EXETER–A Rhode Island Superior Court judge has ruled against an alternative energy developer in a challenge to the Town of Exeter’s implementation of an emergency moratorium on solar installation. The challenge, which was filed by Mark DePasquale, the principal of companies Green Development and Wind Energy Development, alleged that the moratorium negatively impacted the status of three of his applications for solar development currently under review by the planning department.
DePasquale also questioned the existence of an emergency regarding solar development in the town.
Back in December, the current council passed a 60-day emergency moratorium on all ground-mounted solar installation, halting the review of any proposals not currently vested until a revised solar ordinance was put into place.
Following a tumultuous period in the town’s history, which saw two separate and very different solar ordinances approved by the former town council, the moratorium was enacted to prevent the threat of excessive development of commercial, utility-scale ground-mounted installations–the implementation of which Superior Court judge Jeffrey Lanphear found to be within the parameters of state law.
The ruling is just the latest development in a continuing discussion around solar development within the town.
In July, the previous town council approved of an ordinance proposed by Green Development, called the Green ordinance, which allowed utility-scale solar development on only 15 properties near the Lafayette substation.
Soon after, however, the council then approved of a new solar ordinance drafted by the planning board, referred to as Solar #8, which replaced the Green ordinance.
Instead of focusing on select properties in town, Solar #8 allowed for solar development throughout the town–based on review and size of the solar installation–starting with small, medium, large and utility-scale size.
But after retallying the votes and ultimately rejecting the planning board’s ordinance, the town reverted back to the Green ordinance, the approval of which the planning board had originally recommended against, stating that it was not in accordance with the town’s comprehensive plan.
However, following the election of three new members to the council, the issue of solar development was taken up once again.
With several solar development applications submitted in a short period of time, the current council voted 4 to 1 in favor of the moratorium, giving town officials time to discuss and eventually approve of a new solar ordinance that was drafted by the planning department–an action that DePasquale felt was enacted to block his own proposals, leading to the challenge being submitted to Superior Court.
But last week, Lanphear issued his ruling, stating that the moratorium fit “nicely within the parameters of state law, which sets strict deadlines for the processing of master plan developments by local planning offices,” adding that Green Development’s applications had not been certified as complete before the moratorium was enacted.
He also said that the moratorium did not cause irreparable harm to the company’s proposed projects.
“While the [moratorium] ordinance is remarkable for describing the emergency and the breadth thereof, it is also remarkable for what it doesn’t say,” the Lanphear wrote. “The [moratorium] does not declare an overbroad emergency, but indicates that there is a threat of overdevelopment and that the town is struggling to keep up with the large number of applications—nothing more.”
“A town has a legitimate interest in preventing overdevelopment and ensuring compliance with the comprehensive plan as it relates to the general welfare of its residents,” the judge continued. “The town did not enact the moratorium ordinance for the direct purpose of preventing plaintiff’s project.”
Exeter Town Planner Ashley Sweet said on Monday that the moratorium was enacted because “the town felt that they were in a position of being somewhat overwhelmed with solar applications being that we are a part time planning department, a volunteer board”
“We had twelve solar applications in a reasonably short period of time, changing of ordinances in a relatively short period of time,” Sweet said. “And the council that was elected in November felt that it was important that we paused for a brief period to sort out where we were, what we were doing, and how we were going to process the applications effectively.”
And while she said that the court’s decision didn’t change the town’s position on the applications, which would continue to be reviewed by the planning department, Green Development has filed several other lawsuits against the town and its implementation of a new solar ordinance.
“I expect the discussion will continue, they have multiple other lawsuits that they’re suing us over that have not been resolved, which will deal more closely with what applications fall where,” she continued. “This decision itself was just the affirmation of the town to have the ability to enact the moratorium in the manner that we did and for the reasons that we did.”
Town council president Cal Ellis said that the court ruled in the town’s favor because the planning department rightfully needed time “to catch up and make some changes to the existing regulations that they believed needed to be made.”
“[The moratorium gave] them a chance to do that,” Ellis said. “And now that the council has adopted a new solar ordinance, it puts the town in a much better position moving forward to address solar issues that continue to come forward.”
Ellis, who declined to comment on any specifics regarding the current lawsuits filed against the town by Green Development, said he was hopeful that the cases would also be ruled in the town’s favor.
“At this point it’s an issue that remains with our attorney,” he said. “I hope that those cases are adjudicated in our favor but it’s too early to tell.”