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Johnston tried banning large-scale solar in neighborhoods. Why the town council killed it

JOHNSTON - The town council recently refused to consider - or even discuss - a proposal that would prohibit large-scale solar developments in all residential areas of town. 

The ordinance, introduced by Councilman Robert Civetti, died at last month’s council meeting when the four other council members would not second his motion to put it up for a vote, despite more than a dozen residents speaking at length in favor of the proposal. 

“Three of the five (council members) just sat there and said nothing,” said Chris Dibble, whose property abuts a proposed project by Cranston-based Green Development to use more than 300 acres of primarily wooded land in the northwestern part of town for a solar project. “Fifteen residents spoke in favor of the ordinance, no one spoke against it. Why don’t (the council members) just stand up and say: we don’t care,” Dibble added. 


A Hummel Report investigation, published in May by The Providence Journal, detailed the Zoning Board’s rejection of Green’s plan after a marathon meeting that ended at 2:30 a.m. Green has appealed that decision in Superior Court. 


Civetti’s ordinance would not apply to Green’s project if the company is successful in its appeal.  

More on Green Development solar:Johnston solar farm fight reflects RI's dilemma: Green space or green energy?


Why didn't the Johnston Town Council vote on the ordinance?

The Johnston project is a microcosm of the skirmishes being waged in communities across Rhode Island, with the push for renewable energy bumping up against questions of where solar farms - and wind turbines - should be located. And it’s forced communities to figure out how to handle the emerging technology in its zoning and planning regulations. 


While most communities have addressed solar energy in their comprehensive plans and ordinances, Johnston is an outlier - with no mention of solar in a plan that was last revised in 2007. 


In Johnston, Green - or any other solar developer - would need a special use permit to build in a residential zone. The Zoning Board last spring decided against issuing a permit. 

“Folks are buying in a residential neighborhood, not to have industrial solar panels behind their fence, or on their property line, staring at steel beams,” said Civetti, adding that someone could still install solar panels on their property for individual use under his ordinance. “The ordinance prohibits large-scale solar farms and projects in residentially zoned areas.” 


Council President Robert Russo told The Hummel Report:  “If no one seconds it, it usually means it’s not going to pass. The majority of the council didn’t want it. Could be: Okay, go back to the drawing board and make some revisions to it, rather than voting it down.” 


Would he have voted against it? “That’s a good question. I’m not totally against solar,” Russo said. 


Councilwoman Linda Folcarelli, in an email, said she had concerns about potential litigation and that the current process requires securing a special use permit in order to install solar. 


Councilman Alfred Carnevale called Civetti's proposal “overly broad" - adding that he polled residents in and out of his district. “Most seem to be in support of the option to install solar or live near solar. Some residents stated they would rather have solar than more houses in the neighborhoods.” 


Councilwoman Laura Garzone told The Hummel Report in an email that she does not support the proposed ordinance because “projects should be determined individually.” 


Mayor Joseph Polisena Jr. said he would have voted against the ordinance if he was still on the council. “I don’t think a one-size-fits-all ban is good. The way we do it now (by special use permit) is fine.” 


Dibble said Russo and one of the town’s solicitors at last month’s council meeting said they were concerned that the town could be sued if it passes a town wide ban on solar use in residential areas. 


“What I don’t get is they say: oh, we might get sued because there’s a possible - yet shaky - legal theory, so we don’t want to get sued by these big scary developers, therefore we can’t do anything,” Dibble said. “We look at it and say: 'Why can’t the town respect the wishes of the residents.' Why can’t they say: 'We might get sued, but we’ll eat it.'” 


Green Development solar farm working its way through the courts

Meanwhile, Green’s appeal is working its way through the legal process. A group of residents who hired attorney Matthew Landry to argue their case at last spring’s Zoning Board meeting has been unsuccessful in its attempt to be part of the appeal. They have appealed their exclusion to the state Supreme Court. 


That leaves it, for now, to attorneys for the town and Green Development to argue their case when it gets assigned to a judge. Courts have traditionally been hesitant to overturn a local board unless there is a glaring error in how it reached its decision, according to attorney William Conley, who is handling the appeal for Johnston. 


“The court is going to have to find (the Zoning Board) made clear error; overlooked material facts,” Conley said. “Or didn’t make appropriate findings of fact.” 


That, Green’s attorney John O. Mancini believes, is exactly what happened. “There’s no evidence in the record that supports the denial,” Mancini told The Hummel Report this week. “Because they went as long as they did and as late as they did, they got tired. (The board’s) decision is flawed procedurally, with no findings of fact, or conclusions of law,” he added. 


If a judge does accept Mancini’s argument and sends it back to the Zoning Board for another hearing, one of the members who voted against Green’s proposal will not be there: Richard Lobello was replaced by the Town Council last year when his term expired. 


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