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Bux v. Dimeo

Superior Court of Rhode Island

September 14, 2017


         Providence County Superior Court

          For Plaintiff: Andrew M. Cagen, Esq.

          For Defendant: Armando E. Batastini, Esq.; Richard G. Riendeau, Esq.; Joseph R. Ballirano, Esq.


          CARNES, J.

         Before the Court is an appeal from a decision of the Zoning Board of Review for 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 the decision and deny the Master Plan approval. Jurisdiction is pursuant to G.L. 1956 § 45-23-71.


         Facts and Travel

         Michael and Mary DiMeo own property located at 396 Greenville Avenue, Johnston, RI, and otherwise known as Lots 17, 20, and 186 on Tax Assessor's Map 47 in the Town's Land Evidence Records. (Corrected Planning Board Advisory Opinion to Town Council at 1, Jan. 28, 2014.) 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. There will be "conservation easements on the remaining land to prohibit future residential development . . . ." Id. at 2. The proposed development requires a change in zoning from an R-20 to an R-10 zoned district. Id. at 1.

         On January 7, 2014, the Planning Board conducted a public informational hearing on the proposed Master Plan for the property. Id. At the hearing, Applicants presented several expert witnesses in support of their plan; specifically, certified land use planner, Joseph Lombardo (Mr. Lombardo); professional engineer, Scott F. Moorehead (Mr. Moorehead); architect, Spencer McCombe (Mr. McCombe); and landscape architect, Hali Beckman (Ms. Beckman). In addition, various objectors testified in opposition to the proposal.[1]

         Mr. Lombardo opined that the plan was consistent with the Town's Comprehensive Plan and Future Land Use Map because both of them contemplate "clustering residential developments and preserving open space, " and that "[a]lmost three-quarters of that property will stay as open space, permanently, for the conservation easement." (Tr. 11, Jan. 7, 2014) (Tr. I)). He further testified that although the required zoning change would increase the density of the property from medium to medium-high, the fact that the development would consist of twenty units on almost forty acres of land means that the effective density would be almost two acres per unit, or one acre per unit if the wetlands portion of the property is subtracted out. Id. at 10. Mr. Lombardo then stated that the age restrictions for owners will achieve another goal of zoning; namely, diversity and balance of housing choices, and that it will open up the single- family housing stock as older members of the community sell their homes to move into the development. Id. at 12.

         Mr. Lombardo later testified that the duplex buildings "are not much larger than a typical single-family home, so, you know, from that perspective, they'll fit in and look like a cluster development of larger single-family homes . . . ." Id. at 40. Consequently, he opined, the development should not degrade or devalue abutting properties. Id.

         Mr. Moorehead testified about the proposed water and sewer lines. He stated that the water line and a gravel sewer would be placed within the proposed cul-de-sac roadway for the development. Id. at 16. In addition, the project anticipates the placement of "a gravity sewer out to Greenville Avenue through a paper street over which we have a right-of-way to Greenville Avenue." Id. Mr. Moorehead further stated that the sewers and roadway will be "privately owned, privately maintained [and that] [t]here will be no cost to the Town for maintenance, repairs, improvements, in perpetuity." Id. Mr. Moorehead then impressed upon the Planning Board that

"the net flow from our proposed development would be at or below the existing condition, and knowing there are existing drainage problems, what we would endeavor to do is design the drainage to have a net reduction from our site so there would be no impact to any neighborhoods, either upstream or downstream from our development." Id. at 17-18.

         He also noted that the plan requires permit approval from both the Department of Environmental Management and the Department of Transportation. Id. at 18.

         Mr. Moorehead later testified that the Town's Technical Review Committee and Fire Department had indicated that "they were happy with the layout of the road, the turnaround, and the hydrant locations at that time, subject to [there] being adequate fire protection flow." Id. at 30. Town Building Official Bernard J. Nascenzi informed the Planning Board that before any building permits can issue on the property, all water and sewer upgrades must be approved and completed. See id. at 35 ("I mean, if the system in place doesn't comply with the Rhode Island State Building Code, . . . it doesn't get built.").

         Mr. McCombe testified that each unit will have two bedrooms, two bathrooms, an open kitchen, dining and living area, and a two-car garage. Id. at 19. Each unit also will contain "a small porch welcoming you as you drive along the street." Id. at 20. He further testified that the duplexes will have two gables facing the street with "a bit of a steeper roof" to "help sort of soften the look of it and give it that New England look." Id. Mr. McCombe concluded by stating that

"the design is based on white cedar shingles that will be probably, with some bleaching oil, to give them a little bit of definition and design, the white trim, and simple detailing with some overhangs to give them a nice New England look." Id. at 21.

         Ms. Beckman next testified on behalf of the Applicants. Ms. Beckman stated that the proposal will exceed the regulatory requirement of fifteen percent vegetated surface and open space, as well as the requirement for planting trees along the street. Id. at 23. She also stated that in addition to the existing vegetation, the plan calls for densely planting approximately ninety-one, eight-to-ten-foot trees of several different varieties, as well as for stockade fences along the south, southeast, and northern property lines. Id.

         At the conclusion of the expert testimony, several abutters testified. Abutter Phil Lemoi expressed his concern about ongoing problems with the natural gas lines in the area and whether the development would exacerbate these problems if it hooked into the same gas lines. Id. at 44-45. Mr. Moorehead testified that while gas would be preferable, it would depend upon the capability of National Grid's system. Id. at 45. The Building Official agreed, stating that if upgrades of the electrical or gas systems are necessary, then National Grid would pass the charge onto the developers as part of the tie-in fee. Id. at 47.

         Other concerns that the abutters raised at the public informational hearing included the length of time it would take for construction to be completed and the safety of surrounding properties should blasting be necessary; whether the proposed open space might be developed in the future; what would happen if the homeowners' association goes under; and whether the proposed zoning change from R-20 to R-10 would affect the entire neighborhood.

         Town Planner and Administrative Officer Pamela M. Sherrill AICP (Town Planner), who previously had submitted a report to the Planning Board, stated that before any construction could take place, both the stormwater management portion of the project and the road first must be put in place. Id. at 49. She also stated that the Planning Board would review the conservation easements and condominium association documents at the preliminary stage of the process, and that the Town has "the power to put a lien on the property . . . [as a] way that the Town can get assurance that it will be maintained." Id. at 55 and 61. Counsel for the Applicants noted that one of the project's stipulations is that all of the landscaping must be in place before construction may begin, id. at 78; that the construction phase of such projects typically takes twelve to eighteen months, id. at 48; and that the proposed zoning change "is very site specific . . . it doesn't effect [sic] anything else and it does not set precedent." Id. at 61. With respect to blasting, Mr. Moorehead testified that questions about that issue were premature, as they first would have to test the groundwater and soil; however, he would able to properly address the issue at the preliminary stage of the application. Id. at 78-79.

         Objector Jeanne Lynch read a letter into the record from the Director of the Woonasquatucket Watershed Council. Id. at 86-87. Said letter expressed concern about the project's "strong potential to effect [sic] stormwater runoffs into tributaries of Asapumset Brook, a feeder stream to the Woonasquatucket River." Id. at 86. The letter suggested that stormwater be treated on-site; that "low-impact development techniques be employed in accordance with the State stormwater manual"[;] that any landscaping should use "minimal fertilization"[;] that water conservation techniques, such as soil-moisture-controlled automatic sprinkler systems, be employed instead of standard timers; and that the landscaping be organic. Id. at 87. Counsel for Applicants said that the application addresses all of the aforementioned concerns. Id. at 89.

         Ms. Lynch also testified on behalf of the Rhode Island Association of Conservation Districts. She stated that "protecting farmland is very important to me[, ]" id. at 88, and she expressed concern that future residents might complain about farm odors from existing farm operations in the area after they move into the development. Id. at 90-92. She also expressed concern about what the development might do to the livelihood of local organic farmers. Id. at 92.

         At the conclusion of the public informational hearing, the Planning Board voted to accept the Town Planner's December 31, 2013 Memorandum (Planner's Memorandum). Id. at 93. After the Planning Board accepted the Planner's Memorandum, one of its members made

"a motion to approve the Master Plan on the DiMeo Farm, based upon the submitted application, testimony presented to the Board, plan and staff report, and the memorandum from various departments, all of the general purpose[s] of Section 1 of the Town of Johnston, Land Development and Subdivision Review Regulation have been addressed. Positive findings were found for all the standard[s] of Section 5-2, Required Finding.
"It's also apparent that the proposed Master Plan is consistent with the Town of Johnston Comprehensive Plan, subject to page 5 of the Planner memo dated December 31st, 2013." Id. at 94.

         Thereafter, the Planning Board voted unanimously in favor of the motion. Id at 94-95. The Planning Board then unanimously voted to recommend that the Town Council adopt the proposed zoning change for the property. Id. at 96.

         On January 14, 2014, the Planning Board issued its Master Plan Decision, as well as an Advisory Opinion to the Johnston Town Council. On January 28, 2014, the Planning Board issued a Corrected Advisory Opinion to the Johnston Town Council. The minutes from the public informational hearing and the Town Planner's Memorandum were attached to each of these documents.

         In its Master Plan Decision, the Planning Board found that "[t]he proposed development is consistent with the comprehensive plan as detailed in [the] Planner's report of December 31, 2013, presented in Exhibit B." (Master Plan Decision at 4.) The Planning Board approved the Master Plan "as applied for, substantially in accordance with all of the plans, specifications, and other documentation submitted . . . subject to the proposed master plan conditions on page 5 of the planner's December 31, 2013 memo." Id.

         Ms. Bux timely 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. 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. On June 16, 2014, Ms. Bux filed an appeal of that decision to the Superior Court.

         This Court, however, was unable to review the decision of the Board of Appeals because the certified record was not complete. See Bux v. Dimeo, C.A. No. PC-14-3015, filed June 22, 2015. Consequently, the Court vacated the decision and remanded the matter to the Board of Appeals for it to obtain and review the permanent record from the Planning Board, and to then issue a decision based upon said review. Id.[2] On September 24, 2015, the Board of Appeals conducted a hearing to certify the record in accordance with this Court's instructions. See Tr. Sept. 24, 2015 (Tr. II).[3]

         At the hearing, Ms. Bux sought to introduce certain evidence that was not available at the time of the public informational hearing. (Tr. II at 5.) The Board of Appeals denied the request, but allowed Ms. Bux to make an offer of proof. Id. at 15. After some discussion, the Board of Appeals unanimously voted to uphold the Master Plan Decision. Ms. Bux timely appealed the decision from the Board of Appeals to this Court.

         Additional facts will be supplied in the Analysis portion of this Decision.


         Standard of Review

         The Superior Court's review of a board of appeal decision is governed by § 45-23-71, which provides that:

"The court shall not substitute its judgment for that of the planning board as to the weight of the evidence on questions of fact. The court may affirm the decision of the board of appeal or remand the case for further proceedings, or may reverse or modify the decision if substantial rights of the appellant have been prejudiced because of findings, inferences, conclusions or decisions which are:
"(1) In violation of constitutional, statutory, ordinance or planning board regulations provisions;
"(2) In excess of the authority granted to the planning board by statute or ordinance;
"(3) Made upon unlawful procedure;
"(4) Affected by other error of law;
"(5) Clearly erroneous in view of the reliable, probative, and substantial evidence of the whole record; or
"(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." Sec. 45-23-71(c).

         It is well established that "the Superior Court does not engage in a de novo review of board decisions pursuant to this section." Restivo v. Lynch, 707 A.2d 663, 665 (R.I. 1998) (citing E. Grossman & Sons, Inc. v. Rocha, 118 R.I. 276, 284-85, 373 A.2d 496, 501 (1977)). Rather, it "reviews the decisions of a plan commission or board of review under the 'traditional judicial review' standard applicable to administrative agency actions." Id. Thus, unless the decision "is affected by an error of law[, ]" West v. McDonald, 18 A.3d 526, 531 (R.I. 2011), the Court's examination "is limited to a search of the record to determine if there is any competent evidence upon which the agency's decision rests. If there is such evidence, the decision will stand." Restivo, 707 A.2d at 665.

         In conducting its examination, the Court is mindful that it must "give[] deference to the findings of fact of the local planning board." West, 18 A.3d at 531 (citing Munroe v. Town of E. Greenwich, 733 A.2d 703, 705 (R.I. 1999); Kirby v. Planning Bd. of Review of Middletown, 634 A.2d 285, 290 (R.I. 1993)). The Court '"lacks authority to weigh the evidence, to pass upon the credibility of witnesses, or to substitute [its] findings of fact for those made at the administrative level[.]"' Restivo, 707 A.2d at 666 (quoting Lett v. Caromile, 510 A.2d 958, 960 (R.I. 1986)). However, it is well established that "[a] planning board's determinations of law, like those of a zoning board or administrative agency, are not binding on the reviewing court; they may be reviewed to determine what the law is and its applicability to the facts." West, 18 A.3d at 532.



         Ms. Bux raises several issues on appeal. First, she contends the Board of Appeals failed to review the permanent record of the Planning Board before voting to uphold the Planning Board's Master Plan Decision. She next maintains that the Planning Board failed to make independent findings of fact as required by statute. Ms. Bux then avers that the Applicants failed to address the potential impact of the proposed sewer line on neighboring organic farms in their Master Plan. She also asserts that the Master Plan Decision erroneously presupposes that the Applicants have a right to a sewer easement over a paper street that had been dedicated only for highway purposes. Next, Ms. Bux alleges that the Master Plan Decision contained an improper condition; namely, a requirement that the legal department/town engineer provide an opinion as to the validity of the paper street. Finally, Ms. Bux claims that the Board of Appeals should have considered the new evidence she tried to present at the remand hearing.


         Review of the ...

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