Background of Solar
on Aquidneck Island
Fontaine v. Edwards (Portsmouth Zoning Board)
2017 Rhode Island Superior Court finding that solar constituted a manufacturing use which would limit its development to Light-Industrial/Industrial Zoning by right. The decision overturned Seabury Apartment’s approval to build a solar farm on a parcel residentially zoned.
Shers/ Kearsarge Energy proposal to develop 9 Acres off West Main Road
2018 proposal denied by the Zoning Board based on the revelation that Kearsarge was only leasing upper 9 acres of land, density being greater than 25%, and Sher’s desire to maintain future development rights to western commercial land.
Significant opposition was present at the Zoning Board for each of these proposals.
Amendment to Zoning Ordinance:
We first learned of the Amendment to the Zoning Ordinance on Columbus Day Weekend (October 2020), some 5 months after the Public Hearing and vote. We learned that at the May 11th Town Council meeting a Public Meeting was held with no opposition, the proposed ordinance was unanimously approved by the Portsmouth Town Council.
In the two weeks that followed Columbus Day the neighborhoods of West Passage Drive, Sweet Farm Road, Marial Rose Drive, and Chelsea Drive began organizing a campaign that was to become Portsmouth Residents for Responsible Solar. The group collectively has no knowledge of the actions surrounding the solar ordinance over the previous 18 months. And while a vocal opposition to a previous proposal, their opinions were never sought while the Zoning Board was reviewing a proposed solar ordinance from a local attorney.
How was it that a public hearing occurred for such an impactful ordinance with no-one’s knowledge?
Under Rhode Island General Law Chapter 45.24.53, “(a) No zoning ordinance shall be adopted, repealed, or amended until after a public hearing has been held upon the question before the city or town council. The city or town council shall first give notice of the public hearing by publication of notice in a newspaper of general circulation within the city or town at least once each week for three (3) successive weeks prior to the date of the hearing, which may include the week in which the hearing is to be held, at which hearing opportunity shall be given to all persons interested to be heard upon the matter of the proposed ordinance.”
On 10/16/20 a FOIA request was made to the Town of Portsmouth for copies of display ad, dates and publication(s) name(s) of the Public Hearing. We came to learn that the original vote to advertise was made by the Town Council in February 2020 for a March public meeting; the March public meeting was not held due to COVID and the Governor’s Emergency Order; the March meeting occurred on April 9th; and, the April 9th public meeting was moved to May 11, 2020.
Since the Public Hearing was held May 11, 2020, this clearly raised some very interesting public notice issues. On October 21st we decided to quietly notify Town Solicitor, Kevin Gavin, of our concerns:
We have never received a response to our letter nor notification that they were going to raise our concerns at the Town Council Meeting of October 26, 2020. At that meeting under Old Business the Council voted to re-advertise the Public Hearing for November 23, 2020. While we believe our letter was discussed in Executive Session that evening, no actions were reported from the Executive Session.
Our concerns are not simply with the re-advertised Public Hearing but the legacy vote which occurred on May 11, 2020. While the law is quite clear, the Portsmouth Town Council has refused to directly answer us on the state of that vote. Clearly, the unwillingness to address the state of the May 11th vote, approving the amendment, raises due process concerns; and, it raises potential long-term liability to the Town.
Portsmouth Residents for Responsible Solar decided not to further pursue these elements at this time. We voted in favor of trusting the intent of the Portsmouth Town Council and preparing for the November 23rd Public Hearing.
We as a group pledge our full support to provide our time and resources for Portsmouth to have a better informed ordinance. With that said, we see three parallel actions that must be addressed by the Portsmouth Town Council:
Solar Ordinance which better addresses core resident concerns in symmetry with the rights of solar developers and their property owners.
Addressing May 11, 2020 vote to approve the Solar Amendment and its ramifications.
Addressing the Town’s draft comprehensive plan and expired legacy plan. Enhancing language to better address concerns of character, viewscapes, and scope of solar development (current draft plan addresses “performance standards” that does not address resident concerns.
YouTube recording of the May 11, 2020 meeting: https://www.youtube.com/watch?v=Mhw9o7ePKuw. And, agenda: https://www.portsmouthri.com/AgendaCenter/ViewFile/Agenda/_05112020-1020?html=true.
The specific agenda item was New Business #1, “PUBLIC HEARING: To Consider The Proposed Amendment To Chapter 405 Of The Zoning Ordinance To Include A Solar Ordinance.” The Item is brought to the floor at 1:18:55 and is voted on one hour later. The motions start at 2:18:15.
October 26 meeting not on YouTube channel, requested from PCC.