Thompson v. Town of N. Kingstown Zoning Bd. of Appeals

• Decision Date: 07 March 2023
• Docket Number: WC-2021-0308
• Parties: RICKEY THOMPSON Plaintiff, v. TOWN OF NORTH KINGSTOWN ZONING BOARD OF APPEALS, RANDY WEITMAN, JOHN V. GIBBONS, JR., ROBERT O'NEILL, CYNTHIA WARREN, and CHRISTOPHER ZENGARI, in their capacities as members of the Zoning Board of Appeals, and TOWN OF NORTH KINGSTOWN PLANNING COMMISSION, and JAMES GRUNDY, ERIC WISHART, PATRICK ROACH, PAUL DION, TRACEY MCCUE and BOB JACKSON, in their capacities as members of the Planning Commission, and JAMM GOLF, LLC, MARK L. HAWKINS, JOSHUA L. HAWKINS, M L HAWK REAL ESTATE LLC Defendants.
• Court: Superior Court of Rhode Island

1

RICKEY THOMPSON Plaintiff, v. TOWN OF NORTH KINGSTOWN ZONING BOARD OF APPEALS, RANDY WEITMAN, JOHN V. GIBBONS, JR., ROBERT O'NEILL, CYNTHIA WARREN, and CHRISTOPHER ZENGARI, in their capacities as members of the Zoning Board of Appeals, and TOWN OF NORTH KINGSTOWN PLANNING COMMISSION, and JAMES GRUNDY, ERIC WISHART, PATRICK ROACH, PAUL DION, TRACEY MCCUE and BOB JACKSON, in their capacities as members of the Planning Commission, and JAMM GOLF, LLC, MARK L. HAWKINS, JOSHUA L. HAWKINS, M L HAWK REAL ESTATE LLC Defendants.

No. WC-2021-0308

Superior Court of Rhode Island, Washington

March 7, 2023

For Plaintiff: Christopher A. D'Ovidio, Esq.

For Defendant: Mark W. Freel, Esq.

Alexandra G. Lancey, Esq.

Nicholas J. Hemond, Esq.

DECISION

TAFT-CARTER, J.

Before the Court for decision is Defendants' Motion for Summary Judgment relating to Count I of the Plaintiff's Complaint and the Plaintiff's Objection thereto. Jurisdiction is pursuant to G.L. 1956 § 45-23-71 and Rule 56 of the Superior Court Rules of Civil Procedure.

I Facts and Travel

This is a zoning appeal pursuant to § 45-23-71. (Compl. ¶ 1.) Plaintiff is appealing a decision of the Town of North Kingstown Zoning Board of Appeals (hereinafter "Board of Appeals") which affirmed the Town of North Kingstown Planning Commission's (hereinafter "Planning Commission") final plan approval for a major land development project (hereinafter "the Project"). Id. The Project was challenged in this Court at the preliminary plan stage by the same Plaintiff. See Mem. Supp. Defs.' Mot. Summ. J. (Defs.' Mem.) Ex. C (Board of Appeals Final Plan Decision), at 2; Defs.' Mem. Ex. A (Superior Ct. Prelim. Plan Decision), at 1-2. This Court rendered its decision regarding Plaintiff's preliminary plan appeal on August 29, 2022. See Thompson v. Town of North Kingstown Zoning Board of Appeals, No. WC-2020-0268, 2022 WL 4017120 (R.I. Super. Aug. 29, 2022); see also Defs.' Mem. Ex. A (Superior Ct. Prelim. Plan Decision). This Court incorporates by reference its recounting of the facts from its previous decision and will supplement with additional facts as needed.

During the preliminary plan stage of the Project, the Planning Commission considered Defendants M L Hawk Real Estate LLC, Mark L. Hawkins, Joshua L. Hawkins, and JAMM Golf, LLC's (collectively the Applicant Defendants) preliminary plan application and approved it on April 9, 2020. (Compl. ¶¶ 30, 33.) Plaintiff appealed the preliminary plan decision to the Board of Appeals advancing six primary arguments. (Superior Ct. Prelim. Plan Decision 9-10.) Specifically, the Plaintiff appealed the decision to the Board of Appeals arguing:

"[1] that the Planning Commission could not make the required finding that 'the proposed development is in compliance with the standards and provisions of the municipality's zoning ordinance' because the Project does not comply with Ordinance 17-16 . . .

"[2] the Planning Commission erred by disregarding Ferrari's expert testimony and ignoring the negative environmental impacts that the Project would have on the Town . . .

"[3] that the Town Council impermissibly acted as a Planning Commission by purporting to approve the Applicants' preliminary plan through the Consent Judgment, thereby violating the Development Review Act . . .

"[4] that the Planning Commission erred by not considering the Project's proposed golf clubhouse as a nonresidential use when calculating the ratio of residential to nonresidential uses under the CVD Ordinance . . .

"[5] that the golf course, as a commercial use of the Property, could not be considered one of the 'open, available spaces throughout the development' required by the CVD Ordinance . . .

"[6] that the Project did not conform with the CVD Ordinance's requirement that vehicular, bicycle, and pedestrian traffic be interconnected within the CVD District." Id.

The Board of Appeals rejected each of Plaintiff's arguments and affirmed the Planning Commission's Preliminary Plan Decision. Id. at 13. Plaintiff then appealed the decision of the Board of Appeals to this Court. Id. at 13-14. This Court affirmed the decision of the Board of Appeals in a decision dated August 29, 2022. See generally, id.; Thompson, 2022 WL 4017120.

Nevertheless, while the appeal of the preliminary plan was pending, the Planning Commission considered and approved the Project's final plan in a decision dated March 22, 2021. (Defs.' Mem. Ex. B (Planning Commission Final Plan Decision), at 1, 7-8.) Plaintiff appealed this decision to the Board of Appeals asserting virtually the same six arguments that he asserted in his appeal of the preliminary plan approval. Compare Board of Appeals Final Plan Decision 3, with Superior Ct. Prelim. Plan Decision 9-10. Specifically, Plaintiff appealed the final plan decision by arguing that:

"[1] The Planning Commission could not make the required finding that 'the proposed development is in compliance with the standards and provisions of the municipality's zoning ordinance.

"[2] The Planning Commission could not make the required finding that 'there will be no significant negative environmental impacts from the proposed development as shown on the final plan, with all required conditions for approval.'

"[3] The Consent Judgment purports to approve the Rolling Greens development in violation of the Development Review Act.

"[4] The proposed golf clubhouse is a 'nonresidential' use and must be included in the nonresidential square footage.

"[5] The proposed golf course is not in conformance with Section 21-95(16) of the North Kingstown Zoning Ordinance, which requires 'a system of open, available spaces throughout the development.' "[6] The proposed development is not in conformance with Section 21-95(8) of the Zoning Ordinance that requires that 'vehicular, bicycle and pedestrian traffic shall be interconnected within the CVD District, and shall connect to adjacent lots containing land zoned for business purposes.'" (Board of Appeals Final Plan Decision 3.)

The Board of Appeals found that the appeal should be dismissed because § 45-23-66 "limits appeals of any final plan approval to only issues that were not addressed in the preliminary plan review, or that deviate from the preliminary plan." Id. at 4. Consequently, the Board of Appeals reviewed the preliminary and final plans, along with the Planning Commission's approval of those plans, and concluded that there were no material differences between the preliminary plan approval and the final plan approval such that dismissal of the appeal under § 45-23-66 was appropriate. Id.

Alternatively, the Board of Appeals concluded that if the Planning Commission's Final Plan Decision was properly appealable, Plaintiff's six grounds for appeal were virtually identical to his grounds for appealing the Preliminary Plan Decision. Id. Therefore, seeing no basis to reach a different conclusion than it reached at the Preliminary Plan stage, the Board of Appeals rejected each of Plaintiff's six arguments by incorporating "by reference its decision rejecting the Preliminary Plan Appeal, and its discussion of each of those grounds, as set forth in the decision of [the] board recorded in the land evidence records on June 18, 2020." Id.

On July 14, 2021, Plaintiff filed the present suit appealing the Board of Appeals Final Plan Decision pursuant to § 45-23-71. (Compl. ¶ 1.) The Complaint asserts a single-count-the appeal of the Final Plan Approval. On August 30, 2021, Defendants, the Board of Appeals, Randy Weitman, John V. Gibbons, Jr., Robert O'Neill, Cynthia Warren, and Christopher Zengari, in their capacities as members of the Board of Appeals, and the Planning Commission, James Grundy, Eric Wishart, Patrick Roach, Paul Dion, Tracy McCue, and Bob Jackson, in their capacities as members of the Planning Commission (hereinafter Town Defendants), filed their Answer. See Docket. The Applicant Defendants subsequently filed their Answer on September 16, 2021. See id. On October 7, 2022, the Applicant Defendants and the Town Defendants collectively filed a Motion for Summary Judgment on Count I. (Defs.' Mem. 1.) Plaintiff objected on January 20, 2023, and the Defendants filed their reply on January 26, 2023. See Docket. On February 20, 2023, the Court conducted a hearing on Defendants' Motion for Summary Judgment and reserved its judgment. See id. Accordingly, Defendants' Motion for Summary Judgment is now before this Court for decision.

II Standard of Review

Under Rule 56 of the Superior Court Rules of Civil Procedure, a court should only grant a motion for summary judgment when the competent evidence, viewed in the light most favorable to the nonmoving party, "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Super. R. Civ. P. 56(c); see also Andrade v. Westlo Management LLC, 276 A.3d 393, 399-400 (R.I. 2022). The court should examine the factual evidence contained in "the pleadings, depositions, documents, electronically stored information, answers to interrogatories, and admissions of file, together with the affidavits ...."

Super. R. Civ. P. 56(c). Once the movant has alleged the absence of material factual issues, the opposing party has an affirmative duty to provide evidence of the existence of material factual disputes. See Loffredo v. Shapiro, 274 A.3d 782, 790 (R.I. 2022).

III Analysis

A Propriety of Summary Judgment

As an initial matter, Plaintiff argues that summary judgment is not appropriate in this matter because zoning appeals are not civil actions, but instead appellate proceedings. See Pl.'s Mem. Supp. Obj. to Defs.' Mot Summ. J. (Pl.'s Obj.) 2. Contrary to Plaintiff's argument, although zoning appeals are not civil...