Does the Energy Facility Siting Board (EFSB) have power to issue zoning variances, as well as special use permits relative to siting a power plant?

The opinion of Oleg Nikolyszyn, Esq., Burrillville Town Solicitor:

Under normal circumstances, the Town’s Zoning Board of Review would have to grant a special use permit for the proposed power plant to be located in an F-5 zone.  Without such a special use permit, the proposed power plant would not be permitted.

However, the R.I. General Assembly passed the Energy Facility Siting Act, §§42-98-1 through 42-98-20, which consolidates in the EFSB all state and local governmental regulatory authority for the siting, construction, operation and alteration of energy facilities “designed or capable of operating at a gross capacity of 40 megawatts or more” of electricity. R.I.G.L. §42-98-3(d).  This means that the EFSB is the “licensing and permitting authority for all licenses, permits, assents or variances which, under any statute of the state or ordinance of any political subdivision of the state, would be required for siting, construction or alteration of a major energy facility in the State of Rhode Island.”   Id. §7(a)(1).

Further, the EFSB’s decision in favor of an application to site a major energy facility in Rhode Island “shall constitute a granting of all permits, licenses, variances, or assents, which under any law, rule, regulation or ordinance of the state or of a political subdivision thereof which would, absent this chapter, be required for the proposed facility.” Id. §11(c).

In lay terms that means that if the EFSB grants a permit for this proposed power plant, then that permit is deemed to be the granting of all variances and special use permits that are normally required from the municipality.  It does not matter whether the Town of Burrillville denies the variance and/or special use permit that would normally be required if the EFSB grants Invenergy the permit to build the Clear River Energy Center power plant.