Providence County Superior Court.
For Plaintiff Michael F. Horan, Esq.; Thomas E. Hefner, Esq.; John J. Garrahy, Esq.
For Defendant: Anthony DeSisto, Esq.; Stephanie L. Federico, Esq.; Peter Skwirz, Esq.; Steven M. Richard, Esq.
The Town of Cumberland (Town) appeals from a decision of the State Housing Appeals Board (SHAB) overturning and vacating a decision of the Cumberland Planning Board (Board). In its decision, the Board had denied an Application for a Comprehensive Permit (Application) submitted by Fred Pesaturo and Roy Gemma (collectively, Appellees) pursuant to the Low and Moderate Income Housing Act (Act), codified in G.L. 1956 §§ 45-53-1, et seq. By overturning the Board's decision, in effect, SHAB approved the Application. The Town took a timely appeal to this Court from the SHAB decision. Jurisdiction is pursuant to § 45-53-5(c). For the reasons set forth herein, the Court affirms the decision of SHAB and rejects the Town's appeal.
Facts and Travel
Appellees own real property located at the corner of Mendon and Albion Streets in Cumberland, Rhode Island, designated as lots 81, 82, and 83 on Cumberland Tax Assessor's Plat 58 (Property). Compl. ¶ 2. The Property is located in an R-1 Zoning District for single-family residences. R. Ex. 4, Statement of Agreed Facts, ¶ 2. The Property is currently vacant, and spans the distance between a residential area and Mendon Road, which houses a number of commercial buildings. Id. ¶ 5; see also R. Ex. 13, Abutter Comments. Specifically, the Property is located at the intersection of Mendon and Albion Roads, next to a dentist's office and across the street from two shopping plazas. The plazas house a variety of businesses, including a bank, a pharmacy and a supermarket. R. Ex. 4 ¶¶ 1, 7-8. The Property is 371 feet away from an affordable housing apartment complex and 0.4 miles away from another apartment complex. Id. ¶¶ 9-10. Behind the Property is a neighborhood of single-family homes.
On March 3, 2008, Appellees filed an Application for a Comprehensive Permit with the Board to construct a mixed-use development with five office units on the first floor and four affordable housing residential units on the second floor. Id. ¶ 15. The Board denied the Application on May 28, 2008, and SHAB affirmed the denial of the Application on appeal. Id. SHAB noted that because the proposed project was primarily commercial, the Board acted with reasonable discretion in its denial. See id.
On March 1, 2010, Appellees filed another Application to construct a sixteen-unit residential development. The proposed project would be dedicated exclusively to affordable housing in which resident income would not exceed eighty percent of the area median income. R. Ex. 4 ¶¶ 17-18; R. Ex. 6, Appeal of Frederick Pesaturo and Roy Gemma (includes Application, Mar. 1, 2010). Specifically, the development would consist of two buildings with eight units each, ten two-bedroom units and six one-bedroom units. R. Ex. 4 ¶ 17. Two of the units would be handicap accessible. Id. ¶ 19. The Application stated that the proposed buildings would be under the thirty-five foot height limit mandated by the Cumberland Zoning Ordinance. Id. ¶ 20. Finally, the Application indicated that public water and sewer access would be available for the Property and that Rhode Island Housing had approved the developers' application for affordable housing for the Property. Id. ¶ 21.
A Cumberland Comprehensive Plan
The Town of Cumberland's Housing Element, adopted into its Comprehensive Plan in 2003, aims to "respect property rights and wishes to see the value of its properties" increase. Incorporated in the Housing Element is Goal HS.3, which outlines the Town's intentions to promote affordable housing. Action HS.3.1.1 guides the Town to "[s]atisfy the State's minimum affordable housing requirement . . . by working with public, private and non-profit housing developers to develop affordable housing in areas in town that would lend themselves to affordable housing." See Plan at III-31. Specifically, the Town intends to "[s]atisfy the State's minimum affordable housing requirement (or greater goal as based by Cumberland Housing Board's annual determination) by working with public, private and non-profit housing developers to develop affordable housing in areas in the Town that would lend themselves to affordable housing." Id. The "Town should proactively guide affordable housing to certain areas that can best accommodate higher densities due to existing water, sewer, and other services." Id.
On March 31, 2010, John J. Aubin III, the Town Planner, wrote a memorandum to the Board describing the project. See Compl. Ex. 1, Decision at 6. He referenced the Town's Comprehensive Plan and within Housing Element, and noted that the development of affordable housing units is not limited to specifically-listed locations in the Housing Element. Id. Instead, he explained, "[t]he operative determination in regard to the appropriateness of a site for affordable housing is whether the subject site can best accommodate the proposed higher density due to existing water and other services." Id. In terms of the subject Property, Mr. Aubin confirmed the availability of public sewer and water systems, and noted that the applicants would need to install a dry well system, requiring an underground injection control permit from the Department of Environmental Management and a physical alteration permit from the Rhode Island Department of Transportation. See id. Finally, Mr. Aubin advised the Board that:
"In reviewing the application, the two major areas of concern would appear to be traffic impacts on the abutting residential properties (the site currently buffers residential uses along Peachdale Road from Mendon Road). The relief requested as a result of the application includes the aforementioned zone change for the proposed R-3 use. Also, all required state permits should be at least submitted to the appropriate agency and with regard to reviews by other town bodies that recommendation be sought [from] the Town Council on the required zone change and Conservation Commission to review any potential environmental impacts." Id. at 7.
Board Hearings and Decision
The Board held two hearings on the Application on March 31, 2010 and April 28, 2010. At the March 31, 2010 hearing, Appellee Pesaturo provided an overview of the proposed project. Board Tr. 25-39, Mar. 31, 2010. On April 28, 2010, the Board heard testimony from several people, including the Town Solicitor; Anthony DeSisto, attorney for Appellees; David Garrigan, a professional land surveyor; and various individuals submitting statements for public comment.
Counsel for Appellees introduced the project and provided an overview of the proposal. Board Tr. 4-6, Apr. 28, 2010. He then noted that although the Town's Comprehensive Plan did not include the Property on its list of areas "deemed by the Town to be suitable for affordable housing, " the Property was arguably located in an "appropriate" location for low-income housing given the nearby commercial developments and its location on a bus route. Id. at 6-7. Finally, counsel noted that the Town had not yet met its ten percent affordable housing goal and highlighted the fact that the project would provide a net gain of sixteen units in furtherance of this goal. Id. at 7.
Mr. Garrigan answered questions from the Board regarding the development of the Property. Id. at 8. He stated that the depth of the lot is roughly 104 feet and slightly varied and described the proposed drainage system as designed by a professional engineer, as well as plans to level the Property. Id. at 8-13. He noted that the applicants designed the driveway of the Property in such a way as to increase visibility and lessen the impact on nearby traffic. Id. at 11-12. In addition, he described plans to locate two handicapped parking spaces near the two handicapped housing units, and after members of the Board expressed concerns, he indicated that the developers would be willing to include more handicapped spaces. Id. at 14-18.
The Board then addressed the issue of the project's proposed density in comparison to the size of the lot. Id. at 18-49. Members acknowledged that it was unlikely that the Property would be able to accommodate the three single-family residences for which the area was currently zoned. Id. at 22. The Board noted that changing the Property's zone to R-3 for multiple dwelling unit structures would allow for six units across the entire square footage of the
Property. Id. at 22-23. The Board raised the possibility of reducing the number of units in the two buildings from sixteen to twelve to lower the height of both buildings. Id. at 24. Counsel for Appellees noted that a sixteen-unit development would contain smaller individual units, ensuring that they would appeal to "work force or senior housing" rather than families—a benefit, given the traffic in the area. Id. at 28. Mr. Pesaturo stated that it would not be economically feasible to reduce the number of units in the project to twelve, even if some of the units were rented at the market rate rather than as affordable housing. Id. at 36, 43-45.
The Board then opened the floor to public comment regarding the project. Id. at 49. Mr. Gettinger, the Chairman of the Conservation Commission, voiced concerns about the development in the area, and urged the Board to ensure that the rear of the Property remained buffered. Id. at 49-50. He acknowledged that the project included a twenty-five foot buffer zone, but remained concerned regarding the longevity of the shrubbery to be planted in that zone. Id. at 51. Various other individuals, including owners of homes neighboring and abutting the project, spoke in opposition to the project on the grounds of increased traffic and that commercial development in the area was inconsistent with the Town's "desired character." Id. at 52-90.
At the conclusion of the hearing, counsel for Appellees noted that a Bryant Associates traffic study submitted with the Application indicated that "this development would not change the level of service on Albion and Mendon Road." Id. at 91. The Board then resumed discussion about the number of units appropriate for the development, ranging from eight to sixteen. Id. at 94-95. The Board subsequently closed the hearing to public comment and a Board member made a motion to deny the application, specifically on the grounds that:
"The proposal is not consistent with the local needs, including, but not limited to, the needs identified in an approved Comprehensive Plan and/or local Zoning Ordinances and procedures promulgated in conformance with the Comprehensive Plan and 16 units versus the homeowners." Id. at 123.
The movant clarified his statement by noting that the proposal was for sixteen rental units which would be "[d]irectly adjacent to or abutting single-family homes." Id. at 124. The Board took a roll call vote resulting in a tie, which the Chairman broke in favor of denying the application. Id. at 124-25.
The Board issued its Findings of Fact & Decision on May 26, 2010. R. Ex. 3. The decision provided an overview of the project and outlined the concerns raised by neighboring property owners at the hearings. Id. at 2. The Board concluded that the "proposed development is not consistent with local needs as identified in the Cumberland Comprehensive Community Plan as the subject site is not listed as a site for low or moderate income housing in the Housing Element of the Comprehensive Plan." Id. at 3. In addition, the Board stated that "the proposed multi family development at the proposed density and in consideration of the size of the parcel is inconsistent with the existing zoning for the property and the character abutting single family residential uses." Id.
Appellees timely appealed the Board's decision to SHAB on June 21, 2010, contending that the Board's decision was "inconsistent with the local needs of the Town of Cumberland as the Town is far from meeting its 10% state-mandated goal for affordable housing units." R. Ex. 6, Developer Appeal at 2. In addition, the Appellees noted that the Board's findings of fact indicated that it "merely denied the application because the subject property was not identified as a site for affordable housing in the Town's ...