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Hi neighbor! Green development moves in next door  

Credit:  By Frank Carini, ecoRI News staff | November 18, 2019 | www.ecori.org ~~

Mark DePasquale, founder of Green Development LLC, embodies the tension surrounding renewable-energy development in Rhode Island. He’s both lauded and vilified. One of his projects, in the woods of Coventry, exemplifies the controversy that follows the state’s most prominent developer of wind and solar energy.

In proposing a utility-scale energy project for a residential area in western Coventry, DePasquale paired plans for a 5-plus-megawatt solar array with a therapy farm that would serve people with special needs.

However, town officials and some neighbors say that, beyond a rough site plan for Greene Farm and a letter sent to neighbors of the proposed solar facility by DePasquale’s daughter, there is little proof the farm concept was anything more than “window dressing,” as at least one resident called the idea. No business license was pulled. No permit was filed.

In an early summer 2017 letter sent to neighbors by his daughter, she wrote, “I am in the process of creating pasture where we will be building a horse and livestock barn. I will be running an equine therapy program and a cooperative work program that pairs young farmers with children and adults with special needs.”

The third paragraph of her one-page letter mentioned that, “Part of the project includes the potential development of a solar array on the back portion of the property.”

Unlike the therapy-farm component of the dual proposal for 394 Carr’s Trail and 5641 Flat River Road, a master plan for the solar array was filed. The footprint of the panels would cover 7.8 acres, or 20.9 percent of the usable area on the two lots, according to the project’s master plan.

In late November 2017, the Coventry Planning Commission denied WED Coventry Seven LLC – a subsidiary of North Kingstown-based Green Development, formerly Wind Energy Development LLC, and founded in 2009 by DePasquale – a special-use permit to build the ground-mounted solar array, saying the project wasn’t consistent with the town’s comprehensive plan.

The town’s ruling, however, didn’t stop DePasquale from prepping the site for a solar installation.

A YouTube video posted on June 23 of this year by local resident Kevin LaRose provides an aerial view of the work, some of it illegal, on the two lots in the woods of western Coventry, including acres of pilings. In one frame, nine pieces of heavy machinery can be counted. The video provides little evidence that the excavators, dump trucks, feeder stackers, road roller, and front loader were there to raise a livestock barn and create pasture.

Nearly three weeks before that video was posted, the Coventry Department of Planning & Development issued DePasquale the first of two cease-and-desist orders. The original June 4 notice issued to WED Coventry Seven LLC and 394 Carr’s Realty LLC noted that “hundreds of piles had been driven into the ground commencing construction of a proposed solar generating facility that had been denied development plan approval by the Coventry Planning Commission.”

The order also noted that the project – the site is identified as plat 315, lots 37.1 and 37.5 – hadn’t received development, engineering, or building approval.

A week later, on June 10, the town issued a finalized order, requiring that DePasquale cease all work on the property, except for seeding and loaming, and remove the pile driver used for the installation of the I-beams. The town’s original cease-and-desist order required the removal of all the pilings. The second cease-and-desist order allowed them to stay.

During a lengthy interview last week, DePasquale told ecoRI News his daughter’s therapy-farm idea remains a top priority for his more-than-100-acre property. He said the since-rejected solar array would have funded the nonprofit his daughter wants to establish.

“We built a house; there’s fields that we created for the pasture,” he said. “I still want to build it. You can’t run a nonprofit with no revenue. The revenue from the solar array would pay for the nonprofit.”

Critics see cover crop

Project critics claim the idea of the therapy farm was designed to make Green Development’s application more appealing to local officials and concerned neighbors, even as DePasquale planted rows of metal corn.

They noted that the 5.22-megawatt solar array – the U.S. Energy Information Administration considers utility-scale generating facilities to be those with a total generation capacity of 1 megawatt or greater – was the only meat in the application. They claim talk of livestock, a barn, and pastures was nothing more than a distraction.

An Oct. 27, 2016 email from Coventry’s then-assistant planner to other town officials shows DePasquale uses the idea of the farm to quash concerns about noise, construction activity, and excavation work.

The assistant town planner wrote that he reached out to the landowners to “see if I could find out what was occurring on the site.”

“Mark DePasquale stated that he has simply cleared some land for a horse paddock,” according to the assistant planner’s email response to a Town Council member’s questions. “When I pressed him a bit further, he stated that approximately 3 acres of previously wooded land was cleared, that he had biologists mark wetlands, and he stayed well outside of them. He also stated that the material he screened out of the soil will likely be used to make traditional looking rock walls on the site.”

LaRose’s drone video from earlier this year provides little evidence of stone walls being built. As for DePasquale staying “well outside” of those biologist-marked wetlands, the Rhode Island Department of Environmental Management (DEM) didn’t agree, at least when it came to lot 37.1 and a neighboring parcel identified as lot 58.

About a year after the assistant planner’s email was sent, in September 2017, DEM issued a notice of violation to 394 Carr’s Trail Realty LLC (Mark and June DePasquale) for altering freshwater wetlands on those two lots.

In mid-December 2016, DEM agents had met with Mark DePasquale to discuss freshwater wetland violations on lot 58. At that time, DePasquale informed the agents that he intended to buy abutting lot 37.1 and turn the property into farmland. The agents advised DePasquale of freshwater wetlands in the northeast portion of that lot.

During the first four months of 2017 DEM officials would tell DePasquale, a DePasquale representative, and Green Development employee Paul Correia to stay away from and then stop work within the wetlands in the lot’s northeast area. The agency’s orders were ignored. During that time, DePasquale also altered wetlands in lot 37.1’s southwest corner, according to DEM.

Three DEM site inspections in early 2017 – Jan. 26, Feb. 24, and April 11 – found nearly 2 acres of freshwater wetlands had been cleared, stumped, excavated, filled, and graded.

Coventry’s rejection of his solar project and DEM’s enforcement actions, however, are just hiccups in DePasquale’s expanding renewable-energy footprint.

Since Rhode Island began grappling with the siting of utility-scale renewable energy about three years ago, DePasquale and Green Development have been at the forefront of this controversial issue. DePasquale, as well as other developers, have taken advantage of the state’s inability to direct such projects to already-developed areas to buy less-expensive rural open space upon which to erect wind turbines and solar arrays. Overwhelmed municipal officials and volunteer board members – many of whom don’t have the expertise and/or lack a statewide perspective regarding this issue – were caught flat-footed when confronted with an abundance of utility-scale energy development.

Few people, beyond those with ties to fossil fuels and those who lobby for them, oppose Rhode Island’s need for more wind and solar energy, especially if it can be generated locally. The ongoing controversy stems from where many utility-scale renewable-energy projects are being built or proposed: on open space, which can fragment corridors of critical wildlife habitat, especially in western Rhode Island, can increase stormwater runoff, and can take farmland out of production; and in neighborhoods, where some residents are dealing with industrial operations, most notably wind turbines, that can throw shadow flicker and generate low-frequency noise.

Power to farmers

The Northeast has some of the country’s most ambitious renewable-energy goals and some of the most intense land-development pressures – New Jersey and Rhode Island rank 1 and 2, respectively, in population density; Massachusetts and Connecticut round out the top 4.

This required developing comprehensive and innovative siting policies crafted to meet the growing demand for utility-scale renewable energy. Rhode Island was slow to accept the challenge, and still struggles to adopt statewide rules. A leadership void and lack of a uniform set of expectations left municipalities, most notably the state’s rural towns, to deal with this complicated issue on an ad hoc basis. It left developers dealing with inconsistent policy.

Private property rights quickly took center stage. From there, the conversation morphed into how utility-scale solar and wind could help farmers keep their land.

“What we’re seeing right now is this kind of intersection between an older generation of large landowners who have always made money off of their land – that’s their livelihood; it’s how they identify themselves – you’re seeing this intersection, kind of this head-butting, between those large landowners and suburban sprawl that’s taking place,” said Hannah Morini, Green’s director of business development. “So the large landowners’ goals for their property and for their future generations … and sometimes, I think, the more densely packed neighborhoods that move in near them have different opinions for how they think that space should look. Sometimes it’s in direct conflict with each other.”

Critics of siting large renewable-energy projects on farmland note that much of this conflict was created by the speed by which these utility-scale installations were being approved on property zoned residential rural.

Rhode Island also needs more Section 8 housing – 34 of 39 of the state’s cities and towns have failed to reach the threshold of 10 percent affordable housing that was mandated nearly three decades ago – but it would be difficult for one to make the argument that local officials would have approved an upswell in this type of housing as quickly as it embraced utility-scale energy production in residential areas.

Protecting Rhode Island’s dwindling collection of farms and farmland needs to be a top priority, but as some people involved in statewide discussions about renewable-energy siting, such as Scott Millar, Grow Smart Rhode Island’s manager of community technical assistance, have noted the solution can’t begin and end with utility-scale energy generation. (Efforts by some farms to incorporate weddings into their business plans have also drawn the ire of neighbors.)

The solution to this problem is more directly tied to the global food system and local food policy. But there’s no denying that generating power, whether by the megawatt or kilowatt, can help beleaguered farms survive. Morini told ecoRI News that Green Development pays $15,000 to $20,000 per megawatt to lease land for its solar and wind projects.

“There’s passionate farmers in this state … it’s just no longer profitable to be a farmer,” Green Development spokesperson Bill Fischer said. “This is a window for them to keep a farm operational … without having their multi-generation acreage becoming a housing development.”

ecoRI News recently spoke with owners of two farms in rural Rhode Island that have Green Development solar arrays on their property. They said the revenue and energy from the installations has allowed them to expand their operations.

Cindy and John Duncan, who have been running the 66-acre Harvest Acres Farm in Richmond for 36 years, approached Green Development – DePasquale is friends with Cindy’s parents, Bill and Carol Stamp – several years ago about building a solar installation on the farm. The farm’s 19-acre, 5.3-megawatt solar system began producing energy in December 2017.

The revenue from the farm’s solar installation has helped the Duncans stay in business and allowed them to create the Rainbow Fund, which helps people living with mental illness. Their 15-year-old daughter, Cassandra Grace, committed suicide the day after Christmas 2005. They also have a son who is dealing with schizophrenia.

“Solar was a great opportunity to give us an income to run the farm and help others with mental illness,” Cindy Duncan said.

Green Development built a small pilot project for Gina and Loren Thurn, owners of Our Kids Farm in Exeter, so they could educate themselves, and others, about what crops can be grown under and around a solar array. The 60-panel array, which covers about a quarter of an acre, was completed on Mother’s Day and began producing energy on the day ecoRI News visited last week.

After nearly one full growing season, the Thurns learned plenty can be grown under and around arrays and on the fence that surrounds the panels. They said this growing success has them thinking about building a larger system on their 6-acre property, which would allow them to switch the heating of their seven greenhouses from oil and wood burning to solar.

“One of the big arguments that we kept hearing over and over [at Town Council meetings] was that if you commit utility-scale solar on farmland you will take farmland out of production,” Gina Thurn said. “It was used as a major argument against, especially in Exeter because they wanted to preserve rural character and scenic vistas and rural sense of place. As a farmer, you get a little bit upset about that. We felt that was a property rights issue. People should be able to use their land in a way to benefit their business and their livelihood. We wanted to try to take one of those arguments off the table, because as farmers we didn’t feel it had to take farmland out of production.”

Morini and Fischer noted that hosting a “benign” and “temporary” energy project allows farmers to put the power they generate back into their property while at the same time adding stability to the regional power grid.

“There’s a massive economic inequality for opportunities for landowners in rural parts of the state compared to more industrial parts of the state,” Morini said. “They just don’t have the same amount of options.”

Growing the brand

Mark DePasquale plays the game well, according to several of the people ecoRI News spoke with for this story. The founder and chairman of Green Development, along with family and employees, contribute campaign donations across the political spectrum, according to a search of the Rhode Island Board of Elections’ website, from the House speaker and Senate president to governors and the mayor of Johnston to the R.I. Senate Leadership PAC to the Fund for Democratic Priorities.

Since 2011 DePasquale has donated $34,400 to some two dozen politicians and political organizations. Family members and employees – Green Development currently has about 55 full-time employees – have contributed another $52,500, for an eight-year total of $86,900 in campaign contributions connected to Green Development.

A 2018 net-metering bill was explicitly written to help the sale of electricity from a controversial 9-megawatt power plant DePasquale had proposed for Johnston that would have burned wood scrap and junk lumber. Green Development, which said the facility wouldn’t be economically feasible without the bill, promised to burn wood that was free of chemicals and toxins.

The bill quickly passed through the General Assembly, but Gov. Gina Raimondo promised to veto it after listening to concerns from the state’s environmental community about the impacts of incinerating wood debris. The governor’s promise killed Green Development’s proposed wood-burning facility – a project Senate President Dominick Ruggerio said would provide “very clean power.”

Green Development is one of Rhode Island’s largest generators of renewable-energy power, with about 48 megawatts, of which 39 is wind, currently connected to the grid and another 5 expected by the end of the year. But this well-known company isn’t DePasquale’s lone business entity. The developer has created a web of LLCs and other holdings, as the North Kingstown resident is affiliated with at least 48 Rhode Island business entities, according to a search of the secretary of state’s website.

All but three of the entities share the same address: 3760 Quaker Lane, North Kingstown, the business address of Green Development. DePasquale’s positions at these entities include president, vice president, treasurer, and manager.

This table provided by Green Development shows the projects the company has built in industrially zoned or previously disturbed areas. The projects total 27 megawatts of wind and 12 megawatts of solar.

Of the 25 people ecoRI News interviewed for this story, including municipal officials and concerned residents, some didn’t want their names used, fearing legal reprisal from DePasquale.

A former municipal official who had spent time dealing with Green Development-related projects noted that DePasquale likes to work municipalities from the top down. The person said DePasquale is good at flattering people and stroking egos, finding weak points, and making promises.

“He goes straight to the politicians, making promises that won’t be captured in contracts,” the person said. “His goal is confuse and disrupt municipal staffers and volunteer boards.”

During the past decade DePasquale has made plenty of promises. Some have been kept. Some were exaggerated. Some are in limbo.

When he was in early discussions about erecting turbines off Victory Highway in Coventry, DePasquale mentioned that he had plans to build a renewable-energy education center near one of the turbines. The facility was never built.

A Green Development PowerPoint presentation given at an April 2018 North Smithfield Town Council meeting encouraged the creation of a solar overlay district. Company representatives said the town would reap $40 million in local economic benefit over 25 years from Green Development’s “temporary use of only 1% of North Smithfield’s land.”

The community benefits of creating this overlay district, according to the presentation, included $402,000 in annual tax payments for a total of $10 million over 25 years; a one-time upfront donation to the town of $287,500 to be used at the town’s discretion; no added strain on fire, police, or the school system; and open space would be preserved because solar is a placeholder.

At an April 12, 2017 Statehouse hearing, DePasquale spoke of the promise ground-mounted solar arrays offer Rhode Island’s farmers, both old and young.

“These solar arrays have a lot of area around them that can be used, and we are discussing a program maybe donating some of that area to some young farmers to use,” he said. “We’re working really hard … on different things we can do with the farmers underneath the panels.”

He talked about how raising solar arrays a little higher enables goats, sheep, and cows to graze under the structures. He said he has discussed the different things that could be grown under solar panels, such as mushrooms and short shrubs. He implied that farmers could bring in $350,000 a year by erecting solar arrays.

At an Oct. 30, 2017 Exeter Town Council meeting, DePasquale and other Green Development representatives rattled off an impressive list of solar sweeteners: the town will realize a $50 million economic benefit through private lease payments, town lease payments, and tax revenue; state law allows for municipalities to be paid $5,000 per megawatt but Green is proposing to pay $7,000 per megawatt; Green Development will donate $3,500 per megawatt for scholarships and/or unaddressed community needs; some 300 general trade jobs will be created.

Since 2016, Green Development has donated $359,425 to scholarship funds in host communities and given another $374,634 to education and youth development programs, according to figures Morini provided ecoRI News.

At that Exeter Town Council meeting two years ago, DePasquale and his team also noted that solar construction will keep land from being developed for residential purposes – a popular industry talking point that vilifies new housing. They said solar has no impact on town resources or services, is safe for the community, is revenue positive, and supports rural character.

They said current economics and markets are driving solar, and that Rhode Island government is strongly supporting renewable energy. They warned that this window could close at any time, and opportunities could be missed. They recommended that action be taken now.

They noted that the mission of Green Development is to boost local economies, increase natural resources and energy security, achieve electrical cost savings, and preserve open space.

In a PowerPoint presentation delivered nearly three months later to the Exeter Planning Board, Green Development noted that the annual revenue from its proposed 68 megawatts of electricity will provide the town annually with $476,000 in revenue and $11.9 million over 25 years. It promised to “reach out to Exeter businesses and residents for work on our projects.”

The document warned town officials that the rural space needed to generate 65 megawatts of energy could also house 65 residential lots with 1.5 children per home. Those 97 kids would cost the town $1.55 million annually in additional school costs.

Another person ecoRI News interviewed for this story, a current municipal official who didn’t want to be named, called DePasquale a “polished, charismatic salesman, a schmoozer.”

DePasquale used his acumen to get 10 1.5-megawatt wind turbines erected in western Coventry in neighborhoods zoned residential. Two of the 400-plus-feet-high turbines are on town land – the Picillo Farm Superfund site – and eight are on leased parcels of private land. The Narragansett Bay Commission and the town of West Warwick own a combined six of the 10 turbines, three each.

It remains unclear how the turbines got approved. The process circumvented the town’s Planning Commission, even though 400-foot-high industrial equipment would be spinning in areas predominantly zoned rural residential districts (RR5). Local zoning laws say that the Coventry Planning Commission should have reviewed the projects and made recommendations to the Zoning Board of Review.

“These areas are characterized by very-low-density development, large estates, agricultural uses and certain low-intensity nonresidential activities incidental to a rural environment,” according to Coventry zoning law. “This district is designed to preserve the rural character of the Town and to preserve and protect environmentally sensitive land.”

State law also requires planning department approval for special-use permits, which DePasquale needed to erect the turbines.

Karen Carlson, who lived in Coventry for nearly 20 years and served two terms on the Town Council (2012-18) representing District 1, told ecoRI News “the turbines were put in illegally.”

“They never went to planning,” said Carlson, who has since returned to Virginia. “They were fast-tracked by Town Council president [Gary] Cote, town manager [Thomas] Hoover, and town planner [Paul] Sprague. They went directly to zoning. Zoning was sold a bill of goods by DePasquale.”

Cote, who is still on the Town Council but isn’t the president, didn’t respond to requests for comment. Hoover and Sprague have since retired. Council president Kerry McGee, who was the board’s vice president when Green Development’s turbine deal was done, didn’t respond to requests for comment.

Town Council member Ann Dickson, who represents District 1, where the turbines were built, replied to a Nov. 1 ecoRI News request for comment on Nov. 4, writing, “I am out of the state now. We can talk in a few weeks. We are still in some court cases so I am limited in what I will say.” (ecoRI News sent its initial request for comment on Sept. 3.)

Ed Warzycha, Coventry’s interim town manager, told ecoRI News in an email that, “I don’t comment on situations with on-going litigation.” He directed this reporter to contact the town’s acting solicitor. Stephen MacGillivray, a partner with Pierce Atwood LLP, didn’t respond to requests for comment.

Zoning Board of Review chairman Robert Crowe couldn’t be reached for comment. But at a Feb. 6 meeting (the Green Development hearing begins at the 51:35 mark and ends at 1:37) he told a company attorney that promises and guarantees made during public testimony by Green Development representatives, most notably about onsite equipment that would be installed to shut down a turbine when shadow flicker became a problem, but weren’t necessarily written into the final decision were part of approving the turbines.

“This is how we made our decision … on the information given to us,” Crowe said. “In our decision not only what was written but the whole documents of the hearing. So if you don’t want to take the documents at the hearing then like you say we throw it out and we throw out the whole thing. … Do what you said you were going to do.”

ecoRI News inquired how much Green Development is paying in taxes on its 10 turbines and, for the sake of some comparison, how much a non-DePasquale project, Nexamp Inc.’s 1-megawatt solar array on Lewis Farm Road, is paying in taxes. Warzycha and the town’s finance director, John Arnett, never provided the information.

Green Development isn’t paying any taxes on its 10 Coventry turbines. (Frank Carini/ecoRI News)

DePasquale told ecoRI News that he isn’t paying taxes on the Coventry turbines, because of a since-changed state law that exempted the generation of renewable energy from being taxed. He noted that attempts to negotiate a tax agreement with town officials have failed (the Coventry turbines have been producing energy for about three years; he did say he is paying taxes on the seven turbines Green Development has in Johnston and on the company’s solar arrays).

For three months earlier this year, Green Development had a proposal on the table that offered Coventry: a one-time payment of $250,000 to be used for capital improvements; a project of the town’s choice such as a firefighters or veterans memorial; combined savings on electricity for the schools and town of $456,000 in the first year and $19 million over 25 years – “beating the current best deal in Rhode Island by $3,506,726;” and tangible taxes of $26,250 annually on a proposed solar project in western Coventry – “beating the state requirement by $7,500 annually.”

The Green Development document that outlined this offer, Coventry Summary of Facts for Potential Press Release, noted that, “During this important time of budget crisis in the Town of Coventry, the Council cannot afford to make expensive mistakes by leaving money on the table. Unfortunately, four years ago in April of 2015 the Coventry Town Council made that very mistake.”

In an April 17, 2015 letter provided to us by Green Development, DePasquale proposed: providing 1.2 million kilowatt-hours of electricity annually to the town for free; paying the town $15,000 annually for each of the eight turbines not on town property; adding an additional 10 megawatts of wind energy to the existing sites or to other sites, with additional capacity being provided from either four 2.5-megawatt turbines or six 1.5-megawatt turbines; expediting zoning and siting review and approval for those additional 10 megawatts; exempting these 10 additional megawatts from any local taxes; allowing new turbines at any height approved by the Federal Aviation Administration.

The three-page letter also noted that the company “maintains that its wind turbine projects provide great benefits to the Town above and beyond the electricity and host payments.” The benefits listed included preserving open space, supporting local farmers and “helping them to maintain their properties free from conventional development,” and saving millions of dollars for taxpayers.

Less than a year before that letter was sent to former town manager Hoover, Providence-based attorney Seth Handy, representing Green Development, told the Coventry Zoning Board of Review at a June 4, 2014 meeting that the turbines would reduce the town’s energy bill.

Handy, according to the minutes from that meeting, said, “One law that is most relevant to this project is a net metering law that enables towns like Coventry to produce its own energy and net that energy production against their energy consumption so they reduce their energy bills and that is the main purpose of turbines.”

He also mentioned that the town would benefit from tax revenue, and noted that Coventry’s zoning ordinance “allows for this use as long as it obtains a Special Use Permit.”

At that same 2014 meeting, Coventry resident Dennis Ryan, who identified himself as an intern working for DePasquale, said, “I am an intern for Mark, and I live in Coventry. This will be beneficial to our state and Town. It will help us save millions of dollars which will help us fund many projects such as Coventry High School athletic complex and roof. This will help our air quality. These turbines will equate to taking about 1400 cars off the road annually.”

Former council member Carlson said Coventry hasn’t benefited from the turbines with increased tax revenue or reduced energy bills.

The town of Coventry issued notices of violation against three Green Development turbines for violating shadow-flicker limits on this property. (Courtesy photo)

During her second term on the council, Carlson said she heard often from constituents in western Coventry about shadow flicker and noise.

The town issued notices of violation against three of Green Development’s 10 turbines for violating shadow-flicker limits set in its special-use permits (the company was first issued a warning letter, the notices were for the impact on one dwelling, and Green Development appealed.)

During a marathon Oct. 17, 2018 Zoning Board of Review/Appeal meeting (the Green Development part of the hearing begins at the 1:28 mark and ends at 5:27) the attorney representing Green Development called the notices an “ambush,” questioned the board’s fairness, and claimed a lack of due process. He also characterized the entire process as “an abuse of discretion.”

Carlson said the Town Council, especially those who represented the eastern part of town, showed little concern for her constituents. She said they told her there is plenty of room in western Coventry for the turbines.

The less-rural part of Coventry east of Route 102, which includes commercially and industrial-zoned districts around Route 3 and New London Turnpike, doesn’t host any utility-scale renewable-energy development despite having plenty of already-distressed space, such as the long-vacant Almacs/Kmart plaza, acres of parking lot at the Centre of New England that could accommodate solar carports, and a municipal landfill that is being capped.

This vacant plaza on Route 3 in Coventry, which was once home to Almacs and Kmart, has been empty for about two decades. During the past several years, when forestland in residential neighborhoods was being clear-cut to make room for utility-scale renewable-energy projects, this vacant commercial space was ignored. (Frank Carini/ecoRI News)

Legal actions

DePasquale isn’t shy when directing Green Development attorneys to make legal threats and/or file lawsuits.

He appealed Coventry’s cease-and-desist orders to Rhode Island Superior Court. In his Aug. 7 ruling, Judge Jeffrey Lanphear wrote that the decisions “of the Planning Commission and the Town of Coventry Zoning Board of Appeals are affirmed. Appellant’s request for attorney’s fees is denied.”

On the same day DePasquale was issued the original cease-and-desist order to stop work on his unauthorized solar project, Providence-based attorney John Mancini sent a letter to Brian Wagner, Coventry’s assistant planner and the person who signed the order, asking the former DEM legal counsel to recuse himself from any dealings “affecting Green Development, LLC and its related entities including, 394 Carr’s Realty, LLC and WED Coventry Seven, LLC.”

Mancini’s June 4 letter accuses Wagner, who is also a member of the Office of Energy Resources stakeholder group examining the statewide siting of renewable energy, as having demonstrated, “undisputedly, your bias towards solar development.” It threatens to file a petition against Wagner with the Rhode Island Ethics Commission.

“Specifically, your conduct, expression, comments, actions and inactions are biased and do not uphold the procedural and substantive due process rights that the Applicant is entitled to both under Rhode Island State Constitution as well as Rhode Island General Laws and prior case precedence.”

Mancini and Green Development seem to take exception to Wagner noting the importance of open space, questioning the clear-cutting of forests to site ground-mounted solar projects when plenty of developed space is available, and claiming business interests are leveraging the environmental benefits of their products for financial gain.

DePasquale’s litigious ways extend back to the beginning of his transition to renewable-energy development.

In 2011, DePasquale, who was erecting a 413-foot-high wind turbine close to his North Kingstown home, sued seven neighbors to the tune of $25 million for breach of contract. As part of the project’s plans, portions of land next to the turbine were to be exchanged between DePasquale and landowners in the North Kingstown Green subdivision, which DePasquale developed.

It had been determined that a land swap was necessary to address the turbine’s blades – measuring some 160 feet in length – crossing into an area of open space outside of DePasquale’s property.

While all of the North Kingstown Green residents signed letters consenting to the turbine’s construction, some came out in opposition after the fact, claiming they weren’t aware of the proposal’s particulars. When those neighbors balked at signing the deed transfers, DePasquale filed a lawsuit.

The turbine was ultimately built – he likes to tell people it’s 150 feet from his front door – but not before DEM issued DePasquale a notice of violation for the unauthorized alteration of freshwater wetlands. DEM inspected the property on March 31, 2011 and found nearly 10,000 square feet of freshwater wetland had been cleared and filled. DEM issued him a notice of intent to enforce that required DePasquale to restore the altered wetlands. He told the state agency he intended to comply.

A follow-up inspection more than a year later, on May 17, 2012, revealed that no restoration had been done and that the altered wetlands had since been loamed, graded, and seeded.

Since 2106, Green Development and/or affiliates have been the plaintiff in at least 11 lawsuits, including two in Supreme Court, two in Kent County Superior Court, five in Washington County Superior Court, and two in Providence/Bristol County Superior Court, according to a quick search of the Rhode Island Judiciary Public Portal. Defendants in the cases brought by DePasquale feature municipal officials and National Grid.

DePasquale also sued a former employee for taking a job with another renewable-energy company. The case was dismissed.

Ordinance gymnastics

Last December, after the Exeter Town Council passed a 60-day emergency moratorium on all but rooftop solar development, saying a dozen proposals for utility-scale solar had inundated the Planning Board and the town’s part-time planner, DePasquale took the town to court.

The council’s temporary moratorium froze the approval process for several of DePasquale’s projects. His lawsuit challenged whether an emergency actually existed and whether the moratorium violated property rights and due process.

Judge Lanphear ultimately ruled that the Town Council had clearly outlined the basis for the emergency moratorium. The Superior Court judge noted that the council had found that the town was in danger of overdevelopment, because its two-day-a-week planner was inundated with 12 proposals for utility-scale solar installations and was under deadlines set by state law that would have automatically approved the proposals if those deadlines weren’t met.

Exeter’s moratorium decision came after more than a year of controversy over what level of utility-scale solar development was appropriate in this rural community.

While the Town Council repeatedly asked the Planning Board to make changes to Exeter’s solar-siting rules, DePasquale was working on his own solar ordinance, eventually proposing a zoning amendment labeled the “Green ordinance” that would make it easier for him to develop 15 sites where he wanted to install ground-mounted solar arrays.

DePasquale’s solar ordinance – town planner Ashley Hahn-Sweet called it a copy and paste of the town’s original solar ordinance, passed in 2015, with adjustments made to benefit Green Development – seems to fit the definition of spot zoning. It was written specifically for properties in residential zones on which DePasquale wanted to install utility-scale solar without seeking special-use permits, according to Hahn-Sweet.

The Exeter Planning Board called the Green ordinance a terrible idea. In a May 2018 memorandum to the Town Council, the Planning Board noted its “grave concerns” with the Green ordinance. The board also found DePasquale’s ordinance to be “inconsistent” with the town’s comprehensive plan.

“Hand picked certain lots to receive a benefit that no other parcels receive could be considered spot zoning and the Planning Board is unable to support such a concept,” according to its 19-page advisory opinion.

In mid-July 2018, the Town Council adopted DePasquale’s solar ordinance, over the objections of both the Planning Board and town planner.

About two months later, during an early-September 2018 council meeting, the Planning Board’s solar ordinance – referred to as “Solar 8,” for the number of revisions it took to satisfy the Town Council – was adopted. Solar 8 defined small-, medium-, large- and industrial-scale solar projects and specified which are allowed and which would require a special-use permit.

It replaced DePasquale’s solar ordinance, for about a month.

The Planning Board’s Solar 8 ordinance had to be voted on a second time, because council member Raymond Morrissey said he voted for the proposal but meant to vote against it. At the October redo meeting, Morrissey explained that he never meant to vote for Solar 8, saying he was in agreement with council vice president Daniel Patterson and Frank Maher in favoring the Green ordinance.

The Town Council, by a 3-2 vote, rejected Solar 8, putting the Green ordinance back into play. President Calvin Ellis, who has been serving off and on the council since 1974 and voted against the Green ordinance, said he didn’t know why Patterson, Morrissey, and Maher supported a zoning change that benefited one developer.

“I don’t believe developers should be writing zoning policy,” the lifelong Exeter resident said.

In an email to ecoRI News, Maher claimed that the Planning Board and town planner refused to accept DePasquale’s proposed ordinance for consideration, “after they requested Green to accomplish certain requirements, then they flipped and criticized him for doing what they asked. The Town Council was left with almost no options but to consider the proposed draft.”

Maher wrote that his vote boiled down to a simple premise: “Communities in Washington County and Kent County are growing. Landowners have the choice between selling their own property to developers to build houses, or work with developers that will land bank the property by installing renewables and create revenue for the towns and the landowners. Irregardless of the siting, whether it is on farmland, wooded lots or a vacant lot, the property owners pay taxes on that land. They should be able to develop their land as they see fit without Planning or Government interference or bureaucracy. However, that is exactly what happened.”

Patterson, who is still a member of the Exeter Town Council, didn’t respond to requests for comment.

In town elections last November, voters ousted two of the pro-Green ordinance council members, Morrissey and Maher, leaving a majority favoring Solar 8. The new council approved the Planning Board’s eighth solar rewrite, with the lone nay vote cast by Patterson.

Mike Conn is one of the three new members elected to the Town Council last year. The landscape architect said he only ran – his first time running for elected office – because of concerns about Exeter being overdeveloped with renewable energy. The town’s 12 solar projects, with a combined megawatt output of close to 90, are in various stages of review. It takes about 8 acres to produce 2 megawatts of solar, which generates roughly 3 million megawatt-hours annually.

He said Green Development’s seven proposals – for a combined 55.1 megawatts – and the rural space they would consume particularly bothered him. Conn also didn’t like what he believes was Green Development’s efforts to “runaround Exeter’s ordinances,” which he said Patterson seemed to push.

“Mark [DePasquale] will just fill a wetland,” Conn said. “Green throws its weight around to get what it wants.”

He said Exeter’s renewable-energy load should ideally be concentrated in the industrial zone around Route 3. None of the 12 projects have been proposed to be built in an industrial or commercial zone, although one of Green Development’s solar proposal is for a property where site work was done many years ago for a golf course that was never built.

The commercial and industrial zones along Route 3 in Coventry and Exeter, which include vacant and underused lots and properties for sale, host little renewable-energy development. (Frank Carini/ecoRI News)

At a meeting in February, the Town Council ended the emergency moratorium and approved a new solar ordinance, “Solar 9,” written by the Planning Board and town planner. Green Development filed a lawsuit after the new council adopted the new ordinance.

Solar 9 is the law of the land now, but the past year’s game of ordinance musical chairs left behind a tangle of lawsuits and some confusion about what project is vested under what ordinance.

“The flip-flopping of ordinances made a mess,” Hahn-Sweet said. “He [DePasquale] wrote himself out of having to get a special-use permit.”

As for the promises Green Development has made to the town about paying $7,000 per megawatt instead of $5,000, as required by the updated state law, Hahn-Sweet noted that in a 25-year tax treaty proposed by DePasquale Green wouldn’t pay any taxes on the land under his solar arrays.

“According to him, the value of the land on which his panels would sit is zero dollars,” she said. “Zero property taxes on the land would cost the town millions of dollars over the life of the installation and negate any promises he made and then some.”

DePasquale’s tax treaty was submitted to the town but was never approved, or even discussed publicly, according to Hahn-Sweet. DePasquale’s Exeter projects are stalled in court, as Green Development is the plaintiff in four active cases against the town of Exeter and its officials, according to the Rhode Island Judiciary Public Portal.

Statewide issue

The siting of renewable energy can’t simply be broken down to open space vs. developed space, although many developers working in Rhode Island targeted rural space at the beginning of this energy rush and still favor clear-cutting over redevelopment. The state and municipalities are now starting to acknowledge the impacts of this forest-first development mentality.

The elephant in the room, though, is Rhode Island’s aging power grid. National Grid, a multinational corporation based in London that generated $4.81 billion in after-tax profits last year, demands less-financially-endowed companies pay for upgrading the state’s outdated energy infrastructure. That can force developers to propose and build bigger installations, so they can afford the millions of dollars it takes to upgrade substations and transmission lines for National Grid.

There’s also the reality that Rhode Island can’t pack all of the state’s energy-generating capabilities along Providence’s working waterfront between the Manchester Street Power Station and the Narragansett Bay Commission’s trio of turbines and into the woods of Burrillville.

Resistance to the development of renewables, however, is building in both rural and suburban Rhode Island communities, largely because the governor’s goal of 1,000 megawatts of renewable energy by 2020 and the state’s legendary shortsightedness didn’t account for the impacts of siting wind and solar willy-nilly.

Grow Smart Rhode Island’s Millar, an Exeter resident, noted that the state’s renewable-energy policy is working against its own land-use plan, “because it has encouraged solar sprawl at a time when Rhode Island really wasn’t seeing a lot of new subdivisions and development in rural towns.”

“Solar sprawl has really encouraged the loss of forest when it was very unlikely we would see that loss of forest from conventional development,” the former DEM staffer said. “Companies like Green make it harder – and he’s not the only one, Southern Sky and there are others – make it harder for people like Kearsarge Energy and others who want to spend more money to build on developed and disturbed locations. They make it harder from them to be successful with their bids on those projects.”

Green Development is often the target of the loudening opposition to utility-scale renewable energy, although, as Morini, Green’s director of business development, noted residents don’t typically cheer publicly for projects they like.

“People tend to show up for things when they feel there is a controversy,” she said. “The vast majority, the overwhelming majority of the megawatts that we have developed in this state have not been controversial at all. But you don’t hear about those.”

Some of this renewables complaining is most certainly tied to “not in my backyard” – better known as NIMBYism – but there was bound to be pushback, whether it was based on legitimate concerns or unsubstantiated fears.

“If there was less NIMBYism towards wind in this state, then we would not be cutting down as many trees for solar,” said Fischer, Green Development’s spokesperson, who noted wind turbines require a much smaller footprint than solar arrays. “That is reality. This company stated as a wind-energy development company. … We just don’t plop them down. NIMBYism, a lot of it, has to do with ignorance.”

Coventry and Exeter aren’t the only Rhode Island communities where controversy has plagued DePasquale projects.

At a September meeting of the Richmond Planning Board chairman Philip Damicis reprimand a Green Development attorney for submitting an incomplete and modified application.

The applicant, GD Beaver River I LLC, a Green Development subsidiary, is requesting a special-use permit to allow the construction of a 5.3-megawatt solar installation in a residential zone on Beaver River Road. The proposed facility would occupy about half of a 42-acre agricultural property owned by William Stamp III of Cranston.

By the end of the developer’s presentation – by Mancini, the author of the letter that asked Coventry’s assistant planner to recuse himself from Green Development affairs – which included testimony from several witnesses and lasted nearly an hour, Damicis had run out of patience, according to a story in The Westerly Sun.

“We had our last meeting, and we were told that we were going to be provided an archaeological historic report and that’s why you wanted the delay. I thought that we had an entire package in front of us that quite honestly, this board has spent a lot of time reviewing. We had meetings, we spent a lot of time, the public has spent a lot of time, commenting on this and providing letters to us, and you show up tonight with an entirely different presentation. I have a 50-page PowerPoint presentation in front of me with a lot of new information. I’ve got all new consulting information, and quite honestly, I’m insulted and I feel this town’s been insulted by the way you’ve handled this. Why didn’t I receive this two meetings ago? Where was this information?

“You’re telling me that you’re not even done tonight. What you’ve presented tonight is not the whole picture. We’re still going to see a presentation … we’re going to get a brand new plan with a smaller footprint. … This is a volunteer board and we work Saturdays. We work late at night reviewing this stuff. So what I’m asking you is, next time you show up, that packet had better be final and you’d better present everything that you want, otherwise I guarantee that I’m going to ask for a motion and we’re going to make a recommendation based on what we have.”

In Hopkinton a group of residents has taken legal action to try to stop a Green Development solar project on a 139-acre site on Maxson Hill Road. (Eric Bibler/Hopkinton Citizens for Responsible Planning)

In neighboring Hopkinton, a group of residents – organized as Hopkinton Citizens for Responsible Planning and who oppose utility-scale solar installations in residential areas – has taken legal action to try to stop a Green Development solar project on a 139-acre site on Maxson Hill Road, on the grounds that the Town Council acted improperly when it approved zoning and comprehensive plan changes to allow the project’s construction.

Residents are upset that Green Development recently began clear-cutting the property and removing vegetation to within 10 feet of neighboring residences even though some planning approvals remain, a building permit needs to be granted, and their court case is pending. (Landowners are allowed to clear-cut their property as long as wetlands aren’t impacted.)

Hopkinton’s town planner has praised Green Development for sticking to the construction plan for the 10-megawatt Maxson Hill solar project. He has said any unauthorized damage to predetermined buffers will be addressed.

DePasquale told ecoRI News that many of the trees his company has been cutting down, especially in Hopkinton and Richmond, had already been killed by gypsy months.

Across the state in Portsmouth, a combination of noise and shadow flicker from the DePasquale turbine at the high school has upset some neighbors. Green Development installed the 279-foot-tall turbine, which started spinning in summer 2016, after replacing a defective turbine installed by a different company in 2012.

Denise Wilkey, who lives about 1,100 feet from the Portsmouth High School turbine, described the noise she hears as sounding like a “jet plane constantly circling above.”

She has called the police several times to file noise complaints. Portsmouth police have registered a few readings above the 55 decibels allowed under town ordinance. The town has since ruled, however, that it agrees with “WED’s position that the Noise Ordinance does not apply to WED’s operation of the wind turbine at this location, in accordance with the terms and conditions of the Wind Energy Lease.”

The town of Portsmouth signed an agreement with Wind Energy Development – now Green Development – on Nov. 6, 2014. It required DePasquale to take down the old gearbox-faulty turbine, pay off the remaining $1.45 million of the bond the town took out to install it, and put up a new turbine.

In exchange, Green Development sells a portion of the energy generated to the town at a rate of 15.5 cents per kilowatt-hour for 25 years. Green Development pays a dollar annually to rent the 4.5-acre parcel.

In Johnston, a seven-turbine, 21-megawatt facility on privately owned industrial land – the only wind installation in Rhode Island that can generate more power is Deepwater Wind’s five-turbine, 30-megawatt project off Block Island – has been praised Mayor Joseph Polisena. Fischer said the project featured a lot of community involvement and was popular. Morini said no one has spoken in opposition.

Some residents of a subdivision in Western Cranston on the Johnston line noted their opposition to the 519-foot-high industrial turbines looming over their neighborhood. They said they were troubled by the lack of information and notice they received from local officials and the developer about a utility-scale energy project that was built in their backyards.

The Rhode Island Land-Based Wind Siting Guidelines note that, “Projects with impacts reaching across town lines should be required to work with each town. The developer should comply with the siting standards of each impacted area’s governing municipality.”

Polisena didn’t see it that way, saying this about concerns from his Cranston neighbors: “They don’t have to be notified. Quite frankly, not to be rude, it’s none of their business, they don’t live in the town of Johnston.”

Green Development has proposed a trio of wind turbines for Providence’s industrial waterfront. The proposal includes amending the city’s zoning rules for turbine height and shadow flicker.

Documents submitted to the city’s Department of Planning and Development show that DePasquale’s proposed changes would allow the height of his and future turbines to be determined by the distance from nearby structures and property boundaries. DePasquale also wants to rewrite the city’s standards for shadow flicker to “shall not exceed 30 hours per year on any window of an existing residential structure.” The rule doesn’t apply to commercial structures. The city’s current regulation prohibits shadow flicker on windows of any existing structure.

DePasquale also wants the zoning rules amended so that the city can issue special-use permits for building wind turbines on property zoned for educational institutions, so long as the parcel abuts an industrial waterfront zone and isn’t within 1,000 feet of an area zoned for residential use. Currently, wind turbines are only allowed in the city’s port/maritime zones.

The City Council’s Committee on Ordinances has signed off on Green Development’s proposed turbines and DePasquale’s zoning changes. The City Plan Commission also endorsed the turbines and the proposed zoning changes, saying the DePasquale’s changes clarify the method for determining allowable turbine height.

“You can’t be against the Burrillville power plant and be against renewable energy,” Fischer said.

But that’s kind of what has happened, largely because the state failed to prepare for this energy revolution and because developers, like DePasquale, inundated communities, selling the “halo effect” of renewable energy and the promise of financial windfalls to get projects approved before municipalities had a chance to reset their zoning ordinances and before the public realized what was going on.

Source:  By Frank Carini, ecoRI News staff | November 18, 2019 | www.ecori.org

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

The copyright of this article resides with the author or publisher indicated. As part of its noncommercial effort to present the environmental, social, scientific, and economic issues of large-scale wind power development to a global audience seeking such information, National Wind Watch endeavors to observe “fair use” as provided for in section 107 of U.S. Copyright Law and similar “fair dealing” provisions of the copyright laws of other nations. Send requests to excerpt, general inquiries, and comments to query/wind-watch.org.

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