Thompson v. Town of N. Kingstown Zoning Bd. of Appeals, C. A. WC-2020-0268

CourtSuperior Court of Rhode Island
Writing for the CourtTAFT-CARTER, J.
PartiesRICKEY THOMPSON, Appellant, v. TOWN OF NORTH KINGSTOWN ZONING BOARD OF APPEALS, RANDY WEITMAN, JOHN V. GIBBONS, JR., DAVID MCCUE, PATRICIA O'CONNOR-SIEGMUND, and John Marth, in their capacities as members of the Zoning Board of Appeals, and TOWN OF NORTH KINGSTOWN PLANNING COMMISSION, and JAMES GRUNDY, PATRICIA NICKLES, PATRICK ROACH, PAUL DION, TRACEY MCCUE and BOB JACKSON, in their capacities as members of the PLANNING COMMISSION, the TOWN OF NORTH KINGSTOWN, and GREGORY MANCINI, RICHARD WELCH, MARY BRIMER, STACEY ELLIOTT, and KERRY P. MCKAY, in their capacities as members of the NORTH KINGSTOWN TOWN COUNCIL, and JAMES LATHROP, in his capacity as FINANCE DIRECTOR of the TOWN OF NORTH KINGSTOWN and JAMM GOLF LLC, MARK L. HAWKINS, JOSHUA L. HAWKINS, and M.L. HAWK REAL ESTATE LLC, Appellees.
Docket NumberC. A. WC-2020-0268
Decision Date29 August 2022

RICKEY THOMPSON, Appellant,
v.

TOWN OF NORTH KINGSTOWN ZONING BOARD OF APPEALS, RANDY WEITMAN, JOHN V. GIBBONS, JR., DAVID MCCUE, PATRICIA O'CONNOR-SIEGMUND, and John Marth, in their capacities as members of the Zoning Board of Appeals, and TOWN OF NORTH KINGSTOWN PLANNING COMMISSION, and JAMES GRUNDY, PATRICIA NICKLES, PATRICK ROACH, PAUL DION, TRACEY MCCUE and BOB JACKSON, in their capacities as members of the PLANNING COMMISSION, the TOWN OF NORTH KINGSTOWN, and GREGORY MANCINI, RICHARD WELCH, MARY BRIMER, STACEY ELLIOTT, and KERRY P. MCKAY, in their capacities as members of the NORTH KINGSTOWN TOWN COUNCIL, and JAMES LATHROP, in his capacity as FINANCE DIRECTOR of the TOWN OF NORTH KINGSTOWN and JAMM GOLF LLC, MARK L. HAWKINS, JOSHUA L. HAWKINS, and M.L. HAWK REAL ESTATE LLC, Appellees.

C. A. No. WC-2020-0268

Superior Court of Rhode Island, Washington

August 29, 2022


For Plaintiff: Kelley M. Salvatore, Esq.; Christopher A. D'Ovidio, Esq.

For Defendant: Alexandra G. Lancey, Esq., Mark W. Freel, Esq., Nicholas J. Hemond, Esq., Matthew F. Callaghan, Jr., Esq.

DECISION

TAFT-CARTER, J.

Before the Court for decision as Count I of Appellant Rickey Thompson's (Thompson) Complaint is Thompson's appeal from the June 12, 2020 decision (the Zoning Board Decision) of the Town of North Kingstown Zoning Board, sitting as a board of appeal (the Zoning Board). The Zoning Board Decision affirmed an April 9, 2020 decision (the Preliminary Plan

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Decision) of the Town of North Kingstown Planning Commission (the Planning Commission). Jurisdiction is pursuant to G.L. 1956 §§ 45-23-66 and 45-23-71.

I

Facts and Travel

This case concerns a major land development project (the Project) proposed for multiple parcels of real estate located on Ten Rod Road in North Kingstown, Rhode Island (the Property). (Compl. ¶ 1.) Appellees JAMM Golf, LLC, Mark L. Hawkins, Joshua L. Hawkins, and M.L. Hawk Realty, LLC (collectively, Applicants) envision the Project-officially known as "The Preserve at Rolling Greens"-as a "mixed use compact village development, including 212 bedrooms in a mix of unit styles and 26,000 square feet of commercial space[,]" with a "new clubhouse" for the preexisting Rolling Greens Golf Course "and a civic building for the residential development[.]" Id. ¶¶ 10-14; see R. Ex. 24 (Preliminary Plan Decision), 1. Thompson, as an aggrieved party, appealed the Planning Commission's Preliminary Plan Decision approving the Project to the Zoning Board and now appeals the Zoning Board Decision upholding the Preliminary Plan Decision to this Court. Compl. ¶¶ 1, 4; see R. Ex. 51 (Zoning Board Decision). The other appellees in this case are the Town of North Kingstown (the Town); the Planning Commission; the Zoning Board; the Town's Finance Director; and the individual members of the Planning Commission, the Zoning Board, and the North Kingstown Town Council (the Town Council) in their official capacities (collectively, the Municipal Defendants). (Compl. ¶¶ 5-9.)

Through the Project, Applicants seek to develop the Property into a compact village development (CVD) under § 21-95 of the Town's Zoning Ordinances (the CVD Ordinance). Id. ¶¶ 14-15. The CVD Ordinance contemplates that CVDs will "create or reinforce the character and function of village centers through [the] compact arrangement of residential and nonresidential

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uses which are well related to community needs." Zoning Ordinances § 21-95. The Project is subject to review as a major land development project because completion of the Project requires that the Property be rezoned as a CVD. Zoning Ordinances § 21-95(3)(a) ("Any application for CVD that requires a change to the zoning map shall be reviewed as a major land development project."); see also § 45-23-61(b) (specifying order of sequential approvals "[w]here an applicant requires both planning board approval and council approval for a zoning ordinance or zoning map change").

Under Rhode Island's Development Review Act, the major land development project review process "consists of three stages of review[:] master plan, preliminary plan and final plan[.]" Section 45-23-39(b); cf. North Kingstown Subdivision and Land Development Regulations (Subdivision Regulations) § 5.3.5.a.1 ("Major plan review shall consist of four stages of review: (a) Pre-application meeting(s); (b) Conceptual master plan[,] including a site visit; (c) Preliminary plan; (d) Final plan."). A master plan is defined as "[a]n overall plan for a proposed project site outlining general, rather than detailed, development intentions" and "describ[ing] the basic parameters of a major development proposal, rather than giving full engineering details." Section 45-23-32(23); see Subdivision Regulations § 5.3.5.c.2 (same). Among other procedural and substantive requirements for the establishment of CVDs, the CVD Ordinance provides that the "overall percentage of nonresidential to residential building coverage shall be set by the planning commission at the master plan level of review and approved by the town council as a condition of the zoning map amendment to the CVD district for the parcel(s) of land." Zoning Ordinances § 21-95(7)(f).

On December 18, 2012, the Applicants obtained master plan approval for the Project from the Planning Commission. Compl. ¶ 22; id. Ex. A (Master Plan Decision), 1. The Master Plan

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Decision describes the Project as "a compact village containing between 24,000 and 40,000 square feet of commercial/retail and 106 dwelling units (188 bedrooms)" and notes that "[n]ine existing bedrooms will also stay." (Master Plan Decision 3.) In addition to the "existing 3 bed single family units[,]" the 106 proposed dwelling units "include[ ] one bedroom live/work units, two bedroom duplex units, one bedroom duplex units, two bedroom townhouse units, two bedroom single family units, [and] three bedroom single family units[.]" Id. Apart from the dwelling units and the commercial and retail space, a "new clubhouse for the [existing] golf course and a civic building for the residential development [were] also proposed" at the master plan stage. Id.

In the Master Plan Decision's findings of fact, the Planning Commission found that the Project satisfies the provisions of the Town's Zoning Ordinances, including the CVD Ordinance, because "[a] range of 24,000 square feet to 40,000 square feet of commercial uses satisfies the CVD requirement to provide an appropriate proportion of nonresidential to residential uses." Id. However, the Master Plan Decision does not indicate the proposed square footage of the Project's residential units or explicitly address whether the proposed clubhouse and civic building would affect the Project's balance of residential and nonresidential spaces. See id.; see also Zoning Board Decision 2 (describing Master Plan Decision). The Master Plan Decision also provides that the exact amount of commercial square footage is to "be determined at the preliminary stage based upon the revised design of the plan" and that "[t]he ratio of residential to non-residential shall be set at the preliminary stage." (Master Plan Decision 5-6.) Thompson did not file a timely appeal of the Master Plan Decision to the Zoning Board. See Subdivision Regulations § 12.1.1(a) (allowing parties aggrieved by a decision of the Planning Commission to appeal to Zoning Board within "20 days of the day the decision is recorded and posted"); cf. § 45-23-67 (giving same time period for appeal).

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On June 23, 2014, the Town Council rezoned the Property as a CVD by passing Ordinance 14-15. Zoning Board Decision 2; see Pl.'s Brief Supp. Count I Compl. (Pl.'s Br.) Ex. 3 (Ordinance 14-15). However, on August 28, 2017, the Town Council passed Ordinance 17-16, which amended the Property's zoning district descriptions by adding the following conditions:

"1. The overall percentage of nonresidential to residential building coverage on these lots for the proposed development shall be no more than 5.0% (five percent) of nonresidential building coverage and no less than 95.0% (ninety-five percent) of residential building coverage.
"2. The total square footage of commercial building space shall not exceed 10,000 square feet." Pl.'s Br. Ex. 4 (Ordinance 17-16); see Zoning Board Decision 3.

In the interim, the Applicants had obtained a certificate of completeness for their preliminary plan application; however, after the Town Council passed Ordinance 17-16, that certificate was withdrawn. Zoning Board Decision 3; see Subdivision Regulations 5.3.5.l. The Applicants then filed suit against the Town, alleging that Ordinance 17-16 violated the Applicants' vested property rights. Zoning Board Decision 3; see Defs.' Mem. Opp'n Pl.'s Brief on Count I Compl. (Defs.' Mem.) 4. After the Applicants' suit was removed from Rhode Island Superior Court to the United States District Court for the District of Rhode Island, Thompson filed a motion to intervene, which the District Court denied. (Compl. ¶¶ 30-31; Defs.' Mem. 4.)

After mediation and further discussions, the Applicants' suit against the Town resulted in a settlement agreement memorialized in a Consent Judgment. Zoning Board Decision 3; see R. Ex. 5 (Planning Commission Agenda, Feb. 18, 2020) at 1374-79 (Consent Judgment). In the Consent Judgment, the Town agreed that the Project

"is APPROVED, on the specific terms and conditions set forth herein, subject only to
"(a) the Town Council's approval of the settlement embodied in this Consent Judgment, and
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"(b) final approval by the Town's Planning Department and by the Planning Commission of Applicants' Preliminary Plan application (to include any associated technical review typically associated with such process) in accordance with any applicable provisions of the CVD Ordinance Section 21-95 (but not to include the amendments to the CVD district approved by the Town Council on
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