Board denies appeal of Natick Avenue solar approval

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An appeal of the Planning Commission’s February 5-4 vote granting master plan approval to a proposed 8.1-megawatt solar installation off Natick Avenue has been rejected by the Zoning Board of Review.

The zoning board – sitting officially as the Platting Board – voted unanimously to deny the appeal May 8 after more than two hours of testimony from attorneys representing the Planning Commission, the project’s developers and a group of concerned residents.

The proceedings at times became contentious, carrying over from the lengthy and often charged debate surrounding the project during the commission’s master plan review.

The project is the latest local solar facility being developed by Southern Skies Renewable Energy RI LLC. Along with a solar facility planned on a capped landfill off Pontiac Avenue, it was the last large, commercial-scale solar project to have received master plan approval before the institution of a nine-month moratorium on such projects in February.

The Natick Avenue property sits in an A-80 residential zone, which provides for two-acre lots. The city’s existing solar rules allow for commercial-scale projects by right in A-80 zones, along with M-1 and M-2 industrial zones and S-1 open space zones.

Following the rejection of the appeal, the next step for the appellants would be to pursue the matter in Superior Court.

Narragansett attorney Patrick Dougherty, representing the appellants in the matter, reiterated arguments made during his prior remarks before the Planning Commission – that the Natick Avenue project is inconsistent with the city’s Comprehensive Plan and that the commission had denied members of the public a “meaningful opportunity to be heard” after changes were made to the site plan and additional documentation was added into the record.

“The commission failed to satisfactorily address the issues where there were inconsistencies with the Comprehensive Plan, even though they flooded the record after the close of the public hearing … Moreover, the procedural error of closing the public hearing and allowing additional evidence and substantial changes to the site is also an error that warrants reversal of the decision,” he said.

Dougherty also argued that Michael Smith, the Planning Commission’s chairman, improperly “based his opinion, his decision” on outside research regarding climate change. He specifically cited a Jan. 29 response email Smith sent to Senior Planner Joshua Berry in which he wrote that reducing the city’s carbon footprint was the “basic premise underlying my decision on the [Natick Avenue] matter.”

Doughtery said he was “not in any way impugning” the “integrity” or “character” of Smith or members of the Planning Department’s staff. He said he was raising “procedural objections and substantive objections.”

“This was a 5-4 vote,” he said. “This was a very closely contested matter. And from the chairman’s words, from his very own words, he was prejudiced … It’s not right to prejudge something. It’s not right to go outside the record and do research on a particular matter and utilize that as the basis for your decision.”

He added, “My clients have their life savings built into their homes and their properties…My clients were prejudiced in a significant way,” he said.

On Monday, Smith said he had no response to Dougherty’s argument. But during the May 8 meeting, attorneys for the Planning Commission and the Natick Avenue project’s developer defended his conduct and pushed back against Doughtery’s assertions.

“This really is, no matter how you try to masquerade it, a really cheap shot,” said attorney William Landry of the firm Blish & Cavanagh LLP, who represented the commission.

“The chairman of the commission shares some observation about global warming in passing with a staff member, whose is asking about it and whose job it is to support the Planning Commission by looking at information?” he added. “This is no issue. There’s nothing unusual about it, there’s absolutely nothing wrong with it … We’re all reading about this stuff. We all have general knowledge about it. If you read the decision and deliberations, that plan commission was focused on the evidence.”

Attorney Robert Murray, representing property owner Ronald Rossi and Southern Skies, characterized Dougherty’s line of argument related to Smith as being “clearly character assassination.”

“There was nothing wrong with it,” he said of Smith’s reasoning and communications with planning staff, adding, “Only because Mr. Smith voted for the project, we’re attacking him.”

Murray said members of the public had a “tremendous opportunity to participate and comment throughout the process.”

He noted that the Planning Commission’s review included public comment during December and January meetings and that a site visit was conducted. He said the closure of public comment at the conclusion of the January meeting was “perfectly appropriate parliamentary procedure.”

Murray also noted that the solar installation is a by-right use at Rossi’s property under the city’s current rules and called the Natick Avenue project’s review the “most lengthy application” he has been a part of during his years representing clients before the commission.

“It's not your purpose tonight to substitute your judgment for the Planning Commission, who did have extensive hearings and meetings,” he told the Platting Board members.

Landry said the “whole appeal really rests on an extraordinarily shallow ground.”

“The appeal really has to make a strained reach at this prejudicial procedural error allegation…They haven’t demonstrated in any way that any such prejudice has occurred. They haven’t identified any rule of procedure that’s prescribed by law that was not followed here,” he said.

Members of the zoning board were largely receptive to arguments presented by Murray and Landry.

Board member Robert Coupe said he did not believe Dougherty’s arguments regarding Smith met the required threshold.

“I think to be prejudiced, to rise to the level of prejudice, I think you need to assert in some way that there is no rational way that he could have made that decision based on the facts – that he ignored an inconsistency with the Comprehensive Plan because of a motivation to do something about climate change,” he said.

He later added: “In my view, having those opinions and also finding that the project was consistent with the Comprehensive Plan is not prejudicial error.”

“When [Smith] says it’s the ‘basic premise underlying the decision,’ that to me insinuates that it’s underneath, and the decision was made in addition, or with other facts that were overlying, so the ones on top were more important than the ones on the bottom,” said Christopher Buonanno, acting as chairman in the absence of Matthew Gendron. “I don’t think anything improper was done.”

Coupe and Buonanno joined board members Joy Montanaro, Thomas Barbieri and Craig Norcliff in voting to reject the appeal. Norcliff and Coupe were sitting in as alternates for Chairman Matthew Gendron, who was out of town, and Paula McFarland, who recused herself.

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