Attorneys for Portsmouth Solar are considering taking their case to the Rhode Island Supreme Court, after a Rhode Island Superior Court judge last Friday threw out a June 2017 Portsmouth Zoning Board of Review decision that would have given the firm permission to develop an eight-acre solar farm on a 29.7-acre stretch of undeveloped land on Jepson Lane.

Attorney Jennifer Cervenko said Judge Brian Van Couyghen’s July 27 decision to uphold an appeal of a special use permit granted by the zoning board last year did not consider the facts of the case as farm proponents presented them to the court. She also said the matter could have wide-ranging implications for solar farm operators not just in Portsmouth, but across the state, and for that reason said she is hopeful the Supreme Court will hear the appeal.

“We were surprised and disappointed” with Judge Couyghen’s decision, Ms. Cervento said Tuesday. “We didn’t see the analysis of our own arguments.”

The ruling came after residents Roger and Jane Fontaine appealed the zoning board’s June 2017 granting of a special use permit.

In his decision, Judge Van Couyghen wrote that energy-producing farms that rely on solar, wind and other similar generating means are not allowable in residential zoning districts like the one in which Portsmouth Solar’s farm was proposed.

Though attorneys for Portsmouth Solar had argued before the zoning board that the solar arrays would have constituted a “passive” use of the land, Judge Van Couyghen wrote in his decision that the board erred in likening the Portsmouth Solar project to a public utility. He also cited an earlier wind farm proposal reviewed by the state Supreme Court, writing that there is precedent for determining that such farms represent a manufacturing use of the land on which they sit:

Such farms are used “exclusively for the purpose of transforming raw materials — namely, wind — into a finished product — namely, electricity.”

“Thus, even though the Board found that the proposed solar farm was similar to a public utility, it would be, in fact, a manufacturing facility because it would transform sunlight into electricity,” the judge wrote.

“Manufacturing is expressly prohibited in residential zones under the Ordinance. As a result, the granting of a special use permit for a manufacturing facility — the solar farm — was clearly erroneous.”

But Ms. Cervenko said the judge’s “erroneous” decision erred in two ways. First, she said, it did not recognize the town’s discretion over granting the special use permit, which she said is clear:

“We believe the interpretation of the zoning enabling act and the authority given to the town allows (Portsmouth) to make this discretionary determination,” she said.

Second, she takes issue with whether the farm would indeed constitute a manufacturing use.

Passive solar energy production, she said, “does not have the land use impacts that are analogous to manufacturing. Manufacturing is a lot more of a noxious use. It’s not similar.”

Though the farm would cover eight acres of land, she said solar arrays would cover about 2.5 acres of that land. She said she and Portsmouth Solar are conferring with town officials, and it is possible that the appeal could be filed “in coordination” with the Town of Porstmouth. She said a decision on the appeal will be made “soon.”