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Bux v. Dimeo

Superior Court of Rhode Island

June 22, 2015

ELISABETH BUX
v.
MICHAEL DIMEO; MARY DIMEO; CF INVESTMENTS, LLC; MTM DEVELOPMENT CORP.; and the ZONING BOARD of REVIEW of the TOWN of JOHNSTON

Providence County Superior Court

For Plaintiff: Andrew M. Cagen, Esq.

For Defendant: Joseph R. Ballirano, Esq., John A. Glasson, Esq.

DECISION

NUGENT, J.

Before the Court is an appeal from a decision of the Zoning Board of Review of the Town of Johnston (Town), sitting as the Johnston Board of Appeals (Board of Appeals). In its decision, the Board of Appeals upheld a decision of the Johnston Planning Board (Planning Board) to grant a Master Plan for a Major Land Development in Johnston (Master Plan Decision). Appellant Elisabeth Bux (Ms. Bux or Appellant) contends that the Master Plan Decision contains multiple legal errors and asks this Court to reverse that decision and to deny the Master Plan approval. Jurisdiction is pursuant to G.L. 1956 § 45-23-71.

I

Facts and Travel

The property at issue in this case is located at 396 Greenville Avenue, Johnston, RI, and is otherwise known as Lots 186, 20, and 17 on Tax Assessor's Map 47 in the Johnston Land Evidence Records. (Master Plan Decision at 1.) The property consists of 38.83 contiguous acres, and it is located in an R-20 zoned area. Id. The Applicants, CF Investments, LLC and MTM Development Corp., are seeking major land development approval "to demolish existing farm structures and develop a 7.1 acre portion of the 38.83 acre farm to construct a private age restricted (55) community with an 870 foot private cul de sac and ten duplex style structures for 20 residential condo units." Id. In addition, "the Applicant[s] intend[] to protect the remainder of Lot 20 from future development through open space and drainage conservation easements and deeding of Lot 17 to the Town of Johnston." Id. The proposed development requires a change in zoning from an R-20 to an R-10 Zone District. Id.

On January 7, 2014, the Planning Board conducted a hearing on the proposed Master Plan for the property. Id. According to the Decision, "[a]n orderly, thorough and expeditious review has been conducted with Technical Staff Review on December 16, 2013 and the Planning Board meeting on January 7, 2014. Pre-application meetings with Planning staff were held August 21, 2013 and in 2010 [sic]." Various documents were submitted in support of the Master Plan, including "architectural and landscape plans, " and the "Planner's report of December 31, 2013." Id. at 3 and 4.

On January 14, 2014, the Planning Board issued its written Master Plan Decision reflecting its unanimous approval of the Master Plan. Specifically, the Planning Board approved the "Master Plan for a Major Land Development, as applied for, substantially in accordance with all of the plans, specifications, and other documentation submitted." Id. at 4. Thus, the approval was "based on the submitted application, testimony presented to the Board, planning staff reports, and memorandums [sic] from applicable Town Departments, subject to the proposed Master Plan conditions on page 5 of the planner's December 31, 2013 memo." Id. The Master Plan Decision was recorded at Book 2344, Pages 128-131 in the Town's Land Evidence Records. See Master Plan Decision.

On February 5, 2014, Ms. Bux appealed the Master Plan Decision to the Board of Appeals, and on March 27, 2014, the Board of Appeals conducted a hearing on the appeal. See Appeal of the Master Plan Decision of the Town of Johnston Planning Board; Notice of Public Hearing. After hearing the oral arguments of the parties, the Board of Appeals unanimously voted to uphold the Master Plan Decision and to deny the appeal. See Board of Appeals Decision at 3. On May 28, 2014, the Board of Appeals recorded a written decision in the Town's Land Evidence Records.

On June 16, 2014, Ms. Bux filed the instant appeal. On July 8, 2014, the Board of Appeals filed the Certified Record to the Court, and on April 21, 2015, it filed the transcript from the hearing before the Board of Appeals. The Certified Record consists solely of copies of (a) the written decision of the Board of Appeals, recorded May 28, 2014; (b) the radius map; (c) the list of abutters; (d) the Appeal from the Planning Board; (e) the Master Plan Decision; (f) the Notice of Public Hearing; and (g) the field card.

II

Standard of ...


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