Stephen MacGillivray Quoted in Rhode Island Lawyers Weekly on Appeal of Zoning Board Decision Denying Special Permit After Plaintiff Received DEM Approval

Excerpted from Rhode Island Lawyers Weekly article dated 4/29/2021
Author: Barry Bridges

The plaintiff, seeking to secure the necessary zoning approvals to build a home and septic system on a subdivision parcel it owned in Charlestown, RI, had already received a permit to alter freshwater wetlands from the Department of Environmental Management (DEM). But after zoning board members visited the property, they expressed concern about the environmental impacts and denied the plaintiff’s request for zoning relief.

A Superior Court judge upheld the denial, but taking the case on certiorari, the state Supreme Court agreed with the plaintiff, stating that the DEM permit was “uncontradicted and unimpeached” evidence that the plaintiff had satisfied the applicable wetland requirements, and that the zoning board had abused its discretion in not giving the DEM permit appropriate deference.

Pierce Atwood real estate, land use, and litigation partner Stephen J. MacGillivray stated that even though the court was explicit in stating that the DEM and the Charlestown board employ different standards in carrying out their respective functions, the decision acknowledges that prior permitting can carry evidentiary weight before a zoning authority. He also thought that the case presented the Supreme Court with its first opportunity to speak to that proposition.

He added, “Although zoning board members are allowed to rely on their own observations concerning non-technical questions, this case concerns an area subject to expertise. And since there was no evidence offered in opposition to the DEM permit, it served as uncontroverted expert testimony on wetlands requirements that members were not free to disregard.”

Steve also thought that from a strategic perspective, a land use practitioner might consider obtaining a permit from another authority before submitting an application to a planning or zoning board. “With the court saying that such a permit is like expert testimony, you can present the project as already having received expert approval and may not even have to hire your own at that stage of the process.”

To read the complete article, please see the April 29, 2021 edition of Rhode Island Lawyers Weekly.