Opinion
C. A. WC-2021-0111
03-31-2023
GD RICHMOND BEAVER RIVER I, LLC; and WILLIAM M. STAMP, JR., TRUSTEE of the WILLIAM M. STAMP, JR., REVOCABLE TRUST-2004, Plaintiffs, v. TOWN OF RICHMOND ZONING BOARD OF REVIEW; JEFFREY VAILLANCOURT, in his capacity as Vice Chair of the Town of Richmond Zoning Board of Review; SEAN CARNEY, in his capacity as a Member of the Town of Richmond Zoning Board of Review; CHELSEA BATTINGER, in her capacity as a Member of the Town of Richmond Zoning Board of Review; DANIEL JARSTFER, in his capacity as a Member of the Town of Richmond Zoning Board of Review; LINDSAY HANNON, in her capacity as a Member of the Richmond Zoning Board of Review; RUSSELL W. BROWN, in his capacity as Zoning Enforcement Officer of the Town of Richmond; and JOHN M. PIEXINHO, Defendants.
For Plaintiffs: John O. Mancini, Esq.; Nicholas J. Goodier, Esq. For Defendants: Karen R. Ellsworth, Esq. Intervenor Peixinho: Kelly M. Fracassa, Esq.
For Plaintiffs: John O. Mancini, Esq.; Nicholas J. Goodier, Esq.
For Defendants: Karen R. Ellsworth, Esq.
Intervenor Peixinho: Kelly M. Fracassa, Esq.
The Record of the Case, as submitted to this Court by the Zoning Board Clerk, includes fifty-two individual files, not all of which are paginated. As an Appendix to his brief, Intervenor-Defendant John M. Piexinho has reproduced a consecutively-paginated copy of the Record. See generally App. to Br. of John M. Piexinho. For ease of reference, citations to the Record in this Decision will reference the consecutive pagination as provided in Mr. Piexinho's Appendix.
TAFT-CARTER, J.
In this appeal, Plaintiffs GD Richmond Beaver River I, LLC and William M. Stamp, Jr., as Trustee of the William M. Stamp, Jr. Revocable Trust-2004 (collectively Plaintiffs) challenge the Town of Richmond Zoning Board of Review's denial of an application for a special use permit to construct a commercial solar energy system. Jurisdiction is pursuant to G.L. 1956 § 45-24-69.
I
Facts and Travel
A
Plaintiffs' Special Use Permit Application
On May 15, 2018, Plaintiffs submitted a special use permit application (the Application) to the Town of Richmond (Town) Zoning Board of Review (Zoning Board), seeking to construct a commercial solar energy system (the Project) on property located at 172 Beaver River Road in Richmond, Rhode Island-more specifically described as Lot 12 in Tax Assessor's Plat 8E (the Property). (R. at 1.) The Property is in the R-3 zoning district, which is designated primarily for low-density residential use. See id.; see also Richmond Code of Ordinances § 18.12.020(A). When Plaintiffs submitted their Application, the Town's use regulations conditionally permitted solar energy systems in the R-3 district via a special use permit. See Defs. Zoning Bd. of Review's Mem. of L. in Supp. of Decision (Zoning Bd. Mem.) Ex. A. (Richmond Zoning Ordinance § 18.16.010 (as amended July 25, 2017) (Table of Uses, Use Code 506)).
The Property is 43.67 acres, including a residential structure, corn fields, and wetlands. (R. at 1, 864.) It is a wedge-shaped parcel, bounded to the south by Shannock Hill Road, to the east by the Beaver River, and to the west by Beaver River Road. Id. at 864. The surrounding area along Beaver River Road is characterized by single-family homes and agriculture lands. Id. at 785. The Property is included in the Farm, Forest, and Open Space Program and is located within the Town's Aquifer Protection Overlay and Agricultural Overlay Districts. Id. Wooded swamp wetlands and the associated riverbank and perimeter wetlands comprise 13.61 acres, or 32.6 percent of the Property. Id. at 762.
Chapter 27 of title 44 of the Rhode Island General Laws includes a tax incentive program "to encourage the preservation of farm, forest, and open space land in order to maintain a readily available source of food and farm products close to the metropolitan areas of the state, to conserve the state's natural resources, and to provide for the welfare and happiness of the inhabitants of the state." G.L. 1956 § 44-27-1(1). In enacting this program, the legislature determined "[t]hat it is in the public interest to prevent the forced conversion of farm, forest, and open space land to more intensive uses as the result of economic pressures caused by the assessment for purposes of property taxation at values incompatible with their preservation as farm, forest, and open space land." (Section 44-27-1(2).) Classification of farmland in this program is voluntary. (Section 44-27-3.)
"The purpose of the aquifer protection overlay district is to protect, preserve and maintain the quality of the groundwater that provides a substantial portion of the town's water supply through regulation of certain land uses and activities in the areas over the groundwater reservoirs and recharge areas." (Richmond Zoning Ordinance § 18.37.010(A).)
"The purpose of the agricultural overlay district is to preserve large contiguous areas of prime agricultural soils for farming uses by requiring subdivision and development methods that create large farm lots intended for both agricultural and residential use." (Richmond Zoning Ordinance § 18.46.010.)
As originally proposed, the Project would cover approximately thirty-one acres, or 74.5 percent of the Property. Id. at 710. As revised-due to technological advancements and the resultant development of smaller solar equipment-the Project now proposes 18.76 acres of fenced solar array consisting of approximately 15,896 ground-mounted solar panels, six transformers, ten inverters, and related components. Id. at 710, 763, 864.
B
Planning Board's Advisory Development Plan Review
The Zoning Board referred the Application to the Planning Board for an advisory development plan review. Id. at 785. On December 30, 2019, the Planning Board sent its written advisory review (Planning Board Recommendation) to the Zoning Board and recommended denial of the Application for two reasons. The Planning Board: (1) viewed the Project as inconsistent with the Town's Comprehensive Community Plan; and (2) stated that the Project did not comply with the Zoning Ordinance. Id. at 788.
When the Application was submitted, § 18.34.040 required the Zoning Board to obtain an advisory development plan review before rendering a decision. (Defs. Zoning Bd. of Review's Mem. of L. in Supp. of Decision (Zoning Bd. Mem.) Ex. B (Richmond Zoning Ordinance ch. 18.34) 1.) Section 18.34.040(D) further provided that "[t]he planning board shall transmit a written opinion to the zoning board of review . . . stat[ing] whether the planning board finds that the applicant's plan for the site complies with the purposes, standards and requirements of [the Zoning Ordinance] and is consistent with the Comprehensive Community Plan." Id. at 3.
As to the Comprehensive Community Plan, the Planning Board concluded that the Application was inconsistent with three provisions. Id. at 786. First, the Application would not serve to "maintain scenic rural landscapes, vistas, and key cultural and historic resources." Id. (citing Policy NC6 to "[i]dentify and maintain scenic rural landscapes, vistas, and key cultural and historic resources"). The Planning Board Recommendation explained that:
Although various documents in the Record reference and quote the Town's 2016 Comprehensive Community Plan, that plan is not included in the Record before this Court. See, e.g., R. at 717-18, 786. The Court notes, however, that the policies and goals as quoted by the Planning Board remain in the current version of the Plan. See Town of Richmond RI, Comprehensive Community Plan Update 3-16, 3-17, 8-21 (Dec. 2021), https://clerkshq.com/Richmond-ri?docId=Richmond_CompPlan&path=Richmond_CompPlan%2C. Consequently, in the absence of any dispute as to the language of the Plan, the Court will assume that the references to and quotations from the 2016 version are accurate.
"The Comprehensive Community Plan identifies the proposed development site and nearby properties as a local scenic area, while the property and its immediate surroundings are eligible for listing on the National Register of Historic Places. The proposed project
would physically and visually alter the character-defining elements that contribute to the area's pastoral setting. Those elements are what make the area eligible for inclusion on the National Register of Historic Places." Id.
Second, the Planning Board observed that the Beaver River, which forms the eastern boundary of the Property, has been designated part of the federal Wild and Scenic Rivers System. Id. As such, the Planning Board determined that a commercial solar energy system "would have an adverse effect on the scenic qualities associated with the Beaver River" and was "incompatible with the underlying rural, forested and agriculture-based setting of Beaver River Road." Id. (citing Policy NC2 to "[p]rotect rare and unique natural resources"). Finally, the Planning Board stated that the Property is located in a "historically-significant area," and granting the Application would "negatively affect the underlying rural and agricultural setting that characterizes Beaver River Road and would detract from, rather than protect, the town's historic heritage." Id. at 786-87 (citing Land Use Goal LU 8 to "[e]ncourage development that protects the [T]own's historical and archeological heritage").
The Wild and Scenic Rivers Act declared a federal policy "that certain selected rivers of the Nation which, with their immediate environments, possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values, shall be preserved in free-flowing condition, and that they and their immediate environments shall be protected for the benefit and enjoyment of present and future generations." (16 U.S.C. § 1271.)
As to the Zoning Ordinance, the Planning Board observed that when Plaintiffs submitted the Application, § 18.34.030(A) stated that "'[t]he solar energy system shall be within two (2) miles of a utility substation.'" Id. at 787 (quoting Richmond Zoning Ordinance § 18.34.030(A) (2017)). The Planning Board interpreted that language to require that "a solar energy system . . . be entirely located within two miles of a utility substation." Id. (emphasis added). Because the Property is not entirely within two miles of a utility substation, the Planning Board concluded that the Application did not comply with the Zoning Ordinance. Id.
On the evening of May 15, 2018-the same day that Plaintiffs filed the Application-the Richmond Town Council voted to amend § 18.34.030(A) to state that "[t]he entire lot on which the solar energy system is located shall be within two (2) miles of a utility substation." (R. at 787.) The Planning Board Recommendation acknowledged that Plaintiffs' Application is not subject to the revised language, but also stated that "[t]he Planning Board finds that the May 15, 2018 amendment . . . was a clarification of the Town Council's intent rather than a change in the ordinance, and that the ordinance has always required a solar energy system to be entirely located within two miles of a utility substation." See id.; see also Richmond Zoning Ordinance § 18.56.010 ("Applications for development that are substantially complete and have been submitted for approval to the appropriate review agency in the town prior to enactment of this zoning ordinance or any amendment thereto shall be considered vested.").
C Pimentel Report
Plaintiffs engaged a land use expert to prepare their own report evaluating the Project's compliance with the Town's Comprehensive Community Plan and Zoning Ordinance (Pimentel Report). See generally id. at 703-29. The Pimentel Report made several observations, including that the riverbank was "vastly protected by mature vegetation (serving as both natural screening and buffering)"; nearby residences were few and otherwise located 500-800 feet from the Project; Plaintiffs had committed to a landscaping plan to minimize the visual impacts of the Project; and the solar panels would not exceed twelve feet in height. Id. at 711. Following from these observations, the Pimentel Report concluded "that there will be limited, if any, solar array field line-of-sight or noise intrusion." Id.
The Record contains two versions of the Pimentel Report, one dated May 14, 2019 and another dated September 25, 2020. See R. at 677, 703. References to the "Pimentel Report" in this Decision refer exclusively to the September 25, 2020 version.
Further, the report classified the Project as temporary in nature-as opposed to a residential development-and would therefore not be a "permanent disturbance." Id. at 712. Quoting the Town's 2016 Comprehensive Community Plan, the Pimentel Report stated that the Project would align with the plan's stated goal of "'[p]reservation of Richmond's rural character'" as "'the most consistently mentioned local priority in recent and past community surveys.'" Id.
In a section titled "General Comprehensive Plan Consistency Analysis," the Pimentel Report acknowledged that "[r]egulating development . . . entails consideration of such limiting factors as wetlands, cultural and historical resources, scenic corridors, etc.," but the report does not otherwise assess those considerations. Id. at 716. Instead, the report states that the Project is consistent with the "State Energy Plan" and then quotes numerous sections of the 2016 Comprehensive Community Plan without further explanation. Id. at 716-18. That list of quotes does not include or acknowledge two of the three provisions previously identified by the Planning Board as areas of inconsistency between the Comprehensive Community Plan and the Project. Compare id. (referencing only NC6), with R. at 786-87 (including NC2, NC6, and LU8).
D
Zoning Board Hearings
In consideration of the Application, the Zoning Board conducted public hearings on November 23, 2020; December 21, 2020; and January 25, 2021 and voted to deny the Application on February 22, 2021. See generally R. at 843-968.
1
November 23, 2020
At the November 23, 2020 hearing, Plaintiffs introduced various exhibits for the Zoning Board's consideration, including a National Grid System Impact Study, stormwater management reports, surveys, and soil erosion plans. See id. at 863, 867-68; see also id. at 424-676 (Development Plan Review & Special Use Permit Submission). Plaintiffs also presented four witnesses: (1) Kevin Morin, a registered professional engineer and the Project's manager, id. at 862; (2) Donald Leighton, a landscape architect, id. at 869; (3) Dr. Gregory Walwer, who had conducted an archeological survey of the Property, id. at 874; and (4) Thomas Sweeney, Plaintiffs' real estate expert. Id. at 876.
Mr. Morin displayed site maps showing the Property overlaid with the proposed solar energy system. See id. at 863; see generally id. at 274-97 (Green Development PowerPoint presentation). He testified that Plaintiffs had designed the Project to avoid a historic preservation area on the Property, as well as to avoid encroachment on the wetland buffer. Id. at 864-65. Mr. Morin shared that the Project had undergone review by the Rhode Island Department of Environmental Management's (DEM) Freshwater Wetlands Program and had received an insignificant alteration permit. See id. at 865; see also id. at 775-78 (Insignificant Alteration - Permit). Mr. Morin also presented a substation map showing "the proximity of the site to the Kenyon substation," which included a two-mile radius from the substation that "overlaps onto the [Project] site, [but] not the entirety of the site." Id. at 282, 864.
Although the PowerPoint presentation provided in the Record is dated "October 2020," the Zoning Board did not consider the Application at the October Zoning Board meeting but continued their review to November 2020. Compare R. at 274, with id. at 840. Green Development, LLC (Green Development) is the parent company of Plaintiff GD Richmond Beaver River I, LLC and is an entity created specifically for the commercial solar development project at issue in this appeal. Id. at 459. Green Development "develops, owns[,] and operates electric generation facilities for municipalities and other state entities." Id.
Mr. Leighton next shared photographs of the view of the Property from Beaver Hill Road and testified to his efforts to design a landscape plan that would screen the Project from the roadway. Id. at 870; see also id. at 298-317 (landscape plan presentation). He proposed a twenty-five-foot-wide vegetative buffer, atop a five-foot-high berm, to be planted 138 feet from the road. Id. at 870. In Mr. Leighton's opinion, the Project would not be visible from Beaver Hill Road and would not alter the character of the surrounding area; however, he qualified this opinion in response to various questions. Id. at 872. For example, Zoning Board Vice Chair Vaillancourt asked whether the landscape plan incorporated any consideration of the view of the Project from the vantage of the Beaver River, noting that there are kayakers on the river. Id. at 873. Mr. Leighton replied that visual screening from the river was not considered in the plan because screening from that direction would "essentially rely[ ] on the distance and the existing vegetation that's along the edge of the open field or the buffer." Id. Similarly, Member Baittinger asked whether a neighbor across Beaver Hill Road could see the Project from their home, to which Mr. Leighton responded that the Project would be visible in the winter during the first ten years until the buffer plantings reached a mature height. Id.
Dr. Walwer next provided an overview of the archeological survey conducted on the Property. See id. at 874-75; see also 330-418 (archeological survey report). He noted that a house across Beaver River Road from the Property-the Jamesford House-"is part of an informally established historic district called the Beaver River Road Historic District or Agricultural District[.]" Id. at 874. He explained that the Jamesford House is "part of a number of several farmsteads up and down the road, which are proposed as eligible for the National Register of Historic Places," although he clarified "that designation has never been formally established." Id. He testified that the Project was compatible with his recommendation to conserve subsurface contents below the depth already disrupted by decades of plowing. Id. at 875.
Before this Court, the Zoning Board takes issue with this characterization of the historic district as "informally" designated, explaining that the Rhode Island Historic Preservation and Heritage Commission (RIHPHC) maintains a State Register of Historic Places that includes the Beaver River Road Historic District. See Zoning Bd. Mem. 7 n.5 (citing https://preservation.ri.gov/historic-places/state-register). The Record before this Court, however, does not include any information about state registration, and there is otherwise no indication that the Zoning Board received any evidence of the State Register of Historic Places. See § 45-24-69(c) ("The court shall consider the record of the hearing before the zoning board of review[.]"). Although the Planning Board Recommendation references the RIHPHC, it does so only in its discussion of the National Register of Historic Places, not the state register. (R. at 786.)
Finally, Mr. Sweeney testified that, based on his inspection of the Property and surrounding area as well as his review of several studies pertaining to solar arrays and property values, a commercial solar energy system on the Property with proper screening would not have a negative impact on residential property values. Id. at 876. Mr. Sweeney referenced a recently published report by Dr. Corey Lang of the University of Rhode Island (the Lang Study) and represented to the Zoning Board that the Lang Study concluded that there is "little or no impact on rural property values from solar arrays." Id.
Edward Pimentel-land use expert and author of the Pimentel Report-was unavailable to testify at the November hearing; consequently, the Zoning Board continued consideration of the Application until December 2020. Id. at 877-79.
2
December 21, 2020
To begin the December 21, 2020 hearing, Plaintiffs presented Mr. Pimentel who explained why-in his opinion-the Project met the relevant standards for a special use permit. Id. at 888. First, Mr. Pimentel opined that the Project was passive and temporary, meaning that it would not "permanently harm the appropriate use of the surrounding property." Id. at 888 (citing Richmond Zoning Ordinance § 18.52.060(A)(1)). Second, he testified that the Project would not result in conditions that would harm the public health, safety, or welfare because the topsoil would remain on the Property and decommissioning at the end of the Project's twenty-five-year lifecycle would restore the Property to its original condition. See id.; see also Richmond Zoning Ordinance § 18.52.060(A)(2). Finally, Mr. Pimentel expressed his opinion, without further discussion, that the Project would be in harmony with the general purpose and intent of the Zoning Ordinance. See R. at 888; see also Richmond Zoning Ordinance § 18.52.060(A)(3).
Plaintiffs next took questions from the Zoning Board members. Member Jarstfer expressed a concern that the north-south line of buffer plantings along Beaver Hill Road would not provide sufficient screening at the northern corner of the Property. Id. at 891. In response, Mr. Leighton stated that Plaintiffs would revise the landscape plan to extend buffer plantings east-west from the corner. Id. Several Zoning Board members requested examples of vegetative buffers of the type and size proposed to be used in this Project, and Plaintiffs offered to supplement the record with examples. Id. at 892-93. Plaintiffs also stated that they would be amenable to a "landscaping bond" as a condition of approval, which would have the purpose of assuring the Zoning Board that landscaping would be maintained for the life of the Project. Id. at 893.
In response to a question about noise, Plaintiffs' representatives confirmed that the transformers and equipment pads would emit a "hum" during daytime hours and agreed to send the Zoning Board further information showing anticipated decibel levels at various distances from the Project. Id. at 894. In addition, Plaintiffs offered to stipulate, as a condition of approval, that "the noise that emanates shall not exceed a particular decibel level." Id. at 895. Mr. Morin also confirmed that the transformers contained no chemicals or liquids and therefore did not have the potential of toxic leaching, but that the transformers used a mineral oil. Id. at 892-93, 895. He stated that Plaintiffs had previously discussed with the Planning Board having "a containment . . . where the pads are located." Id. at 895.
Representatives of the Town had indicated a desire to present to the Zoning Board but were unavailable for the December hearing; therefore, the Zoning Board continued consideration of the Application to January 2021. Id. at 898-99. Prior to the January 25, 2021 hearing, Plaintiffs supplemented the record before the Zoning Board with an updated landscape plan, a noise model showing anticipated noise levels from the Project's inverters, and photographs of the vegetative buffer and landscaping surrounding a Hopkinton, Rhode Island solar array constructed in 2020. Id. at 793-816. The noise model noted that the maximum permitted sound level in a residential district is sixty-five decibels from 7 a.m. to 10 p.m. and sixty decibels at all other times. Id. at 794. It showed anticipated noise levels at the Property line along Beaver River Road of approximately forty decibels. Id. at 794-95.
3
January 25, 2021
At the January 25, 2021 hearing, Town Solicitor Michael Cozzolino summarized the findings and conclusions from the Planning Board Recommendation. Id. at 908-09. Regarding the Planning Board's determination that the Project was not within two miles of a utility substation and therefore did not comply with Zoning Ordinance § 18.34.030(A), Solicitor Cozzolino stated that the Zoning Ordinance defined a "solar energy system" as inclusive of the solar array and its associated substructures. Id. at 909. Solicitor Cozzolino then called Russell "Bo" Brown, the Town's Zoning Enforcement Officer, who stated that his interpretation of § 18.34.030(A), as previously expressed to the Town Planner, was that the entirety of the "system"-and not a portion of it-had to be "within" two miles of a utility substation. Id. at 822, 910. Solicitor Cozzolino then argued that:
"[t]o conclude that the word 'within' can mean anything different than what [Mr. Brown] described . . . would lead to a legal absurdity. If it was a 100-acre parcel and enough land for one panel to fit within the two-acre, two-mile radius, then theoretically could bootstrap a hundred-acre lot into that . . . project[,] or 200 or 300 acre[s]. It just leads to a legal absurdity that you could bootstrap that much just by
having a small portion of the property within the two-mile radius." Id. at 910.
The Zoning Board then opened the hearing to public comment, first hearing from Kelly Fracassa, attorney for an abutting landowner, Intervenor-Defendant John M. Piexinho, who agreed with Solicitor Cozzolino and Mr. Brown's interpretation of § 18.34.030(A). Id. at 920. Looking to Merriam-Webster Dictionary, Attorney Fracassa defined "within" as "in or into the interior of or inside" and as a "function word to indicate enclosure or containment." Id. at 921. He reasoned that "because a solar energy system is a unitary thing, that unitary thing must be inside that two-mile radius." Id.
After Attorney Fracassa, fourteen members of the public spoke at the hearing. Id. at 923-38. With one exception, commentors uniformly opposed the Project, emphasizing the rural nature of the area, the rich historic value of the Beaver River Valley, and a desire to preserve scenic vistas. Id. at 923-24, 927, 930-31, 933-34, 938. The vice president of the Beaver River Valley Community Association voiced opposition to the project, stating that he was speaking on behalf of over two hundred association members. Id. at 934. Numerous commentors also expressed concerns with Green Development's reliability, referencing other allegedly problematic and noncompliant projects as evidence that the solar developer would not be a "good steward" of the Beaver River aquifer. Id. at 928-29; see also id. at 935, 937. Outside of anecdotal examples, however, commentors offered no other evidence to substantiate the claimed noncompliance. See generally id. at 928-37.
Several public commentors also vigorously disputed Mr. Sweeney's characterizations of the Lang Study. Compare id. at 876 (Mr. Sweeney represented that "based upon Dr. Lang's findings, there's no impact, negative impact or insufficient impact of solar arrays on [rural] residential properties."), with id. at 924-26, 930, 933, 935 (public commentors stated that the study showed that commercial solar arrays cause a one and seven-tenths percent decline in value of properties within one mile and a seven percent decline for properties within one-tenth of a mile and that this adverse impact increases when, as here, farmland is converted to a solar array).
Although Plaintiffs' January 11, 2021 letter to the Town Planner submitting materials to supplement the record before the Zoning Board indicates that Plaintiffs submitted twelve copies of the Lang Study, that study is not included in the Record of the Case submitted to this Court. (R. at 793.) This oversight is immaterial, however, because the Zoning Board's Decision does not include any findings of fact or conclusions of law that reference or rely upon surrounding property values. See generally id. at 833-37.
The one member of the public who spoke in support of the Project was a local farmer who had leased some of her land to Green Development to install a solar array. Id. at 925-26. She shared that leasing land for solar energy systems allows farmers to retain land that they may no longer be capable of farming; affording financially-challenged farmers an option to preserve farmland for the next generation. Id.
The Zoning Board then voted to close public comment and continued consideration of the Application to February 22, 2021 for decision. Id. at 940.
E
The Zoning Board's Recorded Decision & The Instant Appeal
At the February 22, 2021 hearing, the Zoning Board voted unanimously to deny the Application and recorded its written decision (Zoning Board Decision) on February 23, 2021. Id. at 837, 964. The Zoning Board Decision includes twenty-eight findings of fact and the following conclusions of law:
"1. The proposed use will substantially or permanently harm the appropriate use of surrounding property because a solar energy system at the location proposed would be inconsistent with the Richmond Comprehensive Community Plan and would be detrimental to the rural, agricultural character of the Beaver River Valley.
"2. The proposed use and its location on the site will result in conditions that will harm the public health, safety, and welfare because the solar energy system's transformers will emit a constant noise that is likely to be audible and disturbing to nearby residents, and because a failure in the proposed stormwater management system would cause stormwater and sediment to enter the adjacent Beaver River.
"3. The proposed use will not be in harmony with the general purpose and intent of the zoning ordinance because it will not comply with Sec. 18.34.030(A) of the zoning ordinance." Id. at 837.
Now before the Court is Plaintiffs' appeal from the Zoning Board Decision, which challenges all three of the Zoning Board's conclusions. See generally Mem. of Law in Supp. of Pls.' Appeal of the Town of Richmond Zoning Bd. of Review's Decision (Pls.' Mem.).
II
Standard of Review
The Superior Court's review of zoning board decisions is governed by § 45-24-69(d), which provides:
"The court shall not substitute its judgment for that of the zoning board of review as to the weight of the evidence on questions of fact. The court may affirm the decision of the zoning board of review or remand the case for further proceedings, or may reverse or modify the decision if substantial rights of the appellant have been prejudiced because of findings, inferences, conclusions, or decisions which are:
"(1) In violation of constitutional, statutory, or ordinance provisions;
"(2) In excess of the authority granted to the zoning board of review by statute or ordinance;
"(3) Made upon unlawful procedure;
"(4) Affected by other error of law;
"(5) Clearly erroneous in view of the reliable, probative, and substantial evidence of the whole record; or
"(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." (Section 45-24-69(d).)
This Court must "'examine the whole record to determine whether the findings of the zoning board were supported by substantial evidence.'" Lloyd v. Zoning Board of Review for City of Newport, 62 A.3d 1078, 1083 (R.I. 2013) (quoting Apostolou v. Genovesi, 120 R.I. 501, 507, 388 A.2d 821, 824 (1978)). "Substantial evidence is defined as 'such relevant evidence that a reasonable mind might accept as adequate to support a conclusion[ ] and means [an] amount more than a scintilla but less than a preponderance.'" Iadevaia v. Town of Scituate Zoning Board of Review, 80 A.3d 864, 870 (R.I. 2013) (quoting Pawtucket Transfer Operations, LLC v. City of Pawtucket, 944 A.2d 855, 859 (R.I. 2008) (internal quotation marks omitted)). If the Court finds that the zoning "board's decision was supported by substantial evidence in the whole record," then the zoning board's decision must stand. Lloyd, 62 A.3d at 1083.
Questions of law, however, are reviewed de novo. Tanner v. Town Council of Town of East Greenwich, 880 A.2d 784, 791 (R.I. 2005). "In this Court's de novo review, a zoning board's determinations of law, like those of an administrative agency, 'are not binding on the reviewing court; they may be reviewed to determine what the law is and its applicability to the facts.'" Pawtucket Transfer Operations, LLC, 944 A.2d at 859 (quoting Gott v. Norberg, 417 A.2d 1352, 1361 (R.I. 1980)).
III
Analysis
"The zoning enabling act, set forth in chapter 24 of title 45 of the General Laws, mandates that local zoning ordinances provide for the issuance of special-use permits, to be approved by the zoning board of review." Lloyd, 62 A.3d at 1085 (citing § 45-24-42(a)). The local zoning ordinance must: (1) "[s]pecify the uses requiring special-use permits in each district"; (2) "[d]escribe the conditions and procedures under which special-use permits . . . may be issued"; and (3) "[e]stablish criteria for the issuance of each category of special-use permit that shall be in conformance with the purposes and intent of the comprehensive plan and the zoning ordinance of the city or town." (Section 45-24-42(b)(1)-(3).)
At the time Plaintiffs filed their Application, the Town's Zoning Ordinance permitted the Zoning Board to grant special use permits for solar energy systems in an R-3 district when an applicant could demonstrate that:
"1. The proposed use will not substantially or permanently harm the appropriate use of surrounding property;
"2. Neither the proposed use nor its location on the site will result in conditions that will harm the public health, safety, and welfare; and
"3. The proposed use will be in harmony with the general purpose and intent of [the Zoning Ordinance]." (Zoning Bd. Mem. Ex. D (Richmond Zoning Ordinance § 18.52.060(A)).)
In determining whether the proposed use satisfied the above criteria, the Zoning Board was permitted to consider "[t]he potential environmental effects of the proposed use on surrounding property and on the town . . . [and] [w]hether the proposed use will generate noise, odor, or other effects that cannot be mitigated by the imposition of conditions or safeguards." Id. § 18.52.060(B). Further, before rendering a decision, the Zoning Board could consider the Planning Board's advisory development plan review, which would include an assessment of the Project's consistency with the Comprehensive Community Plan. (Zoning Bd. Mem. Ex. B (Richmond Zoning Ordinance § 18.34.040(D)).)
Here, Plaintiffs assert that the Zoning Board's factual findings supporting its first two conclusions lacked credible evidentiary support and were otherwise directly contradicted by the Pimentel Report and Plaintiffs' landscaping expert. (Pls.' Mem. 12-21.) Plaintiffs further argue that the Zoning Board's third conclusion is wrong as a matter of law because "within," as used in § 18.34.030(A), should be strictly construed in Plaintiffs' favor as landowner, requiring only that the solar energy system be within the "range of" the two-mile radius of a substation. (Appellants' Joint Reply Mem. of Law (Pls.' Reply Mem.) 3.) The Court will address each alleged error in turn.
A
Zoning Board Conclusion 1: The proposed use will substantially or permanently harm the appropriate use of surrounding property.
The record before the Zoning Board lacked substantial evidence to support the conclusion that a commercial solar energy system on the Property would be "inconsistent with the Richmond Comprehensive Community Plan and would be detrimental to the rural, agricultural character of the Beaver River Valley." (R. at 837.) Relying on the Planning Board Recommendation, the Zoning Board identified two primary issues with the Project: (1) a vegetative buffer comprising a continuous raised berm of plantings would be "out of place" with the "rural, agricultural character of the area" and would impede views of the Beaver River from Beaver River Road; and (2) a commercial solar field would adversely impact the Beaver River Valley's eligibility for inclusion on the National Register of Historic Places. Id. at 834-35.
It is not necessary to separately address the Zoning Board's conclusion relating to the Project's purported inconsistency with the Comprehensive Community Plan because that determination is based on these same factual findings. Compare R. at 834 (Zoning Board Decision), with id. at 786 (Planning Board Recommendation). The Planning Board's only additional concern with plan consistency was that the Project would disrupt scenic views from the Beaver River, but the Zoning Board Decision did not reference that finding or concern. See generally id. at 833-37.
1
Vegetative Buffer
As to the vegetative buffer, there is no evidence in the record to support the conclusion that the proposed buffer would be "out of place." To the contrary, the Zoning Ordinance expressly requires such a buffer. Id. at 820 (showing § 18.34.030(D) mandates that "[a] vegetative buffer at least twenty-five (25) feet wide shall be maintained between the security fence and the boundaries of the lot"). In the absence of any objective criteria as to what landscaping is appropriate for the area or other competent evidence to rebut Mr. Leighton's expert testimony, the Zoning Board's determination that the vegetative buffer would be "out of place" was nothing more than "a naked, subjective conclusion" lacking reliable or probative supporting evidence. Wall v. Minifie, No. 2003-0130, 2004 WL 2334743, at *7 (R.I. Super. Aug. 5, 2004). "[P]urely aesthetic considerations do not supply sufficient basis for the exercise of the police power." City of Providence v. Stephens, 47 R.I. 387, 393, 133 A. 614, 617 (1926).
Nevertheless, even if the "rural, agricultural character of the area" implied some particular landscaping standard, Plaintiffs repeatedly demonstrated that they were amenable to alterations and conditions relating to landscaping. (R. at 779, 834, 891, 893.) If the Zoning Board was concerned with the appropriateness of the type of vegetation proposed or the fact that the berm would be "continuous," the Zoning Board could have imposed conditions requiring, for example, the use of native plants and variability in their positioning along the boundary. See Perron v. Zoning Board of Review of Town of Burrillville, 117 R.I. 571, 575, 369 A.2d 638, 641 (1977) (The "mere possibility" of adverse effects "could and should have been guarded against by imposing appropriate safeguards and conditions, rather than by denying the owner an opportunity to use his property for an otherwise conditionally permitted use.")
The Zoning Board, however, provided no opportunity to discuss or consider further conditions to ameliorate landscaping concerns. In fact, at no point prior to its decision did anyone express a resistance to a continuous buffer. To the contrary, the record reveals a consistent preference for such a buffer-in the Zoning Ordinance, by the Zoning Board members, and by the Wood-Pawcatuck Wild and Scenic Rivers Stewardship Council. (R. at 779, 820, 891). The first and only time any objection was raised as to the appropriateness of a vegetative berm was in the February 22, 2021 hearing, after comment had closed, when the Zoning Board announced its decision. Id. at 957. The Zoning Board therefore failed to consider whether it could resolve its concerns with appropriate safeguards and conditions, and our Supreme Court has instructed that such a failure is arbitrary and an abuse of discretion. Perron, 117 R.I. at 575, 369 A.2d at 641.
Member Jarstfer stated: "I understand the idea is to screen the view of the panels, which I think if we are all honest, it won't do so initially. The goal is that it will do so in time, but, to me, the very screening will seem out of place. It will not be consistent with the surrounding environment. The very screen will seem out of place, and that's a factor[.]" (R. at 957.)
Finally, the fact that the solar array might impede third-party views is "of no merit" and was otherwise speculative. Phelan v. Zoning Board of Review of City of Warwick, 90 R.I. 490, 491, 159 A.2d 802, 803 (1960). The Zoning Board determined that "[n]earby residents and people who are traveling by car or bicycle on Beaver River Road would not be able to see the Beaver River or the flora and fauna near the river because their view would be obstructed by the vegetative buffer." (R. at 835.) Yet, nothing in the record supports this finding. Plaintiffs committed to retaining all existing vegetation, and Mr. Leighton testified that if the solar array "were magically dropped in there today, at least in the summertime, the vegetation is so high that you would probably not see it with the existing vegetation." (R. at 293, 872, 890-91.) Mr. Leighton also explained that the existing topography of the Property drops down to the river valley, naturally impeding "visual access" as one looks to the east toward the river and across the Property from Beaver Hill Road. Id. at 872. Mr. Leighton's testimony therefore indicated that there are no existing views of the river across the Property. That testimony was supported by the numerous photographs of the Property from multiple vantage points, none of which depict an existing view of the river from Beaver River Road. Id. at 27-28, 305-314. Otherwise, the only discussion of existing views was Member Jarstfer's speculation that he would "imagine" that a single neighbor could "see clear to the river" from their second-floor window, although "nobody has looked." Id. at 960-61. A Zoning Board member is permitted to rely on his own knowledge or inspection of the area-including character-defining views and vistas-but the member must disclose his personal observations on the record and may not otherwise base conclusions on mere speculation. See New Castle Realty Co. v. Dreczko, 248 A.3d 638, 645 (R.I. 2021); § 45-24-69(d)(5) (requiring "reliable, probative, and substantial evidence").
2
Eligibility as a Historic District
As to the possible designation of the surrounding area as a historic district, the Zoning Board credited the Planning Board Recommendation's conclusion that "a solar energy system would have a negative impact on the historic and scenic value of the proposed location," specifically because the Project "would negatively affect the area's eligibility for future listing on the National Register of Historic Places." See R. at 786, 834; see also Viti v. Zoning Board of Review of City of Providence, 92 R.I. 59, 65, 166 A.2d 211, 214 (1960) (planning commission findings may be considered "evidence which the board might properly consider"). The Planning Board Recommendation stated that the surrounding area was "eligible for listing," as such the Town Planner had called the Rhode Island Historic Preservation and Heritage Commission (RIHPHC) "to find out how the proposed solar energy project might affect eligibility" and was informed by an unnamed source that the Project would have a negative effect. (R. at 785-86.) In contrast to this hearsay statement, Plaintiffs submitted a signed letter from J. Paul Loether, Executive Director of RIHPHC, who agreed with all of Plaintiffs' assessments and proposals for archeological preservation on the Property. Id. at 420-22. Further, Mr. Loether acknowledged that the house on the Property "was identified in 1977 as contributing to the proposed" historic district. Id. at 420. Consequently, Mr. Loether recommended that "a state-level architectural survey . . . be conducted to assess the house's integrity as a historic property and clarify its relation to the greater historic Jamesford farmstead as a further project planning element." Id. at 422.
This Court may not weigh the evidence before the Zoning Board, but it must assess whether the Zoning Board Decision was "[c]learly erroneous in view of the reliable, probative, and substantial evidence of the whole record[.]" (Section 45-24-69(d)(5).) The Zoning Board's reliance on a speculative statement of a mere possibility of harm relayed by a Town Planner who was not a historical expert did not constitute "substantial evidence." See Pawtucket Transfer Operations, LLC, 944 A.2d at 859 (Substantial evidence means "such relevant evidence that a reasonable mind might accept as adequate to support a conclusion[ ] and means [an] amount more than a scintilla but less than a preponderance.") (internal quotation marks omitted). Although "a reviewing board is not required to comply strictly with the rules of evidence" and a board's conclusion can be based, at least in part, on hearsay evidence, Caswell v. George Sherman Sand & Gravel Co., Inc., 424 A.2d 646, 648 n.4 (R.I. 1981), a denial based entirely on a single hearsay statement from an undisclosed source is not reliable, probative, or substantial and constitutes an unacceptable "scintilla" of evidence. Cf. Melucci v. Zoning Board of Review of City of Pawtucket, 101 R.I. 649, 653, 226 A.2d 416, 419 (1967) ("allegations" of need, without supporting expert testimony, are "without any probative force whatsoever and do not afford the necessary evidence upon which the action of the respondent board can be based"); Goodman v. Zoning Board of Review of City of Cranston, 105 R.I. 680, 685, 254 A.2d 743, 746 (1969) ("naked assertion of economic unfeasibility is meaningless"). Further, as with the vegetative buffer, the Zoning Board abused its discretion when it failed to consider the mitigating condition proposed by Mr. Loether. Perron, 117 R.I. at 575, 369 A.2d at 641.
The Court recognizes that the cited cases address an applicant's burden before the board. Here, there is no question that Plaintiffs met their burden of establishing that the Project would "not substantially or permanently harm the appropriate use of surrounding property." See Zoning Bd. Mem. Ex. D (Richmond Zoning Ordinance § 18.52.060(A)(1)); see also R. at 330-418, 422, 703-29, 874-75, 886-89 (including the archeological survey and Pimentel Report and related testimony, as well as Mr. Loether's letter). Therefore, the issue now before this Court is whether the Zoning Board's denial was clearly erroneous in view of the record or otherwise constituted an abuse of discretion. (Section 45-24-69(d).) Case law addressing the probative force of evidence before a board is therefore generally instructive.
In sum, the Zoning Board's conclusions as to the vegetative buffer and the proposed historic district were unsupported by substantial evidence in the record, and the Zoning Board otherwise abused its discretion by failing to consider appropriate safeguards and conditions to ameliorate any concerns.
B
Zoning Board Conclusion 2: The proposed use and its location on the site will result in conditions that will harm the public health, safety, and welfare.
The Court notes that in their briefing to this Court, neither Mr. Piexinho nor the Zoning Board defend the Zoning Board Decision with respect to this second conclusion. See generally Zoning Bd. Mem.; Br. of John M. Piexinho.
1
Constant Noise
Plaintiffs next assert that the Project's "proposed noise levels would be below the maximum allowable threshold provided for in the Town's noise ordinance" and that there was no contrary expert opinion in the record to support the Zoning Board's conclusion that the "solar energy system's transformers will emit a constant noise that is likely to be audible and disturbing to nearby residents" thereby "result[ing] in conditions that will harm the public health, safety, and welfare." See Pls.' Mem 20-21; R. at 837.
Whether the "constant noise" of the Project's transformers would be unreasonable is a question of fact, and this Court will uphold the Zoning Board's factual determinations unless "[c]learly erroneous in view of the reliable, probative, and substantial evidence of the whole record." See § 45-24-69(d)(5). The Zoning Board concluded, based on Mr. Morin's testimony and noise model, that the Project would emit a "constant" noise "likely to be audible to nearby property owners" and therefore a "constant annoyance." (R. at 836.)
The Court disagrees with any implication that compliance with the Town's noise ordinance is dispositive on the issue of harm. "Noise in and of itself can be a nuisance if it unreasonably interferes with a person's use an enjoyment of his property." DeNucci v. Pezza, 114 R.I. 123, 129, 329 A.2d 807, 810 (1974). Both the time when the noise occurs and the character of the area where it occurs are relevant considerations. Id. at 129-30, 329 A.2d at 810-11. "To amount to a nuisance the noise must be unreasonable, and reasonableness in this respect is a question of fact." Id. at 129, 329 A.2d at 810. The Town's noise ordinance is therefore but one piece of evidence that may be used to support or rebut a determination that anticipated noise would constitute harm. Various state courts have held that the violation of a noise ordinance and a noise nuisance are two distinct claims such that a local noise ordinance does not "impl[y] any decibel-specific limitation on private nuisance actions for equipment noise as a matter of law." See Chase v. Wizmann, 286 Cal.Rptr.3d 183, 193 (Ct. App. 2021); Cohen v. Rector, No. 13 MISC 476822 (GHP), 2018 WL 355638, at *14 (Mass. Land Ct. Jan. 8, 2018) ("Neither the Zoning Bylaw nor the Noise Bylaw say that the Noise Bylaw is the only acceptable methodology for measuring noise in Nantucket or determining whether or not a noise is a nuisance in the context of zoning uses and permitting."), judgment entered, No. 13 MISC 476822 (GHP), 2018 WL 343599 (Mass. Land Ct. Jan. 8, 2018), and aff'd sub nom. Cohen v. Planning Board of Nantucket, 124 N.E.3d 707 (Mass. App. Ct. 2019).
Notwithstanding that conclusion, the record reflects that the Zoning Board was confronted with unresolved testimony on the noise issue and failed to place its reasoning in the Record. The Pimentel Report stated that the nearest residence was located at a distance of between 500 and 800 feet and therefore concluded that there would be no "noise intrusion." Id. This statement is plainly contradicted by the noise model which shows the Jamesford House as significantly closer than 500 feet. Id. at 795 (showing transformers located at the very edge of the vegetative buffer along Beaver Hill Road); see also id. at 926-27 (testimony of Jamesford House owner that the eastern wall of her home is located across Beaver Hill Road and a mere forty feet from the Property); id. at 870 (testimony from Plaintiffs' landscape architect that the vegetative buffer would be twenty-five-feet wide and extend 138 feet from Beaver River Road). Mr. Morin testified that the system would emit no noise at night but would generate some noise in daytime hours, particularly on sunnier days. Id. at 894. When asked whether "people that live across the street" would hear noise emanating from the Project, Mr. Morin answered, "I don't believe they will hear it[.]" Id. at 895. He then started to say that "we haven't seen any issues with exceeding and . . . [,]" before seemingly being interrupted by Zoning Board Member Jarstfer. Id. at 894. Member Jarstfer then indicated that he "work[s] in electronics" and asked whether the noise emitted could be described as a hum, but he did not further interrogate the noise issue before moving on to another line of questioning. Id.
The Zoning Board largely credited Mr. Morin's testimony and noise model but failed to acknowledge his unequivocal statement that the Project would not be audible to neighboring landowners. (R. at 895.) The Board also ignored Mr. Morin's interrupted statement that seemed to attempt to convey that Plaintiffs had never experienced issues with exceeding allowable noise thresholds. Id. A zoning board is not required to give blind deference to expert testimony- especially here where Mr. Morin was a professional engineer and not a noise expert-and zoning board members "may take into consideration probative factors within their knowledge in denying the relief sought[.]" Goldstein v. Zoning Board of Review of City of Warwick, 101 R.I. 728, 733, 227 A.2d 195, 199 (1967). "[T]heir decision will not be disturbed if disclosed therein are the conditions by which they were motivated." Id. (emphasis added). Here, however, the Zoning Board failed to place on the record its reasons for concluding, contrary to Mr. Morin's testimony, that the Project would emit noise audible to neighboring property owners.
In any event, Plaintiffs offered to "stipulate . . . as . . . a condition of approval that the noise that emanates shall not exceed a particular decibel level." Id. at 895. In the face of this offer, the Zoning Board's blanket denial and failure to explore a possible mitigating condition was an abuse of discretion. See Perron, 117 R.I. at 575, 369 A.2d at 641. As already explained, "[t]he mere possibility that adjacent properties might be adversely affected . . . could and should have been guarded against by imposing appropriate safeguards and conditions, rather than by denying the owner an opportunity to use his property for an otherwise conditionally permitted use." Id.
2
Potential Stormwater Management Failure
Unlike the Zoning Board's noise determination, which was at least minimally addressed in the hearings and noise model, there is not a scintilla of evidence in the record to support the Zoning Board's speculative concern that "a failure in the proposed stormwater management system would cause stormwater and sediment to enter the adjacent Beaver River." (R. at 837.) Plaintiffs carried the burden of presenting evidence that the Project would "not substantially or permanently harm the appropriate use of surrounding property" or "result in conditions that will harm the public health, safety, and welfare." (Zoning Bd. Mem. Ex. D (Richmond Zoning Ordinance § 18.52.060(A)).) Relevant "conditions" expressly include "potential environmental effects[.]" Id. § 18.52.060(B)(1).
On that topic, Plaintiffs' extensive stormwater management reports, surveys, and soil erosion plans were unrebutted. See R. at 863, 867-68; see also id. at 424-676 (Development Plan Review & Special Use Permit Submission). Plaintiffs also demonstrated that they had obtained an insignificant alteration permit from DEM, which included: (1) DEM's review related to the "General Permit for Storm Water Discharge Associated with Construction Activity"; and (2) Plaintiffs' "temporary erosion and sediment controls" to be "maintained, replaced, supplemented, or modified as necessary throughout the life of this [P]roject to minimize the soil erosion and to prevent sediment from being deposited in any wetlands not subject to disturbance under this permit." See id. at 775-76. DEM's permit approval, therefore, expressly encompassed the Zoning Board's specific area of concern. Compare id. (Insignificant Alteration - Permit), with id. (Zoning Bd. Decision) at 837.
"While both DEM and zoning boards address public interest considerations, not every standard set forth in the zoning ordinance is pertinent to what must be considered by DEM in granting or denying a permit-DEM and zoning boards each serve separate functions." New Castle Realty Co., 248 A.3d at 644. As such, a zoning board does not err by "conducting its own independent review." Id. at 645. Nevertheless, to rebut Plaintiffs' evidence and DEM's decision, the Zoning Board was required to demonstrate its "specialized knowledge" of stormwater management systems and "include in its decision the basis on which it rests such knowledge." Id.
Here, neither the Zoning Board Decision nor the Record include evidence of the Zoning Board's "specialized knowledge" or any factual determinations that relate to the potential "failure" of Plaintiffs' proposal. See R. at 834 (finding only that "[t]he applicant has submitted plans to manage stormwater and to prevent soil erosion and sedimentation."). The Zoning Board's conclusion stems entirely from the following statement by Member Jarstfer: "I know [Plaintiffs] are talking about various mitigations for erosion and sediment and so forth, and that may all work fine. The problem is, if at any time, there is a failure, that Beaver River is affected, and it's done. There's no going back on it." Id. at 958. The mere possibility of failure, however, absent any competent evidence of the likelihood of failure, is insufficient to rebut Plaintiffs' evidence that the appropriate policies and permits had been established or obtained to ensure that the Project would have no adverse environmental impact. Perron, 117 R.I. at 575, 369 A.2d at 641.
As our Supreme Court recently instructed:
"[A]n applicant for zoning relief ought to be able to rely on permits granted by DEM with respect to those matters uniquely within DEM's expertise. That is not to say that a zoning board must act as a rubber stamp; clearly it has its own distinct responsibilities. But where, as here, a landowner has secured a permit to alter freshwater wetlands-which is often a long and arduous process-a zoning board may not deny zoning relief based upon a board member's conception of what might have a negative impact on wetlands, absent expert testimony in the record." New Castle Realty Co., 248 A.3d at 646.
After review of the Record, this Court is satisfied that there is no contrary competent evidence to rebut the Plaintiffs' expert evidence of the acceptability of its stormwater management and soil erosion plans and DEM's related permit approval. As such, the Zoning Board erred in concluding that a special use permit for the Project could be denied based on speculative concerns to the contrary. Cf. id. at 646-47.
C
Zoning Board Conclusion 3: The proposed use will not be in harmony with the general purpose and intent of the Zoning Ordinance because it will not comply with § 18.34.030(A).
At the time Plaintiffs submitted the Application, § 18.34.030(A) of the Town's Zoning Ordinance required that a "'solar energy system shall be within two (2) miles of a utility substation.'" (R. at 787 (quoting Zoning Ordinance § 18.34.030(A) (2017)). Extending a two-mile radius from the nearest utility substation bisects the Property. Id. at 282, 864. Consequently, the parties' dispute the meaning of the word "within." Plaintiffs urge that if the Zoning Ordinance meant "entire" solar energy system, the Town Council would have used the word "entire"; while Respondents argue that if the Zoning Ordinance meant "any portion" of the solar energy system, the Town Council would have included the words "any portion." Compare Pls.' Mem. 23, with Br. of John M. Piexinho 10.
"'When interpreting an ordinance, we employ the same rules of construction that we apply when interpreting statutes.'" Freepoint Solar LLC v. Richmond Zoning Board of Review, 274 A.3d 1, 6 (R.I. 2022) (quoting Ryan v. City of Providence, 11 A.3d 68, 70 (R.I. 2011)). "If the language of a statute or ordinance is clear and unambiguous, it is given 'its plain and ordinary meaning.'" City of Woonsocket v. RISE Prep Mayoral Academy, 251 A.3d 495, 500 (R.I. 2021) (quoting Sauro v. Lombardi, 178 A.3d 297, 304 (R.I. 2018)). "Ambiguity exists . . . when a word or phrase in a statute is susceptible of more than one reasonable meaning." Drs. Pass and Bertherman, Inc. v. Neighborhood Health Plan of Rhode Island, 31 A.3d 1263, 1269 (R.I. 2011).
The meaning of the word "within" is unambiguous as used in the Town's Zoning Ordinance. When used as a preposition indicating proximity, Merriam-Webster defines "within" with example phrases including "within reach" and "within a mile of the town"-both usages being comparable to the use of "within" in the Zoning Ordinance. Merriam-Webster Online Dictionary (retrieved Mar. 27, 2023, from https://www.merriam-webster.com/dictionary/within). When used in this manner, Merriam-Webster defines "within" as meaning "in or into the range of" or "as a function word to indicate a specified . . . margin." Id. "Within" does not connote a further limitation of "entire" containment. Cf. Cannon Rubber Ltd. v. The First Years, Inc., 163 Fed.Appx. 870, 875 (Fed. Cir. 2005) (ordinary meaning of "in" includes both that which is "entirely" in and "partially" in). Therefore, under the plain and ordinary meaning of the Zoning Ordinance, a commercial solar energy system is permissible if it is within-in or into the range or margin of, either entirely or partially-two miles of a utility substation. It is undisputed that the Property is either entirely or partially within two miles of the Kenyon substation. (R. at 282, 864.)
Respondents suggested definition improperly adds the words "entire" or "entirely" as a limitation not otherwise apparent from the plain and ordinary meaning of the word "within." Cf. Freepoint Solar LLC, 274 A.3d at 7 (rejecting attempts "to circumscribe" a statutory word "to a narrower subclassification than that which the word conveys on its face"). Mr. Piexinho's argument that use of the phrase "solar energy system" means a "unitary thing" that must be fully within the two-mile radius reads too much into the word "system." See Br. of John M. Piexinho 9-10; see also R. at 921. The question is not "what constitutes a system," but "how much of that system must be 'within' range of a substation." Under the plain and ordinary meaning of "within," the system may be partially or entirely into the range of the mandated two-mile radius. Cf. Cannon Rubber Ltd., 163 Fed.Appx. at 875.
Finally, contrary to Mr. Piexinho and Solicitor Cozzolino's arguments, this conclusion does not "substantially dilute[ ] . . . [the] desired effect" of the Zoning Ordinance or lead to a "legal absurdity." See Br. of John M. Piexinho 13; R. at 910. First, there was no evidence of legislative intent before the Zoning Board. Mr. Brown shared only that he had watched a Town Council meeting where the Council "did not talk about going out further or lots." (R. at 915.) The absence of discussion is scant evidence-if it is evidence at all-of intent. Cf. In re Coughlin, 33 F.4th 600, 609 (1st Cir. 2022), cert. granted sub nom. Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, 143 S.Ct. 645 (2023) ("[L]egislative history cannot introduce ambiguity into a clear statute . . . That maxim is never truer than when the legislative history is silent."). Second, even if the Town's intent in enacting § 18.34.030(A) was to limit the allowable area of solar development, that purpose is still realized by a construction that permits solar development projects in the R-3 district only when a portion of the solar energy system is within two miles of a utility substation.
It is unnecessary to address Plaintiffs' further argument that the Zoning Board "has attempted to unreasonably limit solar projects using the language of its Ordinance as a pretext for denial[.]" (Pls.' Mem. 22; Pls.' Reply Mem. 7 n.2.) That argument, however, is completely lacking any evidentiary support. The mere fact that litigants disagree as to the meaning or intent of an ordinance does not mean that one side or the other is operating in bad faith. Nothing in our Supreme Court's decision in Freepoint Solar LLC v. Richmond Zoning Board of Review, 274 A.3d 1 (R.I. 2022), indicates that the Town has engaged in pretextual denials. To the contrary, Justice Robinson noted "that the members of the Zoning Board, opining on what had been the Town Council's intent when drafting the ordinance, could not reach a unanimous understanding of the term 'utility substation.'" Freepoint Solar LLC, 274 A.3d at 9 (Robinson, J. dissenting); see also Freepoint Solar LLC v. Richmond Zoning Board of Review, No. WC-2020-0006, 2020 WL 4038073, at *9 (R.I. Super. July 15, 2020) (observing that the Zoning Board's "entire inquiry became lost on what the Town Council intended"). Absent any supporting evidence, this Court will not consider Plaintiffs' unfounded accusations of pretext.
IV
Conclusion
The Zoning Board's first and second conclusions were clearly erroneous based on a lack of supporting evidence in the record and otherwise constituted an abuse of discretion by failing to consider available conditions to mitigate concerns. Its third conclusion was affected by error of law. Because all of the grounds upon which the Zoning Board relied in denying the Application were factually or legally unsupported, the Application should have been granted. As a result, Plaintiffs' substantial rights have been prejudiced.
The Court therefore reverses the Zoning Board Decision. This matter is remanded to the Zoning Board to grant the requested special use permit. Counsel shall submit an appropriate order and judgment for entry in accordance with this Decision.