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LLC v. Town of Hopkinton Planning Board

Superior Court of Rhode Island, Providence

April 22, 2016

LR 6-A OWNER, LLC, Appellant,

For Plaintiff: William R. Landry, Esq.

For Defendant: Steven M. Richard, Esq. Scott D. Levesque, Esq.



Appellant LR 6-A Owner, LLC (LR 6-A) appeals a decision (Decision) from the Rhode Island State Housing Appeals Board (SHAB) affirming a decision (Planning Board Decision) issued by the Town of Hopkinton Planning Board (Planning Board) granting master plan approval with conditions of LR 6-A's application for a comprehensive permit (Application). Jurisdiction is pursuant to G.L. 1956 § 42-35-15. For the reasons set forth herein, the Decision is hereby affirmed.


Facts and Travel

LR 6-A owns a vacant, 358.59 acre parcel on the northerly side of Dye Hill Road in the Town of Hopkinton (the Town or Hopkinton). The parcel abuts single-family residences and Arcadia Management Area (Arcadia). In August 2009, LR 6-A submitted an Application to the Planning Board seeking permission to construct a total of 300 homes, comprised of 200 single-family and 100 multi-family (Development or Brushy Brook). Planning Bd. Hr'g Tr. 21:21-22:2, Dec. 14, 2009.[1] Seventy-five homes of the Development were slated for low and moderate income housing, twenty-five percent of the total Development. Id. Each single-family home included a private well and septic system. Appellee's Mem. at 5. The multi-family homes were to share a multitude of the same. Id. Each home was to be built on approximately one-half acre, with the remaining undeveloped acreage placed at the center of the Development. See Brushy Brook (LR-6A Owner, LLC) v. Town of Hopkinton Local Bd. of Review, SHAB No. 2010-3, at 2-3 (Mar. 1, 2013) (Decision). The large parcel of land was zoned RFR-80, which yielded a minimum lot size of roughly two acres per home. Appellant's Mem. at 4. A yield plan was submitted by Christopher Duhamel, a civil engineer retained by LR 6-A, that claimed that the parcel could support 111 units if the entire property was developed. Planning Bd. Hr'g Tr., 43:17-25, Jan. 20, 2010.[2] If Brushy Brook is built as originally proposed, the Development will increase the Town's housing stock by ten percent. Planning Bd. Hr'g Tr. 13:23-14:1, Jan. 6, 2010.[3]

From November 2009 to November 2010, the Planning Board held fourteen hearings to address the Application. See generally Planning Bd. Hr'g Tr., Nov. 24, 2009; T1; T3; T2; Planning Bd. Hr'g Tr., Feb. 3, 2010; Planning Bd. Hr'g Tr., Mar. 3, 2010;[4] Planning Bd. Hr'g Tr., Apr. 7, 2010;[5] Planning Bd. Hr'g Tr., May 18, 2010; Planning Bd. Hr'g Tr., June 2, 2010;[6] Planning Bd. Hr'g Tr., July 22, 2010;[7] Planning Bd. Hr'g Tr., Aug. 18, 2010;[8] Planning Bd. Hr'g Tr., Sept. 15, 2010; Planning Bd. Hr'g Tr., Oct. 20, 2010;[9] Planning Bd. Hr'g Tr., Nov. 23, 2010. The Planning Board ultimately involved GZA Geoenvironmental, Inc. (GZA) to provide a third-party expert review of the Application. T4 at 5:1-4; 9:13-20. Traffic concerns were reviewed by Bryant Associates. Id. at 6:17-20. Preliminarily, GZA stressed concerns about the proposed density of Brushy Brook. T5 at 7:9-11; 8:23-9:5.

GZA's final report was submitted on June 2, 2010, and hearing resumed on July 22, 2010. T6 at 2:10-13; see generally T7. The Town Planner, Jim Lamphere (Mr. Lamphere), testified that the smallest lot permitted by existing zoning was 60, 000 square feet-in comparison, LR 6-A proposed lots of 20, 000 square feet. T7 at 77:6-11. Mr. Lamphere suggested that the Planning Board attempt to arrive at a figure that would be sufficient to both LR 6-A and the Town. Id. at 95:9-24. Additionally, there was testimony regarding the sustainability of current roads with increased traffic patterns, the Development's close proximity to a hunting area, Arcadia, and the ability to successfully provide water supply and septic systems for residents. Id. at 9:22-11:2; 13:8-20:23; 21:7-33:16.

After this hearing, LR 6-A revised its proposal to reduce the number of homes from 300 to 270. T8 at 9:25-10:2. This reduction also decreased the number of "affordable" homes to sixty-eight, keeping twenty-five percent of the development "affordable." Id. at 11:8-10. The "affordable" homes were to now be integrated throughout Brushy Brook. Id. at 11:10-16. LR 6-A also included a twenty-five foot buffer zone between the Development and Arcadia to combat the concern that Brushy Brook was too close in proximity to the hunting area. Id. at 10:12-21; 12:4-18. Finally, the revised approval included an agreement to widen certain roads to support an increased traffic pattern. Id. at 10:22-11:7. On August 18, 2010, this revised proposal was presented by LR 6-A, along with expert testimony that contradicted GZA's opinions and explained the revised proposal. See generally T8. GZA was directed to review the contradicting testimony in order to assist the Planning Board in comprehending the differing opinions. Id. at 86:7-9; 87:2-12.

In October of 2010, Mr. Lamphere again advised the Planning Board that the density proposed did not support the objectives of the Town and that the parcel was better suited for a development that preserved the rural nature of Hopkinton's surroundings. T9 at 9:18-13:11. He additionally referenced an October 2009 memorandum from Barry Ricci (Mr. Ricci), Superintendent for the Chariho School District. Id. at 27:15-18. The memorandum estimated that Brushy Brook would produce an additional 171 students. Id. at 27:18-20. Mr. Ricci opined that the school system could not absorb the additional students because there were no empty classrooms. Id. at 27:22-28:4. Finally, Mr. Lamphere indicated that Hopkinton was moving steadily toward the ten percent minimum for low and moderate income housing, currently at an estimated 8.3 percent. Id. at 33:5-23. The Chairman of the Planning Board, Alfred DiOrio, stressed concerns about the effects of the density of the Development, including traffic, sewage, water supply, and schooling for children. Id. at 56:8-57:16.


The Planning Board Decision and LR 6-A's Appeal to SHAB

The Planning Board concluded that the proposed density of Brushy Brook was far too high for the Town to sustain. Planning Bd. Decision at 119-24. Speaking to sustainability, the Planning Board recognized that the Town would have to expend additional resources to accommodate for the education of 171 additional students. Id. at 122. However, after acknowledging that the Planning Board was "more than justified in denying the Application outright, " id. at 125, the Planning Board ultimately decided to grant master level approval with six conditions. First, the Planning Board approved a density that would range from 93 to 116[10]units, plus a density bonus of twenty-five percent permitted under the Town's Inclusionary Zoning Ordinance. Id. at 113. With the density bonus, the Application was approved for a total of 116 to 145 units of single-family homes. Id. Second, LR 6-A was required to reconfigure Brushy Brook in order to place more of the open space at the border of the Development and Arcadia. Id. This condition was imposed in order to insulate Arcadia and protect the future residents of Brushy Brook. Id. Only these two conditions were challenged on appeal.

On December 22, 2010, LR 6-A filed a timely appeal of the first two conditions to SHAB. SHAB Decision at 10. Oral arguments convened on December 11, 2012, and SHAB took the appeal under advisement. Id. SHAB invited both parties to submit post-hearing memorandum. Id. On January 29, 2013, during a public deliberation, SHAB held unanimously that both conditions imposed by the Planning Board were consistent with Hopkinton's Approved Affordable Housing Plan (Affordable Housing Plan or Plan) and affirmed the Planning Board Decision as written. Id. at 11-12. In its written Decision further explaining its findings, SHAB noted that it focused on two competing interests: "(1) the prospect of adding 68 low and moderate income homes to move Hopkinton closer to the 10% threshold and (2) the clear burdens that the project would impose upon the municipality's infrastructure and resources." Id. at 14. SHAB cited to Hopkinton's Affordable Housing Plan, acknowledging that the Town faces additional barriers in reaching the affordable housing requirement due to:

"lack of substantial infrastructure in the form of town water and sewer, substantial wetlands, a variety of soil conditions and geographical features that do not lend themselves to development . . . and large amounts of the available land (25% of the Town's acreage) set aside for recreational, open space or uses not compatible with housing or under Town control." Id. at 15 (quoting Hopkinton Affordable Housing Plan at 20) (internal quotation marks omitted).

The Affordable Housing Plan also makes clear that developers and the Town should be concerned with the impact developments have on the school system. Id. (citing Hopkinton Affordable Housing Plan at 20).

In supporting the density cap, SHAB referenced Hopkinton's Inclusionary Zoning Ordinance, an ordinance that is in place to promote low and moderate income housing and give weight to the need to achieve the ten percent minimum. Id. at 16. In weighing this need, SHAB discussed the impact that the heavily-dense Development could have on a rural community with a small budget. Id. SHAB noted that the Development would require the expansion of the school system and additional negative impacts on the infrastructure of Hopkinton. Id. at 14-16. In conclusion, SHAB found that the Planning Board Decision was supported by ample evidence on the record and consistent with the Town's Affordable Housing Plan. Id. at 17. LR 6-A appealed SHAB's Decision to this Court on March 21, 2013. In its Memorandum, LR 6-A argues that SHAB erred in concluding that the Planning Board Decision is consistent with Hopkinton's Affordable Housing Plan. Appellant's Mem. at 51-57. First, LR 6-A contends that the SHAB Decision is basically devoid of any detailed discussion on whether the Planning Board Decision is in fact consistent with the Town's Affordable Housing Plan. Id. at 51; 55-56. Second, LR 6-A posits that SHAB failed to give adequate weight to Hopkinton's need to reach the ten percent requirement and Brushy Brook's ability to assist with this need. Id. at 52-53; 57. As additional support, LR 6-A claims that SHAB's discussion of the relevant interests in the Town's Comprehensive Plan are irrelevant, and "'Rural' municipalities will never meet even the minimal Ten Percent statutory standard ...

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