Kent County Superior Court
For Plaintiff: Michael J. Lepizzera, Jr., Esq.
For Defendant: Scott K. DeMello, Esq.; Stephen M. Peltier, Esq.; John P., McCoy, Esq.; Todd J. Romano, Esq.; Michael A. Ursillo, Esq.; Amy H. Goins, Esq.; Matthew J. McGowan, Esq.
Graceco, LLC (Graceco) appeals from a decision of the Town of West Greenwich Zoning Board of Review, sitting as the Planning Board of Appeal (Board of Appeal), which affirmed a decision of the West Greenwich Planning Board (Planning Board). The Board of Appeal found that the amendment to a preliminary subdivision plan was a "minor change, " which would not constitute a nuisance, and thereby affirmed the decision of the Planning Board approving such amendment. Jurisdiction is pursuant to G.L. 1956 § 45-23-71.
I Facts and Travel
The Centre of New England is a commercial and residential development which spans across Coventry, East Greenwich, and West Greenwich, Rhode Island. This appeal concerns the proposed development of a one-acre subdivision of Lot 4-3 of Assessor's Plat 1 to create an additional commercial lot located at 755 Centre of New England Boulevard, West Greenwich, Rhode Island (the Subdivision Property). The Subdivision Property is owned by Appellee Commerce Park Realty, LLC (Commerce Park). Appellee Guggenheim Retail Real Estate Partners, Inc. (Guggenheim) is the prospective owner and developer of a retail tire store to be built on a portion of the Subdivision Property, which will include an auto service and repair shop. Graceco is the owner of the abutting lot, Lot 4-2 of Assessor's Plat 1, located at 775 Centre of New England Boulevard, West Greenwich, Rhode Island.
On February 14, 2011, the Planning Board granted preliminary plan approval for a proposed major subdivision and development of the Subdivision Property. The proposed development in the preliminary plan, earlier approved by the Planning Board, was to include an automobile repair facility and tire store. Specifically, the original subdivision approval incorporated a four-lane access road running alongside and servicing the Subdivision Property. A written decision was issued and recorded on March 4, 2011, which approved the original subdivision. No timely appeals were filed to contest the original preliminary plan approval.
On February 20, 2013, Matthew McGowan was appointed by the Superior Court as receiver of Commerce Park and related entities. On September 19, 2014, Commerce Park and Guggenheim jointly filed an application for an amendment to the preliminary plan. The proposed amendment provided for Commerce Park, through its Receiver, and Guggenheim to "phase" the development of the access road as referred to in the original subdivision. Rather than immediately creating a four-lane access road, according to the original subdivision approval, the proposed amendment contemplates that the developer would construct two lanes immediately and the remaining two lanes would be constructed when future development behind or to the south of the Subdivision Property required such an expansion of that access roadway. The rationale for this phased construction was that a four-lane roadway was not currently necessary to adequately serve the development, and deferring construction of the remaining two lanes until such additional roadway was required to serve future development conserved the resources of the receivership estate. In support of their application for modification, Commerce Park and Guggenheim produced a narrative report prepared by an engineer. In part, that narrative stated:
"This Narrative Report is prepared in support of a modified Preliminary Plan Application submission for the subject property. The project received Preliminary Plan approval from the Town of West Greenwich on March 4, 2011. Since that time the owner of the property has filed for Receivership and the project stalled. At this time, the project has been revived with some modifications. The most notable modification is that the proposed access roadway, known as Universal Boulevard Extension, has been reduced from a 60' roadway with a center median to a 30' access drive with a striped median. This new configuration will still provide for safe, signalized vehicular and pedestrian access to the development. A full list of plan modifications follows."
Moreover, in his brief to this Court, the Receiver of Commerce Park explained,
"Conservation and preservation of the resources of the receivership estate is important, and the Receiver, in proposing the slight modification of a phasing-in of the access roadway, was sensibly balancing the interests of numerous and substantial unpaid creditors in the [Commerce Park Realty] receivership case with the need to address the Town's concerns and other concerns (and the financial outlay required to address them) associated with a major mixed-use land development project having significant cash flow needs and pressing infrastructure demands. Following [a Receivership] evidentiary hearing, Judge Silverstein indicated that not only did he believe that it was logical and sensible to phase-in the road construction, but offered that, if he were the receiver, he would have proposed to proceed exactly as the Receiver intended."
Subsequently, the Town of West Greenwich Planner, Jennifer Paquet (Town Planner), placed the amendment application on the agenda for the Planning Board's meeting on October 20, 2014. The Town Planner's memorandum to the Planning Board on this matter, stated in part:
"The original plan involved building the entire intersection along with the construction of the auto shop, consisting of a four lane boulevard to access the land in Lot 4-1, which at this time is all undeveloped. The change is proposing to build only half the boulevard at this time for access to and from the auto repair and tire shop. The rest of the boulevard can be constructed when the other side of the road is developed. At this time the only change is with phasing of the construction of this four lane road, and since the two lane road provides adequate access and the proposed temporary striping works for the intersection, I recommend approval of this minor amendment."
As a result of the Town Planner's finding that the proposed amendment was minor, no notice was provided to abutting and interested property owners, and no public hearing was scheduled. The matter was put on the Consent Agenda for October 20, 2014. At the Planning Board meeting held on October 20, 2014, Graceco, through counsel, appeared in order to place its objections to the amendment of the preliminary plan as well as to the preliminary plan in general on the record. In front of the Planning Board, Graceco contended that the amendment should have been characterized as a major amendment requiring a public hearing, rather than a minor amendment, which does not require notice and a public hearing. Graceco argued the Land Development and Subdivision Regulations classifies a major change as one which negatively impacts adjacent properties and/or properties in the vicinity of the development property. Graceco argued, without any supporting evidence, that because the amendment would permit phased construction of the access road, the ongoing nuisance of construction would adversely impact Graceco and other neighboring property owners. Thus, Graceco concluded, the amendment should have been classified as a major change and Graceco should have been provided with notice of a public hearing regarding the amendment. Graceco then requested that the amendment be denied, or alternatively, the decision on the amendment be held until the appropriate public notice was distributed to all interested parties.
Chairman Brad Ward then asked the West Greenwich Town Solicitor, Michael Ursillo (Solicitor Ursillo), if he agreed with the Town Planner's analysis that the amendment was a minor change. Solicitor Ursillo did agree with the Town Planner's classification. Attorney Matthew McGowan, receiver for the Commerce Park, then noted that he did not receive Graceco's objection prior to the meeting and that a Superior Court Judge had already approved the proposed modification. During the Meeting, Chairman David Berry asked which entity would develop the rest of the four-lane road pursuant to the phasing plan. Town Planner Paquet stated that there had not been any additional buildings proposed in Lot 4-3, so there will be ongoing construction. Solicitor Ursillo then noted that any applications for further development would come before the Planning Board and that the Planning Board would then have the opportunity to determine how to complete the phasing.
Notwithstanding Graceco's objections, the Planning Board voted unanimously (4-0) to approve the proposed minor amendment to the previously approved preliminary plan. On October 22, 2014, the Town Planner issued a decision letter, written on behalf of the Planning Board. The letter was also recorded on October 22, 2014. The decision states:
"This amendment is based on the following findings of fact:
1. The proposed change does not result in the creation of additional lots for development.
2. The proposed change does not result in any change that would be contrary to any applicable provision of the Zoning Ordinance.
3. The proposed change will not have significant negative impacts on abutting property.
4. The proposed change has adequately addressed traffic flow.
5. The proposed change is consistent with the intent of the original approval."
Along with the findings of fact, the Town Planner explicitly stated:
"Please note that this approval pertains to the ability to phase the construction of the approved four lane road to construct two lanes, as modified temporarily, together with the construction of the proposed auto repair and tire business. It is expected that the rest of the road will be constructed upon future development of the parcel, which requires Planning Board review."
On November 10, 2014, Graceco filed an appeal of the Planning Board's decision to the Board of Appeal. The appeal reiterated Graceco's argument that the amendment should have been classified as a major change rather than a minor change. Graceco also asserted that the amendment violates the Performance Standards for the Exit 7 Special Management District,  as the prolonged construction would create a nuisance. Finally, Graceo argued that the Planning Board's issuance of the original March 2011 preliminary plan should be overturned, as proper notice was not provided to all abutters.
Pursuant to § 45-23-69, on December 16, 2014, the Board of Appeal held a public hearing on Graceco's appeal. At the hearing, counsel for Graceco argued that the amendment was a major change:
"The Town Planner had sent out a memo stating that there was a Minor amendment, and the Planning Board approved the amendment as a minor amendment, not requiring abutter notice. We believe it was a Major Amendment, and therefore believe that direct notice to abutters was required. The amendment was a four-lane intersection, but now it is going to be phased to two lanes and have another two lanes put in at another time. Phasing will prolong construction which will impact Graceco as a nuisance. We would like this to be remanded back to the Planning Board so the abutters can be heard. This is also a violation of the Exit 7 Performance Standards."
Town Solicitor Ursillo retorted:
"Now, a major change of a Preliminary Plan in my mind would be taking a two way boulevard and turning it into a four way boulevard. That would be the type of change that would go to the heart of the conditions of approval first time around when it was approved in 2011. The strange thing is that the four lanes are still out there it's just that the construction of those four lanes is going to be phased. This is something the Planning Board does on a regular basis. You have a map which clearly shows the intersection, the map is stamped received September 29, 2014. What it shows is that when you come in from the boulevard you can go left or right. The only change is instead of going directly straight across there's going to be an adjustment so you go a little to the left because there's going to be two lanes instead of four. . . . It is simply a phasing plan . . . . It [is] clearly a minor change. It's certainly not contrary to the plan that was already approved. The only change approved was the phasing, which is quite common under our ordinance and is generally granted whenever anyone asks for it."
Solicitor Ursillo also concluded that the amendment did not constitute a violation of the Performance Standards of the Exit 7 Special Management District because the mere phasing of a construction project does not constitute a nuisance. Counsel for the Receiver was also present. Similar to Solicitor Ursillo, counsel for the Receiver stated that the amendment constituted a phasing of construction which was neither a major change nor a nuisance. Counsel explained:
"What's happening here is that you have a property owner that's in [a] dire financial situation and it's in a court receivership. The receiver is trying to marshal assets of the receivership of the developer for the benefit of creditors of the developer and in doing that we are trying to sell property for development. Because there is a limitation of ...