PORTSMOUTH — The Zoning Board of Review has affirmed last year’s Planning Board decision to reject a large-scale commercial solar facility along West Main Road at Union Street.

The zoning board, sitting as the Planning Board of Appeal on Thursday, March 10, voted 5-0 to deny Nimali Power’s appeal of the Planning Board’s unanimous decision on Nov. 10, 2021 that voted down the developer’s master plan to locate the facility at 2340 West Main Road, near the Lawton Valley Reservoir. 

Nimali’s attorney, Jay Lynch, said the developer’s appeal was based on the fact that under the statute, the Planning Board was required to render a decision on the master plan within 90 days of the original application, and more than 100 days had passed as of Nov. 10.

Zoners, however, said technical issues during virtual hearings, as well as Nimali’s own request for a continuance and its failure to object on the timeliness issue until late in the game, overrode the 90-day rule.

According to Nimali’s letter of appeal dated Dec. 23, 2021, its application was deemed complete on May 1, 2021, which gave the Planning Board until July 30 to approve or deny the plan. The matter was on the board’s June 9 agenda, but was not heard due to a technical issue with the Zoom platform that was in place during the COVID-19 pandemic.

The meeting was continued until July 14, at which time the Planning Board, “on its own initiative, voted to continue consideration of Nimali Power’s application to the Aug. 11, 2021 regular meeting in order to obtain additional comment, opinions, and/or information from the Newport Water Department and the town solicitor,” the appeal stated.

Then before that meeting, the appellant’s attorneys requested a continuance to Sept. 8, but due to a meeting notice error by the board, it was continued to Oct. 13. After a long hearing on Oct. 13, the board continued the hearing to Nov. 10. Nimali did not consent to either continuance, according to Lynch.

Board responds

Zoning Board Chairman James Nott, however, said there were good reasons for the continuances, and Nimali must take part of the blame. The June 9 meeting had to be continued due to a technical issue because the Zoom software wasn’t allowing people to participate remotely — certainly not the Planning Board’s fault, Nott said.

“When that 90-day rule was written, there was no such thing as a pandemic,” Nott said, adding that a simple electrical outage could also prevent any public meeting from taking place.

Nott also noted that Nimali made no objections to any of the continuances until Nov. 10, when Lynch asked the Planning Board’s administrative officer to issue a certificate of master plan approval due to the 90-day rule. 

“I don’t understand why, if the clock was so important, that it was never brought up,” he said. “The continuances were never contested; by not doing so, was that implied consent?” 

One continuance was requested by Nimali, and the board voted for another continuance because it was still seeking information from the developer, Nott added. Protecting the nearby watershed was the planners’ biggest concern, and the applicants kept delaying the presentation of information that would have satisfied the board, Nott said.

Lynch said the reason Nimali didn’t raise objections over the continuances earlier was because two attorneys were brought on  board over the summer and they were preparing for the August meeting. Regardless, however, he said the continuances shouldn’t factor into the equation.

“This board should be aware that 90-day requirement is intended to keep the Planning Board’s feet to the fire — not the applicant,” Lynch said. “They still have an obligation to act in a timely matter, and that was not done here.”

Abutters comment

Nimali also received an earful from abutters, who were directed to address only the issue of timeliness and not the specific merits of the proposal.

Richard Munch, who lives on Union Street, said the Planning Board was more than fair to the developer’s representatives, and gave them plenty of time to answer abutters’ concerns. Nimali simply did a poor job in presenting its application, he said.

“The Planning Board did an excellent job in dealing with this application. The bottom line is, this industrial solar (facility) doesn’t belong in this location,” Munch said, pointing out the board’s decision was a unanimous one. “(Nimali) wasn’t able to answer a lot of our questions. I was shocked at how ill-prepared they were.”

Maura Sheehan, of Sea Meadow Drive, agreed. “Clearly, the applicant got a full and fair hearing, lost on the merits, and has no basis to claim anything of the Planning Board,” she said.

Heather Olson, of Union Street, said Nimali presented new evidence and testimony as the hearing kept getting continued. The argument over the 90-day rule, she said, was merely the developer’s “trump card.”

After denying the appeal, the board adjourned 45 minutes after the meeting began.