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Tuesday, February 11, 2020

Targeting public officials

By TIM FAULKNER/ecoRI News staff

Mark DePasquale, founder of Green Development LLC, often turns to
legal action when things don’t fall his way. (ecoRI News)
A controversial wind and solar developer has harsh words and costly legal threats for two Rhode Island towns he accuses of stalling his renewable-energy projects.

On Jan. 29, Mark DePasquale, founder of North Kingstown-based Green Development LLC, served legal notices to Coventry and Exeter, outlining his intent to sue for lost revenue and expenses.

In the court filings, DePasquale said both towns have shown “a well-conceived and pernicious pattern, practice, design, and policy” that hindered development of wind turbines and solar facilities on land owned or leased by Green Development.

DePasquale isn’t shy when directing Green Development attorneys to make legal threats and/or file lawsuits. It’s a tactic he’s been employing for about a decade.

EDITOR'S NOTE: These types of lawsuits are considered a variation on the well-known SLAPP suits. SLAPP stands for "Strategic Lawsuit Against Public Participation," a term coined in the 1980s by George Pring and Penelope Canan. This variant is called a "SLAPO" or "strategic lawsuit against public officials." It works the same way as a SLAPP - file an intent to sue or actual suit for a huge amount of money against not only the governmental unit, but also against governmental officials.  

I worked with Pring and Canan back in the 1980s, when I was organizing director for the group now called the Center for Health and Environmental Justice, to design a program we called Operation SLAPP-Back to help community groups to counter-attack. One of the outcomes from that project was the passage of state Anti-SLAPP laws. For more information on Rhode Island's anti-SLAPP law, CLICK HERE.  - Will Collette

DePasquale is seeking $200 million in damages from Exeter that stem from alleged unfair actions taken by the town. The council’s 60-day moratorium on ground-mounted solar development enacted in December 2018 froze the approval process for several of DePasquale’s projects.

He took the town to court, but a Superior Court judge ruled that the Town Council had clearly outlined the basis for the temporary moratorium. 

The judge also noted that the council had found that Exeter was in danger of overdevelopment, because its two-day-a-week planner was inundated with 12 proposals for utility-scale solar installations and was under deadlines set by state law that would have automatically approved the proposals if those deadlines weren’t met.

In Coventry, DePasquale has threatened to sue the town for $85 million, partly because the Planning Commission denied a proposal for a Green Development ground-mounted solar array in late 2017. The commission said it denied the project a special-use permit because it wasn’t consistent with the town’s comprehensive plan.

In proposing the utility-scale energy project for a residential area in western Coventry, DePasquale paired plans for the 5-plus-megawatt solar array with a therapy farm that would serve people with special needs. No business license was pulled and no permit was filed for the therapy farm.

However, unlike the therapy-farm component of the dual proposal for 394 Carr’s Trail and 5641 Flat River Road, a master plan for the solar array was filed. The footprint of the panels would cover 7.8 acres, or 20.9 percent of the usable area on the two lots, according to the project’s master plan.

Coventry’s ruling, however, didn’t stop DePasquale from prepping the site for his denied solar installation, forcing town officials to issue a cease-and-desist order on June 4, 2019 — the town issued a finalized order a week later — after discovering that DePasquale was building the unapproved solar project without permits and authority. 

The Rhode Island Department of Environmental Management also issued DePasquale a notice of violation for altering wetlands on the site.

In his most recent court filing against the town, DePasquale also claims revenue was hurt by new requirements in Coventry for noise and flicker limits imposed on his 10 wind turbines. The town of Coventry issued notices of violation against three Green Development turbines for violating shadow-flicker limits.

The intent-to-sue documents were delivered to planning officials and town council and planning board members in each town. The letters threaten that the legal costs for these individuals may “far exceed the likely amount of insurance possessed by the Town, thereby potentially exposing each of you to significant uninsured, and possible, personal liability.”

The Coventry legal notice also accuses assistant town planner Brian Wagner of bias and prejudice against DePasquale and Green Development. According to the 30-page document, the cease-and-desist order issued by Wagner is seen as “an attempt to harass and intimidate Mr. DePasquale.”

The seven-page Exeter legal notice accuses town officials of seeking “to deprive, deny and interfere” with Green Development’s interests in other communities.

The legal notices aren’t lawsuits but 40-day notices of intent to file lawsuits, so it’s unclear if they aim to provoke a response or action by either town to avert the lawsuits. Officials in both towns declined to discuss the legal action, citing ongoing discussions with legal counsel.

Bill Fischer, spokesperson for Green Energy, said “the notice of intent speaks for itself. We intend to file these suits.”

In a press statement released Jan. 30, Fisher noted that the potential lawsuits are intended to remind Rhode Island cities and towns that they shouldn’t follow the actions taken by Coventry and Exeter.
“Unfortunately, what has ruled the day in both of these towns is obstructionism motivated by nimbyism,” Fischer said.

ecoRI News staffer Frank Carini contributed to this report.