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McInnis v. Town of Tiverton Zoning Board Sitting as Board of Appeals

Superior Court of Rhode Island, Newport

April 5, 2018

JAMES J. McINNIS, as Trustee of the Tiverton Associates Trust, Appellant,
v.
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.

          For Plaintiff: Stephen Izzi, Esq

          For Defendant: Peter F. Skwirz, Esq.

          DECISION

          VAN COUYGHEN, J.

         James 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 § 45-23-71.

         I

         Facts and Travel

         The 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).[1] 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."

         On the 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 Residential 40.

         The 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.

         Mr. 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.[2]

         Mr. 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.).

         Mr. 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.[3] 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.

         Additional facts will be supplied throughout the decision as needed.

         II

         Standard of Review

         Rhode 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. 45-23-70(a).

         The 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).

         "Under § 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 employed:

The court shall not substitute its judgment for that of the planning board[4] 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 ...

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