Solar Case Heads for Supreme Court

By Cynthia Drummond for BRVCA
April 22nd 2024

RICHMOND – The Rhode Island Supreme Court has granted a petition for a writ of certiorari to the Town of Richmond and to abutting homeowner, John Peixinho. The writ paves the way for a review by the Supreme Court of a Superior Court decision ordering the town to issue a special use permit for a commercial solar array on Beaver River Road.

“I was so pleased to hear the news,” Peixinho said. “We must continue to work together to protect Richmond’s rural character and ensure that our quality of life and our property values are not diminished by utility scale solar installations in residential areas.”

Attorney Tom Dickinson, who represents Peixinho, said he had received the news on Monday afternoon.

“What will happen is, the formal writ itself, which is a legal document that we send to the Superior Court in Washington County, telling them to send up the file,” he said. “Each of the parties will have to file a legal memo reiterating the issues that we raised in the petition, and then that will go to a single Justice, who will hold a conference with the lawyers, and that single Justice will basically decide what calendar to put it on.”

Construction Well Underway

GD Beaver River I LLC, a company owned by Green Development, began building the project in the field owned by William Stamp Jr., of Cranston, almost immediately after receiving the March, 2023 decision by Rhode Island Superior Court Justice Sarah Taft – Carter ordering the Richmond Zoning Board to issue a special use permit allowing the project to proceed.

Watching the construction proceed, Peixinho said he was angry that the work had begun while a final decision is still to be rendered.

“It’s just devastating that they are charging ahead with this massive installation while the case remains unsettled,” he said. “But I believe that’s also a clear indication of what little regard these out-of-town property owners and solar companies have for our community.”

The developer and Stamp first applied in 2018 for a special use permit, which was required because the property, at 172 Beaver River Road, is in a low-density residential zone.

Russel “Bo” Brown, the zoning official at the time, denied the application, because the project did not meet a town requirement that solar arrays be no more than two miles from a utility substation.

The application was also denied by the Planning Board, because it would not be consistent with provisions in the town’s comprehensive plan that protect the town’s rural landscapes and cultural and historic heritage.

GD Beaver River appealed the Zoning Board decision to Superior Court, which remanded the case to the Zoning Board. When the board again denied the application, the developer appealed once more to Superior Court and this time, he prevailed, with Justice Taft-Carter stating that the Zoning Board’s reasons for denying the application were “unsupported” and directing the town to immediately issue the special use permit.

In 2021, the National Park Service added Beaver River Road Historic District to the National Register of Historic Places, and the Beaver River is part of the federally-designated Wild and Scenic Rivers System.

But those national designations did not prevent the developer from moving ahead with the project, and neighbors watched, aghast, as the open field was stripped and covered with the racks that would support the solar panels.

The Writ

In June, 2023, in a final attempt to stop the project, then -Town Solicitor Karen Ellsworth submitted a petition for a writ of certiorari, asking the Supreme Court to review the Superior Court decision.

Dickinson, representing Peixinho, also submitted a petition for a writ of certiorari.

Peixinho’s petition stated that the writ should be granted to correct the error made by the Superior Court:

“A Justice of the Superior Court reviewing a zoning decision is bound by the limits of R.I. Gen. L. sec. 45-24-69, which prohibits the court from substituting its judgment for that of the zoning board of review. On certiorari, this Court will

reverse if it can be shown ‘that the justice misapplied the law, misconceived or overlooked material evidence, or made findings that were clearly wrong.’  Kenlin Properties v. City of East Providence, 139 A.3d 491, 500 (R.I. 2016) (reversing a trial justice who overturned zoning board).”

The petition further states:

“Here the trial justice misapplied the law and was clearly wrong in the failure to apply this Court’s precedents.

With regard to the two-mile requirement, the trial justice substituted her interpretation of the ordinance for the zoning official’s interpretation and the board of review’s interpretation as well.”

Town Council Reaction

Reached Monday afternoon, Town Council President Mark Trimmer said he was relieved that the petition had been granted and he hoped the town would see the lower court judgment overturned.

“Thank God,” he said. “Cooler heads might prevail on this. I hope it gives us an opportunity to go backward and preserve the rural land in the town.”

Council Vice President Richard Nassaney added,

“I’m very excited that the Supreme Court is going to entertain the case,” he said.

Councilor Samantha Wilcox said she looked forward to having the case settled.

“I’m glad it’s going to be heard,” she said. “I’m not in favor of solar in Beaver River [Valley], just like most people in the community.”

The Timing

With the Supreme Court in session until the end of May, Dickinson said he expected the writ would be heard in the fall.

“The earliest this would be heard would be September, October. I think that, more likely, in November,” he said.

There is no avenue for further appeal. Should the Supreme Court decide in favor of the town and Peixinho, Dickinson said it is unclear whether the developer would be required to dismantle the equipment and remediate the site.

“I think that would all have to go back to Richmond and maybe, the Superior Court in Washington County to decide,” he said. “We’re really just focusing on the legal questions here, and once our Supreme Court decides those legal questions, then we’ll have to figure out what the next step is.”