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Post Acute Partners Acquisition, LLC v. South Kingstown Zoning Board

Superior Court of Rhode Island

March 30, 2017

POST ACUTE PARTNERS ACQUISITION, LLC
v.
SOUTH KINGSTOWN ZONING BOARD sitting as the South Kingstown Planning Board of Appeals, by and through its members in their official capacities, Robert L. Toth, Douglas W. Bates, Igor Runge, Robert John Cagnetta, and John R. Bernardo521 MAIN STREET, LLC
v.
ZONING BOARD OF REVIEW OF THE TOWN OF SOUTH KINGSTOWN, ROBERT TOTH, In His Capacity as Chairman of the Zoning Board of Review of the Town of South Kingstown, DOUGLAS BATES, ROBERT CAGNETTA, IGOR RUNGE, JOHN BERNARDO, and RICHARD JURCZAK, In Their Capacities as Members of the Zoning Board of Review of the Town of South Kingstown, Sitting as The Planning Board of Appeal of the Town of South Kingstown

         Washington County Superior Court

          For Post Acute Partners: Jeffrey S. Brenner, Esq.

          For 521 Main Street: William R. Landry, Esq.

          For Defendants: Andrew M. Teitz, Esq. Amy H. Goins, Esq.

          DECISION

          GALLO, JUDGE

         Before the Court are two consolidated appeals of a decision from the Zoning Board of Review of the Town of South Kingstown, Rhode Island (the Zoning Board) upholding a decision by the South Kingstown Planning Board (the Planning Board). The Appellants, Post Acute Partners Acquisition, LLC (Post Acute) and 521 Main Street, LLC (the Owner) (collectively, the Appellants), ask the Court to reverse the Zoning Board's decision concerning property at 521 Main Street, South Kingstown, Rhode Island (the Property). The Zoning Board upheld the Planning Board's denial of Post Acute's application for master plan approval for the Wakefield Alzheimer's Care Facility (the Project) on the Property, finding that the Planning Board's decision was supported by sufficient evidence. The Planning Board found that, although the Project met the Town of South Kingstown Zoning Ordinance (Zoning Ordinance) requirements, it failed to meet a number of provisions of the Town of South Kingstown Comprehensive Community Plan (the Comprehensive Plan). For the following reasons, the Court reverses the Zoning Board's decision.

         I

         Facts and Travel

         In 2014, Post Acute submitted a proposal to build an assisted living facility on the Property, the site of the former Larchwood Inn which closed for business in 2005.[1] The Property is located in the Commercial Downtown zoning district (the CD Zone). Town of South Kingstown Zoning Ordinance § 101(B). The proposed use for the Property is a residential care and assisted living facility, pursuant to the Zoning Ordinance. The Zoning Ordinance defines that use as follows:

"A publicly or privately operated residence that provides directly or indirectly by means of contracts or arrangements personal assistance, lodging and meals to two or more adults who are unrelated to the licensee or administrator of such a facility; as defined in Rhode Island General Laws, Chapter 23-17.4, as amended from time to time. Medication and nursing services need not be provided." Id. at art. 12, § 104.3.

The use is permitted within the CD Zone. Id. at § 301. The Property is not included in the Town of South Kingstown's Historic Overlay District, and it is therefore not subject to any historic preservation requirements. See id. at § 600; Comprehensive Plan INTRO-17 (noting that only Kingston has been designated as a historic district, subject to zoning restrictions).

         The Planning Board was presented with Post Acute's development proposal twice. The first application, initially submitted in November 2014, was approved by a decision issued on March 13, 2015. However, an appeal to the Zoning Board by several abutters led to the approval being nullified due to a notice defect.

         As a result, Post Acute filed a new application with the Planning Board that was nearly identical to the first application and only incorporated design changes to the proposed structure's layout in response to the concerns raised at the first public hearings by the Rhode Island Historical Preservation and Heritage Commission. Post Acute reduced the building width by 32 feet and the number of beds from 96 to 72. (Hr'g Tr. 1, 13-15, Jan. 13, 2015; Hr'g Tr. 39-40, Feb. 3, 2015.) The new application was complete on July 14, 2015, and the Planning Board held three public hearings on the proposal in July, August, and September of 2015. At the time of the filing of the second application, the Planning Board had two different members from the time of the first application.

         At the first series of hearings, the Planning Board heard testimony from the applicant, Dr. Jeffrey Rubin, regarding the economic benefit of the proposed development to the Town of South Kingstown (Town) and the benefit to those members of the Town who have family members who suffer from Alzheimer's disease. (Hr'g Tr. 3-4, 14-15, Nov. 13, 2014.) The architect for the project, Christopher Mazzier, also testified about the development's design, operational aspects, and compliance with the Zoning Ordinance and the Comprehensive Plan. Id. at 4-7; Hr'g Tr. 2-12, 31-32, Dec. 9, 2014; Hr'g Tr. 5-17, 25, Jan. 13, 2015; Hr'g Tr. 3-14, 39-40, Feb. 3, 2015.)

         The following professionals also testified on behalf of Post Acute: Landscape Architects Thomas Tavella and Jenn Judge, on the plan to save as many trees as possible and maintain the historic stone walls of the Property (Hr'g Tr. 7-10, Nov. 13, 2014); Engineer Brandon Carr, on the environmental aspects of the project, id. at 10-11; Traffic Engineer Paul Bannon, on the traffic conditions near the Property, id. at 17-18, 37-38; and Construction Manager Richard George, on the construction schedule details, id. at 21.

         A number of members of the public testified against the proposed development, citing the large size of the proposed building and the lack of historic preservation. Id. at 18, 39-40; Hr'g Tr. 33, 35, Dec. 9, 2014; Hr'g Tr. 17-23, Jan. 13, 2015. On the other hand, there were a number of members of the public who testified in favor of the project. (Hr'g Tr. 22, Nov. 13, 2014; Hr'g Tr. 19, Dec. 9, 2014; Hr'g Tr. 15-16, Feb. 3, 2015.)

         At the second set of hearings, the Planning Board, with agreement of the applicant, Post Acute, incorporated the file from the first set of hearings. (Hr'g Tr. 3, July 14, 2015.) Witnesses for Post Acute put forth very similar testimony to that offered at the first hearings. Id. at 10-20. The planner for Post Acute, Joseph Lombardo, also presented his report, discussing the Project and its compliance with the Zoning Ordinance and the Comprehensive Plan. Id. at 5-10. Members of the public also testified, and many of the objectors were the same people who had testified at the first hearings, offering similar testimony regarding concerns of historic preservation, traffic, and the large scale of the Project. Id. at 27-40. The Planning Board considered nine of the objectors that testified at the hearings as experts, based on their training and experience in planning and historic preservation.[2] (Planning Bd. Decision 2, Nov. 17, 2015, Appellee's Ex. A.)

         On November 17, 2015, the Planning Board issued its second decision, denying master plan approval of the Project. The Planning Board found that the Project met the Zoning Ordinance requirements, the necessary environmental standards, and the required parking standards. Id. at 3; see Town of South Kingstown Zoning Ordinance § 401. However, the Planning Board found that the Project did not meet various requirements of the Comprehensive Plan as it generally failed to preserve historical features of the Property. (Planning Bd. Decision 3-4, Nov. 17, 2015, Appellee's Ex. A.) Specifically, the Planning Board found that the Project did not meet a number of policies under the Land Use Action Plan and the Natural and Cultural Resources Action Plan. Id. The Planning Board noted that, on balance, it found the testimony of the objector "experts" "particularly relevant to its decision" that the application for master plan approval did not comply with the Comprehensive Plan. Id. at 2.

         Post Acute and the Owner filed separate appeals to the Zoning Board, which were consolidated by agreement of the parties. The Zoning Board, acting as the Planning Board of Appeal, held a public hearing on March 16, 2016 and issued a decision on April 27, 2016, denying the appeal. (Zoning Bd. Decision 4, Apr. 27, 2016, Appellee's Ex. B.) The Zoning Board found that the weight of the evidence supported denying the appeal, giving great deference to the Planning Board's witness credibility determinations and upholding its decision. Id. at 3-4. Appellants appealed the Zoning Board's decision to this Court.

         II

         Standard ...


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