Large housing development denied by Warren overturned by Superior Court

By Ethan Hartley
Posted 7/9/24

Settler's Green, a development including 12 single-family homes and two apartment buildings comprising 108 units, was denied by the Warren Planning Board in early 2022. After two rounds of appeals, it's back.

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Large housing development denied by Warren overturned by Superior Court


A large housing development that was unanimously denied by the Warren Planning Board in February of 2021 — which was reversed by the now-defunct State Housing Appeals Board (SHAB) in June of 2023 — is now primed for renewed consideration after the Rhode Island Superior Court ruled in favor of the SHAB decision in a ruling last month.

The project, known as Settler’s Green and proposed by Last Ever Realty, LLC., seeks to utilize the state’s Comprehensive Permit process to develop over 16 acres of rural land located south of Frerichs Farm and east of the Warren Reservoir into 12, single-family homes and two, four-story apartment buildings that would contain 108 units (60 one-bedroom and 48 two-bedroom units). In order to adhere to the regulations of the Comprehensive Permit, 25% of those units would be listed as “affordable” as defined by the state’s affordable housing law.

Since this project was first proposed over four years ago, a full recap of the timeline leading up to the court’s decision is valuable to track how the Town got here, and what possible courses of action could come next.

The original denial by the Planning Board
The project was originally submitted in June of 2020 and was subsequently the subject of two Technical Review Committee (TRC) meetings by the Town on July 30 and Sept. 9 of the same year.

Those meetings brought out a few major concerns from Town officials, primarily regarding the size and location of the project, which is proposed within the protected Kickemuit Reservoir Watershed District due to its proximity to the Warren Reservoir, which once was utilized for drinking water in the region.

Additionally, there were concerns about traffic, lack of access to public transportation, and the feasibility of providing adequate water and sewer utilities to the area, as it is located far from the town’s wastewater treatment plant and in an area where water pressure is already a cause of concern for some residents; which also caused a concern among Fire Chief James Sousa regarding fire suppression in the event of an emergency.

The Planning Board reiterated most of the TRC’s concerns to the applicant during a three-hour public hearing on Sept. 28, 2020 before continuing the matter for further discussion.

Court documents state the applicant took this opportunity to conduct water and sewage flow tests in the area to show that the development wouldn’t result in any significant issues regarding the utilities, and also conducted a traffic impact study to try to ease those concerns.

Additionally, they argued they were prepared to reduce the total number of requested waivers from local zoning ordinances from 13 items down to just 5.

But when the applicant appeared again before the Planning Board on Feb. 22, 2022, ready to make a presentation updating the board on changes they were prepared to make to the development, they were immediately met with opposition from the members of the board and then-Planning Director, Bob Rulli.

After a back-and-forth between board chairman Frederick Massie, Rulli, Town Solicitor Tony DeSisto, and the applicant’s attorney, William Landry, the board ultimately took a motion to deny the proposal on the basis that it did not adhere to Warren’s Comprehensive Plan and was an unfit use for that rural area of land, which carried unanimously, 7-0, leaving Landry audibly surprised.

“We believe we have the ability to make a presentation, and if the board is going to stop me from doing that in this environment of due process issues…we’re going to have to object very vociferously to that,” Landry said. “We have not rested our position. We have not gone away. This project has been very active at thousands and thousands of dollars in expense since the last time we were here for the first portion of the public informational meeting and we’ve never gotten any indication whatsoever that we were somehow not going to be allowed to make any type of presentation this evening.”

Rulli, who is quoted in the court decision, summarized the Town’s position and resistance to the project during that meeting — regardless of the supposed amendments the applicant was prepared to present.

“I totally get that your traffic engineer is going to say there’s no issue, our traffic engineer will probably say there’s an issue. Your architect is going to say there’s no water flow problem. The fire chief and his experts might say there is a water flow problem,” he said. “So, we can agree to disagree. I think at this point…the Planning Board’s position is if they’re not supportive of this project, then there’s no reason to continue to kick this can down the road.”

SHAB sides with developer, Superior Court concurs
The applicant summarily appealed the denial, which at the time brought it to the State Housing Appeals Board, who until Jan. 1 of this year oversaw all appeals for housing developments in the state.

They found on June 29, 2023 that the Planning Board had not provided the applicant a fair chance to present their response to the board’s concerns that led to the denial, and that Warren’s arguments to deny the project did not stand on solid ground for two main reasons: because their Comprehensive Plan had not been updated since 2003, and because Warren had not made strides to increase its affordable housing stock, which amounted to less than 5% of the overall housing in Warren; half of the the state-mandated 10% at the time of the appeal.

According to the Superior Court decision, the SHAB ruling “described the Planning Board’s actions as ‘unfortunate and dismissive[,]’ a ‘why bother’ approach toward hearing the evidence[,]’ and an ‘abrupt action in shutting down the public informational meeting.’”

The Town appealed the SHAB decision, which proceeded to Rhode Island Superior Court.

Superior Court Justice Jeffrey Lanphear wrote their decision, rendered on June 12 of last month, and ruled in favor of the SHAB decision to overturn the denial of the development.

According to Lanphear’s decision the applicant underwent, at their own expense, the effort to conduct studies on water and sewage flow to demonstrate that the concerns of the Planning Board could be alleviated. But the ruling argues they were not given the opportunity to share the results of those efforts, nor were they able to reveal efforts to reduce the number of overall waivers requested.

“At the outset, this Court is troubled by the abrupt manner in which the Planning Board conducted its February 22, 2021 meeting. Last Ever Realty was not able to present updates on testing that the Planning Board itself had requested on September 28, 2020,” the ruling reads. “While this may not rise to the level of a due process violation, it demonstrates the Planning Board’s reluctance to consider the merits of a full presentation and any modifications by Last Ever Realty to comply with its requests.”

The ruling indicated it was also swayed by the SHAB argument that Warren did not have a valid Comprehensive Plan, and that its lower-than-required stock of affordable housing was also a factor.

“Already woefully behind in revising its Comprehensive Plan and meeting its own affordable housing goals, the abrupt change was both unexpected and unfair,” it reads.

Further, the ruling indicated that the Town of Warren overstepped its authority by denying the project at the Master Plan stage.

“The Town additionally asserts [in its appeal of the SHAB decision] that the SHAB failed to properly address engineering, health, and life safety issues, such as the ‘negative effect’ that the proposed development would have ‘on the health and safety of existing residents by increasing traffic and resultant overburdening of the streets in the area,’” Lanphear’s decision reads. “Last Ever Realty did not need to provide ‘full engineering details’ in the master plan stage.”

Lanphear’s conclusion states that the applicant can now consider its master plan application approved.

“This matter is remanded to the Town of Warren Planning Board for further proceedings, specifically to pursue preliminary plan review approval and other approvals which may be necessary,” it concludes.

So what now?
According to Town Planner Herb Durfee, the Town now awaits a preliminary plan application from Last Ever Realty to continue proceedings.

According to multiple sources, that plan would need to remain the same as the one originally presented when it was denied, but the Planning Board could potentially exercise more regulatory authority throughout the next stages of the process in regards to conditions needed to be met for approval.

Reached for comment about the court’s decision, Planning Board Chairman Frederick Massie said the applicant would get the same treatment as any other application before them.

“Our first review of this proposal was done at a time when we were inexperienced with dealing in comprehensive permits,” he said. “If mistakes were made during that initial proposal, we’re going to be very careful to ensure that we strictly follow procedure moving forward. They will get a fair and just hearing and we are in a much better place to determine how to move forward with these comprehensive permits now than we were then.”

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A lifelong Portsmouth resident, Jim graduated from Portsmouth High School in 1982 and earned a journalism degree from the University of Rhode Island in 1986. He's worked two different stints at East Bay Newspapers, for a total of 18 years with the company so far. When not running all over town bringing you the news from Portsmouth, Jim listens to lots and lots and lots of music, watches obscure silent films from the '20s and usually has three books going at once. He also loves to cook crazy New Orleans dishes for his wife of 25 years, Michelle, and their two sons, Jake and Max.