Appeal puts town housing project on hold

Regarding Thomas Property project
Thu, 04/04/2019 - 6:00pm
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An appeal of the Planning Board’s approval of the $1.5 million Thomas Property housing project has stalled its development, and put the town in a precarious position regarding its future.

Town Manager Ed Roberge told The Times that the appeal has prevented the town from moving forward with construction of the Thomas Property project, which is part of the town’s housing initiative, and involves building two rental dwellings for town employee housing.

On March 27, the Zoning Board of Appeal voted unanimously (6-0) to deny Cathy Payne’s appeal of the Planning Board’s Feb. 13 approval of the project due to lack of standing, and not being an aggrieved party. Payne filed the appeal as an abutter, but Town Solicitor Katherine Merolla, representing the Planning Board at the Zoning Board’s March 27 hearing, said she was not an abutter to the property and had no standing for appeal.

The board quickly arrived at its decision with Chair Elizabeth Connor making the motion that was seconded by Robert Lamoureux. Vice Chair Kate Butcher was recused.

Despite the ruling, Roberge said the Thomas project was still on hold. “The appellant’s attorney (Thomas Tarro III) said their next step is to take the case to the (Rhode Island) Superior Court. That puts the town in a precarious position.”

“The Zoning Board of Appeal made the decision that the Planning Board did not err in its decision,” said Roberge, who noted that the town was “now in a position to have to be responsive to the next step that the appellant takes. It comes down to risk assessment. Do we move forward or not?”

Roberge said he would be discussing the matter with the Town Council and the Town Solicitor, Merolla, to see how the town should proceed. 

During the March 27 hearing, Merolla said the Planning Board’s motion to dismiss Payne’s appeal should be granted for the appellant’s lack of standing, noting that “someone not a party to a decision” does not have standing. “No one would have standing, except for the estate (of Violette Connelly), the Attorney General, and the town.”

Attorney Stephen Sypole, serving as Land-Use Solicitor for the Zoning Board, supported Merolla’s testimony, stating the definition of standing per Section 505 of the Land Development Subdivision Regulations. “Standing is a legal requirement for a party to be able to bring an appeal from the Planning Board to this board. Any party aggrieved by a decision of the Planning Board shall have the right to appeal.”

“The definition of an aggrieved party in the zoning ordinance is a person or entity who can demonstrate that their property will be injured by a decision of any officer or agency responsible for administering the zoning ordinance or anyone requiring notice pursuant to this ordinance,” said Sypole, who noted that notice would be issued to a party whose property was “within 200 feet” of a development.

Merolla said, “Under the aggrievement standard we have already established that (Payne’s) property is not within the 200 foot range” of the Thomas Property. “With respect to an injury to the property of the appellant, I want to point out that nothing was submitted in the record showing any injury to the appellant’s property from the development.”

The crux of Payne’s argument is that deed restrictions of Violette Connelly’s estate precludes the town from having the legal right to develop the property. 

Payne’s attorney, Thomas Tarro III, testified that there are deed restrictions on the property regarding development that were set in place by Superior Court order requiring approval of the court, and the Attorney General. “My argument, first and foremost, is the town did not have the legal right to file its application” for development plan review for the Thomas Property. “Its interest in the Thomas property is the result of being a trustee, created by the last will and testament” of Violette Connelly.

At that point, Connor stopped Tarro’s testimony, noting that he was veering “away from the issue of the appeal.” She suggested that Tarro direct his testimony to where he thinks the Planning Board erred, and what the remedy might be.

“I’m saying it’s an error,” said Tarro. “This is the same argument I brought before the Planning Board that was ignored. There was the suggestion that the application was going to be sent to legal counsel for review before the decision was made.” He noted that the Thomas Property “could not be developed without going back to the Superior Court, and getting its approval,” as well as the Attorney General.    

After all of the testimony was submitted, Connor and the board denied Cathy Payne’s appeal, noting that it had “no grounds for reversal” of the Planning Board’s Feb. 13 approval, and that Payne did not have standing, and was not an aggrieved party.

“It’s the Zoning Board’s role to find clear error, prejudiced error,” and the board did not find any error from the appellant’s testimony, said Connor. “The only issue the appellant raised specifically was” related to a Superior Court judgment that was not part of the hearing.

The next Zoning Board meeting is Wednesday, April 24 at 5 p.m.