Supreme Court
No. 2020-244-Appeal. (WC 18-636)
Green Development, LLC a/k/a Wind : Energy Development, LLC
v. :
Town of Exeter et al. :
NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone (401) 222-3258 or Email opinionanalyst@courts.ri.gov, of any typographical or other formal errors in order that corrections may be made before the opinion is published. Supreme Court
Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
OPINION
Justice Long, for the Court. This matter arises from a decision by the
defendant, the Town of Exeter1 (defendant or the town), to pause, and subsequently
to amend, its zoning ordinance, which prevented the plaintiff, Green Development,
LLC a/k/a Wind Energy Development, LLC (plaintiff), from developing three
commercial solar-field projects (solar-field projects) in Exeter, Rhode Island. The
plaintiff appeals from a judgment of the Superior Court in favor of the defendant in
this action seeking injunctive and declaratory relief, as well as damages and
attorneys’ fees.
1 The plaintiff also brought this action against each member of the Exeter Town Council and the Treasurer of the Town of Exeter in their official capacities. We refer to the town itself exclusively for the sake of clarity and to remain consistent with the Superior Court. -1- The plaintiff challenges the Superior Court’s denial of its request (1) to enjoin
the town’s enforcement of an emergency moratorium ordinance that prevented
review of plaintiff’s solar-field projects; (2) to declare as ultra vires the enactment
of the moratorium ordinance, and that the moratorium ordinance was void ab initio;
(3) to declare that plaintiff’s solar-field projects are vested pursuant to G.L. 1956
§ 45-24-44 of the Rhode Island Zoning Enabling Act (Zoning Enabling Act); (4) to
declare that the moratorium ordinance violates the doctrine of equitable estoppel and
is thus inapplicable to plaintiff’s solar-field projects; and (5) to declare that the
town’s enactment of the moratorium ordinance violates plaintiff’s procedural and
substantive due-process rights.
For the reasons stated herein, we affirm the judgment of the Superior Court.
Facts and Procedural History
In July 2018, the Exeter Town Council adopted a zoning ordinance (the Green
ordinance) that authorized the construction of commercial solar fields as of right in
RU-3 and RU-4 zones in Exeter, so long as they conformed with specific lot and
acreage requirements. The Green ordinance removed many of the then-existing
zoning restrictions on commercial solar fields previously established in a 2015
ordinance. The town council approved the Green ordinance despite concerns from
local officials including the town’s planning board. Specifically, these concerns
stemmed from the number of outstanding applications before the town and the
-2- potential overdevelopment of commercial solar fields in Exeter. Further, this threat
of overdevelopment created a concern that the proposed projects would not comply
with Exeter’s comprehensive plan.
On October 16, 2018, after the town council adopted the Green ordinance,
plaintiff filed three submissions with the town planner for development of three
solar-field projects in RU-3 and RU-4 zones (October submissions).2 The plaintiff
submitted three “Application for Land Development, Subdivision of Land, and/or
Development (Site) Plan Review” forms; under “application type” on each form,
plaintiff selected “pre-application.” Additionally, the letter of transmittal
accompanying each of the October submissions noted that plaintiff was submitting
materials for pre-application plan review of the relevant proposed solar-field project.
The town planner classified plaintiff’s October submissions as pre-applications for
master plan review pursuant to Rhode Island’s land development statutory
framework. The first step in the master plan review process involves an applicant
submitting information for review and discussion with the planning board and may
eventually result in the issuance of letters of completeness by the town planner.
2 Before plaintiff filed its October submissions, the town council adopted a new ordinance on September 4, 2018, that would have likely prohibited plaintiff’s solar- field projects. The town council rescinded the September 2018 ordinance during its October 2018 meeting, effectively reinstating the Green ordinance. -3- On November 6, 2018, town voters elected new members of the town council;
at some point thereafter, but prior to the November 22, 2018 inauguration, a newly-
elected town council member, Calvin Ellis, discussed with the town planner the
possibility of issuing a moratorium on new solar development projects. Based on
the town planner’s status as a part-time employee and the influx of applications the
town received for solar-field projects, the town planner agreed that a moratorium
would allow the town to meet the rising demand given its finite resources. As a
result of this conversation, Mr. Ellis asked the town planner to draft initial language
for an ordinance accomplishing that purpose. Additionally, although the town’s
planning board typically reviews an applicant’s submissions one month after filing,
due to time constraints at the November 27, 2018 planning board meeting, the
planning board did not review plaintiff’s October submissions and instead planned
to review them at a January 2019 meeting.
On December 10, 2018, the town council enacted a sixty-day moratorium
ordinance applicable “to all proceedings, applications and petitions not vested
pursuant to [G.L. 1956 §] 45-24-44 * * *.” Section five of the moratorium ordinance
contains a vesting clause that defines a vested application as a proposal for solar-
field project “for which an applicant has submitted all the required materials for a
Master Plan meeting * * * and has been certified complete by the Administrative
Officer * * *.” When the town enacted the moratorium ordinance, plaintiff’s
-4- October submissions remained pending and had not been certified as complete. The
plaintiff filed an action challenging the validity of the moratorium ordinance the
following day. 3
On January 7, 2019, the town amended its zoning ordinance to change its
definition and description of vested rights; thereafter, on February 4, 2019, the town
council enacted a final ordinance prohibiting utility-scale solar-field projects in
RU-3 and RU-4 residential zones.
On March 21, 2019, the Superior Court denied plaintiff’s request to enjoin
enforcement of the emergency moratorium and rejected plaintiff’s request for a
declaration invalidating the moratorium. The trial justice ultimately determined,
among other things, that the town permissibly enacted the moratorium ordinance
pursuant to its emergency powers under Article IV, § 411 of the Exeter Town
Charter. In a subsequent decision on cross-motions for summary judgment, issued
on May 13, 2020, the trial justice rejected plaintiff’s claim that its October
submissions fell beyond the scope of the moratorium based on plaintiff’s theory that
3 The plaintiff’s complaint sought the following: (1) a declaratory judgment that sought to enjoin the enforcement of the moratorium ordinance based on a violation of Rhode Island law; (2) a declaration that the moratorium ordinance violated the Exeter Town Charter; (3) a declaration concluding that plaintiff’s applications vested pursuant to the Zoning Enabling Act; (4) a declaration determining that the moratorium does not apply to plaintiff’s applications based on the doctrine of equitable estoppel; (5) a declaration determining that the town violated plaintiff’s substantive and procedural due-process rights; and (6) an award of attorneys’ fees. -5- the submissions vested pursuant to § 45-24-44. The Superior Court entered a
judgment dismissing all of plaintiff’s claims on July 20, 2020, and plaintiff filed a
timely notice of appeal, seeking review of both decisions.
Issues Presented
The plaintiff contends that the trial justice erred in determining that the town
had authority to enact the moratorium ordinance and further that, in enacting
section five of the moratorium ordinance, the town was not required to adhere to the
notice requirements of the Zoning Enabling Act. Additionally, plaintiff asserts that
the trial justice erroneously upheld the town ordinances that prevent it from claiming
that it has a vested right in its October submissions because they are more restrictive
than the vesting provision contained in § 45-24-44. Finally, plaintiff asserts that the
trial justice erred in (1) ruling that an application vests after a municipal officer
certifies it as a complete application; and (2) ruling that plaintiff’s October
submissions failed to vest on their date of submission.
The plaintiff’s specifications of error require this Court to consider whether
plaintiff has a vested right in its October submissions, thereby allowing it to pursue
its three proposed solar-field projects under the now-repealed Green ordinance; and
whether the town properly suspended plaintiff’s October submissions pursuant to a
valid exercise of its emergency powers. This Court’s conclusion regarding the status
of plaintiff’s October submissions will aid in our resolution of the town’s authority
-6- to enact the emergency moratorium. Therefore, we first address whether plaintiff
has a vested right in its October submissions.
Standard of Review
A Superior Court justice’s decision to grant or deny declaratory relief under
the Uniform Declaratory Judgments Act is discretionary. Summit Insurance
Company v. Stricklett, 199 A.3d 523, 527-28 (R.I. 2019). While we defer to a trial
justice’s factual findings in a declaratory judgment action, we review questions of
law de novo. Id. at 528. Similarly, we review a trial justice’s decision to grant
summary judgment de novo. Waterman v. Caprio, 983 A.2d 841, 844 (R.I. 2009).
Additionally, this Court interprets an ordinance by employing the same rules of
construction applicable to statutes. Zanni v. Town of Johnston, 224 A.3d 461, 466
(R.I. 2020). Finally, this Court reviews issues of statutory interpretation de novo.
Id. at 464.
Status of Plaintiff’s October Submissions
The plaintiff argues that the town failed to recognize its vested right in
building its solar-field projects. Specifically, plaintiff asserts that it has a vested
right in its October submissions pursuant to the Rhode Island Zoning Enabling Act,
G.L. 1956 chapter 24 of title 45, and that, therefore, the town must advance its
October submissions to the master-plan review stage of the development process.
We disagree.
-7- The Rhode Island Land Development and Subdivision Review Act
(Development Review Act), G.L. 1956 chapter 23 of title 45, sets forth a
comprehensive legislative framework governing major land development projects
throughout the state. See § 45-23-32(21). Major land development projects begin in
the planning review phase, before local planning boards, prior to proceeding to local
zoning boards. See, e.g., § 45-23-39(b) (“Major plan review consists of three stages
of review, master plan, preliminary plan and final plan, following the pre-application
meeting(s) * * *.”); § 45-23-61 (mandating that an applicant proceed before the
planning board before seeking zoning board relief). While zoning ordinances
provide specific regulations for the use of property located within a municipality,
the Development Review Act “sets the parameters for localities’ regulations
governing administrative, minor, and major development applications.” West v.
McDonald, 18 A.3d 526, 536 (R.I. 2011); see also Key v. Brown University, 163
A.3d 1162, 1165 n.2 (R.I. 2017) (“The Rhode Island Zoning Enabling Act (the act)
authorizes each city and town council ‘to adopt, amend, or repeal, and to provide for
the administration, interpretation, and enforcement of, a zoning ordinance.’”)
(quoting § 45-24-50(a)). Based on plaintiff’s obligation to receive planning board
approval before constructing its proposed solar-field projects, this legislative
framework applies to the land development review process for the solar-field
projects at issue here. See § 45-23-35.
-8- Section 45-23-35(a) requires that each municipality conduct a pre-application
meeting for all major land development projects. See § 45-23-35(a) (“One or more
pre-application meetings shall be held for all major land development or subdivision
applications.”) (emphasis added). However, § 45-23-35(e) clarifies that, if a
pre-application meeting is not scheduled within sixty days of a pre-application
submission, “nothing shall be deemed to preclude an applicant from thereafter filing
and proceeding with an application for land development or subdivision project in
accordance with § 45-23-36.”4
4 General Laws 1956 § 45-23-36 governs the classification and certification of applications for land development or subdivision projects:
“(a) Classification. The administrative officer shall advise the applicant as to which approvals are required and the appropriate board for hearing an application for a land development or subdivision project. The following types of applications, as defined in § 45-23-32, may be filed:
“(1) Administrative subdivision;
“(2) Minor subdivision or minor land development plan; and
“(3) Major subdivision or major land development plan.
“(b) Certification of a complete application. An application shall be complete for purposes of commencing the applicable time period for action when so certified by the administrative officer. Every certification of completeness required by this chapter shall be in writing. In the event the certification of the application is not made -9- As such, § 45-23-35(e) preconditions an applicant’s advancement on an
affirmative act—filing a formal application—before that applicant can advance to
the next stage of land development review.
Both plaintiff and the town agree that no pre-application meeting occurred
prior to December 10, 2018, when the town enacted its moratorium ordinance.
Because no pre-application meeting occurred pursuant to § 45-23-35(a), plaintiff
insists that its October submissions were substantially complete as of the filing date;
and further that the October submissions were, in fact, applications for development
within the time specified in this chapter for the type of plan, the application is deemed complete for purposes of commencing the review period unless the application lacks information required for these applications as specified in the local regulations and the administrative officer has notified the applicant, in writing, of the deficiencies in the application.
“(c) Notwithstanding subsections (a) and (b) of this section, the planning board may subsequently require correction of any information found to be in error and submission of additional information specified in the regulations but not required by the administrative officer prior to certification, as is necessary to make an informed decision.
“(d) Where the review is postponed with the consent of the applicant, pending further information or revision of information, the time period for review is stayed and resumes when the administrative officer or the planning board determines that the required application information is complete.” - 10 - that had vested under provisions of the Zoning Enabling Act. We reject this
contention outright: Plaintiff’s three October submissions clearly constitute
pre-applications pursuant to § 45-23-35. There is unequivocal evidence in the record
demonstrating that plaintiff understood that it was in the pre-application stage of this
review proceeding. For example, plaintiff selected the “pre-application” box on
each of its three October submissions and further included a letter of transmittal
identifying the October submissions as application materials for a pre-application
plan review of its project. Additionally, the town planner catalogued the October
submissions as “pre-applications” upon receipt. Notwithstanding plaintiff’s attempt
to argue that its October submissions automatically became applications for land
development upon filing, the comprehensive legislative framework of the
Development Review Act compels the conclusion that the October submissions were
pre-applications pursuant to § 45-23-35.
Nevertheless, plaintiff relies on § 45-24-44(a) of the Zoning Enabling Act in
urging this Court to accept that its October submissions vested before December 10,
2018. Section 45-24-44(a) provides the following:
“A zoning ordinance provides protection for the consideration of applications for development that are substantially complete and have been submitted for approval to the appropriate review agency in the city or town prior to enactment of the new zoning ordinance or amendment.”
- 11 - The plaintiff posits that it knew that the October submissions were substantially
complete from prior experience with the town, and that the October submissions
came within the protections of § 45-24-44(a) because they had been submitted to the
appropriate review agency prior to the enactment of the moratorium ordinance or
new zoning ordinance.
The plaintiff’s argument is creative; however, unfortunately for plaintiff and,
despite its insistence that it submitted vested applications pursuant to § 45-24-44(a)
from the outset of this matter, the argument is simply not availing. Not only does it
ignore the comprehensive legislative framework of the Development Review Act,
but it also fails to acknowledge that § 45-24-44(a) refers to applications rather than
pre-applications.
Definitions contained in the Zoning Enabling Act underscore the fact that
there are distinct phases under the comprehensive legislative framework governing
land development projects. For example, § 45-24-31(58) defines a pre-application
conference as “[a] review meeting of a proposed development held between
applicants and reviewing agencies as permitted by law and municipal ordinance,
before formal submission of an application for a permit or for development
approval.” (Emphasis added.) Section 45-24-31(8) defines an application as “[t]he
completed form, or forms, and all accompanying documents, exhibits, and fees
required of an applicant by an approving authority for development review,
- 12 - approval, or permitting purposes.” These definitions further support our
determination that plaintiff’s October submissions constitute pre-applications
pursuant to § 45-23-35, as opposed to applications for development as referenced in
§ 45-24-44. Based on the statutory timeline set forth in the Development Review
Act and the statutory distinction between a pre-application and an application for
development, plaintiff clearly failed to advance beyond the pre-application stage of
the town’s review.5 We therefore conclude that plaintiff does not have a vested right
in its October submissions pursuant to the Zoning Enabling Act.
Validity of the Moratorium Ordinance
The plaintiff additionally argues that the town lacked the authority to issue the
moratorium on pending submissions pursuant to Article IV, § 411 of the Exeter
Town Charter. After reviewing the town’s exercise of authority pursuant to its
emergency powers under the Exeter Town Charter and the challenged ordinance
itself, we find plaintiff’s arguments unpersuasive. Section 411 of Exeter’s Town
Charter provides the following:
“(a) To meet a public emergency affecting life, health, property or the public peace, the Council may adopt one or more emergency ordinances. An emergency ordinance shall be introduced in the form and manner prescribed for
5 Our determination that plaintiff’s October submissions constitute pre-applications, as opposed to applications, obviates the need for this Court to determine whether the moratorium ordinance and the town’s subsequent amendment to its definition of a vested application are more restrictive than the vesting language contained in G.L. 1956 § 45-24-44. - 13 - ordinances generally, except that it shall be plainly designated as an emergency ordinance and shall contain, after the enacting clause, a declaration stating that an emergency exists and describing it in clear and specific terms. An emergency ordinance may be adopted with or without amendment or may be rejected at the meeting at which it is introduced, without following the publication and hearing procedures set forth in Section 410, but the affirmative vote of at least three (3) members shall be required for adoption. All emergency ordinances shall be published as soon as practicable following adoption.
“(b) All emergency ordinances shall become effective upon adoption or at such later time as may be specified therein and shall automatically stand repealed as of the sixty-first day following the date on which they took effect but may be reenacted in the manner specified in this section for a period of no more than sixty days if the emergency still exists. An emergency ordinance may also be repealed by a repealing ordinance in the same manner specified in this section for adoption of emergency ordinances.” Exeter Town Charter, Article IV, § 411.
The plaintiff asks us to hold that the moratorium ordinance constitutes an unlawful
exercise of the town’s authority because it is, in effect, an improperly adopted zoning
ordinance and otherwise violates state law. We decline to do so.
As required by § 411, the town clearly categorized the moratorium ordinance
as an emergency ordinance and limited its applicability to sixty days. With respect
to the emergency described by the ordinance, the town states that residential areas
in Exeter are under the threat of excessive development from solar-field projects
such as plaintiff’s. Additionally, the ordinance notes that the town needed this
moratorium to allow it to carefully review the actions of the previous town council’s - 14 - decision permitting the rapid influx of solar development projects. It also justified
the imposition of this moratorium so that the town could “prevent an overburdening
of [its] municipal and natural resources * * *.” Finally, the moratorium ordinance
responded to this emergency by imposing a moratorium on “all proceedings,
applications and petitions not vested pursuant to [§] 45-24-44,” the town’s zoning
ordinance, or the ordinance’s definition of a vested application.
The trial justice found, and we agree, that the moratorium ordinance addressed
a valid emergency and complies with the limitations outlined in § 411 of the town
charter. The moratorium ordinance clearly characterized the emergency as a threat
of an overdevelopment of solar-field projects in Exeter’s residential zones. Further,
the ordinance complies with the sixty-day limitation outlined in § 411 and affects
only applications that have not vested under the applicable laws.
Nevertheless, plaintiff argues that the moratorium ordinance constitutes an
illegal exercise of authority by the town because, it argues, the town adopted it in
violation of existing state law. In support of this idea, plaintiff argues that the town
did not comply with G.L. 1956 § 45-22.2-13, which authorizes a municipality to
implement a “one-time moratorium, for the purpose of providing interim protection
for a planned future land use or uses” for the first twelve months after a municipality
adopts its local comprehensive plan. See § 45-22.2-13(e). However, nothing in this
provision implies that the General Assembly intended for this mechanism to serve
- 15 - as the exclusive method for a town to enact a moratorium of any length and for any
purpose. We decline to read § 45-22.2-13 in a manner that would conflict with the
town’s authority to enact a moratorium under § 411. See Tiernan v. Magaziner, 270
A.3d 25, 30 (R.I. 2022) (“When faced with the task of statutory construction, this
Court ‘constru[es] and appl[ies] apparently inconsistent statutory provisions in such
a manner so as to avoid the inconsistency.’”) (quoting Such v. State, 950 A.2d 1150,
1156 (R.I. 2008)).
Alternatively, plaintiff asserts that section five of the moratorium ordinance
violates Rhode Island law because it allegedly modified the town’s vesting
requirements for zoning applications, and it failed to follow the ordinary notice and
hearing procedures required for a zoning amendment outlined in § 45-24-53. The
plaintiff also argues that, because section five of the moratorium ordinance contains
a definition of what constitutes a “vested application,” the town enacted an unlawful
amendment to its zoning ordinance. However, we decline to hold that the
moratorium ordinance’s inclusion of a vesting definition for a temporary duration
constitutes an implied amendment to Exeter’s zoning ordinance. While both parties
correctly highlight the fact that this Court has not previously decided when
municipal actions can effectively become zoning ordinances, we conclude that this
valid and temporary emergency ordinance does not rise to the level of a de facto
zoning ordinance.
- 16 - Moreover, although section five of the moratorium ordinance contains a
vesting clause, the town clearly provided this definition in an attempt to delineate
which applications would proceed throughout the duration of the moratorium and
which applications the town would place on hold. Section five does not attempt to
discuss or define the vesting process for applications unaffected by the moratorium
ordinance. We refuse to read section five in a way that would amount to a
generalized regulation applying outside the context of the sixty-day emergency
moratorium. Because plaintiff has failed to demonstrate that the town either lacked
the authority to pass the moratorium ordinance or show that it otherwise violates
Rhode Island law, we conclude that the trial justice’s findings are not clearly
erroneous and that his decision does not misinterpret applicable law; therefore, we
affirm the trial justice’s decision. See State ex rel. Kilmartin v. Rhode Island
Troopers Association, 187 A.3d 1090, 1098 (R.I. 2018).
Based on the plaintiff’s failure to demonstrate that its October submissions
vested or that the town enacted an unlawful moratorium ordinance, we must uphold
the decision of the trial justice. Although we must resolve all doubts and ambiguities
contained in zoning laws in favor of the landowner, our understanding of the relevant
law leaves us with no doubts to resolve in the plaintiff’s favor. See Denomme v.
Mowry, 557 A.2d 1229, 1231 (R.I. 1989). Therefore, we affirm the judgment of the
Superior Court.
- 17 - Conclusion
Based on the foregoing, we affirm the judgment of the Superior Court and
remand the record to the Superior Court.
- 18 - STATE OF RHODE ISLAND SUPREME COURT – CLERK’S OFFICE Licht Judicial Complex 250 Benefit Street Providence, RI 02903
OPINION COVER SHEET
Green Development, LLC a/k/a Wind Energy Title of Case Development, LLC v. Town of Exeter et al. No. 2020-244-Appeal. Case Number (WC 18-636)
Date Opinion Filed July 28, 2023
Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Justices Long, JJ.
Written By Associate Justice Melissa A. Long
Source of Appeal Washington County Superior Court
Judicial Officer from Lower Court Associate Justice Jeffrey A. Lanphear
For Plaintiff:
Lauren E. Jones, Esq. Attorney(s) on Appeal For Defendant:
Stephen J. Sypole, Esq.
SU-CMS-02A (revised November 2022)