Opinion
C.A. NC-2017-0261
07-27-2018
ROGER FONTAINE and JANE FONTAINE v. JAMES EDWARDS, JAMES HALL, JOHN BORDEN, ERIC RAPOSA, BENJAMIN FURIEL and KATHLEEN PAVLAKIS, in their capacity as Members of the PORTSMOUTH ZONING BOARD OF REVIEW, PORTSMOUTH SOLAR, LLC, and SEABURY APARTMENTS, LLC
For Plaintiff: Jeremiah C. Lynch III, Esq. For Defendant: Kevin P. Gavin, Esq.; Jennifer Reid Cervenka, Esq.; Randall T. Weeks, Jr., Esq.
For Plaintiff: Jeremiah C. Lynch III, Esq.
For Defendant: Kevin P. Gavin, Esq.; Jennifer Reid Cervenka, Esq.; Randall T. Weeks, Jr., Esq.
DECISION
Van Couyghen, J. Magistrate Justice.
Before this Court is a zoning appeal pursuant to G.L. 1956 § 45-24-69. Roger and Jane Fontaine (Appellants) appeal a decision (decision) of the Portsmouth Zoning Board of Review (Board), granting a special use permit to Portsmouth Solar, LLC (Portsmouth Solar), to install a solar photovoltaic facility on property located in an R-30 District.
I
Facts and Travel
Seabury Apartments, LLC owns the property located at 259 Jepson Lane, Portsmouth, Rhode Island and otherwise known as Lot 3 on Tax Assessor's Map 60 (Property). (Compl. ¶ 4.) The Property consists of 29.7 acres of vacant land, with the exception of a barn. (Pet. 1; Ex. 7 to Pet.) On December 16, 2016, Portsmouth Solar filed a Petition for a Special Use Permit to install a 2.9 Mega Watt (DC) solar photovoltaic facility (solar farm) on the Property pursuant to Article V(B)(5) and Article VII(A)(1)(b) of the Portsmouth Zoning Ordinance (Ordinance). (Pet. 1.)
The Zoning Ordinance for the Town of Portsmouth (Ordinance) does not provide for solar farms in any of the Town's districts.
The Board conducted duly noticed hearings on March 30, 2017 (Tr. I), and May 4, 2017 (Tr. II). As an initial matter, the Board addressed whether a solar farm would be permissible under the Ordinance considering that a solar farm is not specifically mentioned.
Article V, Section 1 of the Ordinance provides:
Except as otherwise provided in this Ordinance, in each district no building, structure, or land shall be used or occupied except for the purposes permitted as set forth in the accompanying Table of Use Regulations, Section B.
Proposed uses not so listed may be presented to the Zoning Board of Review by the property owner. Such uses shall be evaluated by the Zoning Board of Review according to the most similar use(s) that is (are) listed, as well as the purposes and uses generally permitted in the subject use district. The Zoning Board of Review may approve the proposed use as permitted, or deny the proposed use as not permitted, or allow the proposed use subject to a Special Use Permit. (Art. V, Sec. 1 of the Ordinance.)
Portsmouth Solar asserted that because a solar farm is similar to a public utility, which is permitted in an R-30 district, then a solar farm also is permitted under the Ordinance in an R-30 district based upon Art. V, Sec. 1. The Appellants disagreed and, instead, likened a solar farm to "a nonregulated power producer . . . engaged in the business of producing, manufacturing, or generating electricity for sale to the public[, ]" and that as such, they contend that it is a prohibited use in an R-30 district. (Tr. I at 14.)
After hearing arguments on the subject, a Board Member moved as follows:
that the solar farms' Petitioner be allowed to move forward based on Article V, 1, 2. This Board has the right to choose the most similar use under the zoning ordinance, and I believe that the most similar use is a public utility and personally, based on the testimony do not buy the argument that this is a manufacturing use. In my opinion, this is a passive use that does not involve the manufacturing of goods and services. It is more of a passive use, and I would move that the Board move forward with this petition. (Tr. I at 26.)
Thereafter, the Board unanimously voted to consider the solar farm as if it were a public utility and proceeded to consider the petition for a special use permit. (Tr. I at 26-27.)
At the hearing, the principal of Portsmouth Solar, Jamie Fordyce, testified that "solar is a passive use" and that each panel is approximately "3 by 5 feet" with the larger capacity panels being "6 feet long." Id. at 29, 30. He described the solar farm as follows:
So there's a racking structure, which is driven posts into the ground in most cases. This - in this case we have a racking system. The panels are angled on a 25 degree tilt. They rest roughly 1.5 feet off the grade and reach up approximately 8 feet. They're arrayed in portrait one over another and along in an array. Id. at 31.
The project would be surrounded by a six-foot high vinyl chain-link fence, and there would be landscaping to screen the solar farm from neighbors. Id. at 38, 39. The project was certified as "a Distributed Generation Project" by the Public Utilities Commission, which would permit it "to generate electricity for sale to National Grid to be distributed to the public." Id. at 55. Thus, it is clear that this proposal would be a commercial operation. See Black's Law Dictionary 325 (10th ed. 2014) (defining "commercial" as "[o]f, relating to, or involving the buying and selling of goods").
Professional Engineer Alan Benevides testified next. (Tr. I at 65-92; Tr. II at 282-285.) He testified that the property had been surveyed and that because it is a relatively flat site, there would be few changes in the topography, and that they have made provisions for storm-water quality and quantity. Id. at 67; 71-72. He stated that the proposed solar panels would absorb sunlight and that an antireflective coating on the panels would prevent glare. Id. at 74. In addition, he noted the project would not emit any noise or odors, and it would not use any chemicals, and it would not generate noticeable traffic. Id. at 76, 82.
Landscape Architect Joshua Wheeler then testified. Id. at 96-117. He stated that he drew up plans to screen the project from view with staggered plantings that would better hide it from the neighbors. Id. at 98, 100. The plants would be native to the area, and the larger trees would be eight feet in height at the time of planting. Id. at 105-06.
Nathan Godfrey, a Real Estate Appraiser and Consultant, appeared next. Id. at 118-147; Tr. II at 286-290. He testified that he had received a letter from the Rhode Island Historical and Preservation and Heritage Commission, stating that the proposed screening of the project would minimize the effect of the solar array and that it would not have an adverse effect on historical properties. Id. at 123-24. He testified that the project would not generate any noise, glare, odor, and would not pose any traffic concerns. Id. at 126-27. He stated that the solar farm "is as passive as it gets[, ]" that [t]here's simply no element here that would impact an abutting use." Id. at 136-37.
Lay witness Robert King (Tr. I 153-162; Tr. II at 275-280) objected to the petition, contending that the project would create solar glare. (Tr. I at 156-57.) He also contended that the solar panels are known to entrap various hazardous chemicals. Id. at 159-60. Another lay witness, John Reed, also expressed concern about solar glare. (Tr. II at 169.) He then questioned whether the transformers would emit noise or create blind spots for pilots approaching nearby Newport Airport. Id. at 173, 175.
Real Estate Expert James Houle testified against the project. (Tr. II at 184-263.) He testified that cracked solar panels create a danger of shock and/or electrocution, and that any chemicals used in the production of the panels could leach out into the soil. Id. at 186, 189. Mr. Houle opined that solar farms are not harmonious to a residential use and likely would diminish surrounding property values by about ten to fifteen percent. Id. at 195-96, 213. He testified that solar farms are more appropriate for either an industrial or a commercial district. Id. at 200. He opined that if the project was approved, then "there's a strong risk the area will take on the feel of an entire industrial zone[, ]" especially considering that National Grid is planning on expanding a nearby substation. Id. at 203. Mr. Houle also opined that the proposed buffering around the site was insufficient. Id. at 204. He testified that in his opinion, the project was not compatible with the Comprehensive Plan, and that "[w]hen you have a use that's really not harmonious with a residential neighborhood, you're creating friction within that neighborhood, and that ultimately goes against the Comprehensive Community Plan, which is to have an orderly growth." Id. at 217-18.
Lay witness and abutter Thomas Settle testified in favor of the Petition. Id. at 263-268. He testified that although his preference would be for the Property never to be developed, his second choice would be for a solar farm, as he believes "that would be the least amount of impact that development on that property would have." Id. at 264-65. He stated that in the past, a solar farm was installed near a house that he was building in Middletown, and that at the time, he feared it would depreciate the value of the house; however, the solar farm had no effect on the sale price of that property. Id. at 267.
Lay witness Rachel Charrier, who is one of the owners of the neighboring Seabury Apartments, next testified in favor of the Petition. Id. at 268-270. She stated that she believed "that this project is a great way for us to use the land but at the same time not impact the neighborhood in any way." Id. at 269. She further testified that "if we actually thought that it would do anything to harm the property values, we would be shooting ourselves in the foot because our property [Seabury Apartments] abuts it too." Id. at 269-70.
Mrs. Charrier's husband, James, testified next. Id. at 270-274. Mr. Charrier testified that he owns a real estate development company and that by his calculations, the Property is large enough to accommodate twelve to fifteen residences. Id. at 271. He posited that if each of those houses was built to the maximum height of thirty-five feet and each roof contained solar panels, then the solar panels would be much more visible than the proposed solar farm. Id. He stated his belief that while the project may not be the best use for the Property, it nevertheless would provide "the lowest impact to the community." Id. at 272.
Cyrus Gibson was the last lay witness to testify. Id. at 274-75. He testified that while he agreed with Mr. Settle's testimony, his "biggest concern" was that "should this get approved, it sets a very dangerous precedent." Id. at 274. In other words, he feared that the owners of farmland would point to any such approval as the basis for seeking similar approval on their farms. Id. at 275.
At that point in the hearing, lay witness Mr. King returned to the stand to outline an agreement that he and his neighbor had reached with Portsmouth Solar regarding the planting of additional trees should solar glare become a problem. Id. at 279. Apparently, Portsmouth Solar agreed to place money in an escrow account for two years in the event that additional plantings might be necessary. Id. at 279-80.
At the conclusion of the hearing, the Board voted by a vote of four-to-one to approve the Petition. On June 1, 2017, the Board issued a written decision. (Decision, June 1, 2017.)
II
Standard of Review
Section 45-24-69(a) grants the Superior Court jurisdiction to review a local zoning board's decision. Such review is governed by § 45-24-69(d), which provides:
The court shall not substitute its judgment for that of the zoning board of review as to the weight of the evidence on questions of fact. The court may affirm the decision of the zoning board of review or remand the case for further proceedings, or may reverse or modify the decision if substantial rights of the appellant have been prejudiced because of findings, inferences, conclusions, or decisions which are:
(1) In violation of constitutional, statutory, or ordinance provisions;
(2) In excess of the authority granted to the zoning board of review by statute or ordinance;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable, probative, and substantial evidence of the whole record; or
(6)Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. Sec. 45-24-69(d).
Our Supreme Court requires this Court to "review[] the decisions of a . . . board of review under the 'traditional judicial review' standard applicable to administrative agency actions." Restivo v. Lynch, 707 A.2d 663, 665 (R.I. 1998). Accordingly, the Court '"lacks [the] authority to weigh the evidence, to pass upon the credibility of witnesses, or to substitute [its] findings of fact for those made at the administrative level."' Id. at 666 (quoting Lett v. Caromile, 510 A.2d 958, 960 (R.I. 1986)). In performing this review, the Court "may 'not substitute its judgment for that of the zoning board of review as to the weight of the evidence on questions of fact.'" Curran v. Church Cmty. Housing Corp., 672 A.2d 453, 454 (R.I. 1996) (quoting § 45-24-69(d)). However, the applicant always bears the burden to demonstrate why the requested relief should be granted. See DiIorio v. Zoning Bd. of Review of City of E. Providence, 105 R.I. 357, 362, 252 A.2d 350, 353 (1969) (requiring "an applicant seeking relief before a zoning board of review to prove the existence of the conditions precedent to a grant of relief").
In reviewing a zoning decision, the Court '"must examine the entire record to determine whether 'substantial' evidence exists to support the board's findings."' Salve Regina Coll. v. Zoning Bd. of Review of City of Newport, 594 A.2d 878, 880 (R.I. 1991) (quoting DeStefano v. Zoning Bd. of Review of City of Warwick, 122 R.I. 241, 245, 405 A.2d 1167, 1170 (1979)). '"Substantial evidence" is defined as 'such relevant evidence that a reasonable mind might accept as adequate to support a conclusion, and means [an] amount more than a scintilla but less than a preponderance."' Lischio v. Zoning Bd. of Review of Town of N. Kingstown, 818 A.2d 685, 690 n.5 (R.I. 2003) (quoting Caswell v. George Sherman Sand & Gravel Co., Inc., 424 A.2d 646, 647 (R.I. 1981)). If the Court '"can conscientiously find that the board's decision was supported by substantial evidence in the whole record, "' it must uphold that decision. Mill Realty Assocs. v. Crowe, 841 A.2d 668, 672 (R.I. 2004) (quoting Apostolou v. Genovesi, 120 R.I. 501, 509, 388 A.2d 821, 825 (1978)). However, in cases that involve questions of law, this Court conducts a de novo review. Tanner v. Town Council of E. Greenwich, 880 A.2d 784, 791 (R.I. 2005).
III
Analysis
The Appellants contend that the Board exceeded its authority by altering the terms of the Ordinance to add a special use. They further contend that even if the Board did have the authority to alter the Table of Use Regulations, the Board erroneously found that a photovoltaic facility is similar to a public utility.
The first issue for the Court to determine is whether the Board acted in excess of its statutory authority. A special use "is a conditionally permitted use[.]" Bernstein v. Zoning Bd. of Review of City of E. Providence, 99 R.I. 494, 497, 209 A.2d 52, 54 (1965). It is
not an exception to a zoning ordinance, but rather it is a use to which the applicant is entitled if it meets the objective standards in the zoning ordinance for special exception approval. The allowance of a special exception use in a particular zoning district indicates legislative acceptance that the use is consistent with the municipality's zoning plan and that the special exception use, if the applicable objective standards are met, does not adversely affect the public interest of health, safety, and welfare. 8 McQuillin, Law of Municipal Corporations § 25:170.60 (3d ed. 2010).
A special use is defined as "[a] regulated use that is permitted pursuant to the special-use permit issued by the authorized governmental entity, pursuant to § 45-24-42." Sec. 45-24-31(62) (emphasis added). Section 45-24-57(1)(v) permits zoning boards "[t]o authorize, upon application, in specific cases, special-use permits, pursuant to § 45-24-42, where the zoning board of review is designated as a permit authority for special-use permits[.]" Sec. 45-24-57(1)(v) (emphasis added).
Our Supreme Court has declared that a petitioner for a special use permit first "must establish that the relief sought is reasonably necessary for the convenience and welfare of the public." Toohey v. Kilday, 415 A.2d 732, 735 (R.I. 1980). In doing so, the petitioner "need show only that 'neither the proposed use nor its location on the site would have a detrimental effect upon public health, safety, welfare and morals.'" Id. (quoting Hester v. Timothy, 108 R.I. 376, 385-86, 275 A.2d 637, 642 (1971)); see also Salve Regina Coll., 594 A.2d at 880 ('"The rule, [is] that satisfaction of a 'public convenience and welfare' pre-condition will hinge on a showing that a proposed use will not result in conditions that will be inimical to the public health, safety, morals and welfare.'") (quoting Nani v. Zoning Bd. of Review of Town of Smithfield, 104 R.I. 150, 156, 242 A.2d 403, 406 (1968)).
Section 45-24-42 provides in pertinent part:
(a) A zoning ordinance shall provide for the issuance of special-use permits approved by the zoning board of review . . .
(b) The ordinance shall:
(1) Specify the uses requiring special-use permits in each district;
(2) Describe the conditions and procedures under which special-use permits, of each or the various categories of special-use permits established in the zoning ordinance, may be issued;
(3) Establish criteria for the issuance of each category of special-use permit that shall be in conformance with the purposes and intent of the comprehensive plan and the zoning ordinance of the city or town[.] Sec. 45-24-42 (emphases added).
It is well-settled that "[w]hen confronted with a clear and unambiguous statute, [the Court's] task is straightforward: [it is] bound to ascribe the plain and ordinary meaning of the words of the statute and [the] inquiry is at an end." Gerald P. Zarrella Tr. v. Town of Exeter, 176 A.3d 467, 470 (R.I. 2018) (quoting Town of Warren v. Bristol Warren Reg'l Sch. Dist., 159 A.3d 1029, 1039 (R.I. 2017)) (internal quotations omitted). Our Supreme Court has declared that "[u]nless the context otherwise indicates, use of the word 'shall' * * * indicates a mandatory intent." Shine v. Moreau, 119 A.3d 1, 13 (R.I. 2015) (quoting 1A Norman J. Singer and J.D. Shambie Singer, Statutes and Statutory Construction § 25:4 at 589 (7th ed. 2009)).
Section 45-24-42(b) not only contains the mandatory word "shall," it also immediately is followed by the word "Specify[.]" Sec. 45-24-42(b). Specify is defined as "1. To state explicitly or in detail . . . 2. To include in a specification . . . 3. To determine or bring about (a specific result)[.]" The American Heritage Dictionary of the English Language 1682 (5th ed. 2011).
The Court concludes that the clear and unambiguous language of § 45-24-42(b) requires an ordinance to explicitly state "the uses requiring special-use permits in each district[.]" Sec. 45-24-42(b)(1). In reaching this conclusion, the Court looks to our Supreme Court's interpretation of § 45-24-13, the predecessor statute to § 45-24-42, for guidance.
Section 45-24-13 (1988 Codification) provided:
The city council of any city or the town council of any town shall provide for the selection and organization of a board of review, and in the regulations and restrictions adopted pursuant to the authority of this chapter shall provide that the board of review may, in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to the terms of the ordinance in harmony with its general purpose and intent and in accordance with general or specific rules therein contained, or where the exception is reasonably necessary for the convenience or welfare of the public. Sec. 45-24-13.
Rather than requiring an ordinance to specify "the uses requiring special-use permits in each district[, ]" (§ 45-24-42(b)(1)), § 45-24-13 merely provided that a "board of review may, in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to the terms of the ordinance . . . ." Sec. 45-24-13 (emphasis added). Thus, the language of § 45-24-13 was less stringent than that contained in § 45-24-42(b).
Even with the less stringent standard, our Supreme Court stated that "[w]hen the general assembly enacted § 45-24-13, it permitted the local legislative bodies of the various municipalities of this state to provide a board of review with the authority to make special exceptions to the terms of the zoning ordinance." McNalley v. Zoning Bd. of Review of City of Cranston, 102 R.I. 417, 418, 230 A.2d 880, 881 (1967). In McNalley, the Cranston Zoning Board decided that a horse-riding ring would be desirable in a residential district, despite the fact that it did not have specific authority to grant such a permit. Id. at 418, 230 A.2d at 882. The court stated that "[h]owever desirable the board believes a horse-riding ring may be, if its use is not authorized by the city council by way of a special permit, the board has no authority to permit its operation." Id. It then declared that "[i]f a horse-riding ring is to be allowed in a residential section under the circumstances of the instant cause, provision for such an activity as a permitted use by way of a special exception must be made by the legislative branch of the municipality and not by a quasi-judicial fiat of an administrative agency as the respondent board." Id.at 419, 230 A.2d at 882.
The terms "special permits" and "special exceptions" may be used interchangeably. McNalley v. Zoning Bd. of Review of City of Cranston, 102 R.I. 417, 418, 230 A.2d 880, 881 (1967).
In Monopoli v. Zoning Bd. of Review of City of Cranston, 102 R.I. 576, 232 A.2d 355 (1967), the zoning board permitted a restaurant to construct a parking lot in a residential district for its customers. Citing to McNalley, the court expressed concern because it could "find no legislative basis for the board's approval of the instant application which allows a commercial endeavor to intrude upon a residential area of the city of Cranston." Id. at 578, 232 A.2d at 356. It then declared: "The power of a zoning board of review to make exceptions to the ordinance is controlled by the pertinent provisions thereof. If the ordinance does not supply this power, it cannot be exercised." Id.
Article V, Section 1 of the Portsmouth Ordinance provides:
Except as otherwise provided in this Ordinance, in each district no building, structure, or land shall be used or occupied except for the purpose permitted as set forth in the accompanying Table of Use Regulations, Section B.
Proposed uses not so listed may be presented to the Zoning Board of Review by the property owner. Such uses shall be evaluated by the Zoning Board of Review according to the most similar use(s) that is (are) listed, as well as the purposes and uses generally permitted in the subject use district. The Zoning Board of Review may approve the proposed use as permitted, or deny the proposed use as not permitted, or allow the proposed use subject to a Special Use Permit. (Art. V, Sec. 1 of the Ordinance.)
It is undisputed that the Ordinance at issue in this case does not provide for photovoltaic systems in its Table of Use Regulations. Relying upon Article V, Section 1, the Board nevertheless determined that it is a permitted use because photovoltaic systems are similar in use to public utilities. However, while it is unclear what the Town Council intended when it used the term "most similar use(s)[, ]" it clearly could not have intended for the Board to add additional uses to the Table of Use Regulations. See Bernstein, 99 R.I. at 497, 209 A.2d at 54 (stating "the power to establish what exceptions will be available for said purposes is vested in the local legislature and cannot be delegated by it to a board of review"); Goelet v. Bd. of Review of City of Newport, 99 R.I. 23, 27, 205 A.2d 135, 137 (1964) ('"The power of a zoning board of review to make exceptions to the terms of a zoning ordinance is controlled by the pertinent provisions thereof'") (quoting Cole v. Zoning Bd. of Review of City of E. Providence, 94 R.I. 265, 269, 179 A.2d 846, 848 (1962)); Bailey v. Zoning Bd. of Review of City of Warwick, 94 R.I. 168, 170, 179 A.2d 316, 317 (1962) ("the legislature never intended to permit the [zoning] board to be clothed with blanket authority to exercise the legislative power which had been delegated to the council by the enabling act").
In § 45-24-42(b), the general assembly specifically delegated to the Town Council the power to specify what special uses would be available for each district. As previously stated, the Town Council does not have the authority to delegate that power to the Board. Thus, regardless of the actual meaning of the second paragraph of Article V, Section 1, it cannot mean that the Town Council gave the Board the power to add a new, unspecified use to the Table of Use Regulations. That authority lies with the Town Council and only with the Town Council. Consequently, the Court concludes that the Board exceeded its statutory authority when it declared that a solar photovoltaic facility was a permissible use under the Ordinance.
The Court observes that "[w]indmills and other wind power generating devices, whether commercial or otherwise" are permissible as an accessory use by way of a special use permit in all districts except the town center. Art. V, Sec. I(12.) This evidences an awareness by the Town Council of at least one renewable energy source. However, the Town Council apparently chose not to allow wind farms in any district. See, e.g., State v. Milne, 95 R.I. 315, 321, 187 A.2d 136, 140 (1962) ("It is well settled that in enacting statutes the legislature is presumed to know the law and the effect thereof on its enactments.")
Even assuming, arguendo, that the Board did not act in excess of its statutory authority in determining whether a use not specified in the Table of Use Regulations was similar to one that was specified such that it would be a permissible use, it erroneously determined that a solar photovoltaic facility was a permissible use.
In DePasquale v. Cwiek, 129 A.3d 72 (R.I. 2016), our Supreme Court determined that a wind turbine was exempt from taxation because it met the definition of manufacturing equipment under G.L. 1956 § 44-3-3(20). The rationale in that opinion provides this Court with useful guidance. Though DePasquale involved a wind turbine and taxation, and not a solar farm, the court recognized the definition of manufacturing in its opinion therein.
In DePasquale, the property owners allowed the construction of a wind turbine on their property. Id. at 74. Like the proposed solar farm, the purpose of the wind turbine was to produce electricity for sale to National Grid rather than directly to members of the public. Id. The town in which the wind turbine was located assessed it for purposes of taxation and sent the owners a tax bill. Id. The owners challenged the tax bill, asserting that the wind turbine was exempt from tax because it constituted manufacturing equipment. Id.
For an individual or entity to qualify for a tax exemption as a manufacturer, "machinery and equipment must be 'used exclusively in the actual manufacture or conversion of raw materials or goods in the process of manufacture by a manufacturer[, ] * * * [or] used exclusively by a manufacturer for research and development or for quality assurance of its manufactured products[.]'" Id. (quoting § 44-3-3(22)). An individual
is deemed to be a manufacturer . . . if that person uses any premises, room, or place in it primarily for the purpose of transforming raw materials into a finished product for trade through any or all of the following operations: adapting, altering, finishing, making, and ornamenting; provided, that public utilities; non-regulated power producers commencing commercial operation by selling electricity at retail or taking title to generating facilities on or after July 1, 1997[, ] * * * are excluded from this definition[.] Sec. 44-3-3(20)(i).
The court determined that the owners of the wind turbine met the definition of a manufacturer under § 44-3-3(20)(i) because "the wind turbine is used exclusively for the purpose of transforming raw materials-namely, wind-into a finished product-namely, electricity." DePasquale, 129 A.3d at 75.
Thus, even though the Board found that the proposed solar farm was similar to a public utility, it would be, in fact, a manufacturing facility because it would transform sunlight into electricity. As stated above, manufacturing is expressly prohibited in residential zones under the Ordinance. As a result, the granting of a special use permit for a manufacturing facility-the solar farm-was clearly erroneous.
IV
Conclusion
After carefully reviewing the entire record, this Court finds that the Board's granting of the special use permit was in excess of its statutory authority and in violation of ordinance provisions. The Zoning Board's decision also was affected by error of law and was characterized by an abuse of discretion and clearly erroneous. Substantial rights of the Appellants have been prejudiced. Accordingly, this Court reverses the Zoning Board's decision.
Counsel shall submit an appropriate order consistent with this opinion.