Freepoint Solar LLC v. Richmond Zoning Board of Review

May 11, 2022
Supreme Court
No. 2020-207-M.P.
(WC 20-6)
(Dissent begins on Page 16)
Freepoint Solar LLC :
v. :
Richmond Zoning Board of Review :
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. 2020-207-M.P.
(WC 20-6)
(Dissent begins on Page 16)
Freepoint Solar LLC :
v. :
Richmond Zoning Board of Review :
et al.
Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
OPINION
Justice Long, for the Court. The Town of Richmond (the town) petitioned1
this Court for the issuance of a writ of certiorari to review a Superior Court judgment
1
The town was not a party to the proceedings before the Superior Court, where the
plaintiff, Freepoint Solar LLC, appealed from a decision of the defendant, the Town
of Richmond Zoning Board of Review. The town filed a petition for certiorari with
this Court to review the resulting Superior Court judgment. Upon so filing, the
petitioner in the case was listed on the docket as the zoning board, not the town.
Following oral argument, this Court issued an order directing the parties to address
in supplemental statements whether the zoning board had standing to maintain the
petition for certiorari pursuant to this Court’s opinion in Hassell v. Zoning Board of
Review of City of East Providence, 108 R.I. 349, 275 A.2d 646 (1971). In its
supplemental statement, the town clarified that the town itself sought issuance of the
writ, and therefore it had standing to maintain the petition. See Town of East
Greenwich v. Day, 119 R.I. 1, 3, 375 A.2d 953, 954 (1977). The plaintiff has also
conceded that the town had standing to bring the petition for writ of certiorari.
Accordingly, we address the merits of this case. We remind the parties and members
of the bar of the obligation, particularly in light of the relatively recent move to
-1-
rendered in favor of the plaintiff, Freepoint Solar LLC (Freepoint). The Superior
Court reversed a decision of the Town of Richmond Zoning Board of Review (the
zoning board) that denied Freepoint’s application for a special-use permit to
construct a solar energy system. This Court issued the writ and ordered the parties
to appear and show cause why the issues raised in this case should not be summarily
decided. After considering the parties’ written and oral submissions and reviewing
the record, we conclude that cause has not been shown and that this case may be
decided without further briefing or argument. For the reasons set forth in this
opinion, we affirm the judgment of the Superior Court.
Facts and Procedural History
In November 2016, Freepoint entered into a binding option to lease 36
Woodville Road in Richmond (the site) for the purpose of constructing a solar
energy system (the project). Freepoint’s plan was to build a 4.99MW(DC)/4.5
MW(AC) nameplate capacity ground-mounted photovoltaic (PV) solar facility on
the site. The site was zoned R-3, which, at the time Freepoint submitted its
application, permitted solar energy systems by special-use permit. During the time
period relevant to this case, special-use permits for solar energy systems were
electronic filing, to “notify the Clerk of the Supreme Court of any inaccuracies in
the titles assigned by the Clerk within seven (7) days after receiving notice of the
docketing of the appeal” under Article I, Rule 12(b) of the Supreme Court Rules of
Appellate Procedure.
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specifically governed by § 18.34.030 of the Town of Richmond Code of Ordinances.
Accordingly, in November 2018, Freepoint applied to the zoning board to obtain a
special-use permit to construct the project.
In its application, Freepoint addressed how the project met the requirements
of § 18.34.030 of the zoning ordinance. Relevant to our review, Freepoint
specifically addressed the requirement in § 18.34.030-A, which mandated that the
entire lot on which the solar energy system was to be located be within two miles of
a utility substation (the utility substation requirement). See Town of Richmond Code
of Ordinances § 18.34.030-A (May 15, 2018) (“The entire lot on which the solar
energy system is located shall be within two (2) miles of a utility substation.”). In
satisfaction of the utility substation requirement, Freepoint represented that “[t]he
entire subject parcel is located within two miles of a substation located in the vicinity
of 530 Church Street, in Wood River Junction, RI and shown on Figure 3 in
Appendix A.” The specific substation referenced was operated by Amtrak (the
Amtrak substation).
Over the course of 2019, the zoning board held multiple meetings on the
application, both public hearings and work sessions. As was typical, the application
was initially referred to the Town of Richmond Planning Board (the planning board).
The planning board subsequently provided an advisory “Development Plan Review”
concerning the project. In that advisory, the planning board made findings of fact
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and recommended approval of the application subject to certain conditions, none of
which are at issue on review before this Court. Notably, the planning board found
that “[b]y code, the property is located within two miles of a substation (located at
530 Church Street, Wood River Junction).”
In May 2019 the zoning board held both a public hearing and a public work
session on Freepoint’s application. At those meetings, the zoning board, members
of the public, and Freepoint representatives discussed concerns regarding, among
other items, decommissioning costs, the potential for glare to negatively affect
neighbors, the effect of the project on the character of the area and neighboring
property values, ways to ameliorate the visual impacts of the project, and the
project’s compliance with the special-use permit requirements and the town’s
comprehensive plan. The issue of the utility substation requirement came up briefly
while the zoning board discussed the special-use permit requirements, but that
discussion focused on the requirements for ameliorating the visual impacts of the
project.
At a second public hearing, in July 2019, a member of the public, William
Boger, commented:
“Section [18.34.030-A] is a concern. I did a little bit of
research on this. This is the section that reads in the
Zoning Ordinance for, specifically for solar energy
systems. The entire lot on which a solar energy system is
located shall be within two miles of a utility substation.
The Zoning Ordinance does not provide a definition of
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utility substation. * * * National Electric Code provides
[a] definition of a utility substation as a substation which
is a composite of switches and gears—it’s electrical
switching equipment. When the word utility is tagged on
to utility substation, the utility then is the company that
owns and maintains being a provider of that utility. By
that definition, National Grid, being the provider of
electricity in this area, would be the logical source for a
utility substation.”
Following Mr. Boger’s comment, the zoning board and members of the public
discussed the meaning of “utility substation” extensively. For the first time, the
zoning board questioned the purpose and intent behind the utility substation
requirement, lamenting the lack of definition for “utility substation” in the zoning
ordinance. At the close of the meeting, the matter was continued.
A third public hearing on the application took place on October 28, 2019, after
a formal request by Freepoint to reopen the matter for further public comment. The
meeting was called to give Freepoint an opportunity to present evidence regarding
whether the Amtrak substation was a “utility substation” for purposes of
§ 18.34.030-A of the zoning ordinance. Freepoint provided an expert witness,
Jeffrey Fenn, to testify about substations.
Mr. Fenn testified that “[t]he primary item in a substation that defines it
different[ly] from another facility is the transformer[,]” and he provided the National
Electric Safety Code and the New IEEE Standard Dictionary of Electrical and
Electronics Terms definitions of substation, each of which, in summary, defined
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“substation” as an assemblage of equipment, including a transformer, through which
energy is passed for switching and transforming power. Mr. Fenn testified that the
Amtrak substation was within two miles of the project, and that it was a substation
with three transformers. Finally, Mr. Fenn clarified that, when discussing
substations that are characterized by the presence of a transformer, he was referring
to “utility substations,” as distinguishable from, for example, a water department
substation. Freepoint also asked the zoning board to take administrative notice of
the Rhode Island Public Utilities Commission enabling act definition of “public
utility.” See G.L. 1956 § 39-1-2(a)(20) (defining “public utility” as used in title 39
of the general laws to include, among other items, “every company operating or
doing business in intrastate commerce and in this state as a railroad, street railway,
[and] common carrier”).
No evidence was presented that contradicted Mr. Fenn’s testimony. However,
after Freepoint’s presentation, Richmond Town Solicitor Michael Cozzolino spoke
on behalf of the town. The solicitor represented that “[i]t’s the Town’s position, the
term ‘substation’ was intended to be limited to National Grid substations within the
Town.” To support this assertion, Mr. Cozzolino presented a DVD containing a
recording of the town council meeting on July 25, 2017, at which the town council
first passed § 18.34.030-A of the zoning ordinance; he also provided a map that was
used at that meeting, which showed various utility substations in the Town of
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Richmond. After viewing the video, the solicitor argued, “[I]f you listen to that, in
conjunction with the maps that were submitted, it’s clear that the Council intended
for the utility substations to be limited to those three National Grid ones that were
submitted with that particular zoning amendment.”
Freepoint objected to the solicitor’s comments, asserting instead that the
meaning of the ordinance was clear on its face. Freepoint also took issue with the
solicitor’s characterization of the video from the town council meeting, arguing that
(1) at no point did the town council modify the word “utility” by use of any language
pertaining to National Grid, and (2) discussions about the utility substation
requirement at that town council meeting had focused on the economic viability of
projects. In a closed session after the hearing, the zoning board decided to defer
decision on Freepoint’s application.
Finally, in December 2019, the zoning board met to render a decision on
Freepoint’s application. Deliberations prior to the vote centered on the utility
substation requirement—that is, whether the Amtrak substation qualified as a “utility
substation” for purposes of § 18.34.030-A of the zoning ordinance. The zoning
board voted on two motions: one motion to grant the special-use permit, and one
motion to deny the special-use permit. The former garnered three out of five votes
in favor of granting the special-use permit, while the latter garnered two votes in
favor of denying the special-use permit. However, because the town’s zoning
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ordinance required a minimum vote of four in favor to grant a special-use permit,
the motion to grant the permit failed and the application was denied.
Freepoint appealed the zoning board’s decision to the Superior Court.
Freepoint asserted that the zoning board’s decision was clearly erroneous, arbitrary
and capricious, and contrary to the law and the evidence. Freepoint alleged that the
zoning board erred by (1) not applying the plain meaning of the ordinance,
(2) erroneously considering evidence and arguments presented by the town solicitor,
and (3) finding that the Amtrak substation was insufficient for purposes of
§ 18.34.030-A.
After briefing and arguments by the parties, the trial justice issued a decision
in favor of Freepoint. The trial justice found that the zoning board decision was
affected by error of law because the zoning board had looked beyond the plain and
ordinary meaning of § 18.34.030-A, and that the zoning board’s decision-making
became “lost” on what the town council had intended when passing the ordinance.
The trial justice also found that substantial evidence in the record demonstrated that
the Amtrak substation fell within the plain meaning of “utility substation” under the
ordinance. Finally, the trial justice found that there was no dispute that the other
requirements of the special-use permit were met by Freepoint’s application and that,
accordingly, the matter should be remanded to the zoning board for issuance of the
special-use permit.
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The town petitioned this Court for writ of certiorari, seeking review of the
Superior Court’s decision, which this Court granted. The town assigns error only to
the trial justice’s finding that the term “utility substation” in the zoning ordinance is
plain and unambiguous. Accordingly, we consider whether the trial justice erred in
concluding that the phrase “utility substation,” as used in § 18.34.030-A of the Town
of Richmond’s zoning ordinance, is clear and unambiguous.
Statutory Interpretation
“On a petition for certiorari from a Superior Court judgment that has entered
after an appeal from a municipal zoning board’s decision, we confine our review to
a determination of whether the trial justice acted within his or her authority as set
forth in [G.L. 1956] § 45-24-69.” New Castle Realty Company v. Dreczko, 248 A.3d
638, 642 (R.I. 2021) (quoting Iadevaia v. Town of Scituate Zoning Board of Review,
80 A.3d 864, 870 (R.I. 2013)). Section 45-24-69(d), in turn, provides that the
Superior 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” but may “reverse or
modify the decision if substantial rights of the appellant have been prejudiced” by a
decision that, among other things, is “[a]ffected by * * * error of law” or is “[c]learly
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erroneous in view of the reliable, probative, and substantial evidence of the whole
record[.]” Section 45-24-69(d)(4), (5).
“We do not reverse a Superior Court justice’s decision unless it can be shown
that the justice misapplied the law, misconceived or overlooked material evidence,
or made findings that were clearly wrong.” New Castle Realty Company, 248 A.3d
at 643 (quoting Iadevaia, 80 A.3d at 870). “However, this Court reviews issues of
statutory interpretation de novo.” Pawtucket Transfer Operations, LLC v. City of
Pawtucket, 944 A.2d 855, 859 (R.I. 2008). “In this Court’s de novo review, a zoning
board’s determinations of law, like those of an administrative agency, ‘are not
binding on the reviewing court; they may be reviewed to determine what the law is
and its applicability to the facts.’” Id. (quoting Gott v. Norberg, 417 A.2d 1352, 1361
(R.I. 1980)).
“When interpreting an ordinance, we employ the same rules of construction
that we apply when interpreting statutes.” Ryan v. City of Providence, 11 A.3d 68,
70 (R.I. 2011) (quoting Ruggiero v. City of Providence, 893 A.2d 235, 237 (R.I.
2006)); see Zanni v. Town of Johnston, 224 A.3d 461, 466 (R.I. 2020). “If the
language of a statute or ordinance is clear and unambiguous, it is given ‘its plain and
ordinary meaning.’” City of Woonsocket v. RISE Prep Mayoral Academy, 251 A.3d
495, 500 (R.I. 2021) (quoting Sauro v. Lombardi, 178 A.3d 297, 304 (R.I. 2018));
see Generation Realty, LLC v. Catanzaro, 21 A.3d 253, 259 (R.I. 2011). “This is
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particularly true where the Legislature has not defined or qualified the words used
within the statute.” Drs. Pass and Bertherman, Inc. v. Neighborhood Health Plan of
Rhode Island, 31 A.3d 1263, 1269 (R.I. 2011) (quoting D’Amico v. Johnston
Partners, 866 A.2d 1222, 1224 (R.I. 2005)). That said, “[a]mbiguity exists * * *
when a word or phrase in a statute is susceptible of more than one reasonable
meaning.” Id.; see Olsen v. DeMayo, 210 A.3d 431, 435 (R.I. 2019).
The zoning ordinance at issue provided that “[t]he entire lot on which the solar
energy system is located shall be within two (2) miles of a utility substation.”
Section 18.34.030-A. The town maintains that the phrase “utility substation” is
ambiguous and that the trial justice’s reasoning reaches an absurd result, in that it
allows an Amtrak substation to satisfy the requirements of a solar energy system
ordinance.
We disagree. The ordinance does not define or qualify the phrase “utility
substation,” but its meaning is plain and unambiguous, and the component words
“utility” and “substation” are each words of common usage within the English
language. The American Heritage Dictionary defines “utility” as “[a] commodity or
service, such as electricity, water, or public transportation, that is provided by a
public utility.” The American Heritage Dictionary of the English Language 1908
(5th ed. 2011) (emphasis added). Amtrak, as a public carrier, plainly falls within
this definition. See 49 U.S.C. § 24101(b) (“The mission of Amtrak is to provide
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efficient and effective intercity passenger rail mobility consisting of high quality
service that is trip-time competitive with other intercity travel options[.]”). Further,
this ordinary meaning of the word “utility” conforms with state law, which defines
“public utility” as including “every company operating or doing business in
intrastate commerce and in this state as a railroad, street railway, [and] common
carrier[.]” Section 39-1-2(a)(20). The zoning board was aware of this definition in
rendering its decision on Freepoint’s application, due to Freepoint’s request that the
zoning board take administrative notice of this statute. Moreover, the town does not
contest the fact that Amtrak is a utility.
Additionally, the town does not contest that a “substation” is recognized by
The Merriam-Webster Dictionary as “a subsidiary station in which electric current
is transformed[.]” Merriam-Webster Online Dictionary (retrieved May 6, 2022, from
https://www.merriam-webster.com/dictionary/substation). Again, this definition of
“substation” was before the zoning board, due to Freepoint’s uncontradicted expert
testimony that a substation is distinguishable from other facilities by the presence of
a transformer. Freepoint further emphasized to the zoning board that “substation” is
a commonly used industry-standard term by presenting the National Electric Safety
Code and the New IEEE Standard Dictionary of Electrical and Electronics Terms
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definitions of substations, which, as described previously herein, were substantially
the same as the definition provided by Mr. Fenn.
The town does not contest any of the foregoing, nor does it provide an
alternative meaning for the phrase “utility substation,” such that the phrase could be
susceptible on its face of more than one meaning. See Drs. Pass and Bertherman,
Inc., 31 A.3d at 1269 (“Ambiguity exists * * * when a word or phrase in a statute is
susceptible of more than one reasonable meaning.”). Instead, the town seeks to
circumscribe the word “utility” to a narrower subclassification than that which the
word conveys on its face; the town argues that the word “utility” in the zoning
ordinance means a specific utility, National Grid. The town’s basis for this assertion,
however, is that this interpretation effectuates the intent of the town council when it
enacted the ordinance. Consequently, the town asserts, without support, that reading
§ 18.34.030-A to include Amtrak as a utility reaches an absurd result. See Olsen,
210 A.3d at 435 (“[U]nder no circumstances will this Court construe a statute to
reach an absurd result.”) (quoting Mendes v. Factor, 41 A.3d 994, 1002 (R.I. 2012)).
This argument ignores longstanding precedent that, when faced with an otherwise
plain and unambiguous ordinance, this Court will not seek out ambiguity where none
otherwise exists. Kastal v. Hickory House, Inc., 95 R.I. 366, 369, 187 A.2d 262, 264
(1963) (“We may not where no ambiguity exists search beyond the statute for a
different meaning.”); see Grasso v. Raimondo, 177 A.3d 482, 489 (R.I. 2018)
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(“[W]hen a statutory section is clear and unambiguous, we apply the plain and
ordinary meaning of the statute and we need not delve into any further statutory
interpretation.”).
The town argues in the alternative that, even if the statute is clear and
unambiguous, application of the plain meaning would result in “myopic literalism”
that confines the phrase “utility substation” to a meaning that frustrates the intent of
the town council. See Sugarman v. Lewis, 488 A.2d 709, 711 (R.I. 1985) (“[W]e will
not allow ourselves to be blindly enslaved to the literal reading of statutes when to
do so would defeat or frustrate the evident intendment of the [L]egislature.”)
(quoting Town of Scituate v. O’Rourke, 103 R.I. 499, 507, 239 A.2d 176, 181
(1968)).
We disagree. Undoubtedly, this Court’s “plain meaning approach * * * is not
the equivalent of myopic literalism, and it is entirely proper for us to look to the
sense and meaning fairly deducible from the context.” 5750 Post Road Medical
Offices, LLC v. East Greenwich Fire District, 138 A.3d 163, 167 (R.I. 2016)
(quoting Western Reserve Life Assurance Co. of Ohio v. ADM Associates, LLC, 116
A.3d 794, 798 (R.I. 2015)). To do so, however, this Court “consider[s] the entire
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statute as a whole[,]” and examines individual provisions “in the context of the entire
statutory scheme[.]” Id. (quoting ADM Associates, LLC, 116 A.3d at 798).
Our review of the pertinent ordinance in its entirety does not change the
meaning of the phrase “utility substation.” Moreover, it does not, as urged by the
town, circumscribe the word “utility” to mean a specific utility, National Grid. This
Court “will refrain from ‘read[ing] into a statute a requirement that the drafters
omitted,’ * * * and will do so only if ‘the clear purpose of the legislation would fail
without the implication[.]’” Prew v. Employee Retirement System of City of
Providence, 139 A.3d 556, 561 (R.I. 2016) (first quoting Commerce Park Associates
1, LLC v. Houle, 87 A.3d 1061, 1067 (R.I. 2014), then quoting Wehr, Inc. v. Truex,
700 A.2d 1085, 1088 (R.I. 1997)).
The town points to no language in the ordinance to support its assertion that
the legislative intent of the town council at the time it enacted the ordinance was to
limit “utility” to National Grid, and our reading of the ordinance in its entirety
reveals no such clear purpose. See 5750 Post Road Medical Offices, LLC, 138 A.3d
at 167 (“When a statute is ambiguous, we must apply the rules of statutory
construction and examine the statute in its entirety to determine the intent and
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purpose of the Legislature.”) (alterations omitted) (emphasis added) (quoting In re
Tetreault, 11 A.3d 635, 639 (R.I. 2011)).
In light of the foregoing, it is apparent that the phrase “utility substation” is
unambiguous on its face. Accordingly, we hold that the trial justice did not err in
concluding that the phrase “utility substation” is unambiguous and therefore did not
err in finding that the zoning board decision was affected by error of law.
Conclusion
For the foregoing reasons, we affirm the judgment of the Superior Court and
remand the record of the case to that court.
Justice Robinson, dissenting. I respectfully dissent. I see ambiguity in the
key term (“utility substation”) whereas my colleagues do not. Several years ago,
one of this Court’s opinions quoted a poet who observed that “there are times when
a court must engage in what a poet called ‘the intolerable wrestle [w]ith words and
meanings.’” Papudesu v. Medical Malpractice Joint Underwriting Association of
Rhode Island, 18 A.3d 495, 498 (R.I. 2011) (quoting T.S. Eliot, Four Quartets, “East
Coker” pt. 2). In my view, this is just such a case.
This Court has repeatedly explained that ambiguity exists when language is
reasonably susceptible of different constructions. See, e.g., Middle Creek Farm,
LLC v. Portsmouth Water & Fire District, 252 A.3d 745, 751 (R.I. 2021) (noting
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that a “statute is ambiguous if one of its words or phrases is susceptible to more than
one meaning”);1 see also Unistrut Corp. v. State Department of Labor and Training,
922 A.2d 93, 99-100 (R.I. 2007); Drs. Pass and Bertherman, Inc. v. Neighborhood
Health Plan of Rhode Island, 31 A.3d 1263, 1269 (R.I. 2011). The Court’s opinion
in the instant case holds that the meaning of the term “utility substation” is plain and
unambiguous, and it observes that “the component words ‘utility’ and ‘substation’
are each words of common usage within the English language.” In my view,
however, it is misleading in this instance to view “the component words” of a phrase
in isolation from one another.
Significantly, the drafters of the ordinance chose not to define the term “utility
substation.” See Pawtucket Transfer Operations, LLC v. City of Pawtucket, 944
A.2d 855, 860 (R.I. 2008) (noting that “the drafters [of a local ordinance] did not
define a ‘Refuse transfer station’” and finding the controverted language of the
ordinance to be “unclear and ambiguous”). I am convinced that we are confronted
in this case with an instance of “inartful drafting of the pertinent * * * language,”
1
I agree with the majority that an ordinance is to be interpreted in the same
manner as a statute. See City of Woonsocket v. RISE Prep Mayoral Academy, 251
A.3d 495, 500 (R.I. 2021); Murphy v. Zoning Board of Review of Town of South
Kingstown, 959 A.2d 535, 541 (R.I. 2008). And I further agree that such interpretive
issues are questions of law that should be reviewed in a de novo manner by this
Court. City of Woonsocket, 251 A.3d at 500.
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which has rendered it plainly “susceptible of more than one reasonable meaning.”2
Balmuth v. Dolce for Town of Portsmouth, 182 A.3d 576, 585 (R.I. 2018) (internal
quotation marks omitted). All would have been made simple if the ordinance had
contained a definition as to what the drafters intended by using the term “utility
substation.” But that did not happen.
In my opinion, the ambiguity which I detect in the use of the term “utility
substation” is not a mere “ambiguity in the metaphysical sense,” nor is it the product
of construing language “in a hypertechnical fashion;” it is rather the product of
construing language “in an ordinary, common sense manner.” Paul v. Paul, 986
A.2d 989, 993 (R.I. 2010) (internal quotation marks omitted). I note that the
members of the Zoning Board, opining on what had been the Town Council’s intent
when drafting the ordinance, could not reach a unanimous understanding of the term
“utility substation.” Although the testimony of Jeffrey Fenn, the electrical
2
I should add that I am unable to agree that the term “utility substation” in the
zoning ordinance at issue has a clear and unambiguous meaning when one considers
the context in which that term occurs. See Henry Willmer Jones, The Plain Meaning
Rule and Extrinsic Aids in the Interpretation of Federal Statutes, 25 Wash. U. L.Q.
2, 3 (1939) (“[A]ny serious effort on the part of judges to discover the thought or
reference behind the language of a statute must be based upon a painstaking
endeavor to reconstruct the setting or context in which the statutory words were
employed.”); see also Alliance to End Repression v. City of Chicago, 742 F.2d 1007,
1013 (7th Cir. 1984) (en banc) (Posner, J.) (remarking that “context, in the broadest
sense, is the key to understanding language”); see generally Reed Dickerson, The
Interpretation and Application of Statutes 103-06 (1975) (discussing the role of
context in the interpretation of statutes).
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engineering expert who testified on behalf of Freepoint Solar, expressed the view
that the Amtrak substation could be classified as a “utility substation” because it has
a transformer, there are material differences between the capabilities of the Amtrak
substation and those of other utility substations that are supportive of the thesis that
the Amtrak substation is not a “utility substation” within the meaning of the
ordinance at issue. Specifically, as alluded to by one Zoning Board member, the
Amtrak substation provides locomotive power and does not provide electricity.
Thus, the presence of such different interpretations of the term “utility
substation” leads me to believe that this Court should not hold that the term is
unambiguous but rather should delve deeper into the record, examine the context in
which the term appears, and consider the audience towards whom this ordinance was
directed. See Nunes v. Town of Bristol, 102 R.I. 729, 738, 232 A.2d 775, 780 (1967)
(“[W]here the language [of an ordinance] is ambiguous or uncertain the court may
take into consideration certain extrinsic matters which tend to throw some light on
the legislative intent.”).
It is further my opinion that, once one delves deeper into the record, it
becomes clear that “utility substation” was not intended by the drafters to include an
Amtrak substation. The map submitted at the Town Council meeting where the
ordinance at issue was enacted shows only three National Grid substations and not
any Amtrak substation. It was that map which the Town Council had before it when
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it decided to enact the ordinance. And, in my opinion, that document (which was in
the record before the Superior Court) speaks volumes as to the intent of the drafters.
See City of Woonsocket v. RISE Prep Mayoral Academy, 251 A.3d 495, 500 (R.I.
2021) (“[W]hen it is determined that an [enactment] is unclear and ambiguous, this
Court must look to the legislative intent behind the enactment. * * * In so doing, the
[C]ourt may take into consideration certain extrinsic matters which tend to throw
some light on the legislative intent.”) (internal quotation marks omitted). For that
reason, I would interpret the term “utility substation” as not being applicable to the
Amtrak substation at issue. 3
Accordingly, I record my respectful but unequivocal dissent from the
majority’s opinion in this case.
3
I do not maintain that the extrinsic evidence upon which I rely in interpreting
what I view as an ambiguous ordinance is instantly and obviously conclusive.
However, in my opinion, when an ordinance is ambiguous, it must be interpreted on
the basis of the best available evidence—and the map that was available at the time
of drafting seems to me to be of that variety.
Additionally, I note that the trial justice and the majority opinion rely on the
definition of “public utility” which appears in G.L. 1956 § 39-1-2(a)(20) and which
includes a “railroad” in that definition. However, the ordinance in question does not
adopt that definition.
- 20 -
STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903
OPINION COVER SHEET
Freepoint Solar LLC v. Richmond Zoning Board of
Title of Case
Review et al.
No. 2020-207-M.P.
Case Number
(WC 20-6)
Date Opinion Filed May 11, 2022
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 Richard A. Licht
For Plaintiff:
Christine E. Dieter, Esq.
Attorney(s) on Appeal
For Defendant:
Karen R. Ellsworth, Esq.
SU-CMS-02A (revised June 2020)