TIVERTON — Tiverton's town council was set to consider changing the zoning for wooded property on south side of Souza Road from commercial to residential Monday, but hours earlier a developer beat them to the punch.

An application to build a major retail and office development on the site between Main and Fish roads was filed with the planning department Monday afternoon.

Despite the application, and after over an hour of public hearing, the council voted 4 to 2 Monday night (council member Joanne Arruda was absent) to amend the zoning for the property, changing it from highway commercial to R-40 residential.

Voting for the change to residential were councilors Louise Durfee, Donald Bollin, Jay Edwards, and Brian Medeiros. Voting against the change and for keeping the location commercial were councilors Hannibal Costa and Paul Carroll.

The status of the application following the zoning amendment is not certain. No developer is named in the application. Rather the owner (Mr. McInnis) filed the paperwork in an effort to preserve the effect of the old commercial zoning.

Noel Berg, a planning board member, said at the hearing that he believes the project may now "grandfathered" in to the old zoning standards.

The proposal

James McInnis, a former Massachusetts lawyer and sometime Florida resident, and the owner of the 44-acre site in the area he bought in 1985, filed the proposal.

The announcement at Monday night's council meeting, made by Mr. McInnis' lawyer Scott T. Spear, caught many by surprise. As Mr. Spear described it, the proposed complex would consist of 16 buildings, two restaurants, and some other structures that could be a municipal building, a senior center, and an amphitheater.

The largest building on the site would be 39,000 square feet, though there would be two two-story buildings, one totaling 22,000 square feet and the other 27,800 square feet. Mr. Spear said there would be "no big boxes."

Mr. Spear told the council there would be "seven acres for town or municipal uses." Maps filed with the application show only 3.9 usable acres dedicated for such purposes.

Mr. Spear described the 247,000 square foot complex to the council Monday night as "significantly smaller than New England Development's proposal." He was referring to a development proposal for the same site, rejected by the town over two years ago. That prior proposal called for a 275,000 square-foot development. Mr. McInnis had a purchase and sale agreement with NED for the latter to build the proposed mall.

The former proposal

After the town nixed that earlier proposal, largely on the grounds that the proposed shopping center was too large, would generate too much traffic, was environmentally unsound, and was inconsistent with the town's comprehensive plan, Mr. McInnis sued the town of Tiverton and many of its council and planning board members.

In his lawsuit he named the town officials in their individual and personal capacities, a maneuver many at the time took to be an attempt at intimidation and a threat of personal liability.

Mr. McInnis lost his lawsuit when a little over a year ago the Superior Court dismissed most of it. In her decision Superior Court Judge Melanie Wilk Thunberg said "the exercise of legislative discretion should not be inhibited by judicial interference or distorted by the fear of personal liability."

Furthermore, said Judge Thunberg, these considerations are of "particular concern at the local level, where the part-time citizen-legislator remains commonplace."

Judge Thunberg said "the threat of liability may significantly deter service in local government, where prestige and pecuniary rewards may pale in comparison to the threats of civil liability."

The hearing

At the public hearing Monday night, Mr. Spear said that the 44 acre parcelwas "one of the most significant parcels in town for development like this."

Others who spoke, including council member Bollin, noted that the town's industrial park was also a site that could be developed in the manner Mr. Spears was indicating.

The town's comprehensive plan came in for comment. Some said the "comp plan" favored business by promoting its distribution and siting around town, while others believed it to impede business.

"I think what's most important is to generate business. Change the 'comp plan,'" said council member Costa.

By Tom Killin Dalglish

tdalglish@eastbaynewspapers.com