The Town of East Greenwich, which has openly defied a 1992 state law
requiring planning boards to approve local subdivisions, will now take
its case to the state Supreme Court.
Last Tuesday, Superior Court Judge Henry Gemma Jr. granted a stay of his
earlier ruling upholding the law, clearing the way for the town to
appeal the decision. If the court decides to hear the case a ruling
could come as early as this winter; otherwise the initial decision will
stand.
Rhode Island's Market Has Changed. Developers, Builders, Investors and Sellers Must Change With It.
By Emilio DiSpirito IV License Partner | Engel & Völkers Oceanside Leader | The DiSpirito…
Learn More
The dispute, which could impact home-rule charter communities statewide,
is over the town’s right to have its town council approve subdivisions.
All other communities, in compliance with the state land development and
subdivision act in effect since 1995, give planning boards that power.
The new law repealed an earlier statute enabling councils to act as
planning boards. But the town argues that its home rule charter, which
the General Assembly validated in 1973, takes precedent over the law.
Unlike other community charters, East Greenwich’s includes a provision
stating that its council will act as the town platting board. The town
planning board plays an advisory role.
We hope to strike a blow of diversity,” said Town Solicitor Edmund L.
Alves Jr. “The town should be able to decide what board oversees
(subdivision) regulations, and not be dictated to by the state.”
But the battle is not just with the state. It is also raging in town,
and has since the planning board three years ago told the council that
it is obliged to surrender its authority as a planning and subdivision
board. But the council, acting on advice of counsel, refused.
From there, the sides waited for a legal battle to erupt. Finally, last
spring, it did.
David Munroe, a town resident, ignited the conflict by challenging a
proposed 10-lot cluster development that abuts his property. He appealed
the council’s approval of the development to the town board of appeals,
saying the process violated the 1992 law. The board, while expressing
concern over the town’s subdivision review procedure, nonetheless
refused.
He then appealed to Superior Court. There, Gemma ruled in his favor. In
his Oct. 29 decision, Gemma said the Assembly’s validation of the town
charter was not a mandate for the council to act as the platting board.
Even it if were, he reasoned, the charter states only that the council
will sit as a planning board — not what powers that board will have.
And since the council’s power to vote on subdivisions comes from the
town’s ordinances and subdivision review regulations — and not the
charter — the charter cannot be used as a basis for the argument, Gemma
wrote.
But the town fought on. Alves disputed Gemma’s legal interpretations.
And Town Manager William Sequino Jr. framed the issue as one of the
town’s ability to govern itself. He is confident the court will agree.
“I think when we get to the Supreme Court we’ll be just as successful,”
Sequino said after Gemma granted the stay. “It’s a home-rule issue.”
But legislators who enacted the law as part of a series of reforms see
it differently. Seeking to create uniform processes statewide and reduce
delays in subdivision approvals, the state 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 subdivision reform called for planning boards to have voting
authority — a point the commission debated at length, said Derwent
Riding, who represented the League of Women Voters on the commission and
now works as a principal planner in the state Office of Municipal
Affairs.
The commission decided the planning board, unburdened by other
responsibilities, was the best board to decide on subdivision
applications. Riding noted that the review process is principally to be
sure the developer is complying with laws and regulations.
“This is a process, this is not the same thing as acting on an amendment
to an ordinance,” she said. “The feeling was that it should be the
planning boardit’s not a function that should be done by a body whose
function is legislative.”
Many others, such as the Rhode Island Builders Association, which backed
the reforms, agree. Robert Cioe, past president of the association and a
member of the 1987 land-use commission, said the planning board is best
suited because, as an appointed board, it is insulated from political
pressure. The reforms, he added, were the result of a great deal of
effort by the commission.
“For those people (who) thought that this was going to be everything
to everybody, it doesn’t work — we don’t live in a perfect world,” Cioe
said.
Which is why Cioe and others feel a bit slighted by East Greenwich’s
defiance. But the reasons behind it stem from the town’s tradition —
and its success at planning itself. It was the first community, for
example, to adopt a local comprehensive plan. And a look at its portion
of Route 2 compared to sections in other communities, some say, proves
it has done a better job of planning.
Jerry Zarrella, owner of Zarrella Development Corp. in East Greenwich,
attributes that success to the council having control. Being elected,
councilors must be accountable to the community’s desires, he said.
“Route 2 in Warwick is absolutely over-built — too much business, too much
traffic congestion,” said Zarrella who builds homes all over the state.
“I really believe the town should be run by people elected to run it.”
But the dispute is as much political as it is philosophical. Zarrella,
who said he has voted to appoint political supporters when he was a town
councilor in West Warwick, suggested that planning board appointments
are sometimes used as political rewards. And Vincent D. Bradley, an East
Greenwich councilor since 1974, said he has been unhappy with many
stances the board has taken over the years.
“I don’t have any doubt that the council can do a hell of a lot better
job than the planning board,” Bradley said. “I think historically some
real space shots have been appointed to the planning board who want to
go in a direction that I don’t think the town should be going.”
But while the state does not require planning board members to have any
specific credentials, experts say appointees often have relevant
experience. Some are lawyers. Others are scientists and engineers. And
others are people like Judith Bailey, a former councilor who has also
served on the planning board. As someone who has sat in both seats,
Bailey said her experience tells her the planning board should be the
deciding authority.
“Whenever a new development is proposed, the neighbors basically don’t
want it, and there’s a tendency to respond to that,” Bailey said. “I had
one council member who told me he gets more votes at planning and
subdivision (meetings) than any other meeting — that made me feel it
shouldn’t be looked at by the council.”
Others take issue with the notion that the council deserves all the
credit. The town has a full-time planner. And its subdivision rules and
zoning ordinances are the main force behind its successful planning,
said Gregory de Groot, planning board chairman.
“If the ordinances are constructed well enough it’s almost irrelevant
who’s in charge of implementing them,” he said.
Speaking to the argument that elected officials should have the
authority, he said: “I couldn’t disagree with that more. I think it’s a
hindrance to good planning. (As an appointee) you’re not swayed by
counting the number of voters in the room.”
If the Supreme Court takes the case, its ruling could have broad
impacts. For example, other communities have brought up home rule issues
that conflict with state law, Alves noted. He cited a case in which the
Supreme Court ruled that the Town of Westerly had the authority to
regulate its sewer system in its own manner because of its charter.
“There are cases where they’ve found certain areas in which the local
community can legislate irrespective of what the state does,” he said.
“The general thrust behind the home-rule amendment (to the state
constitution) is to ensure that the local community can determine how it
is going to be governed.”
But if the plaintiffs have their way the court will never issue a
ruling. Elizabeth McDonough Noonan, the lawyer who represented Munroe,
said she will file a petition asking the court to reject the town’s
petition to hear the case. The original decision was a good one, she
said.
“I don’t see Judge Gemma having committed any errors” that would prompt
the Supreme Court to want to hear the case, she said.
Either way, the matter, which has simmered for three years, will finally
be decided — which would please many in town. Said Town Council
President Carl I. Hoyer: “I’d be very happy to have the matter resolved
once and for all.”
