Editor’s Note: This is the fourth installment of a series looking at the newest iteration of the proposed Winsor Avenue solar farm. The public hearing is expected to continue on Dec. 14, with a public input session and possibly a vote on a special-use permit to build an industrial-scale 19-megawatt (MW) solar field, with nearly 50,000 solar panels at 118 Winsor Ave. in northwest Johnston.

When attendees recall the Zoning Board hearing of Nov. 2, 2023, they’ll tell the story backward.

Attorney John O. Mancini effectively terminated the hearing prior to adjournment, when he packed his papers and stormed out of the Johnston Senior Center.

Green Development’s lawyer left the Johnston Zoning Board visibly puzzled, uncertain whether they’d set the next hearing date or not.

It was 10 p.m. The agenda informed the public the board was willing to hold the hearing until 10:30 p.m.

The petitioner, represented by Mancini, had rested its case (except for cross-examination). The opponent’s attorney, Matthew Landry, representing Stop Johnston Solar, had finished presenting his witnesses.

Mancini could further question the opposition group’s final witness. And then it was supposed to be the public’s turn to talk — the citizen input portion of the hearing.

Mancini said he didn’t want to start down that road. He wanted to hear from the public at the board’s next meeting, tentatively scheduled for Dec. 14.

“I’m not gonna start now,” Mancini told the board. The crowd of around 150 citizens rumbled.

“I think it’s a logical point to break, based on my 32 years of legal experience,” said Zoning Board Solicitor Joseph Ballirano. “They’re going to go back and fourth …”

“He just gave his testimony,” interjected Ward 5 Town Councilman Robert J. Civetti who was seated in the audience. “Let him question him now while it’s still fresh.”

“What’s the advantage to that?” asked Ballirano.

“The agenda says you can go to 10:30,” Civetti said, loudly without a microphone. The Zoning Board members sat silently. “Nothing will be heard after 10:30. Let’s stick to the agenda.”

The meeting was still in session. No adjournment gavel had banged.

“We made the decision, just like the council makes decisions, that we’re going to go to a certain time,” Ballirano argued. “We said we were going to 10.”

“Not on the agenda you didn’t,” Civetti argued for the public.

In a brief declaration to start the Nov. 2 hearing, Ballirano and Zoning Board Chairman Thomas Lopardo said the night’s testimony was expected to run through 10 p.m. The agenda, however, informed the public the session could drag on to 10:30.

Some of the project’s opponents argue the petitioner hopes the public opposition will lose steam as the hearing is stretched out over three months.

The Sept. 28 hearing attracted a near-capacity crowd (Johnston Fire Marshal Tom Marcello counted 179 people). Noticeably fewer attended the Nov. 2 hearing (the fire marshal didn’t make an appearance to count, but there were still seats available in the Senior Center dining room).

“We can go to 10:30 …” Ballirano clarified. The board had the option to go to 10:30.

“I’m asking through the chair,” Civetti said, turning to Lopardo.

Mancini jumped into the discussion.

“It’s my call,” the attorney declared. “I’m not going forward tonight. It’s ending at 10 o’clock.”

“It’s not your call,” shouted several meeting attendees.

“Just adjourn the hearing and tell them to get out,” one woman shouted.

“It’s my hearing,” Mancini repeated. “It’s my hearing. I’m the applicant. It’s my hearing. That’s the law.”

He packed his papers and fled the building.

Arguing ensued — a stenographer’s nightmare.

Finally, several minutes later, a motion to adjourn came through the speakers. It carried.

“You better send out notices,” Civetti warned the board. “You already adjourned.”

The meeting date was not clarified to the public prior to adjournment (though multiple sources agree the hearing will likely continue to Dec. 14, pending public advertising). A regular meeting of the Zoning Board has been advertised for Nov. 30, but the continuation of the solar hearing is not mentioned on the official agenda posted on the Rhode Island Secretary of State’s website.

“It was a total disgrace how the last meeting ended,” Civetti wrote via email. “The attorney for the applicant walked out of the meeting before the meeting was adjourned. Once again I am not an attorney, but if they're running the zoning board … like it's a court I think the attorney would have been held in contempt. I think the attorney for the applicant owes the board (and) the public a public apology for how (he) conducted himself at the end of that meeting.”

Too Soon?

The Nov. 2 meeting was a continuation of a public hearing that began on Sept. 28, when Cranston-based Green Development decided to petition the Zoning Board less than a year-and-a-half after their first attempt failed (in April 2022 the Zoning Board narrowly rejected a larger project; the new petition is essentially a sizeable portion of the previous project).

Landry argues Green Development jumped the gun. Town ordinance says an applicant must wait two years before re-presenting their case before the Zoning Board, unless the project changes substantially. An appeal of the previous decision still lingers in court.

“This application has been heard, it has been decided upon, it has been denied, it has been pending appeal for the last year,” Landry told the zoning board to start his case.

“Hear, hear!” Shouted an audience member. The crowd erupted with applause (as they did often through the night to punctuate Landry’s arguments).

“The doctrine of administrative finality, which is also a provision in your ordinance that specifically prohibits repetitive petitions within a two-year period,” Landry argues. “The applicant has the duty to satisfy this board that their application is materially and substantively different than the last application before this board even has jurisdiction to hear it.”

Solar Opposites

Civetti agrees: “There is no way that this should even be in front of the zoning board at this time … In my opinion, which is not a legal opinion, but just from reviewing the documents, this does not appear to be a substantially changed project.”

Johnston Mayor Joseph M. Polisena Jr. has been a supporter of solar projects in residential neighborhoods, arguing solar panels will tax town services less than new housing developments. And Green Development has supported Polisena with thousands in campaign donations.

“There’s opposition to every project: new houses, condos, Amazon, solar, the new hospital, so that’s to be expected,” Polisena wrote via email. “Regardless of the outcome I’m sure whichever side loses will file an appeal of the decision, just like the first time, and the matter will end up in court, again.”

Public support for the re-pitched project has been silent during public hearings; however the majority of public input has yet to be offered.

“I do not support a blanket, one-size-fits-all ban on solar, as I’ve spoken to many people who prefer solar as an alternative to houses being built near them,” Polisena wrote.

The mayor has $173,803.08 in his campaign account, as of Sept. 30, according to the latest filings available on the Rhode Island Campaign Finance Electronic Reporting & Tracking System (ERTS). Polisena has not reported any campaign contributions from solar company management since taking his oath of office in January.

Civetti, who often voices Town Council’s lone opposition to solar development in Johnston’s residential neighborhoods, has been attending the zoning board meetings as a concerned neighbor, seated near the front of the hearing space. The room has been packed with his constituents.

“I look forward to having the opportunity to speak to the members of the zoning board on Dec. 14 and to hear the public voice their opinion at that time,” Civetti said. “Hopefully the majority of the meeting will be committed to hearing the public speak and this will be the last meeting and the board will take vote at the end of the meeting.”

Polisena, who rarely attends public meetings in town, has not attended either of the first two sessions of public hearings before the Zoning Board.

Mancini echoed Polisena’s argument while questioning his final witness, appraiser and witness Thomas Sweeney, of Sweeney Real Estate & Appraisal.

“So you referenced a North Carolina Report, a Midwest report, a Berkley report and a URI report, but do you agree that the question really comes down to whether this solar development … disturbing the existing green space has a more negative impact than a residential development at this exact site?” Mancini asked Sweeney.

“In my opinion, a residential development … you’d lose a lot more green space,” Sweeney replied. “You’d … have more houses. It’s going to be more dense. There’ll be more pavement. That’s my opinion.”

“And finally, is it your opinion that a properly buffered … development of solar would have no negative impact to sales or valuation of residential dwellings that are at least a tenth of a mile away from the solar project?” Mancini asked the witness.

“My opinion, is that if it’s done the right way, with the right buffer, it’s not going to have a negative impact,” Sweeney answered.

In Other Towns …

Landry introduced his first witness, Westerly Town Planner Nancy E. Letendre, a land-use expert. He asked her about Johnston’s outdated Comprehensive Plan.

“In your opinion, is the town of Johnston out of compliance?” Landry asked the witness.

“The town of Johnston is out of compliance, and it’s not just my opinion,” she answered. “The state’s Division of Planning has the town of Johnston’s Comprehensive Plan as expired as of … 2014.”

The crowd released a collective gasp.

“You’ve reviewed the Johnston Comprehensive Plan and Zoning Ordinance?” Landry asked Letendre, who answered in the affirmative.

“Have you formed an opinion as to the consistency of this project with the Johnston Comprehensive Plan?” He asked the witness.

“It’s my opinion, because there is absolutely zero information in either the comprehensive plan or in the zoning ordinance, that it’s impossible to find it … consistent with either one,” Letendre explained. “So my opinion is that it is inconsistent.”

Letendre said that although it’s expired, the plan is still applicable in town.

Green Development has had mixed results clearing Rhode Island woodland to construct massive solar arrays.

“You’ll find it interesting to know, that it’s not the first time the applicant has raised this issue before a municipality,” Landry told the zoning board. “It did so in the town of Exeter, and the planner in that town called them out on it and said this violates our lot coverage provisions. You exceed the lot coverage limits in our ordinance, it violates it and should be denied. The board denied it on that and other grounds. It went up to the Superior Court on appeal. It was upheld in favor of the town. And just recently it was upheld again by the Rhode Island Supreme Court.”

Argument with Structure

Some Ocean State towns have laws clearly defining solar development. While Johnston doesn’t, it does have strict lot coverage restrictions. While housing developments are restricted to 15% lot coverage (by structures), the solar company has argued solar panels don’t count as structures (therefore no coverage restrictions apply to their project).

“The definition of a structure is the broadest definition in all of zoning,” Landry argued. “It can be a deck, a tennis court, a driveway, fences, awnings, any overhangs from a building — all of that stuff has been deemed to constitute or contribute to lot coverage. This facility is on 43% of this property; not 15%. It far exceeds the limits. If you look at the definition of structure, it is a combination of materials, combined to form a use … it doesn’t talk about impervious versus pervious surfaces. It doesn’t talk about buildings.”

Landry urged equity from the board — he challenged them to hold the solar project to the same standards as a housing development.

“You have no evidence before you to demonstrate how not building a building gets them away from the lot coverage problem,” Landry told the board. “And they far exceed it. If this was a residential development, you better believe the town would limit them to 15% lot coverage. This far exceeds that.”

Mancini’s witnesses have asserted that solar panels shouldn’t count toward lot coverage.

“This facility includes concrete platforms for some of their equipment … inverters, racking systems … driveways, fences, all kinds of heavy equipment,” Landry argued. “The definition of a structure includes materials above or below the surface of the ground. It doesn’t refer to a building. You don’t need a building to trigger the definition of a structure. And respectfully, this absolutely constitutes a structure.”

Letendre produced a report which has been presented to the zoning board. According to the application, the proposed solar site, which is currently zoned for residential use, includes a historic farmstead and agricultural fields on the top of Sikkibunkiaut Hill, a Rhode Island Historical Cemetery and isolated pockets of wetland.

“The proposed location is a historic farmstead, which has both cultural and natural and historic significance to this community,” Letendre testified. “The farmstead has agricultural fields and is surrounded by residential development. Which is consistent with the conservation policies for the area west of (Interstate) 295 … as described in the comprehensive plan.”

She referred to one of the applicant witness’s testimony, regarding the “beneficial features of forest” and “what types of affects on natural habitat should be considered.”

“And it’s my opinion that the loss of agricultural lands and this forest will have more affect on the area than if housing was to be … constructed in the area,” she told the zoning board. “Because that’s consistent with what’s there now … There’s no guarantee that 20-25 years down the line, that this property will be once again suitable for agricultural purposes.”

The opposition also argues that the solar project could threaten nearby aquifers.

“The topography, steep to moderately rolling terrain, also provides many benefits including protecting water quality, recharging surface water and supplying drinking water to the community,” Letendre testified. “And … I understand … drinking water is a subject of critical concern to both Johnston and the state of Rhode Island.”

Who yelled ‘Bingo’?

Several times during the Nov. 2 hearing, Mancini, a Providence attorney, interacted and taunted the agitated crowd. He paused questioning when audience responses were notably audible.

“Let’s play bingo while we wait, because I’ve got all night,” Mancini told the crowd. They shouted back.

“What we need to do, we need to keep our decorum here,” Chairman Lopardo told the crowd. “We’ve been doing good to this point. Everyone’s gonna have a chance to speak. We’re not gonna rush this. We’re gonna take the appropriate time so that everyone can be heard. We just need to work our way to the end. Fairly. But if we have all this outburst and disruption, it just drags it out even longer.

“He’s trying to drag it out,” an audience member accused Mancini.

“I don’t think he’s really trying to drag it out,” Lopardo defended the applicant’s lawyer. “I think he’s trying to make his case … We’re gonna keep at this … That’s all we’re asking please.”

Paul Francis of Johnston, unofficial emcee for the opposition, stood and demanded to be heard (as he has during public session numerous times). Once again, he was granted a few minutes by the board.

“Listen to this guy’s BS, okay,” Francis told the crowd. “Listen to what he has to say, because after it’s all said and done … Please don’t …”

Francis was interrupted as a Johnston Police officer on-duty at the meeting approached him and stood within a nose-length.

“I am being very nice about it sir, this is the third time you approached me,” Francis said to the uniformed police officer. Shouts of support and condemnation of both Francis and the police officer nearly unraveled the meeting.

“Listen to this guy’s BS,” Francis said, appealing to the audience. “Let him get it said and done. Okay, we know exactly what’s going down. He knows exactly what … buttons he’s pushing. You’re gonna push it his way and that’s what you’re doing … Be calm. If you have something to say, once in a while, nicey nice. But keep it … in a respectful manner. I can’t give you permission to speak, but please keep it down.”

The zoning board, however, managed to maintain order until 10 p.m. when Mancini stormed out of the hearing.

Full-time Planner

Earlier this year, Polisena promoted part-time Town Planner Thomas Deller to a full-time position with the town. At Tuesday night’s Town Council meeting, Deller was introduced to the public as Johnston’s Director of Development Services.

“Thom went from part-time planner to the DPW director,” Polisena replied to questions via email Wednesday morning. “Our previous DPW director Robert Parker, who did an outstanding job, left in early 2021 and we were going on almost 2 years without a DPW director, which is unacceptable for a municipality of this size.”

Deller now has the duel-title of Johnston Town Planner and Director of the town’s Development & Public Services Department, which according to Polisena “is the official name of public works” in Johnston.

Deller has given Green Development’s application his blessing. He has determined the zoning board has jurisdiction, despite 2022’s failed attempt. And he sees no conflicts with the town’s comprehensive plans or zoning laws.

Deller said he agrees the solar panels do not classify as structures, under local law.

“It’s very easy to take another town’s document and find lots of things and say them,” Deller said during a break in testimony on Nov. 2. “There are precedents.”

Deller defended the town’s long-outdated comprehensive plan and the slow-moving process to update it.

“We’re working on it,” Deller said. “It takes time. For six years I was a part-timer.”

Deller said he was promoted to his new full-time position “some time in March,” and that it requires “additional responsibilities.”

“So now in addition to his duties as town planner, he oversees the entire department as director,” Polisena confirmed. “The previous director made $85,000 and Thom, as both the director and town planner, makes $95,000. A town with $2 billion in economic development in the last decade needs a full-time planner anyway and I’m glad ours can double as town planner and public works director.”

Deller picked apart one of Landry’s key arguments regarding lot coverage.

“The definition that we have is ‘lot building coverage’ not ‘lot coverage,’” Deller explained as the crowd shuffled around his seat. “So there’s a different interpretation … A building’s a building … I think the bottom line … there was a precedent that was established for a number of years. Our ordinance is very old … and there’s lots of things that are open to interpretation.”

Editor’s Note: Watch for more coverage of this pending solar development application leading up to and following the expected Dec. 14 continuation of the Johnston Zoning Board special use permit public hearing.  Email Editor Rory Schuler at rorys@rhodybeat.com if you have letters to the editor, comments, tips or questions. Check out the links below to catch up on the rest of the series.

WINSOR FARM REDUX PART 1

Winsor Avenue solar 'farm' redux in Johnston

‘If we come across a turtle … we’ll pick it up and move it’

WINSOR FARM REDUX PART 2: 

When a structure’s not a structure

Solar company argues nearly 50,000 solar panels proposed for Johnston aren’t ‘structures’ under the law

WINSOR FARM REDUX PART 3:

When you don’t plan for solar, solar plans for you

STOP SOLAR ATTORNEY: Johnston's outdated Comprehensive Plan never mentions the word 'solar'

WINSOR FARM REDUX PART 4:

Johnston solar saga drags on to Dec. 14

Solar lawyer: ‘It’s my hearing’