Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Terrapin Development, LLC v. Town of Cumberland Zoning Board of Review

Superior Court of Rhode Island

November 7, 2017


          For Plaintiff: Nicholas J. Goodier, Esq.

          For Defendant: Christopher R. Alger, Esq.


          SILVERSTEIN, J.

         Before the Court is Plaintiff Terrapin Development, LLC's (Terrapin or Plaintiff) Motion for Summary Judgment pursuant to Rule 56 of the Superior Court Rules of Civil Procedure. Terrapin's Motion follows a decision by the Cumberland Zoning Board of Review (Zoning Board), denying its petition for a dimensional variance in conjunction with its proposal to construct a mixed commercial and residential development within the Town of Cumberland (Cumberland). This Court exercises jurisdiction pursuant to G.L. 1956 §§ 8-2-14, 9-30-1, and 45-24-69.


         Facts and Travel

         Terrapin is the prospective buyer of property located at 10 Nate Whipple Highway in Cumberland, designated as Assessor's Plat 45, Lots 22, 23, 51 and 95 (the Property). The Property is currently designated as a "C-1: Limited Commercial District, " pursuant to the Cumberland Zoning Ordinance (Zoning Ordinance).

         Terrapin submitted a Petition for Variance or Special Use Permit (Petition for Variance) on June 8, 2017. In its Petition to the Zoning Board, Terrapin proposed to develop the Property by constructing a commercial building, a twenty-four unit apartment building, and forty condominiums. Pursuant to the Zoning Ordinance, "Mixed-use residential" uses are permitted in a C-1 District. See Zoning Ordinance, Use Table. Mixed-use residential is defined by the Zoning Ordinance as a "[b]uilding which contains both residential and commercial uses, each of which is totally separated from the other, and where the residential use is located on an upper story of the building, or in the rear portion of the building with the commercial use facing the street frontage." See Zoning Ordinance, Appendix A, ¶ 12.

         The Cumberland Planning Board (Planning Board) issued a decision on June 14, 2017, conditionally approving Terrapin's Master Plan for the Property. (Pl.'s Compl., Ex. B). Per the Planning Board's Decision, approval of Terrapin's proposal was conditioned on the "Zoning Board grant[ing] approval of the proposed commercial/residential configuration as meeting the definition of 'Mixed-use residential' in the Zoning Code." Id. Further, in a letter to the Planning Board, the Town Solicitor, Thomas E. Hefner, posited that his "earlier reference to a need for a zone change or use variance has changed . . . [and] that any variance from the Zoning Board of Review could be in the form of a dimensional variance." (Pl.'s Compl., Ex. A).

         The Zoning Board held two duly noticed hearings, on July 12, 2017 and July 27, 2017, regarding Terrapin's Petition for Variance. After the July 27, 2017 hearing, the Zoning Board issued a unanimous decision to deny Terrapin's Petition. (Pl.'s Compl., Ex. E). In its decision, dated August 3, 2017, the Zoning Board determined that "the appropriate method to grant this variance is via a use variance or via a Town Council zone change." Id. Further, the Zoning Board found that the "Mixed-Use Residential" use permitted in the C-1 district "is expressly conditioned on meeting certain dimensional requirements . . . [and] such requirements may not be waived or reduced merely by showing compliance with the standard for granting a dimensional variance or deviation." Id. Accordingly, the Zoning Board "den[ied] the application of Terrapin Development, LLC as the Board determined it is without authority to grant the requested relief." Id.

         Terrapin timely appealed the Zoning Board's Decision. In its Complaint, Plaintiff requests declaratory judgment with respect to the jurisdiction of the Zoning Board to consider a dimensional variance for a particular development proposal; appeals the decision of the Zoning Board; and requests further declaratory judgment stating that its due process rights have been violated by the Zoning Board. The Zoning Board responded to Plaintiff's Complaint on August 22, 2017. Terrapin subsequently moved for summary judgment on its Complaint, and the Zoning Board opposed Terrapin's Motion. Each party has submitted an accompanying memorandum in support of its respective positions.


         Standard of Review

         Under the Uniform Declaratory Judgments Act (UDJA), this Court possesses the "power to declare rights, status, and other legal relations whether or not further relief is or could be claimed." Sec. 9-30-1. A decision to grant or deny relief, however, is purely discretionary under the UDJA. Sullivan v. Chafee, 703 A.2d 748, 751 (R.I. 1997). The stated purpose of the UDJA is "to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations." Sec. 9-30-12; see also Millett v. Housing Eng'rs' Licensing Div. of Dep't of Labor, 119 R.I. 285, 291, 377 A.2d 229, 233 (1977) ("The purpose of declaratory judgement actions is to render disputes concerning the legal rights and duties of parties justiciable without proof of a wrong committed by one party against another, and thus facilitate the termination of controversies."). Factors to be considered when determining whether declaratory judgment relief is appropriate include "the existence of another remedy, the availability of other relief, the fact that a question may readily be presented in an actual trial, and the fact that there is pending, at the time of the commencement of the declaratory action, another action or proceeding which involves the same parties and in which may be adjudicated the same identical issues that are involved in the declaratory action." Berberian v. Travisono, 114 R.I. 269, 273, 332 A.2d 121, 123-24 (1975).

         In the present matter, the Court will examine the question of declaratory judgment relief in light of the concurrent appeal of the Zoning Board's decision. It is well established that "'zoning boards are statutory bodies whose powers are legislatively delineated.'" Bellevue-Ochre Point Neighborhood Ass'n v. Pres. Soc'y of Newport Cty., 151 A.3d 1223, 1229 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.