In a ruling expected to have far-reaching effects, the Rhode Island Supreme Court last Tuesday unanimously rejected a petition to exempt the town of East Greenwich from a 1992 state planning law. The dispute was over which municipal entity, the town planning board or the town council, would have the authority to approve subdivisions. A state law enacted in 1992, in effect since 1995, requires cities and towns to give that power to their planning boards.
But the town, deferring to its 30-year-old practice of having town councilors act as platting and subdivision board members, has defied the law.
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Then, in 1998, town resident David Monroe challenged a 10-lot cluster subdivision that abuts his property. He appealed the council’s approval of the subdivision to the town zoning board of appeals, saying the process by which it was approved violates state law.
The board rejected him. So, Monroe challenged in Superior Court. There, Judge Henry Gemma Jr. ruled that the town charter – which has been validated by the state General Assembly – does not supersede state law. Gemma’s ruling was made on Oct. 29, 1998.
Unhappy with the ruling, and believing the town has a right to delegate authority over subdivision review because of its charter, the town took its case to the Supreme Court. Gemma granted a stay of his earlier decision so that the town could continue operating as it has for the last three decades while it waited for the Supreme Court to make a ruling.
In an earlier interview, Town Manager William Sequino Jr. said the issue is over the town’s right to govern itself. “I think when we get to the Supreme Court we’ll be just as successful (as the town was in getting a stay of the Superior Court decision),” he told Providence Business News. “It’s a home rule issue.”
But last week, the court issued its decision. Chief Justice Joseph R. Weisberger, writing for a unanimous court, wrote that “the enabling legislation applies equally to all cities and towns, and is therefore, an act of general applications that supersedes a controverting home rule charter provision.”
The court added the General Assembly can enact such laws without trumping the authority of local municipalities to govern themselves, writing that nothing in the state constitution, “has an inhibiting effect on the General Assembly’s overriding power to legislate even on local matters as long as it does so in a general act applicable to all cities and towns alike and does not affect the form of government of any city or town.”
In its decision, the court added: “the Legislature clearly intended to establish uniform procedures for land development throughout the state and in explicit terms superseded local regulations, whether authorized by charter provisions or pre-existing special statutes.”
Thus, East Greenwich Planning Board members, who have until now played an advisory role in the approval of subdivisions, will now have approval power. Planning board members are appointed by the town council.
Some council members were displeased by the court’s decision.
“I’m extremely disappointed,” said councilor Vincent D. Bradley, a member of the board since 1974. “Important decisions involving the quality of life (in town) should be in the hands of elected officials.”
But Elizabeth McDonough Noonan, a partner with the Providence firm of Adler Pollock & Sheehan who represented Monroe, said: “I think the message the Supreme Court is sending is that the state laws that were enacted must be followed by each and every municipality.
“I think the fact that it was a unanimous decision (shows the court is) supporting property rights and the rights of developers,” Noonan said.
Asked whether the decision means that home rule charters cannot ever supersede state laws, Noonan said the law in that area is complex and that it would be inappropriate to say this decision goes that far. But she said in a statement that it does mean that, with respect to the state’s planning laws, East Greenwich and all other communities statewide must conform to a “fair and consistent rule of law in controlling the property rights of citizens.”
Rhode Island legislators passed the planning law in 1992 in an attempt to create uniform subdivision approval processes statewide, and to reduce delays in subdivision approvals. If formed a 23-member land-use commission in 1987 that recommended legislation that: required all towns to adopt Local Comprehensive Plans (1988), reformed zoning laws (1991), and created a uniform process for subdivision review (1992).
Part of the subdivision reform called for planning boards to have voting authority. The commission decided that planning boards, unburdened by political pressure or by other responsibilities, were the best boards to handle the chore of approving subdivisions.
Others, however, have argued that that decision is too important to be left in the hands of appointed, rather than elected, officials.
Nonetheless, the Supreme Court ruling means the town will have no choice but to delegate the authority to the planning board.
But Bradley noted that much of the town is zoned for farm land, and zoning changes are still the purview of the town council.
“Thankfully, there are still wide areas of land currently zoned (for) farming,” Bradley said. “I’m glad that the town has that safety valve for the future.”
