New England Development, LLC v. Berg

913 A.2d 363, 2007 R.I. LEXIS 3, 2007 WL 80893
CourtSupreme Court of Rhode Island
DecidedJanuary 12, 2007
Docket2006-94-Appeal
StatusPublished
Cited by30 cases

This text of 913 A.2d 363 (New England Development, LLC v. Berg) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
New England Development, LLC v. Berg, 913 A.2d 363, 2007 R.I. LEXIS 3, 2007 WL 80893 (R.I. 2007).

Opinions

OPINION

Justice FLAHERTY,

for the Court.

The desire of New England Development, LLC (plaintiff or NED), to build a substantial shopping center in Tiverton (Tiverton Commons) and an allegation that the Tiverton Planning Board (planning board) failed to approve NED’s master plan in a timely fashion brings this dispute before the Court. The planning board voted to reject NED’s master plan application, but NED contends that the planning board’s failure to file a written decision in accordance with a statutory deadline triggered its entitlement to a certificate of the planning board’s failure to act and the resulting approval of its master-plan application. When the administrative officer for the Tiverton Planning Board, Noel Berg (Berg), refused to issue that certificate, NED petitioned the Superior Court for a writ of mandamus to compel Berg to issue it, contending that, in view of the board’s failure to act, Berg’s duty to issue the certificate was ministerial in nature. The trial justice denied that petition, and NED timely appealed. For the reasons discussed in this opinion, we affirm the judgment of the Superior Court.

[365]*365I

Statutory Scheme

In 1992, the General Assembly enacted G.L. 1956 chapter 23 of title 45 known as the “Rhode Island Land Development and Subdivision Review Enabling Act of 1992,” (P.L. 1992, ch. 385, § 1). The purpose of the act was expressed by the Legislature in § 45-23-29(c). The text of that statute, entitled Legislative Findings and Intent, says, in pertinent part:

“(c) * * * [I]t is the intent of the general assembly:
“(1) That the land development and subdivision enabling authority contained in this chapter provide all cities and towns with the ability to adequately address the present and future needs of the communities;
“(2) That the land development and subdivision enabling authority contained in this chapter require each city and town to develop land development and subdivision regulations in accordance with the community comprehensive plan, capital improvement plan, and zoning ordinance and to ensure the consistency of all local development regulations;
“(3) That certain local procedures for review and approval of land development and subdivision are the same in every city and town;
“(4) That the local procedure for integrating the approvals of state regulatory agencies into the local review and approval process for land development and subdivision is the same in every city and town; and
“(5) That all proposed land developments and subdivisions are reviewed by local officials, following a standard process, prior to recording in local land evidence records.”

NED filed what is described in the act as a major land development master plan application for Tiverton Commons. Section 45-23-40(b) requires that such applications be certified complete or incomplete within 60 days of submission, and subsection (e) requires that the planning board approve, approve with modifications, or deny the application within 120 days of the issuance of a certificate of completion1 according to the requirements of § 45-23-63. Subsection (f) of § 45-23-40 further provides that, if the planning board does not take action within the 120-day period to either approve or deny the master plan, the applicant shall receive, upon request, a certificate of the planning board’s failure to act from the administrative officer of the planning board.2 This certificate results in the approval of the master plan.

[366]*366Section 45-23-63 sets out the procedure planning boards must follow with regard to meetings, votes, decisions, and records. The pertinent part of § 45-23-63 is subsection (a), which requires that “[a]ll records of the planning board proceedings and decisions shall be written and kept permanently available for public review.” Moreover, the act provides that an appeal may be taken only from a decision on file with the town clerk, and that the appeal period runs for twenty days from the filing of that decision. Section 45-23-67(a). In accord with the mandate of § 45-23-26, the Town of Tiverton enacted ordinances that essentially mirror the requirements of the general laws.3

Having set out the pertinent statutory framework for planning board consideration of major land developments, we now undertake a brief review of the facts that gave rise to the appeal currently before us.

II

Facts and Procedural History

NED began its quest to build Tiverton Commons on a forty-acre site on the south side of Souza Road4 in Tiverton on September 3, 2004 by submitting a major land development/master plan application to the Tiverton Planning Board. On October 27, 2004, the board issued a “Certificate of Completeness” for the application, setting in motion the 120-day clock, by the end of which the board was required to “approve of the master plan as submitted, approve with changes and/or conditions, or deny the application.” Section 45-23-40(e).

In an effort to address local concerns, NED subsequently consented to eight different extensions of the statutory decision deadline.5 During the time that NED’s application was pending, the planning board discussed the application at regularly held meetings, and it also held workshops at which NED and the planning board worked jointly on the plan in an effort to make it mutually acceptable. At the September 29, 2005, board meeting, the parties agreed to an ultimate deadline extension, establishing December 30, 2005, as the final date for the planning board to take action on the application. At this same meeting, the board and NED agreed that NED would withdraw the original master plan that called for a 335,000-square-foot complex, and replace it with [367]*367an alternate design that called for a 275,-000-square-foot complex. There was no indication at the meeting that this plan substitution was to be treated as a new application.6 Additionally, five dates were set for future meetings to consider the application before the December 30, 2005 deadline.7

NED’s efforts did not bear fruit, however, and when the planning board met on November 21, 2005, its members voted unanimously to deny the master plan application for Tiverton Commons. But, no written decision of the planning board was filed with the town clerk before December 30, 2005. Consequently, on January 3, 2006, NED requested that Berg issue it a certificate of the planning board’s failure to act by January 9, 2006. Issuance of that certificate would have resulted in the approval of the master plan by the terms of § 45-23-40(f). When it received no response from Berg, NED filed a verified petition for writ of mandamus in the Superior Court for Newport County on January 10, 2006.

After the mandamus petition was filed, Berg, in a letter dated January 11, 2006, informed NED that the November 21, 2005 vote to deny the master plan application was all (in the opinion of the planning board) that was required to be done to satisfy the statutory requirements, and, therefore, he could not issue NED the certificate it had requested.

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Cite This Page — Counsel Stack

Bluebook (online)
913 A.2d 363, 2007 R.I. LEXIS 3, 2007 WL 80893, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-england-development-llc-v-berg-ri-2007.