HOPKINTON — In an effort to block construction of a large solar energy facility, 14 Hopkinton residents have filed a complaint in Washington County Superior Court against the town, several present and former Town Council members, the developer, and the owner of the property at 310 Main St., where the array would be built.
Filed Wednesday by attorney James Donnelly, of Wakefield, the 46-page "civil action for declaratory judgment and injunctive relief" seeks to have amendments to Hopkinton's comprehensive plan and zoning ordinance declared null and void because of procedural irregularities and other actions on the part of the town.
The defendants named in the civil action, in addition to the town, are Town Council President Frank Landolfi, councilors Sylvia Thompson and Barbara Capalbo and former councilors Thomas Buck and David Husband, Rhode Island Solar Renewable Energy LLC, Anthony J. Delvicario, former manager of Rhode Island Solar Renewable Energy LLC, and Maxson Hill LLC.
Because commercial solar facilities are prohibited in residential zones, the developer applied for comprehensive plan and zoning amendments to change the designation of the parcel from RFR-80 to Commercial/Special.
The complainants are property owners whose land abuts the proposed 15-megawatt project, which would be built on 68 acres owned by Roy Dubbs, who is doing business as Maxson Hill. Donnelly said his clients had been largely unaware of what was planned in their neighborhood, because the town did not issue adequate notices of impending hearings.
“Nobody really knew what was going on because of the failure of notice,” he said. “They really didn’t follow their own rules.”
Hopkinton Town Solicitor Kevin McAllister, who said he had not yet been served with the complaint, maintained that all the abutters had received the required notices and that no one had voiced objections to the proposal at public hearings. The council approved the amendments last May.
“The town very strongly disagrees with any assertion that the notice was inadequate,” he said. “There was almost no opposition to the Maxson Hill zone change that occurred last spring at the public hearings. That basically sailed through with very little opposition.”
The complaint is also critical of the application and hearing process. Donnelly argues that the applicant, Rhode Island Solar Renewable Energy LLC, no longer existed as a company at the time of the application.
“That’s the low level of inspection that they put on this whole process,” Donnelly said. “Somebody comes in, they don’t even exist and they’re asking for crazy stuff, and just because they’re waving some money, ‘Hey, this sounds like a great idea.’”
The complaint also states that the council violated the town’s Code of Ordinances when it approved the amendment to the Comprehensive Plan by a vote of 3 to 2 (Capalbo and Husband dissenting) after the Planning Board had issued a negative advisory opinion. The required two-thirds vote as described in the town’s ordinances would have been a vote of four to one.
“The affirmative vote of at least two-thirds of the town council shall be necessary to enact any modification or amendment to the comprehensive plan or element thereof where the planning board has rendered an adverse decision,” Section 2 - 116 of the ordinance states.
Because the zoning amendment was predicated on the approval of the amendment to the comprehensive plan, the complaint argues that both amendments should be considered defeated, thereby rendering them invalid.
“It’s a big deal to change a comp plan. It’s supposed to be a blueprint for future development.” Donnelly said. “A lot of time, effort and expertise goes into it, so you can’t just get three people who are going to overrule that.”
McAllister disagreed, saying that only a simple majority was required because state law supersedes municipal statutes.
“State law clearly says that a majority vote is all that’s required for the council and the town charter says the same thing,” he said. “I would also argue that that ordinance does not apply to the situation of a zone change before the council under the facts of this case.”
The council also stipulated that the property automatically “revert” to its previous residential zoning designation once the solar array was decommissioned, without additional hearings or notices.
“There’s case law around that,” Donnelly said. “You can’t do that, because that would say, ‘OK it’s this zone now, and at some undetermined point in the future, it automatically goes back.’ That would be a change. You have to have notice. You have to do all of those things.”
Eric Bibler, founder of the group Hopkinton Citizens for Responsible Planning, said the council had overstepped its legislative authority when it effectively overruled the Planning Board.
“The Town Council has also defiantly declared its intention to continue pursuing the same unlawful pattern of conduct as a model for deciding future requests from developers who want to install commercial solar energy factories in rural, residential zones, where such manufacturing activity is strictly prohibited,” he said. “In so doing, the Town Council has usurped the authority of the Planning Board and subverted the integrity of the planning process and the comprehensive plan by attempting to substitute an illegitimate, ad hoc, zoning process for the proper legal procedure.”
The complainants are asking the court to declare the comprehensive plan and zoning amendments invalid, which would prevent construction.
“This is not a victimless crime,” Bibler said. “The Town Council's actions have deprived abutters, neighbors and all of the residents of Hopkinton of their fundamental statutory rights as property owners and citizens."
McAllister described the tone of the Maxson Hill hearings and other subsequent solar proposals as needlessly adversarial, a result, he said, of a lack of understanding of the role of the Town Council in deciding on such applications.
“People don’t seem to understand the role they sit in,” he said. “They’re elected and they’re the ones who get to change ordinances or not and there’s rules, and people are supposed to come in there and present their arguments and that’s the way it goes. So it isn’t an adversarial process at the council level between the applicant and the council or the opponents to the application and the council. The council sits in between them and has to weigh everything and make the appropriate decisions according to how each member, he or she, decides, from what they heard.”