Is the Planning Commission illegitimate?

That’s what Whalerock’s lawyer Nick Gorham claims in papers filed yesterday in RI Superior Court. Just in time for the Town Council meeting (tomorrow) where, once again, his client’s offer to sell his land to the town will be discussed..

Gorham filed a Memorandum of Law accompanied by around 300 pages of attachments in the consolidated lawsuits filed by neighbors of Larry LeBlanc’s property on Route One, site of LeBlanc’s proposed Whalerock commercial wind turbine project.

In this filing, Gorham asks the court to rule “that the Charlestown Planning Commission’s only role in the Whalerock application for an LWES [commercial wind turbine] is to advise the zoning board of review (Count I) and that the Planning Commission is illegally constituted because it is elected rather than appointed (Count II).”

Gorham raised this issue at the Planning Commission’s April 27^th meeting and effectively closed the meeting. If Gorham is right and the Court agrees to issue the ruling he requests, the actions by the Planning Commission in taking primacy over the Whalerock application last year could be tossed out.

Gorham’s case in a nutshell: state law requires municipal boards, like Charlestown’s Planning Commission, to be appointed, not elected, to prevent taint of political bias. Gorham says Charlestown is the only town in Rhode Island that still elects its Planning Commission, in violation of state law. He also cites prejudicial remarks made by Planning Commission member Kate Waterman as evidence of political taint.

Personally, I doubt an appointed commission would be any less biased and tainted, but I found Gorham’s arguments about what Rhode Island law requires to be well argued. Rather than take my word for it, read his argument yourself. I have cut-and-pasted the core of his brief to the end of this article, below the fold.

BONUS: I learned a great new word from Gorham’s brief. I plan to use it often. The word is “nugatory.”

The last time the Planning Commission’s legitimacy was challenged was in 2007, when attorney Margaret Hogan questioned whether the elected commission complied with Rhode Island law. In January 2008, then town solicitor Bob Craven wrote a legal opinion to the Town Council telling them he said he saw nothing wrong with the practice and recommended no further action be taken.

At that time, no one seemed to want to press the issue any further and accepted Craven’s opinion as the final legal authority. But is it a surprise that the town lawyer would tell the town that what it is doing is OK? Lawyers are supposed to warn you away from doing something stupid. But generally you expect the lawyer to give you a legal justification for what you want to do. A judge may disagree. And I don't remember Craven being considered a great legal scholar.

Unless the Whalerock dispute is settled, most likely by the purchase of LeBlanc’s land by the town, RI Superior Court Justice Jeffrey Lanphear will get to decide whose version of legal reality is correct.

Whalerock’s Memorandum of Law on the Planning Commission’s Role in the

Review of Whalerock’s Application To The Zoning Board For A Special Use Permit

[EDITOR’S NOTE: This excerpt begins at the end of Page 7 after a detailed chronology. Footnotes are omitted due to space and technology constraints within our blog platform. To read the main filing in its entirety, click HERE]:

May 2, 2011—The parties to each of the three consolidated matters meet with Judge Lanphear pursuant to Rule 16 and agree upon a Consent Order.  The Consent Order allows Whalerock to amend its complaint to challenge the proper role of the Planning Commission when the applicant has applied for a Special Use Permit as well as the composition of the Commission in light of its being an elected, rather than appointed, panel.  Thus by agreement of the parties and by Order of the Court (Appendix 1) there are four succinct issues before the Court:

1.         The validity of Charlestown Zoning Ordinance §18-37(d)(4).

2.         Whether the Zoning Board erred in finding Whalerock’s November 12, 2010 application for a Special Use Permit as “substantially complete” pursuant to G.L. 45-24-44.

3.         Whether the Planning Commission’s powers to review the Whalerock application are advisory only.

4.         Whether the elected Charlestown Planning Commission is illegally constituted under the 1992 Development Review Act (G.L. 45-24-23 through 45-23-74).

            This Memorandum addresses questions 3 and 4 only.

1.  Planning Board Jurisdiction Over The Whalerock Application is Advisory Only.

            Pursuant to section 18-37(d)(4) of the Town of Charlestown Zoning Ordinance, Whalerock has applied for a Special Use Permit from the Zoning Board to build and operate a Large Wind Energy System consisting of two wind turbines. 

            The Ordinance purportedly requires the Planning Commission to consider and issue, and the applicant to seek, two separate items from the Planning Commission: first, an advisory recommendation to the Zoning Board of Review regarding the Special Use Permit application and, second, an “approval” of the applicant’s “site plan.” Appendix 25, section 18-37(d)(4)(e) Charlestown Zoning Ordinance  The second of the two “requirements” is a nullity, and the only role of the planning commission in considering a LWES application is an advisory recommendation to the zoning board.  Both the zoning enabling act and the planning board enabling act make this clear.            

Section “a” of the “development plan review” portion of the zoning enabling act provides:

       § 45-24-49 Special provisions – Development plan review. – (a) A zoning ordinance may permit development plan review of applications for uses requiring a special-use permit, a variance, a zoning ordinance amendment, and/or a zoning map change. The review shall be conducted by the planning board or commission and shall be advisory to the permitting authority.

Sub-section “b” of the same section of the zoning enabling act provides that if the use is a permitted use, then the zoning ordinance may designate the “review body” who will conduct development plan review.  In such case, if the “review body” rejects the application, then the applicant has the right to appeal to the zoning board [as provided in G.L. 45-24-64]: 

   (b) A zoning ordinance may permit development plan review of applications for uses that are permitted by right under the zoning ordinance, but the review shall only be based on specific and objective guidelines which must be stated in the zoning ordinance. The review body shall also be set forth in and be established by the zoning ordinance. A rejection of the application shall be considered an appealable decision pursuant to § 45-24-64.

Here, the zoning ordinance clearly provides that a LWES is permitted by special use permit, not as of right.  Therefore, the Planning Commission cannot “reject” or “approve” Whalerock’s site plan.  Instead, the planning commission’s only role is to give a recommendation that “shall be advisory to” the zoning board. See G.L. 45-24-49(a).

            This notion is strengthened all the more by the plain language of section 50 of chapter 23 of the general laws, which mandates that in providing for review of “development plans” (i.e. “site plans”) the town of Charlestown must adhere to the edict of section 45-24-49 of the zoning enabling act:

 § 45-23-50 Special provisions – Development plan review. – (a) Municipalities may provide for development plan review, as defined in § 45-24-49 of the Rhode Island Zoning Enabling Act of 1991, to be subject to part of the local regulations.

(b) In these instances, local regulations must include all requirements, procedures and standards necessary for proper review and recommendations of projects subject to development plan review to ensure consistency with the intent and purposes of this chapter and with § 45-24-49 of the Rhode Island Zoning Enabling Act of 1991.

            In further support of this notion, the act creating the state’s planning boards and commissions, G.L. 45-22-1 et. seq. clearly does not give planning commissions the power to approve or reject “site” or “development” plans.  Such authority is vested in zoning boards only.  Section 45-22-7(c) confirms this.  It provides that:

(c) A planning board or commission shall submit an advisory opinion and recommendation on all zoning matters referred to it under the provisions of the city or town zoning ordinance and report on any other matter referred to it, by the city or town council, the chief executive, or the appointing authority.

            The act does not give Planning Boards or Commissions any additional power to review “site” or development” plans.  It unambiguously provides that a planning commission’s role is “advisory” on “all matters referred to it” under the zoning ordinance. 

To the extent that Charlestown’s charter purports to give any such “additional” power to the town’s planning commission—which it does not—it is nugatory.  In fact, G.L. 45-22-1 could not make this clearer:

  § 45-22-1 Establishment of a planning board or commission – Home rule charter exempt. – All cities and towns shall, by ordinance, establish a planning board or commission under the provisions of this chapter. Any city or town operating under a home rule charter which provides for the establishment of a planning board or commission may continue under the provisions of that charter, except that the provisions of § 45-22-7, governing the formulation and adoption of a comprehensive plan and the duties of a planning board or commission, apply to all cities and towns.

Thus to the extent that Charlestown’s charter (or town council-enacted ordinances) purport to empower the Planning Commission beyond those powers delineated in G.L. 45-22-7 supra, they are of no effect. The commission’s powers over uses allowed by special use permit are limited to those delineated in the zoning enabling act (45-24-49) and the act creating planning boards and commissions (45-22-7).

Thus Charlestown’s zoning ordinance must provide that “site plan review” (i.e. “development plan review”) of projects permitted by special use permit be subject to an advisory recommendation from the planning commission, and nothing more.  The planning commission does not have the power, authority or jurisdiction to actually “approve” or “reject” the “site plan” or the project. That power—the power to approve or reject Whalerock’s application, including its site plan—rests solely with the zoning board of review.

            The portion of the Charlestown zoning ordinance requiring that an applicant for a LWES obtain “site plan approval” [Appendix p. 25, Charlestown Ord. from the Planning Commission is contrary to law and must be treated as such.  It purports to empower the Planning Commission to approve or reject an application permitted by special use permit.  Taken to its logical extension, Charlestown’s LWES ordinance could produce two different decisions on the very same subject matter of a single application: one by the zoning board approving the special use permit for the project (and rejecting, presumably, the planning commission’ “advisory” recommendation on the application) and another from the planning commission purporting to “reject” the project.  The zoning enabling act is written clearly and unambiguously to avoid such a result.  It places all authority in the zoning board’s hands when the application is for a special use permit.  The planning commission’s role is advisory and the Court should so rule as prayed in Whalerock’s cross-claim, Count I.

2.  The Charlestown Planning Commission is Illegally Constituted Because Its Membership Is Elected and Not Appointed.

Since 1972 the General Assembly has required that Planning Commissions be appointed, not elected.  Charlestown’s 1981 attempt to overcome this basic flaw by having have the General Assembly ratify its charter was ineffective.  Careful examination of Munroe v. Town of East Greenwich, 733 A.2d 703, 704 (R.I., 1999) demonstrates that such pro-forma legislative ratification cannot and does not serve to supplant the legislature’s intent that all Planning Boards in our state must be uniformly constituted.  Charlestown’s planning commission is a legal anomaly that cannot continue without conforming its method of selecting members to state law—that is, to become uniform with the other 38 planning commissions in our state by having its members appointed.

 The plain language of the enabling legislation creating planning boards and commissions is clear:

§ 45-22-1 Establishment of a planning board or commission – Home rule charter exempt. – All cities and towns shall, by ordinance, establish a planning board or commission under the provisions of this chapter.  Any city or town operating under a home rule charter which provides for the establishment of a planning board or commission may continue under the provisions of that charter, except that the provisions of § 45-22-7, governing the formulation and adoption of a comprehensive plan and the duties of a planning board or commission, apply to all cities and towns.

§ 45-22-2 Appointing authority. – In cities and towns having an elected mayor or administrator, members of the planning board or commission are appointed by the mayor or administrator with the consent of the city or town council and, in other towns, members are appointed by the town council.  Cities and towns operating under a home rule charter may continue the appointment of members in the manner established under that charter.

            This has been the law of Rhode Island since its adoption in 1972, and has never been amended.  See, P. L. 1972 ch. 204 §2.  Elsewhere in title 45 chapter 22, the General Assembly repeats the premise that planning commission members are appointed.  The General Assembly and Supreme Court have never even alluded to the notion that an election by the people is tantamount to an “appointing authority.” The absence of any reference in the planning or zoning board enabling acts to elected members is thus significant.  If the General Assembly wished to expand on the limited definition of an appointing authority, it could have done so, or it could have simply said “appointed or elected.”  It did neither.

            In 1980, after the General Assembly created this mandate, the town of Charlestown adopted a new Home Rule Charter which provided for an elected Planning Commission.  This was contrary to the enabling legislation in two ways:  first, the enabling legislation passed in 1972 provided that towns “operating”–i. e. operating as of 1972—under a home rule charter, “may continue ...”.  In Charlestown, there was no charter in 1972, and thus there was no chartered planning commission that could “operate” or “continue”.  Second, the enabling legislation states only that towns with chartered planning commissions may continue the “appointment of members established under the charter.”  Yet under Charlestown’s 1980 Charter, the planning commission was elected, not appointed.  Thus the charter clearly does not comply with the enabling legislation.

            In 1981 Charlestown’s charter was ratified pro forma by the General Assembly.  See, P.L. 1981 ch. 15 §1, 2.  Appendix 17.  However, since that enactment, the Supreme Court  rejected the Town of East Greenwich’s attempt to have an elected panel—pursuant to the town’s 1973 legislatively ratified charter—carry out even a portion of the duties reserved to the town’s appointed planning board.  The Court held that it was illegal for the elected town council to serve as the town’s “platting board” because that was  different than what the legislature mandated by the 1992 comprehensive amendments to planning and land use laws, commonly known as the Rhode Island Development and Subdivision Review Enabling Act of 1992, G.L. 1956 §§ 45-23-25 through 45-23-74 (the Development Review Act).  The 1992 Act requires all town councils to empower planning boards to control land development and subdivision projects in conformity with the Act.  As noted in Munroe v. Town of East Greenwich, 733 A.2d 703, 704 (R.I., 1999), towns cannot, by Home Rule Charter or otherwise, vitiate the legislative mandate laid down in the 1992 Development Review Act:

The petitioners argue that because “the General Assembly has not amended or repealed § 45-22-1, municipalities such as East Greenwich may continue to administer its local laws relating to land development and subdivisions as set forth under its Charter or under other such special legislation.”  As we stated previously, however, § 45-22-7(d) reveals the Legislature’s intent to continue to assign duties to

a town’s planning board.  More importantly, however, the town elected to have the platting and subdivision board function as the sole permitting authority pursuant to § 45-24-47(B) which requires all municipalities to submit land development projects, including cluster subdivision, to the planning board or commission for approval under the subdivision regulations.  That statute also requires compliance with procedures established by §§ 45-23-25 through 45-23-74.  Therefore, we must conclude that 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.  Munroe at 710-711. [emphasis added]

            Charlestown’s elected Planning Commission is anything but uniform.  In fact it is a legal anomaly that places Commission members acting in a quasi-judicial capacity into the crucible of local elections and in turn political decision-making. 

            The dichotomy engendered by having an elected Planning Commission, serving in a both a quasi-legislative and quasi-judicial capacity, is perhaps best demonstrated by the comments of Planning Commission member Kate Waterman at the April 27, 2011 hearing on Whalerock’s site plan review.  Appendix 190.  Counsel for Whalerock read a quote from the Janaury 21, 2011 edition of Westerly Sun newspaper attributed to Ms. Waterman:

“Industrial sized generators are inappropriate for Charlestown” she said.  “It just strikes me that we are really just torturing this issue when they don’t work here and they won’t work here.  Anything anybody tries is just going to be a terrible battle that chews up time, energy and money.”  Appendix 212.

            Counsel then asked member Waterman: “Are you opposed to industrial turbines?”  Member Waterman replied: “Yes I am.”  

            Counsel then asked member Waterman: “Do you consider the proposal that is before you to be industrial turbines?”

            Member Waterman replied: “Yes I do.”   Appendix 212-213.

            Later in the evening, Member Waterman qualified her general opposition to industrial-sized turbines to only those proposed “in residential areas.”  Appendix  242.  Whalerock’s application is to build two turbines in an area zoned residential, where LWES’s were allowed by special use permit—until the Planning Commission recommended, and the town council adopted, amendments making all LWESs a prohibited use. 

It is clear that Member Waterman is opposed to Whalerock’s project, before a single piece of evidence has even been offered in support or opposition to its application.  This evidence is not offered so as to have the Court remove member Waterman or any other member from hearing Whalerock’s application—that is a not part of Whalerock’s prayer for relief or the issues framed in the Court’s Consent Order.  Rather, the evidence is offered to show that when Charlestown enacts an ordinance (as Charlestown did here) that purports to empower elected planning board members to act in a quasi-judicial capacity, it is nearly impossible to receive, or to know one will receive, a fair and impartial hearing.  The evidence demonstrates not only why member Waterman should not hear the case but, more to the point, why any planning commission members acting in a quasi-judicial capacity shouldn’t be elected: because it puts in exactly the type of politics the appointment process is supposed to take out.

Some members of Charlestown’s planning commission are active members of the Charlestown Citizen’s Alliance, a registered political action committee focused on electing a Planning Commission and Town Council who were dedicated to defeating the very project that Whalerock will present to the Planning Commission members (some of whom actually donated hundreds of dollars to CCA in the last election cycle.)  Appendix 266-79.

Of course there is nothing wrong with being endorsed by political action committees or even making hundreds of dollars of contributions to them (or, as in the case of some Charlestown Planning Commission members, both) when someone is running for elective office to act in a legislative capacity.  One might even argue that those elected to legislate are elected because of the biases and prejudicial thinking they have, and have overtly demonstrated to the public, on given issues during the elective process.

But there is nothing in Rhode Island law or jurisprudence to suggest that it is similarly appropriate for those serving in a quasi-judicial capacity to be placed in office by an election, rather than appointment.  There are no such panels in Rhode Island with elected members who make quasi-judicial decisions on the use of one’s land.  Charlestown’s planning commission is truly an anomaly in our state. 

On election day in November 2010 it is believed that CCA members were responsible for distributing literature adjacent town polling places attacking the Whalerock project.  Appendix 280, 281.  Copies of the political leaflets and pictures of the polling place remonstrants opposed to the Whalerock project, along with their political placards, are shown in Appendix 280, 281.  The Charlestown Planning Commission membership is part of elective politics by its very nature.  Its members are politically active on the very subject matter upon which they will sit as quasi-judicial officers in this matter. 

This is hardly something that could be characterized as being “uniform” with the other Planning and Zoning Boards of the state—almost all of whom are appointed, not elected. 

3.  If The Planning Commission Argues Its Powers Are Plenary and Not Advisory, Then The Impropriety of Its Constitution Becomes Even More Obvious

Finally, it is anticipated that the Planning Commission will argue that its role in the Whalerock application process is more than just advisory; surely the commission will argue that it may vote to approve or disapprove of Whalerock’s proposal and, if it is the latter, the project is dead (lest Whalerock appeals).  Stated differently, the Commission will likely argue that its authority isn’t just quasi-judicial in an advisory role.  It will argue that its authority is quasi-judicial, and plenary, on whether the project should proceed.  Of course this analysis is misguided.  But as to every argument the Commission makes to bolster its authority to approve or disapprove of Whalerock’s project, it is respectfully submitted this simply makes the arguments about the commissions illegal constitution all the more compelling.  The more quasi-judical the commission deems itself, it stands to reason, the more compelling is the notion that it should be appointed, not elected.  Simply put, the commission should not decide Whalerock’s case, in any event, and certainly not as it is now constituted.