Freepoint Solar LLC v. Richmond Zoning Board of Review et al.
No. 2020-207-M.P. (WC 20-6)
Supreme Court of Rhode Island
May 11, 2022
(Dissent begins on Page 16)
O P I N I O N
Justice Long, for the Court. The Town of Richmond (the town) petitioned1 this Court for the issuance of a writ of certiorari to review a Superior Court judgment
Facts and Procedural History
In November 2016, Freepoint entered into a binding option to lease 36 Woodville Road in Richmond (the site) for the purpose of constructing a solar energy system (the project). Freepoint’s plan was to build a 4.99MW(DC)/4.5 MW(AC) nameplate capacity ground-mounted photovoltaic (PV) solar facility on the site. The site was zoned R-3, which, at the time Freepoint submitted its application, permitted solar energy systems by special-use permit. During the time period relevant to this case, special-use permits for solar energy systems were
In its application, Freepoint addressed how the project met the requirements of
Over the course of 2019, the zoning board held multiple meetings on the application, both public hearings and work sessions. As was typical, the application was initially referred to the Town of Richmond Planning Board (the planning board). The planning board subsequently provided an advisory “Development Plan Review” concerning the project. In that advisory, the planning board made findings of fact
In May 2019 the zoning board held both a public hearing and a public work session on Freepoint’s application. At those meetings, the zoning board, members of the public, and Freepoint rеpresentatives discussed concerns regarding, among other items, decommissioning costs, the potential for glare to negatively affect neighbors, the effect of the project on the character of the area and neighboring property values, ways to ameliorate the visual impacts of the project, and the project’s compliance with the special-use permit requirements and the town’s comprehensive plan. The issue of the utility substation requirement came up briefly while the zoning boаrd discussed the special-use permit requirements, but that discussion focused on the requirements for ameliorating the visual impacts of the project.
At a second public hearing, in July 2019, a member of the public, William Boger, commented:
“Section [18.34.030-A] is a concern. I did a little bit of research on this. This is the section that reads in the Zoning Ordinance for, specifically for solar energy systems. The entire lot on which a solar energy system is located shall be within two miles of a utility substation. The Zoning Ordinance does not provide a definition of
utility substatiоn. * * * National Electric Code provides [a] definition of a utility substation as a substation which is a composite of switches and gears—it’s electrical switching equipment. When the word utility is tagged on to utility substation, the utility then is the company that owns and maintains being a provider of that utility. By that definition, National Grid, being the provider of electricity in this area, would be the logical source for a utility substation.”
Following Mr. Boger’s comment, the zoning board and members of the public discussed the meaning of “utility substation” extensively. For the first time, the zoning board questioned the purpose and intent behind the utility substation requirement, lamenting the lack of definition for “utility substation” in the zoning ordinance. At the close of the meeting, the matter was continued.
A third public hearing on the application took place on October 28, 2019, after a formal request by Freepoint to reopen the matter for further public comment. The meeting was called to give Freepoint an opportunity to present evidence regarding whether the Amtrak substation was a “utility substation” for purposes of
Mr. Fenn testified that “[t]he primary item in a substation that defines it different[ly] from another facility is the transformer[,]” and he provided the National Electric Safety Code and the New IEEE Standard Dictionary of Electrical and Electronics Terms definitions of substation, each of which, in summary, defined
No evidence was presented that contradicted Mr. Fenn’s testimony. However, after Freepoint’s presentation, Richmond Town Solicitor Michael Cozzolino spoke on behalf of the town. The solicitor represented that “[i]t’s the Town’s position, the term ‘substation’ was intended to be limited to National Grid substations within the Town.” To support this assertion, Mr. Cozzolino presented a DVD containing a recording of the town council mеeting on July 25, 2017, at which the town council first passed
Freepoint objected to the solicitor’s comments, asserting instead that the meaning of the ordinance wаs clear on its face. Freepoint also took issue with the solicitor’s characterization of the video from the town council meeting, arguing that (1) at no point did the town council modify the word “utility” by use of any language pertaining to National Grid, and (2) discussions about the utility substation requirement at that town council meeting had focused on the economic viability of projects. In a closed session after the hearing, the zoning board decided to defer decision on Freepoint’s application.
Finally, in December 2019, the zoning board met to render a decision on Freepoint’s application. Deliberations prior to the vote centered on the utility substation requirement—that is, whether the Amtrak substation qualified as a “utility substation” for purposes of
Freepoint appealed the zoning board’s decision to the Superior Court. Freepoint asserted that the zoning board’s decision was clearly erroneous, arbitrary and capricious, and contrary to the law and the evidence. Freepoint alleged that the zoning board erred by (1) not applying the plain meaning of the ordinance, (2) erroneously considering evidence and arguments presented by the town solicitor, and (3) finding that the Amtrak substation was insufficient for purposes of
After briefing and arguments by the parties, the trial justice issued a decision in favor of Freepoint. The trial justice found that the zoning board decision was affected by error of law because the zoning board had looked beyond the plain and ordinary meaning of
Statutory Interpretation
“On a petition for certiorari from a Superior Court judgment that has entered after an appeal from a municipal zoning board’s decision, we confine our review to a determination of whether the trial justice acted within his or her authority as set forth in [G.L. 1956] § 45-24-69.” New Castle Realty Company v. Dreczko, 248 A.3d 638, 642 (R.I. 2021) (quoting Iadevaia v. Town of Scituate Zoning Board of Review, 80 A.3d 864, 870 (R.I. 2013)).
“We do not reverse a Superior Court justice’s decision unless it can be shown that the justice misapplied the law, misconceived or overlooked material evidence, or made findings that were clearly wrong.” New Castle Realty Company, 248 A.3d at 643 (quoting Iadevaia, 80 A.3d at 870). “However, this Court reviews issues of statutory interpretation de novo.” Pawtucket Transfer Operations, LLC v. City of Pawtucket, 944 A.2d 855, 859 (R.I. 2008). “In this Court’s de novo review, a zoning board’s determinations of law, like those of an administrative agency, ‘are not binding on the reviewing court; they may be reviewed to determine what the law is and its applicability to the facts.‘” Id. (quoting Gott v. Norberg, 417 A.2d 1352, 1361 (R.I. 1980)).
“When interpreting an ordinance, we employ the same rules of construction that we apply when interpreting statutes.” Ryan v. City of Providence, 11 A.3d 68, 70 (R.I. 2011) (quoting Ruggiero v. City of Providence, 893 A.2d 235, 237 (R.I. 2006)); see Zanni v. Town of Johnston, 224 A.3d 461, 466 (R.I. 2020). “If the language of a statute or ordinance is clear and unambiguous, it is given ‘its plain and ordinary meaning.‘” City of Woonsocket v. RISE Prep Mayoral Academy, 251 A.3d 495, 500 (R.I. 2021) (quoting Sauro v. Lombardi, 178 A.3d 297, 304 (R.I. 2018)); see Generation Realty, LLC v. Catanzaro, 21 A.3d 253, 259 (R.I. 2011). “This is
The zoning ordinance at issue provided that “[t]he entire lot on which the solar energy system is located shall be within two (2) miles of a utility substаtion.”
We disagree. The ordinance does not define or qualify the phrase “utility substation,” but its meaning is plain and unambiguous, and the component words “utility” and “substation” are each words of common usage within the English language. The American Heritage Dictionary defines “utility” as “[a] commodity or service, such as electricity, water, or public trаnsportation, that is provided by a public utility.” The American Heritage Dictionary of the English Language 1908 (5th ed. 2011) (emphasis added). Amtrak, as a public carrier, plainly falls within this definition. See
Additionally, the town does not contest that a “substation” is recognized by The Merriam-Webster Dictionary as “a subsidiary station in which electric current is transformed[.]” Merriam-Webster Online Dictionary (retrieved May 6, 2022, from https://www.merriam-webster.com/dictionary/substation). Again, this definition of “substation” was before the zoning board, due to Freepoint’s uncontradicted expert testimony that a substation is distinguishable from other facilities by the presence of a transformer. Freepoint further emphasized to the zoning board that “substation” is a commonly used industry-standard term by presenting the National Electric Safety Code and the New IEEE Standard Dictionary of Electrical and Electronics Terms
The town does nоt contest any of the foregoing, nor does it provide an alternative meaning for the phrase “utility substation,” such that the phrase could be susceptible on its face of more than one meaning. See Drs. Pass and Bertherman, Inc., 31 A.3d at 1269 (“Ambiguity exists * * * when a word or phrase in a statute is susceptible of more than one reasonable meaning.“). Instead, the town seeks to circumscribe the word “utility” to a narrower subclassification than that which the word conveys on its face; the town argues that the word “utility” in the zoning ordinance means a specific utility, National Grid. The town’s basis for this assertion, however, is that this interpretation effectuates the intent of the town council when it enacted the ordinance. Consequently, the town asserts, without support, that reading
The town argues in the alternative that, even if the statute is clear and unambiguous, application of the plain meaning would result in “myopic literalism” that confines the phrase “utility substation” to a meaning that frustrates the intent of the town council. See Sugarman v. Lewis, 488 A.2d 709, 711 (R.I. 1985) (“[W]e will not allow ourselves to be blindly enslaved to the literal reading of statutеs when to do so would defeat or frustrate the evident intendment of the [L]egislature.“) (quoting Town of Scituate v. O‘Rourke, 103 R.I. 499, 507, 239 A.2d 176, 181 (1968)).
We disagree. Undoubtedly, this Court’s “plain meaning approach * * * is not the equivalent of myopic literalism, and it is entirely proper for us to look to the sense and meaning fairly deducible from the context.” 5750 Post Road Medical Offices, LLC v. East Greenwich Fire District, 138 A.3d 163, 167 (R.I. 2016) (quoting Western Reserve Life Assurance Co. of Ohio v. ADM Associates, LLC, 116 A.3d 794, 798 (R.I. 2015)). To do so, however, this Court “consider[s] the entire
Our review of the pertinent ordinance in its entirety does not change the meaning of the phrase “utility substation.” Moreover, it does not, as urged by the town, circumscribe the word “utility” to mean a specific utility, National Grid. This Court “will refrain from ‘read[ing] into a statute a requirement that the drafters omitted,’ * * * and will do so only if ‘the clear purpose of the legislation would fail without the implication[.]‘” Prew v. Employee Retirement System of City of Providence, 139 A.3d 556, 561 (R.I. 2016) (first quoting Commerce Park Associates 1, LLC v. Houle, 87 A.3d 1061, 1067 (R.I. 2014), then quoting Wehr, Inc. v. Truex, 700 A.2d 1085, 1088 (R.I. 1997)).
The town points to no language in the ordinance to support its assertion that the legislative intent of the town council at the time it enacted the ordinance was to limit “utility” to Natiоnal Grid, and our reading of the ordinance in its entirety reveals no such clear purpose. See 5750 Post Road Medical Offices, LLC, 138 A.3d at 167 (“When a statute is ambiguous, we must apply the rules of statutory construction and examine the statute in its entirety to determine the intent and
In light of the foregoing, it is apparent that the phrase “utility substation” is unambiguous on its face. Accordingly, we hold that the trial justice did not err in concluding that the phrase “utility substation” is unambiguous and therefore did not err in finding that the zoning board dеcision was affected by error of law.
Conclusion
For the foregoing reasons, we affirm the judgment of the Superior Court and remand the record of the case to that court.
Justice Robinson, dissenting. I respectfully dissent. I see ambiguity in the key term (“utility substation“) whereas my colleagues do not. Several years ago, one of this Court’s opinions quoted a poet who observed that “there are times when a court must engage in what a poet called ‘the intolerable wrestle [w]ith words and meanings.‘” Papudesu v. Medical Malpractice Joint Underwriting Association оf Rhode Island, 18 A.3d 495, 498 (R.I. 2011) (quoting T.S. Eliot, Four Quartets, “East Coker” pt. 2). In my view, this is just such a case.
This Court has repeatedly explained that ambiguity exists when language is reasonably susceptible of different constructions. See, e.g., Middle Creek Farm, LLC v. Portsmouth Water & Fire District, 252 A.3d 745, 751 (R.I. 2021) (noting
Significantly, the drafters of the ordinance chose not to define the term “utility substation.” See Pawtucket Transfer Operations, LLC v. City of Pawtucket, 944 A.2d 855, 860 (R.I. 2008) (noting that “the drafters [of a local ordinance] did not define a ‘Refuse transfer station‘” and finding the controverted language of the ordinance to be “unclear and ambiguous“). I am convinced that we are confronted in this case with an instance of “inartful drafting of the pertinent * * * lаnguage,”
In my opinion, the ambiguity which I detect in the use of the term “utility substation” is not a mere “ambiguity in the metaphysical sense,” nor is it the product of construing language “in a hypertechnical fashion;” it is rather the product of construing language “in an ordinary, common sense manner.” Paul v. Paul, 986 A.2d 989, 993 (R.I. 2010) (internal quotation marks omitted). I note that the members of the Zoning Board, opining on what had been the Town Council’s intent when drafting the ordinance, could not reach a unanimous understanding of the term “utility substation.” Although the testimony of Jeffrey Fenn, the electrical
Thus, the presence of such different interpretations of the term “utility substation” leads me to believe that this Court should not hold that the term is unambiguous but rather should delve deeper into the record, examine the context in which the term appears, and consider the audience towards whom this ordinance was directed. See Nunes v. Town of Bristol, 102 R.I. 729, 738, 232 A.2d 775, 780 (1967) (“[W]here the language [of an ordinance] is ambiguous or uncertain the court may take into consideration certain extrinsic matters which tend to throw some light on the legislative intent.“).
It is further my opinion that, once one delves deeper into the record, it becomes clear that “utility substation” was not intended by the drafters to include an Amtrak substation. The map submitted at the Town Council meeting where the ordinance at issue was enacted shows only three National Grid substations and not any Amtrak substation. It was that map which the Town Council had before it when
Accordingly, I record my respectful but unequivocal dissent from the majority’s opinion in this case.
STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903
OPINION COVER SHEET
| Title of Case | Freepoint Solar LLC v. Richmond Zoning Board of Review et al. |
| Case Number | No. 2020-207-M.P. (WC 20-6) |
| Date Opinion Filed | May 11, 2022 |
| Justices | Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ. |
| Written By | Associate Justice Melissa A. Long |
| Source of Appeal | Washington County Superior Court |
| Judicial Officer from Lower Court | Associate Justice Richard A. Licht |
| Attorney(s) on Appeal | For Plaintiff: Christine E. Dieter, Esq. For Defendant: Karen R. Ellsworth, Esq. |
SU-CMS-02A (revised June 2020)