April 29, 2020

Supreme Court

Town of Exeter, by and through its : Solicitor, James P. Marusak v. : No. 2018-274-Appeal. (PC 17-1549)

State of Rhode Island et al. :

Town of Richmond, Rhode Island : v. : No. 2018-307-Appeal. (PC 17-1666)

State of Rhode Island et al. :

NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone 222-3258 of any typographical or other formal errors in order that corrections may be made before the opinion is published. Supreme Court Town of Exeter, by and through its : Solicitor, James P. Marusak v. : No. 2018-274-Appeal. (PC 17-1549) State of Rhode Island et al. : Town of Richmond, Rhode Island : v. : No. 2018-307-Appeal. (PC 17-1666) State of Rhode Island et al. : Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ. OPINION Justice Indeglia, for the Court. These consolidated cases came before this Court on appeals by the petitioners, the Town of Exeter and the Town of Richmond (the towns or petitioners), from a final judgment in favor of the respondents, the State of Rhode Island; Janet Coit, in her capacity as Director of the Department of Environmental Management; and Michael DiBiase,1 in his capacity as Director of the Department of Administration (collectively the state or respondents), entered on August 17, 2018, following the denial of the towns’ motion for summary judgment and the grant of the state’s cross-motion for summary judgment.2 After each appeal was assigned to the regular argument calendar, the towns moved to consolidate the appeals, and this

Court granted the motion on May 17, 2019. On appeal, the towns argue that the trial justice erred in finding that the Comprehensive Planning and Land Use Regulation Act, G.L. 1956 chapter 22.2 of title 45 (the Act), provides the proper procedure to resolve zoning disputes between the state and municipalities. The towns assert that the state, in its capacity as a developer of land, should be required to submit to local zoning procedures and that the test set forth in the Act was not intended to replace the balancing-of-interests test set forth in Blackstone Park Improvement

Association v. State Board of Standards and Appeals, 448 A.2d 1233 (R.I. 1982). The parties

appeared before this Court on February 27, 2020, for oral argument. For the reasons set forth in this opinion, we vacate the judgment of the Superior Court.

I

Facts and Travel

The facts of this case are largely undisputed. Annually, between the 2012 and 2018 fiscal

years, funding for the Arcadia Natural Resources and Visitors Center (the building or project), which included office spaces for respondent Rhode Island Department of Environmental

Management (DEM), laboratory space, and a visitor center, was included in the Governor of Rhode

Island’s Capital Budgets. According to the state’s written submissions, “funding for the [building]

was vetted as part of the annual budget process[,]” “considered at public hearings, and included in multi-year Rhode Island Capital Asset Protection * * * budgets approved by the General Assembly over several years.” Intent on use of the public funds for this proposed project, DEM began planning construction of a 12,716-square-foot building in the Arcadia Management Area, adjacent to Browning Mill Pond, in 2014. It appears from the blueprints that the primary purpose of the building was to serve DEM employees.^[3] According to the state, the plans and specifications for the building were posted for public bid on the website of the Rhode Island Department of Administration Division of Purchases from January through November 2016. The state then accepted a bid and entered into a contract to build with Mill City Construction, Inc., on January

20, 2017.4

The proposed building was to be located entirely in the Town of Richmond, in an area zoned for residential use. A portion of the building’s parking lot, a driveway, and a wastewater

treatment system for the project was to be located within the Town of Exeter, in an area zoned for open space public land. According to the state, Richmond was notified of the project in 2015 and Exeter was notified in 2014 or 2015. In connection with this litigation, the state provided a letter dated December 2, 2015, that indicates that an Exeter building official was aware of the project.

Exeter disputes this, asserting that the town did not learn of the project until 2017.

In February and March 2017, at the Richmond Town Council’s request, officials from

DEM met with Richmond town officials, attended a Richmond Town Council meeting to explain the project, and attended a public meeting to answer questions from town residents. The state, however, indicated that it would not agree to alter the project in any way. On February 16, 2017, Exeter sent a cease and desist letter to DEM, the respondent Rhode Island Department of Administration (DOA), and the Rhode Island Department of Attorney General, demanding that the project stop “until proper local permits are obtained and administrative review has been completed[,]” to which Exeter received no response. It is unclear from the record whether a meeting between Exeter and the state took place.

On April 6, 2017, Exeter filed a “verified petition for declaratory and injunctive relief” in Providence County Superior Court against respondents, seeking a declaration that (1) the project was subject to development plan review by the town; (2) the project required town planning board and zoning board review and approval; (3) the project violated environmental quality standards; and (4) the state failed to obtain permitting for earth removal, soil erosion, and drainage. Exeter also asked for issuance of an injunction preventing the state from proceeding with the project.

On April 12, 2017, Richmond filed its own action for declaratory and injunctive relief in Superior Court against the State of Rhode Island and the Director of DEM. Richmond likewise

sought a declaration that the state was required to consult with the town and comply with the town’s zoning ordinance, comprehensive plan, and subdivision regulations. Richmond also sought

to enjoin the state’s construction of the building until the state complied with the town’s zoning, planning, and subdivision requirements.

On May 25, 2017, an order was entered consolidating the two actions in Superior Court.

On July 19, 2017, the towns filed a joint motion for a preliminary and/or permanent injunction, to

which the state objected. In a written decision issued on December 15, 2017, a hearing justice (the first hearing justice) denied the towns’ motion for a preliminary injunction; an order implementing

the decision followed. The first hearing justice had found that the state was immune from the towns’ zoning ordinances.

The towns and the state thereafter filed cross-motions for summary judgment as to the towns’ requests for declaratory judgment. A hearing justice (the second hearing justice) issued a bench decision on the motions on August 6, 2018. The second hearing justice found that the state

was not required to obtain municipal approval and permits before beginning a project and, further, that the Act was the proper mechanism to resolve land-use issues that arise between the state and municipalities. Specifically, the second hearing justice noted that a municipality must conform its zoning ordinance to its comprehensive plan and that § 45-22.2-10(g) governs the process a state agency must follow when it wishes to pursue a project that does not conform with a municipality’s land-use regulations. She thereafter granted summary judgment in favor of the state and denied the towns’ motion for summary judgment with regard to the towns’ requests for declaratory judgment. She also denied the towns’ requests for a permanent injunction. An order memorializing that decision was entered on August 17, 2018. Final judgment in favor of the state

was also entered on August 17, 2018. Exeter filed a notice of appeal on August 21, 2018, and Richmond filed a notice of appeal on September 4, 2018.

II

Standard of Review

“A motion for summary judgment ‘is designed to decide in an expeditious fashion cases presenting groundless claims.’” Hexagon Holdings, Inc. v. Carlisle Syntec Incorporated, 199 A.3d

1034, 1038 (R.I. 2019) (deletion omitted) (quoting Gallo v. National Nursing Homes, Inc., 106

R.I. 485, 487, 261 A.2d 19, 21 (1970)). This Court reviews a hearing justice’s grant of a motion for summary judgment de novo. See id. “If we conclude, after viewing the evidence in the light most favorable to the nonmoving party, that there is no genuine issue of material fact to be decided

and that the moving party is entitled to judgment as a matter of law, we will affirm the grant of summary judgment.” McGovern v. Bank of America, N.A., 91 A.3d 853, 857 (R.I. 2014) (quoting

Pereira v. Fitzgerald, 21 A.3d 369, 372 (R.I. 2011)).

To resolve this case, we must interpret several statutory provisions. “We review questions of statutory interpretation de novo.” Lang v. Municipal Employees’ Retirement System of Rhode

Island, 222 A.3d 912, 915 (R.I. 2019) (quoting Bluedog Capital Partners, LLC v. Murphy, 206

A.3d 694, 699 (R.I. 2019)). “In so doing, our ultimate goal is to give effect to the purpose of the act as intended by the Legislature.” Id. (quoting Bluedog Capital Partners, 206 A.3d at 699).

“When the language of a statute is clear and unambiguous, this Court must interpret the statute

literally and must give the words of the statute their plain and ordinary meanings.” Id. (quoting In re B.H., 194 A.3d 260, 264 (R.I. 2018)). “The Legislature is presumed to have intended each word or provision of a statute to express a significant meaning, and the Court will give effect to every word, clause, or sentence, whenever possible.” Id. (quoting In re B.H., 194 A.3d at 264).

III

Discussion

A

Blackstone Park and the Act

On appeal, the towns argue that the Act is not intended to provide the exclusive remedy to resolve local land-use conflicts between the state and its municipalities. Instead, the towns argue

that the test set forth in Blackstone Park remains valid, despite the later enactment of the Act, and that the Blackstone Park test applies to zoning conflicts, whereas the Act applies exclusively to comprehensive-planning conflicts. The towns further argue that an outdated comprehensive plan does not invalidate local zoning ordinances or the ordinances’ applicability to the state and its agencies.^[5] In opposition, the state argues that the Act controls all intergovernmental land-use disputes and, further, that the Act is not implicated here because neither town has an approved

comprehensive plan.6 According to the state, Exeter’s comprehensive plan expired in 2009, and Richmond’s comprehensive plan expired in June 2017. The state contends that, without approved comprehensive plans, the state is immune from being required to follow both towns’ comprehensive plans and zoning ordinances.

At issue in Blackstone Park was an appeal from the Rhode Island Building Code Board of Standards and Appeals, which dealt with whether the state was immune from the zoning ordinances of the City of Providence. Blackstone Park, 448 A.2d at 1234. The state proposed to

build an addition to the Dr. John E. Donley Rehabilitation Center in a residential neighborhood, zoned by the City of Providence as an R-1 residential district intended for single-family dwellings.

Id. at 1234, 1235. In addressing a question of first impression, this Court adopted the balancing-of-interests test to determine whether the state was immune from Providence’s zoning ordinance and, after applying that test, found in favor of the state. Id. at 1239-40. This Court made clear in Blackstone Park that such test was the “‘fairest method’ by which [intergovernmental zoning] conflicts can be resolved because it is sensitive to the needs and concerns of the competing governmental entities, potentially affected property owners, local residents, and the public as a whole and takes into consideration all of the salient factors that may properly influence the result.”

Id. at 1240.

In addressing the issue of immunity under Blackstone Park, the balancing court is required

to weigh the following factors: “(1) the nature and scope of the instrumentality seeking immunity, (2) the kind of function or land use involved, (3) the extent of the public interest to be served, (4) the effect local land-use regulation would have upon the enterprise concerned, and (5) the impact upon legitimate local interest.” Blackstone Park, 448 A.2d at 1239. The dispute is thereafter resolved in favor of the party whose interests outweigh the other party’s interests. See id.

As noted supra, the state argues that Blackstone Park’s balancing-of-interests test was superseded by the enactment of the Act, which, it argues, provides the proper procedural

mechanism for resolving all land-use disputes between the state and a municipality. Specifically, the state points to a procedure set out in subsection (g) of section 10 of the Act, which provides:

“Once a municipality’s comprehensive plan is approved, programs and projects of state agencies, excluding the state guide plan as provided for by [G.L. 1956] § 42-11-10, shall conform to that plan. In the event that a state agency wishes to undertake a program, project, or to develop a facility which is not in conformance with the comprehensive plan, the state planning council shall hold a public hearing on the proposal at which the state agency must demonstrate:

“(1) That the program, project, or facility conforms to the stated goals, findings, and intent of this chapter; and “(2) That the program, project, or facility is needed to promote or protect the health, safety, and welfare of the people of Rhode Island; and “(3) That the program, project, or facility is in conformance with the relevant sections of the state guide plan; and “(4) That the program implementation, project, or size, scope, and design of the facility will vary as little as possible from the comprehensive plan of the municipality.” Section 45-22.2-10(g) (emphasis added).

The state alleges that zoning and comprehensive planning are inextricably intertwined in that zoning must reflect comprehensive planning, and that therefore § 45-22.2-10(g) applies to disputes concerning both zoning and comprehensive planning. The State contends that, therefore, when a municipality has an outdated or unapproved comprehensive plan, the state is immune from both the municipality’s comprehensive plan and its zoning ordinances. We disagree.

In West v. McDonald, 18 A.3d 526 (R.I. 2011), this Court made clear that zoning and comprehensive planning are two distinct mechanisms that “are meant to address substantively different issues and may contain different, yet non-conflicting, requirements.” West, 18 A.3d at

541. We noted that “[t]here is no requirement that the zoning ordinances and comprehensive plan be identical.” Id. While municipalities are required to conform their zoning ordinances to their comprehensive plans, the deadlines for doing so are, in most instances, directory, not mandatory; a municipality’s failure to conform its zoning ordinances to its comprehensive plan does not automatically invalidate the zoning ordinances. See id. at 534-35, 541.

Additionally, a plain reading of the Act leads us to the conclusion that § 45-22.2-10(g)

governs comprehensive planning disputes between the state and a municipality—it does not, however, confer immunity on the state from application of a municipality’s zoning ordinance. The Act was enacted in 1988, six years after this Court decided Blackstone Park, and yet

§ 45-22.2-10(g) provides only the procedure for comprehensive planning disputes; the word

“zoning” is not mentioned in that section.^[7] Bolstering our reading is the fact that, although the Act in other sections mentions zoning, it is notably left out of § 45-22.2-10(g). See § 45-22.2-4(26) (defining “zoning”); § 45-22.2-5(c) (requiring each municipality to ensure that its zoning ordinance and map are consistent with its comprehensive plan); § 45-22.2-6(b)(2)(i)(B) (noting that a comprehensive plan map must illustrate zoning); § 45-22.2-7(b)(4) (requiring neighboring municipalities to work together for zoning designations at municipality borders to ensure consistency and compatibility with adjacent areas); § 45-22.2-13(c), (g) (indicating that a

municipality must amend its zoning ordinance and map to conform to its comprehensive plan and providing a resolution when they do not conform). Had the Legislature intended the procedure set forth in § 45-22.2-10(g) to govern both disputes involving comprehensive planning and those

involving zoning, it would have included such language. See In re B.H., 194 A.3d at 264 (“The Legislature is presumed to have intended each word or provision of a statute to express a significant meaning, and the Court will give effect to every word, clause, or sentence, whenever possible.”)

(brackets omitted) (quoting State v. Clark, 974 A.2d 558, 571 (R.I. 2009)). The plain language of subsection (g) of section 10 of the Act therefore does not extend the procedure for dealing with intergovernmental tension and comprehensive planning to zoning disputes.

Moreover, this Court affirmed the Superior Court’s application of the balancing-of-interests test in Town of Smithfield v. Fanning, 602 A.2d 939 (R.I. 1992), which is

the most recent case from this Court involving an intergovernmental zoning dispute between the state and a municipality. In Fanning, this Court was asked to review a trial court’s decision that the balancing-of-interests test weighed in favor of the state with regard to construction of a road salt storage facility in the Town of Smithfield. Id. at 940, 943. The Act had been enacted four

years prior to Fanning and included the language of § 45-22.2-10(g), but neither the parties, the trial justice, nor this Court argued or indicated that the Act provided the proper mechanism for - 10 - deciding such zoning disputes. Id. at 943. This supports our firm conclusion that the Act does not supersede the test set forth in Blackstone Park. Furthermore, our survey of the law in other states indicates that we are not an outlier in our continued use of the balancing-of-interests test to resolve intergovernmental zoning conflicts. In Blackstone Park, this Court noted that at least nine other states had adopted the balancing-of-interests test. Blackstone Park, 448 A.2d at 1239. By our count, there are now fifteen states that utilize the balancing-of-interests test to resolve intergovernmental zoning conflicts.^[8] Although we are not persuaded by the state’s argument that zoning and comprehensive planning are so intertwined that the procedure set forth in § 45-22.2-10(g) governs all intergovernmental land-use conflicts, that section still applies to comprehensive planning. As such, when the state seeks to pursue a project in a municipality, it must first gain approval by the State Planning Council solely on the issue of whether the state’s proposed project complies with the municipality’s comprehensive plan, through the process set forth in § 45-22.2-10(g). Such a procedure is only required, per the Act, where a municipality has an approved comprehensive plan at the time the state begins the project. Section 45-22.2-8(b)(2) (“The comprehensive plan of a municipality shall not take effect for purposes of guiding state agency actions until approved by the chief [of the state planning council] or the Rhode Island superior court.”).