Town of Exeter, Rhode Island
PLANNING BOARD
675 Ten Rod Road
Exeter, R.I. 02822
401-294-2612
401-294-2592
Meeting Minutes
October 12, 2021
Approved: March 22, 2022
Members present: Scott Millar, Michael DeFrancesco, William Haas, Gina Thurn, Joe St. Lawrence, and Michael Viveiros
Members Absent: Donna Di Donato
Staff present: William DePasquale, Planner
Staff Absent: Dixie Foisy, Clerk
Chair Scott Millar called the meeting to order at 6:33 p.m.
Chairman Millar reminded participants of the following:
Comments are not limited to items on this agenda. However, items not on this agenda will only be heard for informational purposes and cannot be acted upon by the Planning Board unless they are of an emergency nature. (Please note that a 3-minute time limit is permitted per item; a 15-minute maximum time limit is allowed for this item.)
The Chair recognized resident Asa Davis, 146 Beechwood Hill Trail. Mr. Davis stated that he had two items to discuss. The first was regarding greenhouse permitting. He noted that municipalities aren’t allowed to contradict or break state law, and that if you enact something which contradicts state law, it usually gets struck down. He went on to say that he had requested and received copies for all the building permits for greenhouses in the past ten years, and that there has only been one – for a greenhouse that has a permanent concrete base. He stated that no other greenhouse in the Town has needed a building permit, at least in the last ten years.
Mr. Davis also discussed Revity and their appeal. He stated that Exeter’s in tough shape on this appeal, and all other legal cases, because the Town let the comprehensive plan expire. He went on to say that the legal case he has brought against the Town is in violation of state law 45-23-58, which allows “reasonable fees, in an amount not to exceed actual costs incurred, to be paid by the applicant for the adequate review and hearing of applications, issuance of permits and recordings of subsequent decisions.”
Mr. Davis also noted that the following is part of his lawyer’s legal filing:
Further, the Rhode Island Supreme Court has held that members of municipal boards must exercise their powers with strict impartiality or there will inevitably result a loss of public confidence. See Barbara Realty Co. v Zoning Board of Review of the City of Cranston, 128 A.2d 342,344 (R.I. 1957). To this end, municipal officials, such as the ones named in this Action, are required to apply rules and regulations lawfully adopted by them equally and fairly to all persons properly before them. See McGreavy, 2002 WL 220779 at *3. Consequently, in the event there is a deviation from lawful conduct, municipal officials can rightly be named as respondents in litigation, in both their official capacities. The suggestion otherwise, as proffered by Defendants, runs counter to legal principles long engrained in American Jurisprudence and Rhode Island case law.
Chairman Millar recognized resident Michael Cerullo, 61 William Reynolds Road.
Mr. Cerullo, a former Town Council member, stated that after speaking with faculty members from the Rhode Island School of Design, he learned that scale matters. He noted that this did not include 2.5-acre farms, small farms or even medium-sized farms, but large (huge) buildings/structures. Mr. Cerullo noted past struggles with regards to local control vs. state control; and that if the Town Council hadn’t been the Town’s guardians, protecting the Town’s rural character and appropriate use of land, that the Town would have had 3,000 jobs at the Ladd School without traffic oversight, water, and environmental controls.
Jenna Cragen, an Exeter resident, asked a question regarding the “Right to Farm Act” and by-right residential solar use.
Chairman Scott Millar stated that the Exeter Solar Ordinance allows for limited scale solar in residential zones up to a footprint of approximately 5 acres as a special use. He stated there is, however, criteria that also needs to be followed. Chairman Millar noted that you can have larger utility scale projects in industrial zones and that’s where it’s encouraged.
At this time, Chairman Millar entertained a motion to move Item A to the end of the agenda. Mr. DeFrancesco made the motion, Bill Haas seconded. Voted all in favor, 5-0. Motion passed.
A. Discussion and/or Possible Action Regarding Letters from the Planning Board to Public Officials Regarding CEA
Board member William Haas was recognized by the Chair. He noted that after receiving the Cease-and-Desist correspondence from Hall Morgan, he felt his concerns and questions had been satisfied.
Chairman Millar asked Mr. Haas since the Board had received the correspondence regarding the Cease-and-Desist were his concerns satisfied. Mr. Haas replied yes.
B. Discussion and/or Possible Action Regarding the Definition of and what Constitutes a Greenhouse
Chairman Millar, with regards to the definition of and what constitutes a greenhouse, he noted that since greenhouses are allowed by right and that there is a state statute that exempts them from state taxes, he felt there was a need for a clear definition of what constitutes a greenhouse. He stated that he researched multiple avenues of laws and regulations and found that the term greenhouse was not defined in the RI zoning or subdivision enabling acts. It was also not defined in the “Right to Farm Act”. Chair Millar noted that it was defined in the Rhode Island Building Code, a section of the Rhode Island General Laws. Rhode Island General Laws, Title 23 – Health and Safety, Chapter 23-27.3 – State Building Code, Section 23-27.3-109.1.3.5 Temporary greenhouse defined. Please refer to the Proposed Greenhouse Definition Draft 10-12-2021, that was included in the packets. Chairman Millar read the definition from state law. He then suggested that the Planning Board write to the Town Council recommending that the proposed greenhouse definition become part of the Exeter zoning ordinance and be included in the definitions’ section.
Board member DeFrancesco noted that the state definition only referenced a temporary structure and makes no mention of a permanent structure. Mr. DeFrancesco noted that materials, other than those noted in the state’s definition, should then be considered permanent. He felt that while the state’s temporary greenhouse definition should be added to Exeter’s zoning ordinance definitions section, the Board should also be including a permanent greenhouse definition as well.
Board member Viveiros concurred with Mr. DeFrancesco in needing both the temporary greenhouse definition as well as a permanent greenhouse definition. He noted that the codes, regulations and guidelines have not caught up with the industries of today.
Board member Joe St. Lawrence agreed with Mr. Viveiros that the international and state codes are at least two to three years behind.
Mr. Viveiros stated that these Controlled Environment Agriculture (CEA) facilities have a part to play in our future. That these facilities offer a lot of benefits. He stated that they needed to come up with accurate definitions and to note exactly what is occurring in these facilities.
Chairman Millar stated that there are three items under consideration here: 1. the need for a temporary greenhouse definition stating tax exemption status, 2. a definition for a permanent greenhouse and 3. a definition of CEAs.
Board member Gina Thurn respectfully disagreed and felt there was a need to include some mention of glass in the greenhouse definition. Ms. Thurn noted that historically greenhouses have always been constructed with glass in both temporary and permanent structures and only recently has plastic been used instead. She noted that having a glass covering does not necessarily constitute a permanent structure. She noted that the permanency is usually based on the foundation not the covering material. She stated that a greenhouse is a controlled environment.
Chairman Millar noted that Ms. Thurn made many valid points. The issue here is the state building code and state law have already established the definition of a temporary greenhouse. It seems to be referring to those greenhouses that are tax exempt and perhaps don’t need a building permit. He noted to Mike’s (DeFrancesco) point that they probably need a definition for a non-temporary greenhouse as well.
Discussion ensued.
Chairman Millar noted that the point of this discussion was not to discourage farmers from having greenhouses but to add some clarity. He reported that he will go back to the state building code official and see if they have any information or guidance on a non-temporary greenhouse, otherwise we’d have to consider adopting our own definition for a permanent structure.
Mr. DeFrancesco noted that we are talking about two different things here, between temporary and permanent greenhouses, and they should be treated differently.
Ms. Thurn noted that MASH units were put up with heat, electricity and water and taken down many different times. She stated, “We are arguing semantics.”
A question was directed to Town Planner DePasquale in regards to greenhouse definitions. He stated that there are essentially four silos: the Building Code, which has been addressed here tonight, Land Development which has no such definition on greenhouses, Zoning Enabling legislation which also has no such definition and the “Right to Farm Act” which does allow an exemption by the Director of DEM if he/she so chooses. He was asked to define the use of “exemption.” Town Planner DePasquale stated that it was defined as, what is considered an agricultural operation.
Town Planner DePasquale stated that he felt the discussion should be, how big should any greenhouse be in the Town of Exeter and include performance standards. However, all of these definitions need to be cleared up.
Chairman Millar wanted to get back to Mr. DeFrancesco’s initial question of, can we exceed a state definition? And, in case law, the answer is no. Chairman Millar reminded the Board of their definition of Accessory Dwelling Units, and how the Town Solicitor noted that it was not consistent with state law and we could not do it.
Public comment and discussion ensued.
Chairman Millar noted more work needed to be done and that the tax accessor should probably be included in any future discussions.
Michael Viveiros asked to read Section 3.12 under the state building code. The code had information regarding primary use, including greenhouses. Mr. Viveiros stated that he will have this state code distributed to the members of the Board for their review. Discussion ensued.
Town Planner DePasquale noted that as a point of information the Actual Use Code, in the Zoning Table, mentions greenhouses without a definition.
Chairman Scott Millar suggested the Board continue this conversation to a future work session.
C. Discussion and/or Possible Action Regarding Changes to the Subdivision Regulations
Chairman Millar recognized Michael DeFrancesco regarding changes to the land development and subdivision regulations. Mr. DeFrancesco stated that he would like to see a complete rewrite of the subdivision regulations. He noted that with every change the document has become a hodgepodge of language, procedures and definitions that need to be addressed and updated. He also noted that the Zoning regulations are in need of revisions and updating. He stated that he’s hoping that the new Comprehensive Plan will address these needs.
Chairman Millar noted that this is a good suggestion and once they have accomplished a new Comprehensive Plan, they will address Mr. DeFrancesco’s concerns. He noted that all of these items will need to be looked at and will probably take the next 2 or 3 years.
Chairman Millar noted that he missed the Old Business section earlier; accordingly, the next item was heard at this time.
A. Request For Proposal/Comprehensive Plan
Town Planner DePasquale noted that the Request for Proposal (RFP) went out last week. He shared some questions that need to be addressed such as, where does the Town of Exeter want to be in the next 20 years as a community; and how do we maintain the Town’s rural character? Mr. DePasquale stated that once these new zoning changes are determined, then the Zoning Board must be compliant with the Comprehensive Plan. He noted that the Comprehensive Plan will have a series of action items, including when they need to be completed and who is responsible for them. He noted that as a community they will need to talk about what they would like the Town of Exeter to become. Mr. DePasquale stated there will be a non-mandatory meeting with the proposed consultants who will have the ability, through a questionnaire, to ask a number of questions to clarify the scope of the bid. The Comprehensive Plan will need to be completed within two years.
Board member Michael DeFrancesco asked about the timeline for proposals. Town Planner DePasquale noted that perspective consultants would have four weeks to return their proposal.
D. Discussion and/or Possible Action Regarding Public Comments
Chairman Millar wanted to clarify the Public Comment statement by recommending the following changes:
Comments are not limited to items not on this agenda. However, Items not on this agenda will only be heard for informational purposes and cannot be acted upon by the Planning Board unless they are of an emergency nature. (Please note that a 3-minute time limit is permitted per item; a 15-minute maximum time limit is allowed for this agenda item).
Chairman Millar entertained a motion to except the changes to the Public Comments section.
Michael DeFrancesco made a motion to adopt the changes. William Haas seconded the motion.
Discussion:
Gina Thurn inquired on how the public can become part of the discussion during the board meetings.
She felt it was important for the public to know whether or not they can participate in the discussions on the agenda.
Olivia DeFrancesco, Town Council member and Planning Board liaison, added that she agreed with Ms. Thurn and questioned when the Chair asks if there are any comments, does that go to the public or just the Board members.
Michael DeFrancesco noted that he was advised by legal counsel that Planning Board meetings are not a “public hearing” and that the Board has business to accomplish. He stated that the Chairman can acknowledge someone if there are comments, but for the most part, you have to think of it as a closed meeting that the public is invited to observe and attend. Chairman Millar agreed with Mr. DeFrancesco’s comments.
Joe St. Lawrence stated that he agrees with Gina Thurn in some respect as he has seen at Town Council meetings when someone wants to raise an issue and it gets pushed aside, maybe not intentionally, but feels the public wants to be heard. Michael DeFrancesco shared that it’s at the Chair’s discretion.
Gina Thurn felt that there is not enough dialogue between the Board and the residents of Exeter. She stated that she feels that it’s very important to allow the residents time to offer their comments on agenda items.
Chairman Millar noted that all major subdivision and major land development projects have two opportunities for the public to make their comments and concerns known, very early on, at the public informational meeting. He shared that this is the publics opportunity to ask questions and express any concerns. In addition to that, there’s also a public hearing where the public can voice their opinions before the Board makes any decisions.
Chairman Millar noted there was a motion on the floor and seconded. Not hearing any further discussion, vote was taken; voted in favor: Michael DeFrancesco, Scott Millar, William Haas, Gina Thurn, Michael Viveiros; opposed: Joe St. Lawrence. The vote 5-1. Motion carried.
Motion by Bill Haas to adjourn, seconded by Michael DeFrancesco; voted all in favor. MOTION PASSED. The meeting adjourned at 8:04 p.m.
Respectfully submitted,
Rebecca Lukowicz and
M. Dixie Foisy
Planning Board Clerk