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Citizens group seeks legal appeal of Portsmouth solar ordinance

‘This is not a NIMBY thing,’ spokesman says

By Jim McGaw
Posted 1/16/21

PORTSMOUTH — A citizens group that protested the recent passage of a new solar ordinance with no success is now turning to the legal system in an attempt to find relief.

Portsmouth …

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Citizens group seeks legal appeal of Portsmouth solar ordinance

‘This is not a NIMBY thing,’ spokesman says


PORTSMOUTH — A citizens group that protested the recent passage of a new solar ordinance with no success is now turning to the legal system in an attempt to find relief.

Portsmouth Residents for Responsible Solar, made up of about 40 residents of the Hilltop Road area, was expected this week to file in Rhode Island Superior Court an appeal of the Town Council’s 4-3 vote on Dec. 14 to approve an amendment to the zoning ordinance that regulates solar arrays.

David Croston, a spokesman for the group, said the residents are appealing the council’s decision “due to procedural errors and noncompliance with the Comprehensive Community Plan.”

The appeal comes at a time when two large-scale solar arrays are being planned for locations in the close proximity of homes where many group members live. 

On Wednesday (Jan. 13) of this week, the Planning Board was scheduled to hear two pre-applications and concept reviews for ground-mounted solar arrays on West Main Road. One is for a 3.1-megawatt development a 10th of a mile south of Lehigh Terrace, the other for a 3.16-megawatt facility just north of Russo Road.

Residents had already expressed alarm about the large ground-mounted solar array the U.S. Navy is building south of Melville School — one which didn’t require town approval.

Mr. Croston, however, said neighbors are challenging the decision because they don’t feel the town has worked in the best interests of all citizens — not just them.

“We are doing this for every resident in Portsmouth; this is not a NIMBY thing,” he said.

Two separate hearings

The town’s solar ordinance was originally approved unanimously on May 11, but the citizens group objected. Members said they weren’t aware of the hearing because it wasn’t properly advertised.

To be on the safe side, the council had a “re-do” of the hearing on Nov. 23, during which residents testified the ordinance strongly favored developers over abutters’ rights. They objected to the ordinance’s minimum setback requirement of 50 feet, with no density requirement, and said residents living next to larger solar arrays would see their property values go down significantly.

After about two hours of discussion, the public hearing was closed and the matter was continued to Dec. 14. Once again, the council approved the proposed ordinance, but this time by a 4-3 vote.

The majority of council members said the ordinance had enough built-in protections for abutters who could testify on each application under the special-use permitting process. They also said the ordinance could be “tweaked” down the road if the need arises.

However, the three members who had a change of heart since May 11 and voted against the motion — Council Vice President Linda Ujifusa, Daniela Abbott and J. Mark Ryan — said they had enough concerns about the ordinance to vote it down and re-start the process. 

Ms. Abbott referenced concerns raised by Scott Millar of Grow SmartRI (see related story), who said the solar ordinance needs more specific standards, especially when it comes to limits on size and lot coverage, and that setbacks and screening requirements should be increased.

Citizens group’s objections

The Superior Court filing asks that the solar ordinance be returned to the Planning Board for further review, Mr. Croston said. The citizens group has retained Providence attorney William Kolb and also has a land use expert to assist with the appeal, he said.

Neighbors claim the current solar ordinance runs counter to the town’s Comprehensive Community Plan, and that the town made several procedural errors in approving it.

“Medium and large arrays, in my humble opinion, have no place in a residential district,” Mr. Croston said. “We’re talking about very large industrial plants that can go into any section of Portsmouth by right. Yes, they need a special-use permit, but the problem is the special-use permit must be defined by the solar ordinance, and the solar ordinance is basically just too weak.” 

The town’s professional staff, he said, has failed to properly advise the council, Planning Board and Zoning Board of Review, he said, on the impact the ordinance could have on the town.

“I emphasize we are not opposed to alternative energy,” Mr. Croston said. “What we are opposed to are … the lack of true protections to the common residents of Portsmouth. The Town Council has really worked for the benefit of a few and has really been mislead by the professional staff on the impact this may have on every resident of Portsmouth.”

On Monday, Town Administrator Richard Rainer, Jr., responded to Mr. Croston’s accusation that the council was poorly advised by the town’s professional staff, which includes himself, Town Planner Gary Crosby and Town Solicitor Kevin Gavin.

“I would disagree with that assessment,” Mr. Rainer said. “I think we worked really hard on this. That ordinance they passed was actually more strict than other ordinances. And, the council agreed they were going fine-tune it.”

Another member of the citizens group, Bruce Fay, said he fears the special-use permitting process won’t adequately protect abutters’ rights. 

“One of my issues with what the Town Council essentially did is they kicked the issue down the road to the zoning board,” he said. With an ordinance now in place, the board could bypass abutters’ concerns and approve an application as long as it satisfied the setback requirement or other conditions, he said.

“That’s unfair to them, and clearly unfair to the residents of Portsmouth, when it could have been so easily fixed,” Mr. Fay said. “It bothers me because they forgot who they worked for.”

Another member, Shelly Nicholas, said the council majority “dismissed entirely the input of experts that were brought forth during public hearing.” That included Mr. Millar of Grow SmartRI, as well as Corey Lang of the University of Rhode Island, who testified that solar farms lowered nearby residents’ property values. 

“To simply dismiss that seems incredibly shortsighted,” she said.

Added Louis Letendre, another member of the group: “We’re not against solar, but we want it done in the proper way.”

‘Not the instigators’

Pointing to the two solar arrays on the Planning Board’s docket this week, Mr. Croston said no one has any idea how many medium- or large-scale solar farms could soon be proposed in town. It’s important that the ordinance be amended as soon as possible, he said.

It’s unfortunate, he said, that members of the citizens group have been painted as mere NIMBYs by some, when they’re actually trying to protect the interests of all Portsmouth residents. 

“Why are we the outcasts? Why are we viewed in the negative?” he said. “We’re not the instigators. We’ve looked at this in a holistic way. Portsmouth is a precious town. This solar ordinance will have incredible impact that most residents won’t immediately understand until it’s too late.”

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