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After re-start of public hearing, Portsmouth solar ordinance ‘in limbo’

Residents demand greater protections at hearing, which was continued to Dec. 14

By Jim McGaw
Posted 11/27/20

PORTSMOUTH — After more than two hours of discussion during which local property owners made it clear they want more stringent protections built into an ordinance guiding the development …

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After re-start of public hearing, Portsmouth solar ordinance ‘in limbo’

Residents demand greater protections at hearing, which was continued to Dec. 14


PORTSMOUTH — After more than two hours of discussion during which local property owners made it clear they want more stringent protections built into an ordinance guiding the development of solar arrays here, the Town Council Monday night voted to table the matter until Dec. 14.

What’s not so clear, however, is whether the town even has a legal solar ordinance in place. One was ostensibly approved May 11 at a hearing many residents now say they didn’t know about until after the fact. However, Town Solicitor Kevin Gavin pointed out there’s been a legal challenge to that hearing due to a “glitch” in the advertising process because of the COVID-19 pandemic.

“It’s in kind of limbo,” Mr. Gavin said of the ordinance. 

At one point, he recommended the council vote to “reaffirm the ordinance and then go forward to make changes that people think are appropriate later.” The council could also vote to reject the ordinance outright, or continue the hearing for a vote, said Mr. Gavin, adding it needs to be resolved sooner rather than later. “Don’t kick it down the road for a long period of time,” he said.

The council decided to continue the hearing, but not before Council Vice President Linda Ujifusa questioned whether anyone could apply for a solar array under the ordinance that was approved May 11.

Mr. Gavin said yes; in fact, the town received two applications for smaller residential solar arrays after that hearing. (One on Meadowlark Lane was approved, while another on Sea Meadow Drive was rejected.)

However, he said there “hasn’t been a deluge of applications for solar farms” since the hearing in May.

If the council votes on Dec. 14 to revisit the ordinance as the newly formed citizens group Portsmouth Residents for Responsible Solar has requested, it will go back to the Planning Board for further review and recommendations before it is kicked back up to the council. 

Town Planner Gary Crosby said it’s important that Planning Board members receive some direction on which parts of the ordinance — such as the 50-foot minimum setback requirement the citizens group claims is too lenient on developers — need special attention. The entire process could take a few months, according to Council President Kevin Aguiar.

How did we get here?

The town’s solar ordinance was drafted after two large solar arrays in Portsmouth were rejected over the past three years. The R.I. Superior Court ruled against an array off Jepson Lane in 2017, saying it was an industrial project not suited for residential-zoned land. In 2018, the Zoning Board of Review voted down a nine-acre project on West Main Road, saying it failed to meet land-use requirements. 

Attorney Cort Chappell, who represented developers hoping to bring various solar projects to town, submitted a draft ordinance based on other model ordinances throughout the state which was reviewed and modified by the Planning Board and Planning Department. 

Mr. Chappell said the solar ordinance was necessary because Superior Court decisions held that specific uses such as solar farms need to be addressed individually and be included in a town’s zoning ordinance in order to be considered by building inspectors and town boards through the application process. 

The council was scheduled to hold a public hearing on the proposed ordinance on March 23, but the hearing was canceled due to COVID. It was ultimately postponed to May 11, but the citizens group contends that hearing was never properly re-advertised. 

“We are victims of COVID,” Mr. Chappell told the council Monday night, before he gave another primer on what’s in the ordinance. He and council members assured residents they were not trying to take any action without the public’s knowledge. Council member Andrew Kelly, in fact, pointed out that all of the Planning Board meetings on the draft ordinance were duly advertised and were held before the pandemic.

Mr. Chappell agreed. “I didn’t hear from any of these people before the Planning Board. It doesn’t make their comments any less valid,” he said.

While the ordinance does permit medium- and large-scale solar arrays in residential zones, Mr. Chappell said a special-use permit is required. That means abutters — generally those who live within 200 feet of a proposed development — have the right to be heard before the planning or zoning boards. 

“They have a right to say, ‘Hey, I’m affected. This fence isn’t adequate,’” Mr. Chappell said, referring to buffers to minimize any visual impact. The boards could also stipulate what kind of vegetation should be included as screening, as well as how high it should be, he said.

Solar arrays, Mr. Chappell said, are among the most innocuous uses of land from a zoning point of view, and most of them are proposed for either farmland or places where there’s plenty of brush. “Zero traffic, zero noise, zero odor. They are the definition of light industrial. They have zero or no effect, except you have to look at them,” he said.

As for residents’ concerns that the 50-foot setback requirement is insufficient, Mr. Chappell said that’s merely the minimum; the planning or zoning boards could require a more substantial setback if neighbors made a good case. Other concerns — drainage, safety, abutters’ property rights, etc. — are meticulously vetted by the review boards, he said.

Residents speak out

About a dozen residents, however, said they still had concerns about the oversight of solar projects, and that protections for neighbors should be built into the ordinance rather than forcing them to plead their case at every special-use hearing.

Bruce Fay lives on Sweet Farm Road, near the site where a solar array was once proposed — and could be again in the future. While he and other members of the group said they supported green energy, the 50-foot minimum setback isn’t adequate, he said.

“It should be at least 100,” Mr. Fay said. “The ordinance is an excellent start, but it’s incomplete. This thing has to stand the test of time. You kind of have to get it right the first time. It just needs to be more resident-centric.”

Robyn Younkin, of West Passage Drive, pointed to the unsightly solar array that’s being built by the U.S. Navy along West Main and Stringham roads. Although the town had no say in the federal project, it should serve “as a warning to all of us,” she said.

Ms. Younkin added she was “afraid we’e going to find ourselves surrounded by one array after another,” with developers chopping down trees to make room for them — an anomaly when it comes to green energy. “I have nothing against alternative energy, but solar panels should go in appropriate areas,” she said.

David Croston, another member of Portsmouth Residents for Responsible Solar, said the ordinance “fails in every regard” in being consistent with the town’s own Comprehensive Community Plan. He added the special-use process doesn’t provide abutters with enough protections and sets “a very low bar.” 

“We are not asking for this ordinance not to ultimately be passed; we’re asking it be passed appropriately,” said Mr. Croston. “Please understand that rushing this ordinance for a few will be very costly for your constituents as a whole. It doesn’t take much for us as a community to fix this and get back on track so we can live in harmony.”

Larry Fitzmorris, speaking on behalf of Portsmouth Concerned Citizens, said he opposed the ordinance in its current form, which will “likely result in a complete change in the appearance of Portsmouth.” The ordinance also “breaks faith with taxpayers” who have supported open space, including a $4 million open space and recreation bond that was passed in 2007, he said.

Experts speak

The board also heard from two experts arranged by the citizens’ solar group.

Scott Millar, director of community assistance and conservation for Growth SmartRI, testified the solar ordinance needs more specific standards, especially when it comes to limits on size and lot coverage, and that the setbacks and screening requirements should be increased.

Corey Lang, associate professor at the University of Rhode Island and an economist, presented the findings of a study he did on the impacts that various solar arrays have on nearby residential property values. Analyzing nearly 300 installations in Rhode Island and Massachusetts from 2005 to 2018, he found that properties within a mile of a utility-scale solar installation declined in value by 1.7 percent and those within a 10th of a mile went down by about 7 percent.

Upon questioning by council members, Mr. Lang acknowledged the study did not take into account the mitigating effects of appropriate buffers, nor did it control for the impact of any othe types of construction in the areas. He also said it’s possible that some home values have gone up after a solar array was installed. “But we have so much data … we’re getting an average effect,” Mr. Lang said.

Council member Daniela Abbott, who voted for the solar ordinance on May 11, said she’s since had a change of heart and now supports giving it a second look to address neighbors’ concerns.

“The onus should not be on abutters for preventing bad things from happening in their neighborhoods,” Ms. Abbott said. “The horrendous solar fam on West Main Road and Stringham Road has swayed my opinion drastically.”

A long one

Due mainly to the length of the solar ordinance hearing, Monday’s meeting stretched to 11:47 p.m., making it one of the longest in recent memory.

The council will most likely host a special swearing-in ceremony for newly elected town officials on Monday, Dec. 7, depending on the ratification of election results.

After that, the council will meet on the following Mondays at 7 p.m.: Dec. 14, Dec. 28, Jan. 11 and Jan. 25.

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Meet our staff
Jim McGaw

A lifelong Portsmouth resident, Jim graduated from Portsmouth High School in 1982 and earned a journalism degree from the University of Rhode Island in 1986. He's worked two different stints at East Bay Newspapers, for a total of 18 years with the company so far. When not running all over town bringing you the news from Portsmouth, Jim listens to lots and lots and lots of music, watches obscure silent films from the '20s and usually has three books going at once. He also loves to cook crazy New Orleans dishes for his wife of 25 years, Michelle, and their two sons, Jake and Max.