Portsmouth Approves Flawed Solar-Siting Ordinance But Intends to Make Changes Later
Town Council member suggests relying on the good faith of developers
December 17, 2020
PORTSMOUTH, R.I. — The Town Council is holding its collective breath in hopes that ground-mounted solar proposals won’t be submitted during the next few months.
This window of time is the consequence of a recent 4-3 vote to approve an updated, albeit flawed, solar-siting ordinance, while intending to modifying it later.
The controversial ordinance was first approved May 11, but a do-over vote was taken Dec. 14 after residents complained that the vetting process went forward with limited public awareness and improper notification of meetings.
Residents learned after the ordinance was passed in May that it allows large commercial projects to be built in residential neighborhoods as a matter of right.
Critics don’t like that the ordinance lacks adequate setbacks and natural buffers to mask the projects from property boundaries. Developers of large arrays are required to apply for a special-use permit to build, while residents are responsible for fighting a project that may be too intrusive.
“I feel like relying on special-use permits for everything puts the onus on residents and abutters basically to try to stop something bad from happening in their neighborhood,” Town Council member Daniela Abbott said at the Dec. 14 meeting.
But the The Town Council had a difficult choice. It could only deny or approve the ordinance and not make changes to the rules at the meeting. Amending the ordinance will take several months and require vetting by the Zoning Board of Review, the Town Council, and the public. During that time a large undesirable project could start its application and only be required to adhere to the the existing rules, even if they are changed later.
An unwelcome project could be built and in operation for 20 years and “is just going to cause trouble and heartache for us,” Abbott said. “It’s abundantly clear that Portsmouth residents have huge concerns regarding sprawling solar farms in and around residential neighborhoods. So I think we should proceed with caution.”
But a majority of the Town Council felt it was worth the risk to have the new rules in place even if they lack some protections for neighbors. Town Council member Keith Hamilton suggested relying on the good faith of developers to wait to submit plans for a commercial project until after the ordinance is modified.
“I would ask that if anybody were planning on making any major developments I would ask that they hold off for any potential changes [to the ordinance],” Hamilton said.
Town Council vice president Linda Ujifusa noted that such a request isn’t legally binding. Therefore, she said, the Town Council should wait to approve the ordinance until the more stringent changes are added.
“I think it’s worth the few months wait,” Ujifusa said.
But Town Council president Kevin Aguiar described the existing solar rule as “a good ordinance” that has more stringent restrictions than regulations for other types of development. The ordinance, he said, is designed “to protect the character and integrity of Portsmouth.”
Owning property is a matter of liberty, Aguiar said. “As a property owner you have the right to protect your property and also as a property owner you have a right to develop your property,” he said.
A request was made by town solicitor Kevin Gavin, and granted by the Town Council, to approve the new ordinance retroactive to May 11 when the ordinance was initially passed.
The group Portsmouth Residents for Responsible Solar is questioning that last provision, because new council member Michael Buddemeyer, who voted in favor of the ordinance, wasn’t yet elected and serving on the council on May 11. The group intends to contest provisions that allow solar as a right in all zoning districts. Large and medium-size solar installations , the group argued, don’t belong in areas zoned residential. Members said larger setbacks, buffers, and density controls need to be in place for commercial, light industrial, and industrial zones.
“Clearly, this ordinance should not have been approved and is being shepherded through for the benefit of select developers,” said David Croston, a member of Portsmouth Residents for Responsible Solar.
The ordinance was written by local attorney Cort Chappell on behalf of commercial solar developers.
So far, no developers have submitted applications for solar arrays since May 11, but Croston and others are concerned about projects re-emerging under the new rules, such as a 6.5-acre array on open residential land on Jepson Lane. The Zoning Board of Review’s approval of the 2-megawatt project was reversed in Superior Court in 2018 because the 5,000-panel array was deemed a manufacturing facility and therefor not permitted on residential property. The developer, Seabury Apartments LLC, could reapply and possibly expand due to the absence of a density requirement in the town’s twice-approved solar ordinance.
The lack of lot-coverage limits could also bring back an 18-acre solar project proposed for West Main Road. The 4.8-megawatt project was denied by the Zoning Board of Review in 2018 because of concerns about density, setbacks, and buffers.
Hamilton, who voted in favor of the new ordinance, noted that residents are on edge after seeing the 15-acre solar facility being built on Navy property on West Main Road. As a federal project on federal land, the array doesn’t have to conform to local siting rules, such as setbacks and vegetated buffers.
“Obviously, the major development along West Main Road scares a lot of people that that’s coming to their backyard,” he said.
Hamilton liked that the new ordinance required neighbors to be notified if a large array is proposed nearby.
He didn’t agree with testimony recently given to the Town Council by University of Rhode Island economist Corey Lang. Lang spoke of his study that revealed lower property values for residential properties located near ground-mounted solar installations.
“I found some of the testimony to be less than credible … specifically with the relationship to property values going down,” Hamilton said. “I didn’t think that was very credible.”
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