By EMMA BARTLETT

Residents opposed to the development of a solar farm on a 29-acre parcel on Natick Avenue have won a Superior Court decision to reopen the Plan Commission’s approval of the project to public comment, but lost their appeal the court disqualify the vote of commission chair Michael Smith for bias.

“What was wonderful about the decision was it recognizes the need for citizens to be heard, which was all we wanted. We wanted the opportunity to respond when there were 100 plus information of pages added,” said Drake Patten, one of the residents opposing the solar farm and one of the 15 people who have been part of the litigation process.

Cranston’s Natick Avenue Solar project has been a point of contention since the idea came before the Plan Commission in 2019. Between environmental concerns and blasting effects, Cranstonians living near the property have come before the commission the past several years to voice their opposition. A legal case developed and went to Rhode Island’s Superior Court after the Plan Commission closed public comment during the second informational meeting and did not reopen public discussion at the third meeting when over 100 pages had been added to the record. On May 27, 2022, the state’s Superior Court concluded that case would return to the Plan Commission to reopen it to public comment.

The city is now waiting on an order from Associate Justice Netti Vogel on how the parties proceed since the Natick Avenue Solar project is in the final plan stage.

Back to the beginning

In November of 2018, Warwick’s Southern Sky Renewable Energy filed an application with Cranston’s Plan Department to build a 29.7-acre solar farm; the business aimed to lease land from Ronald Rossi with the intention of developing, installing and operating an 8.1 megawatt ground mounted solar energy field. The solar farm would generate electricity for sale to National Grid, and the company told the city that the project would accommodate wildlife, maintain the existing perimeter vegetation and create a plant buffer to hide the panels from neighboring properties.

The Plan Commission held an informational meeting on Dec. 4, 2018, where the city’s senior planner, Joshua Berry, provided a project overview. During public comment, nine individuals and the counsel representing 15 residents living near the proposed site spoke against the proposed master plan; their concerns included potential damage from blasting, the project’s effect on wildlife and overall impact on the residential neighborhood.

The residents requested a site walk which was held on Dec. 8, 2018, to gather more information and hired a land use consultant. On Jan. 3, 2019, counsel for Southern Sky emailed Cranston’s City Planner advising him that his client “intended to relocate the panels to the west and southwest areas of the lot but that Southern Sky would finalize the design after approval of the Master Plan Application,” according to the court document released from the May 27 decision. At the next informational meeting on Jan. 8, 2019, the residents provided the land use consultant’s report that the project was not consistent with the city’s comprehensive plan or zoning ordinance; the solar company’s land use consultant found the opposite.

The residents gave Berry a list of six requests they had for Natick Avenue Solar: One, that there be a distance to project setback; Two, that residents’ property be protected to prevent damage from mechanical manipulation by requiring inspections of their septic systems, wells and foundations before and after mechanical manipulation; Three, that Southern Sky provide additional housing for the area’s residents and their pets during ledge removal; Four, that the work be performed only from 9 a.m. to 5 p.m. Monday through Friday, excluding holidays; Five, that Southern Sky only use organic seed mix for planting under the panels and no herbicides or other hazardous chemicals be used under the panels; Six, that Southern Sky would fund an escrow account to cover any potential loss in property values.

At the end of the second informational meeting, the Plan Commission voted to close public comment and continue the matter to Feb. 5, 2019. From the January to February meeting, Southern Sky submitted a revised site plan and addressed the residents’ concerns.

On Jan. 29, Berry emailed Plan Commission Chair Michael Smith asking to share the sources he looked at concerning the environmental impacts of solar development. Smith sent the articles to Berry; on Jan. 31, 2019, the staff submitted an addendum to its staff memo and provided the plan commission with multiple exhibits demonstrating that solar installations were consistent with the city’s comprehensive plan.

At the final informational meeting, the updated site plan included the relocation of roughly 500 solar panels to another area of the leased property. Additionally, over 100 pages of data, information and evidence had been added to the record. The residents’ counsel objected to the introduction of new evidence after the close of public comment. The counsel urged the commission to reject the application due to these recent changes and because his clients did not have the chance to respond to Southern Sky’s Jan. 23 letter.

That evening, the commission voted 5-4 to approve the master plan, and several days later the staff added 13 conditions. Meanwhile, the residents and counsel took their concerns to the city’s Zoning Board of Review, contending that the plan commission decision was based upon “prejudicial procedural error, clear error, and lack of support by the weight of the evidence in the record,” according to the May 27 court decision.

On May 8, 2019, the hearing went before the Platting Board. The residents’ counsel argued that his clients did not have the opportunity to comment on the revised site plan modifying Southern Sky’s boundaries and were unable to confront information added to the final staff memo. The counsel claimed Smith’s vote was biased and based on his personal focus on climate change.

Southern Sky argued that the Plan Commission had the right to close public comment and there were no improper communications between Smith and Berry. The Platting Board of Review rejected the appeal and provided reasons defending Smith and Berry’s interaction but did not address the residents’ argument about not having the chance to review/address site plan revisions.

After the Platting Board’s decision, residents took the case to the Rhode Island Superior Court.

While the Natick Ave. Solar case has been in court for the past two years, the project has moved forward and is currently in its final plan stage. In November 2020 the project’s development plan was approved and in April of 2021, the company received preliminary plan approval. In January of 2022, Berry presented the Natick Ave. Solar project to the Plan Commission to catch them up to speed on the project since many of them were new to the commission. Only three of the nine members were on the commission when the project first came to the city.

At the meeting, Berry said the only noteworthy changes made for the final site plans were a shift in the location of a few panels and the removal of a gravel walking path on the eastern edge, neither of which presented concerns. He told the commission that a few outstanding conditions remained, but that these would be addressed after Final Plan approval and post-construction. Solicitor Stephen Marsella noted at January’s meeting that since various appeals had been filed in court, even if final plan approval was granted, it would not be built right away. No vote was taken on the matter since the final decision would be handled administratively by Mr. Berry as administrative officer.

What next?

On May 27, Rhode Island’s Superior Court remanded that Cranston’s Planning Board reopen the situation for public comment with appropriate notice for the appellants and members of the public; this is so individuals have the chance to review and comment on all additions made to the record.

“If the Commission chose to accept additional evidence, whether in the form of over 100 pages of material or a revised site plan after public comment was closed, or both, it was incumbent on the Planning Board to reopen the session for additional comment before voting on the Master Plan Application. That requirement cannot be avoided merely because the Appellees characterize the additional evidence as insignificant or because Berry suggested that the additional information did not impact his recommendation to approve the Application,” wrote Vogel in her decision.

The court did reject the residents’ claim that Smith’s decision was biased and that his vote not be considered in the original 5-4 vote.

The court recognized that Smith “improperly conducted outside research on climate change and reviewed an article on the Natick Solar Project and relied on that research to assist him in determining the issues before the commission.”

It was determined that conducting research and sharing it with Berry went beyond the permissible communications between a decision maker and agency staff member. The court could not speculate as to Smith’s mental process and even the residents’ counsel acknowledged that he did not have direct evidence that Smith’s decision was based upon his environmental concerns.

“Smith violated his role to carry out a quasi-judicial function, in which he was obligated to remain impartial throughout the proceedings …. In this case, the Court refrains from imposing severe sanction but cautions Smith to better insulate himself from improper ex parte contacts in the future,” wrote Vogel.

Pezzullo has no comment at this time. While the judge’s decision has been made, the city is waiting on an order from the judge on how the parties proceed.