Plaintiff: Nicholas J. Goodier, Esq.
Defendant: Christopher R. Alger, Esq.
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.
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
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.
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).
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."
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.
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
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 ...