes to approve the special-use permits, the plans move back to the Planning Board for a final set of conditions and approvals.

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