Legal Guidance Can Be Key in Navigating Rhode Island Land Use Matters

Land use matters in Rhode Island are often challenging to interpret and navigate. In fact, the Ocean State is known for having among the most restrictive policies for zoning and land use control in the U.S. It’s not hard to understand why, as Rhode Island has the smallest land area of any state and is also one of the most densely populated states in the nation.

Though land use reform legislation introduced and passed in 2023 helped to streamline the processes of municipal permitting to some extent, it still remains a very intensive and burdensome process. Whether property owners wish to obtain a 15-lot major subdivision, a special use permit, or variance, or simply add an accessory structure to their property, such individuals place themselves at an extreme disadvantage when navigating this process on their own. While applicants may ask themselves “what can a land use attorney do for me that I can’t do myself?” this article will show the importance of retaining land use counsel in your applications.

An Attorney’s Job During the Submission Process

The first step of any land development or zoning application involves understanding the applicant’s goals and knowing what local regulations apply to the project. Each municipality varies widely in how they help applicants understand what they need to provide to ensure they get the approval or relief they’re seeking.From experience, we know that applicants can often be told that they must complete several burdensome hurdles prior to them even making it to a public hearing, only for us to discover that the majority of the items requested were not applicable to the proposal or warranted under the local code.

Take for example a case we recently had in Washington County. The applicant sought a simple building permit to construct framing on the second floor of his building. Upon submission of the permit, the planner expressed they would not release the permit until the applicant obtained a special use permit and site plan review approval from the zoning board of review. Had our client taken the town’s word for it, he would not have seen approval for a minimum of four months and would have been required to present his application at three separate hearings. However, when this person consulted with us, we reviewed the town’s zoning code and determined that the special use permit and site plan review application did not apply to his proposal. After appealing the town official’s decision and presenting our justification for why it did not apply, the zoning board of review reversed the decision of the official and granted our client the building permit.

The moral of that story: Municipalities are often wrong in telling applicants what they need from them, and many times it takes an experienced land use attorney’s knowledge of the municipality’s own code to change their opinion. Additionally, attorneys who present recognizable justification as to why the municipality is wrong create a healthy fear of impending legal action if the municipality’s tune remains unchanged.

Experience Matters When Going Before Municipal Boards   

There are several subcategories of land development projects in Rhode Island, but the main two consist of minor subdivisions, which are essentially any subdivision creating nine (9) or fewer buildable lots, and major subdivisions, which are subdivisions creating ten (10) or more buildable lots. These categories form the crux of our discussion below, but the same general principles apply to all applications, including zoning variances, special use permits, development plan review, and more.

An applicant seeking to develop a piece of property has a lot at stake financially, and it is important that he/she cross all T’s and dot all I’s in ensuring that they obtain the necessary approvals.

For both minor and major subdivision applications, the applicant must present their application to the planning board of the municipality where the property is located. Major subdivisions consist of three stages: master plan, preliminary plan and final plan review, while minor subdivisions require just two, preliminary plan and final plan review.

So where does the importance of having competent legal counsel come in for these applications? Though the full answer would span hundreds of pages, we summarized the three most important reasons below. While our focus here is on planning board matters, the following principles would apply equally to applications before the zoning board.

1) You Get One Bite at the Apple: Applications to the planning board are quasi-judicial. That means the planning board will require the applicant to present his/her application, show that the application conforms to the legal standards for granting of the application presented, and provide “competent evidence on the record” to show that the application conforms.

It is important to note that if the applicant fails to satisfy his/her burden in proving that the application conforms to the applicable standards, the doctrine of administrative finality will forever bar that applicant from submitting the same application if it is denied by the planning board. So it is incredibly important to get it right the first time.

2) Competent Evidence on the Record: As mentioned before, an applicant needs to provide competent evidence on the record. Competent evidence is defined as “any evidence that is not incompetent by reason of being devoid of probative force as to the pertinent issues”. Put more simply, competent evidence on the record translates to the presentation of legal and expert testimony that satisfies the applicable elements of the standard for the grant of your application. Take for example an application proposing a residential subdivision where neighboring abutters have objected based on their concern for the surrounding wetlands. As an applicant, it is your duty to rebut that concern with expert testimony of an environmental consultant speaking to the steps the applicant has taken to mitigate any negative environmental impact, the engineering systems implemented to accomplish the mitigation, etc. Equally important is having an attorney who understands how to present the experts, what order to present the experts, provide direct examination of the expert on the record, and so on.

Further, it is important to have an attorney who can provide detailed legal analysis to the planning board and potential objectors regarding the plan’s conformance to the applicable standards, the changes the applicant is or is not willing to make to the application, and the procedural requirements and allowances applicable to the application.

If these items are not addressed and executed properly during each applicable stage of hearing on the application and the application is denied by the planning board, the applicant will have a very poor legal record for the Rhode Island Superior Court’s review if the applicant wishes to appeal. Minus several exceptions, when competent evidence is not provided, and the planning board issues a denial, the court almost always finds that the planning board was permitted to rely on its own analysis and beliefs of the speculative effects of the development in the absence of competent evidence on the record.

3) The Appeal: This refers to any appeal of a decision issued by the planning board to the Superior Court. These appeals can come in several forms, the most common being where the applicant appeals the planning board’s denial of their application. However, appeals can come in many forms, including an aggrieved abutter’s appeal of the planning board’s approval of your application.

For the sake of discussion, let’s say the planning board denied your application and you wish to appeal. This is where you start understanding why hiring an experienced land use attorney to present the application was a smart move.

Your attorney will serve not only as your legal representative before the court, but they will understand the very specific and very strict procedural process for filing an appeal. You jeopardize your chances on appeal if it is not filed, served, and argued correctly. Additionally, your attorney will know where to file the complaint, when and who to serve, who to list as defendants, and the statements you need to make to obtain a reversal of the board’s denial.

Additionally, an experienced land use attorney understands how to use the “record” of the hearings on appeal to show the court that the evidence which you presented at the application stage was sufficient to show that the planning board made its decision in error, and against the weight of the evidence which your attorney helped to place on the record.

Conclusion

This article covers one small subset of the endless application types, issues to take into account when presenting an application, the scenarios you may encounter on appeal, and more. It should also help you understand that land use applications in Rhode Island are not a straightforward process, and you need an experienced advocate in your corner to navigate the hurdles. Attention to the minor details of the process could be the difference between constructing the project of your dreams or ending up with a parcel of vacant land that serves as nothing but a tax bill.

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This DarrowEverett Insight should not be construed as legal advice or a legal opinion. This Insight is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. The contents are intended for general informational purposes only, and you are urged to consult your attorney concerning any particular situation and any specific legal question you may have. Please reach out to us if you need help addressing any of the issues discussed in this Insight, or any other issues or concerns you may have relating to your business. We are ready to help guide you through these challenging times.

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