REGULAR MEETING

Members present:     Scott Millar, Michael DeFrancesco, William Haas, Gina Thurn, Joe St. Lawrence Michael Viveiros and Donna Di Donato

Members absent:       None

Staff present: Steve Sypole, Solicitor, William DePasquale, Planner, Dixie Foisy, Clerk and Olivia DeFrancesco, Town Council Liaison

I.                CALL TO ORDER:

Chairman Millar called the meeting to order at 6:31 p.m.

II.              PUBLIC COMMENT:

III.            OLD BUSINESS:

A.    Preliminary Plan-Major Land Development: Jade Investment Group LLC, (South Trail Commerce) Applicant and Owner of property located at 0 South County Trail, Exeter, RI; Zoned Business and further designated as Assessor’s Plat 71, Block 4, Lot 3 for a proposed mixed-use commercial development. *NOTE: conditional Preliminary approval of this MLDP was granted on October 3, 2022.

Chairman Scott Millar introduced the above Jade Investment Group, LLC, Preliminary Plan-Major Land Development and asked Town Planner William DePasquale to review his memorandum entitled: Phase 1 Major Land Development Phased Development – South Trail Commerce, Dated: January 18, 2023. In his seven-page memorandum Planner DePasquale reviewed the travel of this project beginning in April of 2021 through the Conditional Preliminary approval Record of Decision on October 3, 2022.

He included in his memorandum that on September 27, 2022 in which, at a public hearing, the Planning Board voted all in favor (5-0) to grant conditional Preliminary approval of the Phase 1 Major Land Development Project with (11) stipulations. Ten of the eleven stipulations were met, with the eleventh being, based on the sale or change in the use of any unit, the new owner will be required to notify the Town, specifically the Town Planner and Zoning Officer.

Mr. DePasquale reviewed the Findings of Fact; Waivers; Recorded ZBR conditions of approval by the Exeter Zoning Board of Review (Recorded decision August 5, 2022); Recommendations and Land Development Regulations Sec. 3.5. Required Findings.

Chairman Millar asked if the applicant had any additional comments. Mr. Richard Marcello stepped forward and wanted to note that they had received a lot of good input from the Board and that they have been very mindful of the Board’s suggestions and have implemented much of that information into their overall plan and feel it will be both a good project for the Town of Exeter and their business.

Chairman Millar asked if there were any further questions from the Board; hearing none, Chairman Millar made a motion based on the Planner’s recommendations from his memorandum, dated January 18, 2023, that they approve the applicant’s Preliminary approval based on the clarity of the Planner’s memorandum including the Conditional Preliminary approval of this MLDP, granted on October 3, 2022 along with the Required Findings and the 13 Stipulations; seconded by Michael DeFrancesco. Chairman Millar asked if there was any further discussion. Hearing none, the vote was taken and was all in favor. (Scott Millar, Michael DeFrancesco, William Haas, Gina Thurn, Joe St. Lawrence) 5-0, the motion passed.     

B.    PUBLIC HEARING: Preliminary Plan-Major Land Development to construct a 6.6±MW Utility Scale Solar Development: (This Project is vested under a former Zoning Ordinance Article XI “Renewable Energy” dated July 16, 2018; the Planning Board issued a Master Plan approval on January 22, 2019). Renew Solar RI Exeter Mail, LLC Applicant, and Rina Stamas, Trustee, Owner of property located at 148 Mail Road, Exeter, RI; Zoned RU-4, and further designated as Assessor’s Plat 71, Block 4, Lot 14; including a waiver of the requirement to obtain all state permits prior to the Preliminary plan review, a RIDEM Insignificant Alteration Permit and RIPDES General Permit for Stormwater Discharge During Construction Activity are required and currently under review by the RI Department of Environmental Management.

Chairman Millar introduced this petition and explained the history, he then asked for a motion to open the public hearing.  William Haas made the motion; Gina Thurn seconded the motion; vote as all in favor (Scott Millar, Michael DeFrancesco, William Haas, Gina Thurn, Joe St. Lawrence); the public hearing was opened.

Chairman Millar asked Town Planner, William DePasquale to review his memorandum. Planner DePasquale reviewed his memorandum: Mail Road Solar (Vested)—Major Land Development Project Preliminary Plan—Public Hearing; 6.6+ megawatt (MW) ground mounted solar photovoltaic array, dated January 18, 2023.

Planner DePasquale noted that the project was vested under a former zoning ordinance known as Solar 4, the so called “Green Ordinance” that allowed utility scale solar in RU-4 zones with a special use permit. According to Town records a Certificate of Completeness for Master Plan Application—Major Land Development AP 71 Block 4 Lot 14—Renew Solar RI was issued on October 2, 2018. At the time of vesting the 10-15-2022 version of the zoning ordinance was applied.

He then reviewed the following topics in his January 18, 2023 memo: Finding of Fact-Travel (Pgs. 1-3); Project Description (Pgs. 3-5); Analysis (Pgs. 5-12); Waivers (Pg. 12); Recommendations (Pgs. 12-14). Planner DePasquale concluded his memorandum with the following statement: In an effort, to address all the outstanding concerns and required conditions of the original January 22, 2019 Master Plan approval, I recommend against the Planning Board issuing waivers and request the applicant extend the 90-day time clock which currently ends February 26, 2023. This would give the applicant time to obtain all state permits, meet the conditions of the Master Plan approval and reconcile the concerns raised in the Preliminary application that include, but are not limited to, responding to the Peer Review and Fire Marshal’s concerns over public safety access.

Chairman Millar stated that he was not only concerned but very disappointed with the scope of deficiencies associated with this applicant’s request, noting that only 6 out of 7 conditions from four years ago, have currently been addressed.

Chairman Millar recognized Kelley Morris Salvatore, the attorney representing Renew Solar RI Exeter Mail, LLC, a subsidiary of Nautilus Solar. She noted that in a former discussion with the Board for their Ten Rod Road project that this proposal, along with the Ten Rod Road project and another northern Rhode Island project, is part of a complete package to provide bill credits to various housing authorities across the state called (PHARI, Public Housing Authority of Rhode Island).

Ms. Morris Salvatore stated that, of course, they would agree to an extension acknowledging the deficiencies they haven’t yet been able to respond to, the Fire Marshal being one. She requested to meet again on February 28, 2023. Ms. Morris Salvatore noted that both Jason Gold, a Registered Civil Engineer for TRC and Melissa Burrell, a Master Electrician with Nautilus Solar, were present and will offer new information. She reminded those in attendance that his project is vested.

Jason Gold, Registered Civil Engineer for TRC, gave an overview of the project from its initial concept to where they are currently. He reviewed both the site plan and the proposed landscape plan.

He summarized how they have met the Master Plan conditions of approval. (Conditions of approval appear in the Planner’s memorandum, dated January 18, 2023).

Vice Chair, Michael DeFrancesco had a question regarding a Tax Treaty Ordinance.  Ms. Morris Salvatore noted that in a memo from the previous Planner, Ashley Sweet, she noted that the applicant was before the Town Council on January 7, 2019 and received a wavier from the Tax Treaty requirement, this waiver amounts to the applicant being required to pay taxation on the property as outlined in State law. Mr. DeFrancesco had further questions and Ms. Kelley Morris Salvatore said she would look into his question for clarification. Chairman Millar also had questions regarding the tax liability.

Mr. DeFrancesco also inquired about the waivers they are asking for. It was clarified that they are only asking for waivers for the Preliminary application and that they would have all required permits for Final approval.

PUBLIC COMMENTS:

Richard Seymour, 154 Mail Road, Exeter, RI

Mr. Seymour is in favor of the project. He takes issue with the Fire Marshal’s concerns with access to the site.

Michael Abbott, Kingston Road, Exeter, RI

Mr. Abbott is concerned about the wildlife and feels they will be creating a “wildlife desert.”

He questioned the need for a 5, 6, 7-foot fence and how this will impact wildlife negatively. He feels there is no need for a fence and would like a waiver to eliminate the fence. He would also like to see the poles pushed back further into the property to create a cleaner look. Chairman Millar asked for the company to ask for a waiver regarding fencing in the site.

Carolyn Seymour, 154 Mail Road, Exeter, RI

Ms. Seymour would love to see “no fence.”

Gabriel Shaker, South County Trail, Exeter, RI

He would like to know how they plan to protect the swamp(s) and how will this impact wetlands and the environment. Mr. Gold spoke to Mr. Shaker’s concerns and indicated that their plans call for three retention basins for the purpose to manage runoff from this project and also provide water quality treatment.  

Chairman Millar acknowledged concerns with run off. He asked for a third-party inspector to monitor the site.

Richard Seymour, 154 Mail Road, Exeter, RI

Mr. Seymour asked the Board if a housing development were going up in this space would we be here tonight? Chairman Millar indicated that any development in Town would go through the same process.

Daniel Forlasto, 50 Sheffield Hill Road, Exeter, RI

He asked how long the construction of this project is projected to take? He is also concerned with the potential noise level. Mr. Gold acknowledged that yes, there would be construction impact with regards to noise. Kelley Morris Salvatore, the attorney representing Renew Solar RI Exeter Mail, LLC, indicated that once construction started it would be about a 6-month building project.

Lee Stamas, 148 Mail Road, Exeter, RI

Mr. Stamas, owner of the property, indicated that he has had developers approach him about his land and he has said, “no way,” but felt this project offered a good alternative to keeping this property open and safe for future use. He stated that he is a hunter and he loves the woods. He would choose to die in the woods. He notes that he has 128 acres with his house, utilizing only 48 acres.

Cheryl Edwards, 32 Kingston Road, Exeter, RI

Ms. Edwards has no objection to this project.

END OF PUBLIC COMMENT.

At this time, Ms. Morris Salvatore asked about the Planner’s request that they have a “landscape surety” clause. She would like to understand what that process would entail, noting that they would be asked to give a cash surety and indicating that there is this vague suggestion of replacing dying and dead trees. She asked if there would be a tree warden who would establish if a tree or plantings are dead and the need to replace them. She would like to understand, in more detail, the proposed landscape surety clause, stating that she has not seen one of these requests in her twenty-five years.

Ms. Morris Salvatore felt that they had addressed most of the comments in the recommendations section of the Planner’s memorandum, noting that they still have work to do with the Fire Marshal.

Chairman Millar made a motion to continue both the public hearing and the applicant’s request to February 28, 2023. Gina Thurn seconded the motion; vote was all in favor, 5-0. (Scott Millar, Michael DeFrancesco, William Haas, Gina Thurn, Joe St. Lawrence.) Motion passed.

Chairman Millar made a motion to move New Business A up before Old Business C, seconded by Joe St. Lawrence, all in favor (5-0). (Scott Millar, Michael DeFrancesco, William Haas, Gina Thurn, Joe St. Lawrence.)

IV.            NEW BUSINESS:

A.    Pre-application-Development Plan Review: Oak Harbor Village LLC, Applicant and Owner of property located at 567 South County Trail, Exeter, RI; Zoned Business, and further designated as Assessor’s Plat 71, Block 4, Lot 1; proposing to modify their existing entrance configuration.

Chairman Millar recognized Stephen St. Germain, partner/applicant, reviewed his proposal to remove the center island in the existing entrance to Oak Harbor Village to enhance access and circulation within the existing commercial property. It is their opinion that the removal of the landscaped island will improve vehicular circulation within the development and resolve an unsafe condition.

Chairman Millar noted that the island has been in place for some 15 years or longer and why now has become a problem. Mr. St. Germain explained that he doesn’t know why previous owners didn’t ask for removal of the island, but as new owners they have noticed on many occasions, especially for larger vehicles, i.e., tracker trailers, that this island poses issues and causes damage to surrounding structures as these vehicles try to navigate this entranceway.

The Board agreed that this island needs to be removed. That although it had some value for landscaping it is not working for the traffic needs of today.

Chairman Millar recognized Town Planner William DePasquale who supplied the Board with his Planning Memorandum: Preapplication DPR—Oak Harbor Village LLC (ISLAND) Zone B, AP 71 B 4 Lot 1, 567 South County Trail Exeter RI; Dated: January 11, 2023. Planner DePasquale in his memorandum covered the Existing condition; Proposal; Guidance and Recommendation.

His recommendation, after visiting the site, concluded that the island could pose an obstruction for a tanker truck or similar large box truck or sanitation truck attempting to gain access to the gas station. He recommended photographs be submitted that indicate an impedance. If the photographs show evidence of the same, he recommended the removal of the existing island in favor of a painted island. The painted island shall consist of diagonal yellow bars (45 degrees to the centerline). The diagonal bars shall be installed similar to the slash symbol -/- so that in the direction of travel the diagonal goes up and to the right. The bars shall be a minimum of 24 inches wide, with a standard spacing between bars. At a minimum the island shall have at least 4 bars painted within it.

VI.            OTHER ADMINISTRATIVE ISSUES:

A.    Advisory opinion to the Town Council proposed zoning amendment titled Maximum Lot

Coverage for All Structures.

The Board agreed to discuss this topic at the next Planning Board meeting slated for Tuesday, January 31, 2023.

B.    Comprehensive Plan Discussion

Chairman Millar indicated that he and Planner Bill DePasquale had a discussion with Consultant Larissa Brown and made her aware of the Planning Board’s concerns and asked that moving forward she have drafts given to the Planning Board and CPAC committee members in advance of the meetings, containing specific goals and policies so that people have something to react to. This would allow committee members to better understand the level of detail they are being asked to weigh in on.  

Gina Thurn asked for clarification on the upcoming CPAC meeting. Planner DePasquale noted that in order to comply with the Open Meeting laws every CPAC meeting, which the Planning Board is part of, will need to attend in person.  However, we will be establishing a Zoom link for the general public, as they may choose to attend in person or attend via Zoom and participate that way.

VII.         OLD BUSINESS:

C.    Renew Solar RI Exeter Ten, LLC Applicant, and James Marshall, Owner of property

located at 590 Ten Rod Road, Exeter, RI; zoned RU-4, and further designated as Assessor’s Plat 37, Block 1, Lot 5; clarification and reconsideration of a condition regarding notice to the Narragansett Indian Tribe.

Vice Chair Michael DeFrancesco noted that he had been advised from the Ethics Commission to recuse himself from this discussion due to the appearance of a conflict of interest, because Olivia DeFrancesco (his daughter) had proposed that there be written documentation that the Narragansett Indian Tribe have been notified of the proposed development on the subject property. For the record, Mr. DeFrancesco completed a Statement of Conflict of Interest pursuant to RI General Laws 36-14-6 which is on file.

Chairman Millar asked Donna Di Donato if she would take Mr. DeFrancesco’s place in any required votes on this subject.

Ms. Kelley Morris Salvatore requested that the Board reconsider, or clarify, their request to notify the Narragansett Indian Tribe on the subject property. She indicated that having done some research she found that this requirement is not a condition that is applied equally to developments in Exeter.  She also noted that she spoke with Michaela Jergensen, Principal Historic Preservation Specialist, of the RI Historical Preservation and Heritage Commission, regarding this proposed condition, Ms. Jergensen stated that there is a staff archeologist on both staffs of the RIHPHC and RIDOT. That both groups had reviewed the proposal during the physical alterations permit process and nothing was “flagged” as a state cultural resource. Ms. Morris Salvatore stated that Ms. Jergensen also followed up with her in an email stating that the property, “does not contain any National Register listed resources, above or below ground” which would include Native American artifacts, gravesites, etc.

Attorney Kelley Morris Salvatore also noted that Ms. DeFrancesco is a member of the Exeter Town Council, and according to the ethics code, members of appointing bodies are not supposed to appear before the Planning Board. That if she had known that Ms. DeFrancesco was a member of the Town Council, she would have objected to her comments, because Ms. DeFrancesco has appointing authority over the Board and this would then be an ethical issue.

Ms. Morris Salvatore stated, based on her findings, regarding the condition to notify the Narragansett Indian Tribe, she asked that the condition be removed from the approval process.

Chairman Millar asked Town Planner William DePasquale to weigh in on these concerns. Mr. DePasquale indicated that he had also done his research into this question and had reached out to Michaela Jergensen who was responsible for the physical alterations permit. He stated that in her email she indicated that the physical alterations permit was only a review from the RIHPS sent to them from RIDOT and that the Narragansett Tribe were not involved in the tappers, so they will have to be notified.

Mr. DePasquale received additional information from Elizabeth Totten (HPHC), Project Review Coordinator, if the development will require any state or federal funds, permits or licenses, then it is subject to our review under the RIHP Act or Section 106 of the National Historic Preservation Act. If the project is near a cemetery, then there are additional regulations. Ms. Totten also noted in her memo to Mr. DePasquale that the Town could request an advisory opinion from their office, even if the project is not subject to our review under state and federal law.

Mr. DePasquale using a previous transcript noted at least fifteen different times the need to notify the Narragansett Indian Tribe. He noted that throughout the transcript it is indicated that notification would occur either by certified mail or something that the company produced saying that the Narragansett Indian Tribe had been notified.

Chairman Millar asked Solicitor Steve Sypole for his opinion about a Town Council member attending a Planning Board meeting and wanting to express a concern or ask a question about any development project - that this would be unethical? Mr. Sypole first stated that he is not a member of the Ethics Commission, however, he believes that a Town Council member can participate in a public hearing like any other member of the public. If the Town Council member is the applicant, then that would be a different story.

Ms. Kelley Salvatore stated that she had an opinion from the Ethics Commission. She read from an advisory opinion from Robert Morrow, March 10, 2015-8. In which was referenced general laws 36-14-5E, stating “These prohibitions also include matters before other agencies over which the public official is the appointing authority. Absent express finding, by the Ethics Commission, in the form of an advisory opinion that a hardship exits, you cannot appear before a subservient board (Planning Board).  So, I respectfully disagree with Mr. Sypole’s opinion.

Ms. Kelley Salvatore noted that if something was found during excavation, work would have to stop anyway or they would be breaking the law.

In both a Draft Document named: Record of Decision – (ROD)

Preliminary Approval — Major Land Development Project – Utility Scale Solar*

Page 3: Conditions of Approval, Number 2: Provide written documentation that the Narragansett Indian Tribe have been notified of the proposed development on the subject property.

Also, in a memo from Town Solicitor Stephen Sypole to the Zoning Board, Dated: January 24, 2023

which includes references, from Kelley Morris Salvatore, Esq., to providing written documentation to the Narragansett Indian Tribe.

Chairman Millar asked for a motion. Gina Thurn made a motion to remove this condition of approval from their preliminary plan, so that they do not have to specifically notify the Narragansett Indian Tribe and that all laws will be followed during the construction of the array in the event that any artifacts are found. Joe St. Lawrence seconded the motion. Chairman Millar asked for any discussion. The vote was taken with Gina Thurn, Joe St. Lawrence in favor; and William Haas, Donna Di Donato, Scott Millar voted against. The motion failed 3-2.

Steven Sypole asked Attorney Kelley Morris Salvatore if she is on the agenda for February 28, 2023, and she indicated yes. Solicitor Sypole asked if this subject could be added to that agenda because there are other conditions that have been raised by the applicant.

Town Planner William DePasquale indicated there will be a need for another extension to get the Planning Board Decision recorded.    

VIII.       OTHER ADMINISTRATIVE ISSUES CONTINUED:

C.    Discussion and/or Possible Action: Planning Board Policy requiring digital submission stating that Applicant shall provide electronic copies of their submissions as well as provide a link to access electronic copies of their submissions so they may be made available to the public.

Solicitor Sypole felt this was a great idea and all items should be sent in PDF form. Town Planner  

DePasquale indicated they need a unique identifier, preferable using Plat and Lot. He has been inquiring about a customized program that will work for the Town of Exeter.

ADJOURNMENT:

Motion by William Haas to adjourn, seconded by Gina Thurn; voted all in favor.  Motion passed.   Chairman Scott Millar adjourned the meeting at 9:20 p.m.

Respectfully submitted,  

Rebecca Lukowicz and

M. Dixie Foisy

Planning Board Clerk