County Superior Court
Plaintiff: Andrew M. Cagen, Esq.
Defendant: Armando E. Batastini, Esq.; Richard G. Riendeau,
Esq.; Joseph R. Ballirano, Esq.
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.
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.
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
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.
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
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.
noted that the plan requires permit approval from both the
Department of Environmental Management and the Department of
Transportation. Id. at 18.
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.").
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
"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.
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
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.
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.
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.
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.
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.
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
"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.
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.
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
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
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.
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. 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).
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.
facts will be supplied in the Analysis portion of this
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).
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.
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.
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
of the ...