Beaver River Road Solar Developer Wins Appeal

UPDATE: The Richmond Town Council voted at their April 19 meeting to file a petition for a writ of certiorari, asking the Rhode Island Supreme Court to review the lower court decision in this case. Earlier, John Peixinho, one of the founders of the Beaver River Valley Community Association, hired appellate attorney Tom Dickinson, of Providence, to make the same request of the RI Supreme Court.

By Cynthia Drummond for BRVCA

A commercial solar developer that appealed the Zoning Board’s denial of its application has won its appeal of that decision in Rhode Island Superior Court.

The appeal lists as defendants: the Town of Richmond, Zoning Board Vice Chair Jeffrey Vaillancourt and board members Sean Carney, Chelsea Battinger, Daniel Jarstfer, and Lindsay Hannon. Also named as defendants are former zoning official Russel “Bo” Brown, and abutting property owner John Peixinho, founder of the Beaver River Valley Community Association.

The 32-page decision, issued on March 31 by Associate Justice Sarah Taft-Carter, concludes that the board’s reasons for denying the application were “factually or legally unsupported,” and therefore, the application should have been granted. The decision orders the Zoning Board to issue the special use permit required for the project to proceed.

The beginning: 2018
The developer, GD Beaver River I, LLC, and property-owner William Stamp Jr., applied for a special use permit to build a commercial-scale solar array in a field that Stamp owns at 172 Beaver River Road. A special use permit was required because the property in a low-density residential zone.

The 5.3-megawatt array would occupy about seven acres of the 41-acre property, located in the Beaver River Valley which, in 2021, was added to the National Register of Historic Places.

Richmond’s zoning official at the time, Russel “Bo” Brown, denied the application because it would not conform to a town ordinance requiring that solar arrays be within two miles of a utility substation.

Two months later, at a public hearing on Brown’s decision, Brown asked the board to deny the GD Beaver River’s appeal of his decision, because the developer had missed the 30-day deadline for its appeal. The board continued the hearing for another month, but in the end, maintained its denial of the application because the developer had missed the 30-day window. The developer appealed that decision, and the application nevertheless continued to move forward with the Planning Board conducting the mandatory development plan review.

In addition to reaffirming the Zoning Board’s decision that the facility would be outside the two-mile radius from the nearest substation, the Planning Board denied the application on the basis that it would not be consistent with the objectives stated in the town’s comprehensive plan, which include the preservation of rural landscapes, cultural resources and the protection of the town’s rural and architectural heritage. In addition, the board said that as part of the federally-designated Wild and Scenic Rivers system, the scenic qualities of the Beaver River deserved protection.

The developer appealed the case to Rhode Island Superior Court, which remanded the case to the Zoning Board. During several public hearings, board members heard testimony many expert witnesses called by the developer as well as residents who, with the exception of a single farmer, opposed the project.

The Zoning Board voted to deny the special use permit, and the developer appealed, once again, to Rhode Island Superior Court, challenging the three reasons for the denial: that the proposed project would harm the “appropriate use of surrounding property,” that the array would produce noise that would be a health hazard to people living nearby, and that the facility would not be entirely within the two-mile radius from a substation.

Taft-Carter wrote that the board had not produced evidence to support its first two conclusions and the third conclusion, pertaining to the utility substation, “was affected by error of law.”

The decision states, “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.”

Attorney John Mancini, who represents the developer, said that despite the lengthy process, he was satisfied with the decision. “You hate to go through the process as long as we did, to be held up like that, but we’re glad that the decision came down as it did,” he said. “I think it’s the right decision, because of the amount of testimony that was provided to the board over the course a few years. We have been at this for quite some time, and a lot of effort was put into screening and buffering, and the board really dismissed the effort that we put into that.”

Neither Town Solicitor Michael Cozzolino, who represented the town in the case, nor Town Solicitor Karen Ellsworth would comment on the decision. It is unclear whether the town, or Peixinho, will pursue further legal action, which would entail petitioning the Rhode Island Supreme Court to review the lower court’s decision.

Richmond Town Council President Mark Trimmer said he remained opposed to converting open space and woodlands to commercial solar energy facilities.

“My family settled in Shannock in the late 1600s,” he wrote. “Once you take pristine rural land and develop it, you can never get that pristine land back again. I do not believe that the Beaver River Valley area should be developed with solar, a vineyard, or a brewery.”

Trimmer proposes introducing tax incentives for the owners of farmland.

“There is tremendous pressure placed on farm owners in Richmond,” he said. “The ballooning school budget and municipal budget drive taxes up. The taxes to fund these budgets become a burden to anyone who owns rural land in the town. The solution might be to offer tax incentives to these farm owners to encourage them not to develop their properties.”