Green Development, LLC a/k/a Wind Energy Development, LLC v. Town of Exeter

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

No. 2020-244-Appeal.
(WC 18-636)

Green Development, LLC a/k/a Wind :
Energy Development, LLC

v. :

Town of Exeter et al. :

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

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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

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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

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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.

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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.”

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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,

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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.

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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)