County Superior Court
Post Acute Partners: Jeffrey S. Brenner, Esq.
521 Main Street: William R. Landry, Esq.
Defendants: Andrew M. Teitz, Esq. Amy H. Goins, Esq.
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
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. 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).
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
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.
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.)
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.
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.)
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. (Planning Bd. Decision 2, Nov. 17,
2015, Appellee's Ex. A.)
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.
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.