Judge reverses zoning board’s OK of solar farm in Portsmouth 

PORTSMOUTH, R.I. – A Superior Court judge has struck down the Zoning Board of Review’s approval of a solar farm in a residential area of the Aquidneck Island town.

Judge Brian Van Couyghen reversed the board’s approval of a special-use permit for the 2.9-megawatt solar photovoltaic farm on 8 acres of a 29-acre plot of vacant land at 259 Jepson Lane, finding that it represented a manufacturing use that is not allowed in residential zones.

Van Couyghen cited a previous case in which the state Supreme Court found that wind turbines represented a manufacturer because they are used for the sole purpose of transforming raw materials, “namely wind – into a finished product – namely electricity.”

“Thus, even though the [zoning] board found that the proposed solar farm was similar to a public utility, it would be, in fact, a manufacturing facility because it would transform sunlight into electricity … manufacturing is expressly prohibited in residential zones under the ordinance. As a result, the granting of a special use permit for a manufacturing facility – the solar farm – was clearly erroneous,” Van Couyghen wrote.

The decision came as good news to Roger and Jane Fontaine, who challenged the Zoning Board’s June 2017 approval of the proposal by Portsmouth Solar.

“They didn’t want to have thousands of solar panels across the street from them, so they are very happy,” their lawyer, Jeremiah C. Lynch III, said Monday.

“Portsmouth is going to have to change the zoning ordinance if it wants solar farms,” Lynch said.

The ruling remains under review by the town, according to solicitor Kevin Gavin.

“We disagree with the analysis and conclusion,” Jennifer Cervenka, a lawyer for Portsmouth Solar, said. Cervenka said the company, working in conjunction with the town, is considering asking the state Supreme Court to review the ruling.

The board approved the solar farm proposal after hearings in March and May 2017. Portsmouth Solar asserted that the solar farm would be a passive use and that it would plant vegetation to shield the panels from view.

The Fontaines argued the farm would amount to “a nonregulated power producer” engaged in the business of producing and manufacturing power for sale to National Grid. The board heard dueling testimony about the impact such farms have on real-estate values.

Van Couyghen’s ruling comes as solar-farm proposals proliferate across the state, spurred by a raft of renewable-energy incentives passed by the General Assembly over the past five or six years.

A 21.5-megawatt farm in western Cranston will be the largest solar development in Rhode Island when completed later this year by Warwick-based Southern Sky Renewable Energy. North Kingstown-based Green Development is proposing up to 65 megawatts of solar capacity across several sites in Exeter and a similar amount in North Smithfield.

Other developers are planning installations in Hopkinton, Richmond, North Kingstown and Woonsocket – all of which would require varying amounts of tree clearing.