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The first round of briefs have been filed in the appeal case for the Larchwood Inn.

The South Kingstown Zoning Board of Review, acting as the Planning Board of Appeals, made no decision on the appeal on the Larchwood Inn property during its Jan. 20 meeting. After hearing some testimony, it set a briefing schedule and continued the public hearing until March 16.

Property owner Roland Fiore and developer Post Acute Partners have appealed the Planning Board’s denial of the conceptual master plan for an Alzheimer’s assisted living facility at 521 Main St. The 59,070-square-foot, 72-bed facility would offer assisted living for early-stage Alzheimer and memory loss clients, and its construction would require the Larchwood Inn to be demolished. The inn closed in 2005 and has not been open to the public since that time.

The Planning Board unanimously approved the plan in March, but that vote was nullified in May by the Zoning Board – again acting as the Board of Appeal – after it was learned an abutter was improperly notified. After incorporating the testimony from the first hearing into the second, and hearing further testimony, the Planning Board denied the master plan, with Chairwoman Maria Mack and members Pam Rubinoff and Eric Scherer – who had voted in favor in March – voting to deny it.

The Zoning Board is not allowed to act as the Planning Board and render a decision on the master plan; it can only consider if that body made errors when it made its decision, and vote to affirm or overturn it. Zoning Board member Stephanie Osborn recused herself from the appeal, because she is an abutter.

The legal arguments

Much of the three-and-a-half hour meeting was spent hearing arguments on procedural matters and the appeal itself from the lawyers: Jeffrey Brenner for Post Acute Partners; Andrew Teitz, the town solicitor representing the Planning Board; William Landry for Fiore’s 521 Main St. LLC; and Paul Ryan for Preserve Wakefield, a group opposed to the project that includes abutters.

Brenner argued the application complied with the town comprehensive community plan and did not require a single variance or special use permit. He said the Planning Board erred when it asked questions during the master plan hearings that were more appropriate for a preliminary plan review. He cited examples of the board asking for a three-dimensional model of the property, and for engineering and drainage studies that would require the investment of thousands of dollars in a property they did not yet own, and a plan that was not yet approved on a master plan level.

“Now the application is the exact same,” Brenner said. “The reasons given were insufficient intellectually, legally and on a common sense standard to explain why three people changed their vote on the same exact application.”

One of the dissenters referenced a model created by South Kingstown resident Karina Burston, calling it a “watershed moment” that influenced her decision. Brenner argued the model was not to scale, and was based on the original design, not one made after incorporating Planning Board-suggested modifications. Brenner said that it was improper of the board to rely so heavily on a homemade model, rather than the to-scale computer modeling created by architect Christopher Mazzier of Wakefield.

Brenner said objections to the project that cited the size of the building, and the cultural and historical values of the property were also in error, as town ordinances did not address massing, nor protect the property as a historic district.

“Their problem was that your Town Council had not passed ordinances that they want passed to [protect] properties like this one,” Brenner said. “People in town feel passionate that the Inn should come back; that frankly is not going to happen.”

Teitz argued the Planning Board acted appropriately throughout the hearings.

“This is not about saving the Larchwood Inn,” Teitz said. “It’s not about the [assisted living] use – the use is permitted, it’s permitted as a land development project. It’s about looking at the scale, the sizing of this and how it affects surrounding properties and neighborhood. That’s what the Planning Board is there for.”

When reviewing land development projects, the Planning Board is required to look at such issues, Teitz said. He also argued the board has the authority to examine cultural issues, which they did, and to decide the proposed building did not fit in with the context of the neighborhood and its role as “the gateway into Wakefield,” which is specifically referenced in the comprehensive plan. He said if constructed, the facility would be the largest building in the downtown and no other structure compares to it.

Ryan argued the “the Planning Board had significant evidence to rely on the adverse impact of this structure on historic character, or just character, of the neighborhood and surrounding area.” Historic character was considered simply because the neighborhood is historic, he said.

Landry’s arguments were similar to Brenner’s, that the Planning Board overstepped its bounds.

“The Planning Board has no authority to make determination of the size of the building. In this case, it is undisputed by anybody that the proposed size of this building was much smaller than what it could’ve been [by law],” Landry said.

Even if there was a historic district in place, the Planning Board was not given the authority under state law to make decisions about the historical values of the plan, he argued, such decisions would be the purview of a historic district commission.

Public comment

During public comment, Osborn, speaking as a private citizen, said the comprehensive plan is reviewed and rewritten every five years by the citizens, but that since its inception, it consistently referenced this section of Main Street as the “gateway” to historic Wakefield.

Resident Richard Youngken, a land use and conservation specialist, told the Zoning Board he testified before both the first and second decisions, but gave far more lengthy testimony about the role of the comprehensive plan and the historical and cultural aspects of it prior to the second vote. He said the Planning Board members who changed their votes may have taken that testimony into account.

Ryan also attempted to enter a letter from Burston explaining how her model was built and why she considered it to-scale, but Town Solicitor Peter Ruggerio, who was appointed to serve for the appeal, said the Zoning Board is not allowed to consider new information, only what was in the record from the Planning Board hearings.

Burston made some of those same arguments during public comment, which prompted Zoning Board members to ask that her model be brought before them, so they could visualize what the Planning Board had discussed about it. That was done.

What was nullified?

There were also legal arguments about what the Zoning Board nullified when it overturned the first vote and returned it to the Planning Board.

“I’m going to need some guidance from legal counsel. Do I consider everything in the March hearing to see if there was prejudicial error?” member John Bernardo, a lawyer, asked.

“If the decision itself was nullified, how is it that we can consider a change of opinion?” Member Robert Cagnetta asked.

Teitz argued the Zoning Board should disregard all of the testimony up to and including the first vote, while Brenner and Landry argued the Planning Board had incorporated that testimony into its second hearing – so as to not have to hear the approximately 10 hours of testimony again – and that only the vote itself was null.

“Everybody agreed that the entire record was to be incorporated,” Landry said. “The record wasn’t nullified; the decision was nullified. It accounts for two-thirds of what’s before you.”

During the Jan. 20 hearing, board members frequently referenced arguments made and factual information provided during the first hearings, leaving some members confused about what information they could use to decide the appeal. Ruggerio recommended the Zoning Board discuss that matter and vote on what was to be included. A vote was not taken during the hearing.

The Zoning Board unanimously accepted Brenner’s transcription of 25 hours of tape from the first and second hearings, which they will use as a reference document, but members reserved the right to declare mistakes, if found.

Legal briefs are due Feb. 18, and rebuttal briefs must be submitted by March 4, to give Zoning Board members time to review them prior to the March 16 hearing.

sk@independentri.com

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