Bourque v. Bruce, No. 03-6614 (R.I. Super 4/13/2004)

• Decision Date: 13 April 2004
• Docket Number: No. 03-6614,03-6614
• Parties: RAYMOND BOURQUE MURIEL JANNELL v. THOMAS BRUCE, in his capacity as Treasurer of the Town of Cumberland; KATIA BALLISIANO, in her capacity as The Town Planner of the Town of Cumberland; TIMOTHY HOGAN, in his capacity as a Member of the Town of Cumberland Planning Board; DAVID F. COUTU, in his capacity as a Member of the Town of Cumberland Planning Board; JOHN SHEVLIN, in his capacity as a Member of the Town of Cumberland Planning Board; ROY COSTA, JR., in his capacity as a Member of the Town of Cumberland Planning Board; ALBERT LAMOUREUX, in his capacity as a Member of the Town of Cumberland Planning Board; ROBERT PELLEGRINI, JR., in his capacity as a Member of the Town of Cumberland Planning Board; CYNTHIA A. MLYNIEC, in her capacity as a Member of the Town of Cumberland Planning Board; BRANDON BELL, in his capacity as a Member of the Town of Cumberland Planning Board
• Court: Rhode Island Superior Court

Page 1

RAYMOND BOURQUE MURIEL JANNELL v. THOMAS BRUCE, in his capacity as Treasurer of the Town of Cumberland;

KATIA BALLISIANO, in her capacity as The Town Planner of the Town of Cumberland;

TIMOTHY HOGAN, in his capacity as a Member of the Town of Cumberland Planning Board;

DAVID F. COUTU, in his capacity as a Member of the Town of Cumberland Planning Board;

JOHN SHEVLIN, in his capacity as a Member of the Town of Cumberland Planning Board;

ROY COSTA, JR., in his capacity as a Member of the Town of Cumberland Planning Board;

ALBERT LAMOUREUX, in his capacity as a Member of the Town of Cumberland Planning Board;

ROBERT PELLEGRINI, JR., in his capacity as a Member of the Town of Cumberland Planning Board;

CYNTHIA A. MLYNIEC, in her capacity as a Member of the Town of Cumberland Planning Board;

BRANDON BELL, in his capacity as a Member of the Town of Cumberland Planning Board

No. 03-6614

Superior Court of Rhode Island

Filed: April 13, 2004

Page 2

DECISION

PROCACCINI, J.:

This matter comes before the Court on Raymond Bourque's and Muriel Jannell's (hereinafter "Plaintiffs") Motion for Summary Judgment and Declaratory Relief, seeking approval on an application filed on March 18, 1992, for the subdivision of property situated in the Town of Cumberland (hereinafter "Defendant"). Defendant objects to Plaintiffs' Motion for Summary Judgment and Declaratory Relief, and asks this Court to declare that Plaintiffs must comply with the Town of Cumberland's 2003 zoning and land subdivision regulations, which do not allow for the subdivision Plaintiffs are requesting.

Background

The events leading up to this dispute span in excess of a seventeen year period, beginning in September 1987, when the Town of Cumberland Planning Board passed regulations concerning the subdivision of land. The 1987 Subdivision Regulations stipulated that lot sizes applicable to subdivisions were 25,000 square feet and would be served by public water and sewer. That 1987 Ordinance provided an exemption as to those subdivision regulations which were filed prior to the enactment of the ordinance. The exemption reads as follows: "[a]ll lots of record and all subdivisions filed with the planning board as of September 28, 1987 shall be excepted."

In the late 1980s, members of the Town sought to increase the minimum lot requirement in Agricultural A and B zoning districts. After several attempts, in August, 1988, the electors of the Town of Cumberland initiated a voter referendum to amend the

Page 3

Cumberland Zoning Ordinance to require a minimum lot size of two acres or approximately 87,000 square feet for any lot in an Agricultural A or B zoning district. The Referendum was approved by the voters on November 8, 1988 and took effect upon passage.

On February 6, 1992, the 1988 Amendment was struck down by the Rhode Island Supreme Court because it was improperly enacted. L.A. Ray Realty v Town Council of Cumberland, 603 A.2d 311, 314 (R.I. 1992). Thereafter, when the Town enacted the March 18, 1992 Ordinance, changing the minimum lot size for agricultural A and B zones to 2 acres, the Town fathers allowed "all sketch plans" submitted as of March 18, 1992 to be exempt from that ordinance. Thus, a window of opportunity was created for developers to submit applications for projects that met the 25,000 square foot requirement, during which time 38 applications were received by the Town of Cumberland Planning Board

Among the 38 applications received was Plaintiffs' application, which is the subject of the present controversy. Plaintiffs' application, filed on March 18, 1992, sought to subdivide land located at Old Wrentham Road within the Town. At the time Plaintiffs filed their application, the property was zoned Residential AA. Under the applicable zoning ordinance in effect at the time of filing, the minimum lot sizes in Residential AA were 80,000 square feet if water and sewer were not available and 25,000 square feet if water and sewer were available. Plaintiffs' application was reviewed by the Cumberland Planning Board and pre-application approval was granted on June 16, 1992.

In 1994, the Town enacted a Comprehensive Zoning Amendment that would comport with the New Zoning Enabling Act. Section 9-13 of the 1994 Zoning Ordinance

Page 4

addresses the vested rights issue for those developers in the process of approval, and sets forth certain required time frames for applications upon approval.

On June 2, 2003, the Plaintiffs sent the Town Planning Department a preapplication plan for a continued application meeting, which was approved by the Planning Board on June 25, 2003. The Plaintiffs submitted their revised plans for Great Woods on October 7, 2003 and on October 28, 2003, the Planning Board accepted the plan submitted by the Plaintiffs. Thereafter, the Town changed its position and notified Plaintiffs that the application was not valid as previously declared.

On December 19, 2003, Plaintiffs filed a verified complaint against the Town of Cumberland seeking Declaratory Relief asserting that Plaintiffs' application remains valid, binding and in full force and effect, and that pursuit of the subdivision may be done under the zoning regulations at the time of the application filing. The matter is now before this Court on Plaintiffs' Motion for Summary Judgment and Declaratory Relief.

Standard of Review

"Summary judgment is a proceeding in which the proponent must demonstrate by affidavits, depositions, pleadings and other documentary matter . . . that he or she is entitled to judgment as a matter of law and that there are no genuine issues of material fact." Palmisciano v. Burrillville Racing Association, 603 A.2d 317, 320 (R.I. 1992) (citing Steinberg v. State, 427 A.2d 338 (R.I. 1981); Ludwig v. Kowal, 419 A.2d 297 (R.I. 1980)); Super. Ct. R. Civ. P. 56(c). When the moving party sustains its burden "[t]he opposing parties will not be allowed to rely upon mere allegations or denials in their pleadings. Rather, by affidavits or otherwise, they have an affirmative duty to set

Page 5

forth specific facts showing that there is a genuine issue of material fact." Bourg v. Bristol Boat Co., 705 A.2d 969 (R.I. 1998) (citing St. Paul Fire & Marine Insurance Co. v. Russo Brothers, Inc., 641 A.2d 1297, 1299 (R.I. 1994)).

During a summary judgment proceeding "the court does not pass upon the weight or credibility of the evidence but must consider the affidavits and other pleadings in a light most favorable to the party opposing the motion." Palmisciano, 603 A.2d at 320 (citing Lennon v. MacGregor, 423 A.2d 820 (R.I. 1980)). Thus, the only task of a trial justice in ruling on a summary judgment motion is to determine whether there is a genuine issue concerning any material fact. Id. (citing Rhode Island Hospital Trust National Bank v. Boiteau, 376 A.2d 323 (R.I. 1977)). Therefore, "when an examination of the pleadings, affidavits, admissions, answers to interrogatories and other similar matters, viewed in the light most favorable to the party opposing the motion, reveals no such issue, the suit is ripe for summary judgment." Id. (Citations omitted).

Under the Uniform Declaratory Judgments Act, this Court has the power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. G.L. 1956 § 9-30-1. "This Court may also grant further affirmative relief based on the declaratory judgment 'whenever necessary or proper' provided subsequent `supplementary proceedings' are brought pursuant thereto." Capital Properties, Inc. v. State, 749 A.2d 1069, 1080 (R.I. 1999); (citing G.L. 1956 §§ 9-30-8 and 9-30-12 and Sousa v. Langlois, 97 R.I. 196, 196 A.2d 838 (1964)).

Page 6

Vested Rights

Plaintiffs contend that there is no genuine issue of material fact because their request for a subdivision was in accordance with the 1987 zoning regulations in effect at the time they submitted their pre-application in 1992. Plaintiffs further assert that their decision not to act on their pre-application again until 2003 is irrelevant because the 1987 regulations in effect in March 1992 did not provide any expiration date for proceeding with a pre-application plan. In support of their position, Plaintiffs note that their subdivision plan was granted approval on June 16, 1992 and once again in 2003, demonstrating that their application had not expired or terminated between 1992 and 2003.

Conversely, Defendant maintains that Plaintiffs' vested rights in their 1992 application were extinguished when Plaintiffs failed to proceed with their application in a reasonable amount of time. Although no time constraint was present in the 1987 regulations addressing the stage between pre-applications and preliminary plat plans, Defendant asserts that § 9-13 of the Town of Cumberland's 1994 Ordinance set forth a time requirement that Plaintiffs were required to follow thereafter. That section provides in pertinent part:

"(b) Any application for development under this ordinance that is substantially complete prior to the enactment or amendment of this ordinance, shall be reviewed according to the regulations applicable in the zoning ordinance in force at the time the application was submitted. If such application is approved, the applicant must begin construction or exercise the right granted in the application if no construction is involved, not more than one year after the date of such approval. All construction must be completed not more than two years after the date of such approval, unless specifically set forth to the contrary in the original approval."

Page 7

Additionally, Defendant contends that a provision in the 1987 regulations setting a time requirement between the preliminary plat stage and the final application stage substantiates their position that applicants were required to act within a reasonable amount of time in submitting a preliminary plat subsequent to pre-application approval. This Court disagrees.

Several courts...