REGULAR MEETING

Pursuant to Executive Orders recently executed by

the Governor of RI as a result of the Covid-19 Pandemic,

this meeting was held virtually via Zoom

Members present: Michael DeFrancesco, Scott Millar, Donna Pari, Michael Viveiros and

Donna Di Donato

Members Absent: William Haas

Staff present: Steve Sypole, Solicitor, William DePasquale, Planner and Dixie Foisy, Clerk

I. CALL TO ORDER:

Chair Michael DeFrancesco called the meeting to order at 6:30 p.m.

II. PUBLIC COMMENT:

None

Chair DeFrancesco suggested hearing the agenda out of order tonight by moving item A. Revity Energy to item C. as he feels there could be lengthy discussion on this topic and doesn’t want the other applicants to have to wait. He polled the Board and they were all in agreement.

III. NEW BUSINESS:

A. Preliminary Application: Purgatory Lots; Jason P. Hendrick and Peter C. Hendrick, Applicants and Owners, of property located at Purgatory Road, Exeter, RI; Zoned RU-4 and further designated as Accessor’s Plat 50, Block 4, Lot 10 for a proposed 3-lot minor subdivision. (Application time clock expires on April 23, 2021)

Chair DeFrancesco introduced this application and turned over to Planner DePasquale to review his memorandum.

Planner Bill DePasquale reviewed his 5-page memo giving an overview of this preliminary three-lot minor subdivision and stated that this is a straight forward petition. He discussed the site location and topography and noted his only concerns are with the types of soils on-site as this relates to the drinking water wells. The Planner stated that the applicant has provided OWTS approvals from RIDEM and drainage computations for stormwater management. He also stated that there will not be any negative environmental impacts and that the lots are practicable for development. Additionally, as stated on page 4 of the memorandum, under item B. the proposed development is consistent with the Town’s comprehensive plan, conforms to the standards and provisions of the land development regulations and to the town’s zoning ordinances. The Planner’s recommendation is to grant preliminary approval based on all of this, along with the (4) conditions mentioned on page 5 of the memorandum.

Chair Michael DeFrancesco thanked the Planner for his detailed memo, and asked if anyone was present to speak on behalf of the applicant.

Attorney John Pagliarini spoke on behalf of the applicants and stated that the Town Planner very succinctly summarized that this is a very straight forward minor subdivision with no street creation. He noted that the applicants engineer is also present, Ms. Charee Jackson, if the Board has any questions for her. Attorney Pagliarini did ask to deviate from the Planner’s recommendation and the conditions of approval is that the RIDEM/RIDOH potable water well report/approval not be required prior to final approval and feels this should be a requirement of the building permit. He also requested to have the final approval done administratively through the administrative officer.

Attorney Pagliarini then introduced Ms. Charee Jackson from Jackson Surveying located in Charlestown, RI. He asked Ms. Jackson if she was a licensed engineer; she replied in the affirmative. Attorney Pagliarini asked Ms. Jackson if she took into the account the rapidly drained soils when she did the calculations for this property. Ms. Jackson stated that she most certainly did and increased well distances for the septic. The attorney also asked if the drainage calculations, that were provided to the Town Planner, are sufficient for a 100-year storm events. Ms. Jackson stated yes and that her calculations show the longest distance for qualified pervious areas were 75 feet and that they easily have 100 to 150 feet of wooded areas to accommodate it. Attorney Pagliarini asked Ms. Jackson if any of the three sub-divided lots require a RIPDES permit? Ms. Jackson replied that no it does not. Mr. Pagliarini asked that because so much of the parcel is remaining vegetated helps with the drainage. Ms. Jackson replied in the affirmative. Mr. Pagliarini asked if her plans maintain the 100-foot no cut buffer along Purgatory Road. Ms. Jackson again replied in the affirmative.

Chair DeFrancesco thanked Attorney Pagliarini. The Chair stated, that as requested to remove #3 from conditions of approval, we will delete this condition as we don’t usually require this and that this is considered to be at the owner’s risk. He also noted that he does not object to the final approval being done through the administrative officer. Chair DeFrancesco then asked the Board if they have any questions or concerns regarding this application.

Michael Viveiros asked about the amount of land being cleared and the way the calculation was done regarding the septic and the well, and what would happen if a future owner cut more of the land.

Attorney Pagliarini replied that the 100-foot no cut buffer will be a recorded requirement and if the homeowner exceeded the 1-acre disturbance, the burden would be on them to get a RIPDES permit. Further discussion ensued.

Chair DeFrancesco asked if there were any other questions; there were none. At this time, the Chair asked for a motion to approve with amendments as discussed.

Scott Millar made a motion to approve this application with the following amendments to the Conditions of Approval in the Town Planners memorandum: #3 to be deleted and #4 to be revised to an administrative final approval completed by the Administrative Officer; Donna Pari seconded. Roll call was taken; voted 5-0. Motion passed.

B. Preliminary Application: MDF Realty, LLC - The Flood Plat; Michael Flood, Applicant and Owner of property located at 134 Stony Lane, Exeter, RI; Zoned RU-4 and further designated as Accessors Plat 12, Block 4, Lot 4 for a proposed minor subdivision. (Application time clock expires on May 19, 2021)

Chair Michael DeFrancesco introduced this application and turned over to Planner DePasquale to review.

Planner Bill DePasquale stated that this is a preliminary application for a minor 2-lot subdivision located on an existing public street. He proceeded to review his 5-page memorandum outlining some of the details of the project which included the following: the site is comprised of 129.44 acres in an RU-4 zone, with both proposed lots to maintain frontage on Stony Lane. Lot 1 will retain 125.44 acres and the proposed new lot #2 will be 4-acres. The petitioner has been cooperative in that they added new test pits at the request of the Planning Board and has submitted soil composition sampling to gauge suitability for development. The Planner stated that this is a straight forward minor subdivision and his recommendation is to grant preliminary approval as noted on page 4 of the memo.

Chair DeFrancesco commended Planner DePasquale on his detailed memo and referenced page 4, Item IV. The recommendation to grant preliminary approval based upon the analysis, facts and findings with the following conditions of approval. The Chair stated that he would like to revise condition #3 final approval to read “Final approval by the Planning Board or Administrative Officer” which would allow the applicant to not have to come back to the Board for final. Chair DeFrancesco then asked if there was someone present to speak on behalf of the applicant.

Patrick Flood was present representing the applicant and owner; he stated he did not have any questions but would be happy to answer any questions.

Planner DePasquale stated that he neglected to note earlier that they are requesting a waiver to the no cut buffer noted on page 5 of his memo.

Scott Millar stated that the Board discussed this at the last meeting and he made the no cut buffer as part of his recommendation. He added that he is familiar with this lot and that there is an existing vegetated buffer and would like to see that a 50-foot buffer stay in place as a requirement.

Chair DeFrancesco requested that the waiver requested on page 5 be deleted and just state that it’s not applicable and add as #4 condition of approval to maintain a 50-foot no cut buffer. The Chair asked if the other Board members had any comments or concerns with this revision; no comments from the Board.

Chair DeFrancesco asked for a motion to approve this preliminary application of a proposed minor subdivision to include the conditions of approval 1-4, with #3 amended as stated above and the addition of #4, also stated above.

Scott Millar made a motion to approve with the modifications described by the Chair. Michael Viveiros seconded. Roll call was taken; voted 5-0 all in favor. Motion passed.

C. Pre-Application: Revity Energy, LLC, Applicant and Exeter Real Estate Holdings, LLC, Owner of property located at Ten Rod Road, Exeter, RI; Zoned RU-4 and further designated at Accessor’s Plat 22, Block 3, Lot 3 for a proposed utility-scale solar development. (No review application time clock required)

Chair Michael DeFrancesco introduced this pre-application and then turned over to the Town Planner to review.

For the record, Donna Pari recused herself from this application as she is an abutter. Donna Di Donato also wanted to be on record that she is close to this location but not sure if she is within the 200-foot radius.

Planner DePasquale stated that the petitioner is suggesting accommodation to have the existing zoning district of RU-4 changed to planned district (PD) to accommodate a utility scale solar facility. The Planner noted that the current Solar 9 ordinance does not allow utility scale solar as a permitted use in the current RU-4 zone. Planner DePasquale stated that prior to his coming to Exeter, this property had at least two other proposals of significant projects over a couple of decades. He stated that this property has been altered over time and presents some challenges. Planner DePasquale reviewed his memorandum in detail and pointed out that the PD in the zoning ordinance and use table is not complete and is very difficult to determine what the intent of the PD zone was. He stated that these types of districts are usually either overlayed or reserved, and if reserved, for a specific purpose and usually subordinate to a master plan that compliments the comprehensive plan. He also recommended that there should be some type of conservation easement discussed and proposed by the applicant that could benefit the Town after 30 years.

Chair Michael DeFrancesco asked that the applicants and presenters introduce themselves in order to be noted in the meeting minutes: John Restivo, of Darrow & Everett was present to represent the applicant – Revity Energy, LLC. In addition, the following were present:

1. David Russo, Professional Engineer at DiPrete Engineering

2. Ashley Sweet, Weston & Sampson

3. Lindsay McGovern, Revity Energy, LLC

4. Kevin Casey, Exeter Real Estate Holdings, LLC

Jon Restivo gave an overview of their proposal noting the location and condition of the parcel. He stated that the use of this property has been in limbo for some time and that history is what makes it a unique property and well situated for solar.

David Russo from DiPrete Engineering introduced himself and stated he is representing Revity Energy and that he has worked on quite a few projects with Revity throughout the State of RI, Massachusetts and Connecticut. He shared the site plan on the screen and proceeded to review the location and noted that it is currently zoned RU-4 and that they are seeking to change to a planned district. Mr. Russo reviewed the significant disturbance that has been done to the land in recent past. He went on to review the proposed development of a solar array that would have access off of Ten Rod Road, and discussed their ideas for noise mitigation and visual screening. He noted that there are some wetlands located on the property and pointed out their location stating that they all need to be flagged and located. He then discussed a landscape buffer and that they would have a professional landscape architect evaluate this and develop a plan, understanding the Town ordinance requires a 200-foot buffer/wooded area. David Russo also noted a plan for security fencing around the entire site to prevent any unauthorized access and will meet with the local Fire Department to discuss their access. He stated that they are presenting this conceptual layout to obtain feedback from the Board in hopes of submitting a master plan going forward.

Chair Michael DeFrancesco stated that his main concern is the zoning of this location being a RU-4 zone and that the Board will need a green light that this is authorized for a zone change. The Chair asked the Solicitor to weigh in on the legal aspects of this process.

Solicitor Steve Sypole discussed the process of doing a zone change from an RU-4 to a planned district and stated this would require (3) different approvals: 1) a zone change from the Town Council, 2) a special use permit from the Zoning Board and 3) the approval from the Planning Board. He added that these approvals would be governed by the Precedence of Approval statute which is 45.23.61 that indicates the first step for the applicant is to file a master plan application with the Planning Board at which point the Planning Board would render a decision on the master plan and that decision would be conditional based on the Town Council approving the zone change. The Planning Board would also simultaneously send an advisory opinion to the Town Council with regard to the zone change.

Chair DeFrancesco asked the Solicitor if he would author a memo of recommendation to have on file.

Solicitor Steve Sypole stated that it is the statute 45.23.61 that governs the order of the process.

Chair DeFrancesco stated that he wants to be sure that the process is proper and that the Board has the green light to proceed.

Scott Millar gave some history and an overview of what the planned district allows. He stated that the Board is interested in working with applicant and suggested looking at an overlay district and that the intent of our solar ordinance is to allow solar on disturbed areas. Mr. Millar discussed the idea of setting up an overlay with some reasonable criteria that would define what we want to do which would allow us to measure and monitor subsequent people who may want to use it. He explained that if we had an overlay district, that might say 50 acres or greater on land that has been cleared and disturbed as of a date certain (maybe go back 5 years), the applicant could come forward and say because of the disturbance on this site, its no longer marketable or usable for the underlying uses in the zoning district. It would still require a special use permit and that it would be a major land development project, not a DPR. The applicant would have to follow all other requirements in our current solar ordinance for a utility scale solar. Lastly, he stated that we would have to make sure that the upgrade of the grid to service this particular facility would not negatively impact adjacent property owners.

Chair Michael DeFrancesco agreed with Scott Millar in that an overlay would be less problematic than a planned district and added that the Town would have more control going forward. The Chair also noted that in the zoning code, #87 definition states that an overlay district is a district established in the Exeter zoning ordinance that is superimposed on one or more districts (could be any underlying zone) and imposes specified requirements in addition to but not less than those otherwise applicable for the underlying zone.

Jon Restivo stated he would be interested to hear whether the Planning Board would be drafting that ordinance or if this would be something Revity could work with the Town Planner on. Mr. Restivo also stated that Revity’s goal is to work cooperatively with the Town and come up with something that works for all parties.

Planner Bill DePasquale added that the overlay is a very novel concept and stated that he worries about the long-term consequences. He noted that development and performance standards will be important to see whether or not they qualify for this overlay. The Planner also suggested a conservation easement after 30-years to give something back to the Town. He also expressed continued interest in the option of a planned district vs. an overlay.

Chair DeFrancesco stated he would prefer not to get into too much detail at this point, and added that they have been down this road before (referring to overlay districts) and have crafted ordinances in the past and is sure we can make it work. The Chair then asked the Solicitor if we could continue this pre-application at the next Planning Board meeting to discuss further before their master plan application is submitted.

Steve Sypole stated he didn’t see a problem with continuing this as long as the applicant agrees to this.

Scott Millar stated if we are going in the direction of an overlay, he suggested getting a draft from the applicant to review and that may help facilitate some more discussion.

Jon Restivo agreed to drafting something, but asked Scott Millar if he would be willing to review the drafts and provide further input.

Chair DeFrancesco asked the Clerk to poll the Board on the idea that Scott Millar assist Jon Restivo on reviewing their draft and provide input. The Board was polled and all were in agreement to have Scott Millar assist in this capacity.

Jon Restivo noted that they will obviously work with the Planner and Solicitor as well.

Chair DeFrancesco reviewed that Jon Restivo and the applicant will get a draft with some overlay language put together. Additionally, the Chair again asked Solicitor Steve Sypole to provided the Board with a memo stating that it’s okay to proceed regarding the regulations.

Steve Sypole agreed to provide this to the Board. He added that referencing the overlay discussion, he noticed that the definition in the Town of Exeter’s ordinance does not match the ordinance in the State statute. The State statute is 45.24.31 has a definition for overlay district that reads that the standards and requirements associated with the overlay district can be more or less restrictive. He then referenced the Towns definition #87, this states this can impose specified requirements in addition to but not less than those otherwise applicable in the underlying zone. Solicitor Sypole also added that this hasn’t been addressed so far, but feels the applicant will need to address the issue of spot zoning as this application proceeds to the Town Council and the Zoning Board. He stated that there is spot zoning that is allowable and then there is spot zoning that is illegal. Therefore, creating a use for solar in a residential zone, the Solicitor feels is an objection that the applicant will have to overcome if there are people opposed to the project.

Chair DeFrancesco understands and stated all the more reason to proceed cautiously.

Jon Restivo stated they would like to come back before the Board next month and asked when the Board would like a draft to be submitted.

Chair DeFrancesco stated that we would continue this discussion to our next regular Planning Board meeting on Tuesday, April 27, 2021. The clerk noted the deadline for submissions is the week of April 6. As this will be just revisions to the existing information, and submitting a draft ordinance, Jon Restivo asked if a week before the meeting was enough time to submit.

Planner DePasquale asked to clarify what the Board is expecting to see at the April 27^th meeting; a draft of an overlay district and any changes to the underlying zone.

Chair DeFrancesco stated that the zoning is one item, and the applicant will come back under the pre-application for more discussion, prior to submitting their master plan application.

The Chair thanked Jon, David and the rest of the Revity group.

D. FY 2021-2022 Budget: Discussion and Approval

The Board reviewed the level funded budget that was submitted last year. Discussion ensued regarding the budget submission and all agreed additional money should be added towards the Comprehensive Plan and advocate for a 2-year time frame as opposed to 3 years.

IV. ADMINISTRATIVE:

A. Zoning Board of Review: No April applications

B. Approval of Minutes:

Minutes of January 26, 2021 - Motion by Scott Millar to approve minutes as submitted; seconded by Michael Viveiros. Roll call taken; voted all in favor. Motion passed.

C. Solicitor’s Report: Discussed the “loop hole” on medium scale solar and suggested to discuss the language at our next workshop on 4/13/2021.

D. Draft Agenda: Discussion regarding our next Work Session agenda on April 13, 2021; to add

1) Zoning Overlay vs. PD, 2) Comp Plan, 3) Solar 9 Ordinance amendment regarding medium scale solar arrays

E. Correspondence: Planning Board Decision and (2) Memorandums re: Sol Power/Emma

Acres Farm

ADJOURNMENT:

Motion by Chair Michael DeFrancesco to adjourn, seconded by Scott Millar; voted all in favor. MOTION PASSED. Chair Michael DeFrancesco adjourned the meeting at 8:16 p.m.

Respectfully submitted,

M. Dixie Foisy

Planning Board Clerk