JAMES J. McINNIS, as Trustee of the Tiverton Associates Trust, Appellant,
TOWN OF TIVERTON ZONING BOARD SITTING AS THE BOARD OF APPEALS, and Lise J. Gescheidt, David Collins, George S. Alzaibak, John R. Jackson, and Wendy Taylor Humphrey in their official capacities as Members thereof, Appellees.
Plaintiff: Stephen Izzi, Esq
Defendant: Peter F. Skwirz, Esq.
J. McInnis, Trustee of the Tiverton Associates Trust, appeals
from a decision of the Town of Tiverton Zoning Board sitting
as the Board of Appeals. The Board of Appeals affirmed the
decision of the Administrative Officer of the Tiverton
Planning Board who found that an application for a major land
development was not complete due to the lack of a
"pre-application meeting." For the reasons stated
herein, this Court affirms the Board of Appeals'
decision. Jurisdiction is pursuant to G.L. 1956 §
matter before the Court involves the denial of a major land
development application for forty-four acres of land owned by
James J. McInnis, as Trustee of the Tiverton Associates Trust
(Mr. McInnis), in Tiverton, Rhode Island, identified as Plat
110, Lot 102 (the Property). On March 24, 2008, Mr. McInnis
filed a Master Plan Application for a Major Land Development
Proposal with the Administrative Officer of the Town of
Tiverton Planning Board (Administrative Officer) to develop a
project on the Property called Tiverton Crossings (the 2008
Application). Tiverton Crossings was to be a mixed-use
development with retail, restaurants, office space, a senior
center, and space for municipal buildings. On the
"Planning Board Application Cover Sheet, " Mr.
McInnis checked the following boxes: "Major Land
Development/Major Subdivision, " "Informal Concept
Plan Review, " and "Master Plan."
same day that Mr. McInnis filed his application, the Town of
Tiverton (the Town) was in the final stages of amending its
zoning map in order to comply with the Town's
Comprehensive Community Plan. The proposed amendment of the
zoning map changed the zoning designation of the Property
from Highway Commercial, a zone that allows commercial
development, to Residential 40, a zone that does not allow
commercial development and limits development to residential
properties with minimum lot sizes of 40, 000 square feet. The
Town Council held a public hearing on the same evening that
the 2008 Application was filed to discuss the proposed
changes to the zoning map and voted to pass the amendment,
changing the zoning designation of the Property to
Administrative Officer reviewed the 2008 Application
submitted by Mr. McInnis to determine whether it satisfied
the standards set forth in the Town's Subdivision
Regulations and the Rhode Island General Laws. The
Administrative Officer preliminarily concluded that the 2008
Application was complete; however, he sought the advice of
the Town Solicitors before making a final determination.
Based upon the advice of the Town Solicitors, the
Administrative Officer informed Mr. McInnis on May 6, 2008
that the application was rejected due to the lack of a
"pre-application meeting" pursuant to §
45-23-35, as well as Sec. 23-26(b) of the Tiverton
Regulations. This determination is significant because if the
application was not complete at the time of filing, the
application would not be considered under the previous zoning
ordinance designating the Property as Highway Commercial.
McInnis filed an appeal to the Town of Tiverton Zoning Board
sitting as the Board of Appeals (the Board of Appeals) on
June 4, 2008, arguing that by checking the boxes for both
"Informal Concept Plan Review" and "Master
Plan, " he had concurrently filed for each part of the
review process. At the hearing, the Board of Appeals refused
to hear evidence because there was no record below since the
Administrative Officer rejected the 2008 Application. On
October 21, 2008, the Board of Appeals issued a written
decision unanimously upholding the Administrative
Officer's rejection of the application.
McInnis appealed to the Rhode Island Superior Court on
November 6, 2008, and argued that the Board of Appeals
improperly refused to take evidence during the hearing and
that the Administrative Officer improperly rejected the
application. The Court reserved its judgment on the propriety
of the Administrative Officer's actions until the
creation of a developed record and "remand[ed] th[e]
matter to the Board of Appeals for a new hearing in which it
accepts evidence from both parties." McInnis v.
Tiverton Bd. of Appeal, No. NC 08-0629, 2011 WL 1980403,
at *3 (R.I. Super. May 16, 2011) (Nugent, J.).
McInnis did not immediately proceed with a remand hearing
because a new developer, Carpionato Properties, Inc.
(Carpionato), filed a different major land development
application for a commercial retail use on the Property. The
Carpionato application was contingent on the Town Council
passing a zoning change and comprehensive plan amendment for
the Property. However, the Town Council ultimately voted not
to amend the zoning ordinance and, accordingly, the
Carpionato application failed. Mr. McInnis subsequently
revived the remand hearing, which took place on October 5,
2016. At the hearing, he introduced a plethora of evidence,
including memoranda submitted by him and the Town
Solicitor's Office, deposition transcripts from multiple
parties involved in the matter, certified copies of the Town
Council and Planning Board minutes from the 2008 zoning
amendment proceeding, and live testimony from Tiverton
residents and Mr. McInnis' real estate
agent. The Board of Appeals issued a decision on
January 5, 2017 denying Mr. McInnis' appeal and upholding
the Administrative Officer's May 6, 2008 denial. On
February 2, 2017, Mr. McInnis filed the instant appeal.
facts will be supplied throughout the decision as needed.
Island state law dictates that when a board of appeals
reviews a decision of an administrative officer:
[T]he board of appeal shall not substitute its own judgment
for that of . . . the administrative officer but must
consider the issue upon the findings and record of the . . .
administrative officer. The board of appeal shall not reverse
a decision of the . . . administrative officer except on a
finding of prejudicial procedural error, clear error, or lack
of support by the weight of the evidence in the record. Sec.
board of appeal is responsible for keeping "complete
records of all proceedings including a record of all votes
taken, and shall put all decisions on appeals in
writing." Additionally, "[t]he board of appeal
shall include in the written record the reasons for each
decision." Sec. 45-23-70(d). The Rhode Island Supreme
Court has stated that when a municipal board is "acting
in a quasi-judicial capacity, [it] must set forth in its
decision findings of fact and reasons for the action
taken." Sciacca v. Caruso, 769 A.2d 578, 585
(R.I. 2001) (citation omitted).
§ 45-23-71, an aggrieved party in an application for the
subdivision of land may appeal the decision of the board of
appeals to the Superior Court." West v.
McDonald, 18 A.3d 526, 531 (R.I. 2011). Subsection (c)
of § 45-23-71 describes the standard of review that is
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 ...