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Monday, April 15, 2013

What the judge said, what it means

Analyzing the Whalerock decision

By Will Collette

Last August, RI Superior Court Judge Judith Savage dismissed all the Whalerock cases and berated all four major parties and their lawyers for terrible legal work[1]. She sent the Whalerock industrial wind farm dispute back to the Charlestown Zoning Board of Review (ZBR) because their decision did not include documentation of any points of law to support their votes.

The ZBR reconsidered Whalerock’s appeal of the town’s reversal on their permit approval, added documentation drafted by the Zoning Board’s lawyer, and again decided that Whalerock met the requirements of the law with the same 4-1 vote as the previous decision upholding Whalerock’s appeal.

This confirmation of the previous decision by the ZBR led swiftly to a new legal challenge by the town of Charlestown to sue its own Zoning Board. Whalerock counter-sued. Trailing behind, a smaller group of neighbors weighed in with their own lawsuit. That put all four major parties who were tossed out of court last August back in Superior Court, but before a different judge.

Judge Rodgers was picked by former Governor
Don Carcieri who swore her in in 2009
Judge Kristin Rodgers issued her own ruling on April 10th that gave Whalerock and its developer Larry LeBlanc just about everything they asked for, vindicated the Zoning Board, once again embarrassed the town and left the group of neighbors led by the CCA Party’s Ron Areglado with nothing more than their large legal bills. 

The Planning Commission also may have taken a hit when Judge Rodgers definitively stated that in this case, the Commission’s role is purely advisory, even though Planning has become Charlestown’s de facto ruling regulatory and legislative body.

A careful reading of Judge Rodgers decision shows that neither the Town of Charlestown, represented by Town Solicitor Peter Ruggiero nor the Areglado plaintiffs represented by James Donnelly were able to mount challenges that were any better than those rejected by Judge Savage last August.

By contrast, the Zoning Board did a much better job in following Judge Savage’s instructions. They re-did the process, hearing the Whalerock appeal over the course of two meetings and issued a decision on November 13, 2012 by the same 4-1 vote that they did the first time. Their decision was duly filed the following day. Judge Rodgers deemed their efforts to have met the legal standards set out by Judge Savage in her Remand Order last August.

There was a slight stutter-step when the Zoning Board later sent – unnecessarily, according to Judge Rodgers[2] – a follow-up letter to Whalerock’s lawyer Nick Gorham on November 26 that listed the ZBR members’ names and how they voted. That November 26 letter merely confirmed that everyone voted the same as last August. However that letter ended up playing a major role in Judge Rodger’s decision on the Areglado lawsuit.

Areglado case gets tossed out of court - again

Ron Areglado - lots of lawsuits for Ill Wind and Sachem Passage Assn.
but a zero batting average for winning
Judge Rodgers threw out the Areglado lawsuit because their lawyer missed the deadline to file the appeal. 

Areglado’s lawyer, James Donnelly, argued that the 20-day window to appeal the Zoning Board’s decision started on November 26, the date of the letter to Nick Gorham, rather than on November 14 when the Zoning Board’s decision was filed with the Town Clerk.

Nonsense, said Judge Rodgers stating (pages 16-21) the Areglado appeal was “untimely filed” because the state law that governs local Zoning Boards is “clear and unambiguous” that the clock starts when the decision is filed and is not affected by any subsequent filings or correspondence[3].

Stating “It is clear beyond a reasonable doubt that the abutters filed their appeal beyond the twenty-day appeal period,” Judge Rodger’s granted Whalerock’s motion to dismiss the Areglado lawsuit.

Of course, if Areglado’s lawyer had paid attention to the statute and the calendar, he wouldn’t have had to argue that the statute doesn’t say what it says. However, I’ll bet Donnelly doesn’t miss any deadlines in submitting his bills for payment.

Town’s Appeal also goes down in flames

Town Solicitor Peter Ruggiero couldn't make
argument about standing stick
At the direction of the Charlestown Town Council, Solicitor Peter Ruggiero filed an appeal to the Zoning Board’s decision to uphold Whalerock’s appeal. Ruggiero filed the appeal on time and did a better job in identifying who was the plaintiff in this lawsuit – since that ambiguity earned Judge Savage’s ire when she tossed out the town’s case last August.

But Ruggiero still was up against the issue of whether the town really had standing to sue the Zoning Board (i.e. suing another agency of town government).

Whalerock filed a motion to dismiss, arguing that the town, actually the Town Council, was not “an aggrieved party” under the definition set out in the Zoning Enabling Act [p.21].

Ruggiero argued that the town did have standing “because it is acting in furtherance of the public interest insofar as failure to allow a challenge by the local legislative branch of government would be ―abhorrent to the fundamental concepts of orderly government, due process and equal protection standards.‖ Town‘s Obj. to Mot. 12(b)(6) or Summ. J. and to Mot. to Remand (C.A. No. WC-2012-0173) at 9.” [p. 21]  

He could have added that it would be politically awkward for the CCA-led Town Council to fail to file suit, but stuck with the truth, justice and the American Way argument.

Judge Rodgers didn’t buy it. She noted the town admitted that it does not own land abutting the property or even any land close to the property and had no legal right of notice under the state Zoning Act. She cited a string of precedents plus the “unambiguous language” of the statute to rule that the Town Council does not have standing to bring suit. 

She granted Whalerock’s motion to dismiss the Town’s lawsuit. Her analysis of the town’s case is found on pages 21-24 of her decision.

Does the Zoning Board’s decision in favor of Whalerock stand?

The answer is yes. On page 24, Judge Rodgers says that it does in very direct terms:

“This Court finds it important to note that as a result of this Court‘s rulings on each of the zoning appeals before this Court—that the abutters‘ appeal was untimely filed and that the Town does not have standing to appeal—the Zoning Board‘s decision overturning the Building Officer‘s decision stands.”

So what about the Planning Commission?

Included under the droll title of “Motion for Partial Summary Judgment as to Count I,” Whalerock had challenged the role of the Planning Commission in this case, and by extension, its general role within town government. Read that entire motion by clicking here; this seems to be the argument that won this case for Whalerock.

Ruth Platner - maybe she's NOT the most
powerful person in Charlestown....just kidding
As most observers of Charlestown politics know, since Ruth Platner took over control of the Planning Commission over four years ago, she has steadily increased its power and influence to the point where it has become the most powerful body in the town, making Platner the most powerful person in Charlestown. 

It has become the town’s de facto legislature since just about all town ordinances either originate in or are subject to "approval" by the Planning Commission. And it has assumed the role of leading regulator.

Whalerock challenged the Planning Commission’s usurpation of authority. 

Town Solicitor Ruggiero tried, but failed, to get Whalerock’s challenge to the Planning Commission dismissed. He  argued that the Remand decision by Judge Savage barred them from raising another challenge to the Planning Commission.

However, Judge Rodgers reviewed Judge Savage’s order. She noted that Judge Savage stated that it wasn’t even clear that the Planning Commission was even a party to the early lawsuits – largely because of the sloppy legal work. For that reason, Judge Savage decided there was no point in her  ruling on the issue of the Planning Commission’s role at that point. 

However, Judge Rodgers noted there are “[s]ignificant changes to the state of the record” [p. 30]. Judge Savage never said the issue of Planning’s role couldn’t be raised in the future. She dismissed the Town’s challenge to Whalerock’s motion for a declaratory judgment.

This case was a big win for
Whalerock lawyer Nick Gorham.
Ironically, Gorham also represents
the Sachem Passage Association.
Ron Areglado is on the SPA board
She also dismissed the Areglado group’s Motion to Intervene on this issue, saying “The Court is hard-pressed to understand” their legal arguments [p. 32]. She also slammed their lawyer, James Donnelly, again, this time for failing to follow the court’s Rules of Civil Procedure. Case dismissed with another put-down of Donnelly.

Starting on page 33 of her decision, Judge Rodgers dives into the question of “The Planning Commission’s Role and Authority.”

Whalerock’s motion “seeks to have this Court issue a declaration that the role of the Planning Commission is merely advisory to the Zoning Board” [p. 33].

The short answer is Judge Rodgers granted Whalerock’s motion. But whether this decision applies to other issues – and there are many – that Planning asserts authority over is unclear. In eight pages, Judge Rodgers describes the legal basis for her decision, but at its core is her determination that Whalerock is governed by the old Wind Ordinance, not by Charlestown’s current and far more detailed and draconian wind ordinance[4].

Further, she notes that even the town admits Planning’s role in Whalerock was purely advisory[5].

Broader questions like whether Planning is limited to an advisory role on other matters – except those laid out in the Town Charter as issues where Planning plays a regulatory role – will probably have to be addressed in other lawsuits.

Judge Rodgers also said nothing about another issue raised earlier by Whalerock and that’s whether Charlestown’s Planning Commission is legitimate since state law required planning bodies to be appointed. Whalerock did not raise that specific issue in this second round of lawsuits. Charlestown is alone among RI’s 39 cities and towns in electing its Planning Commission. That, too, may also be a matter for some future lawsuit.

Now what?

Judge Rodgers has ordered the final decision on the issuance of a special use permit be left to the Zoning Board alone, granting Whalerock’s motion to have a hearing before Zoning on the merits. Judge Rodgers has ruled that the Planning Commission has exercised the full extent of its powers over Whalerock when it issued its advisory opinion. In Judge Rodgers words:

Therefore, the Planning Commission has satisfied all of its obligations under the Wind Ordinance before Whalerock‘s special use permit application may be considered by the Zoning Board. To allow the Planning Commission another bite at the apple to further review Whalerock‘s application at this juncture would impermissibly add another procedural step that is simply not required under the Wind Ordinance.” [p.44]

Naturally, there will be some discussion among the losers about filing an appeal with the state Supreme Court. To me, that doesn’t seem like a very good idea, given the track record of the town and the Areglado plaintiffs on this matter and what looks like firm legal points for Judge Rodgers’ decision.

The Town in particular would have to figure out how to establish that it has standing and, based on the record in this case, that seems unlikely. Before they can argue about Whalerock, they'd have to win the argument that Judge Rodgers was in error by ruling they lacked standing. Even if the Town does have standing, the other parts of the decision close off many possible challenges.

That leaves Areglado and his depleted band of Ill Winders to decide whether they want to throw more money at a lawyer who has let them down badly two times out. The first issue they would need to win is the argument that Judge Rodgers' was in error by throwing their case out because attorney Donnelly missed the deadline to appeal the ZBR decision.

I’m sure there will be pressure put on the Zoning Board to reverse all of its prior decisions. The Special Use Permit hearing will be a three ring circus. 

But unlike the much more politicized, elected Planning Commission which seems free to decide based on the whim of the members, the Zoning Board must use documented criteria for its’ decisions. That won’t stop us from hearing about “Wind Turbine Syndrome” and other extra-legal complaints.

Theoretically, the town could take a wait-and-see attitude to watch whether Larry LeBlanc and James Barrows can come up with the capital to proceed on a project with questionable commercial viability. That’s a pretty nerve-racking option since LeBlanc may decide that, at this point, he wants to stick it to Charlestown and fund the project himself.

As I’ve said before, I think the best approach for all the parties is to partner up with DEM and negotiate a fair price with LeBlanc, and Barrows too, I suppose, to buy those 81 prime acres on Scenic Route 1 for open space.

I'm not the only one who has said that. In fact, the Charlestown Planning Commission also saw this as the solution when it wrote in its June 12, 2011 Advisory Opinion:

“The preservation of this property could be an important legacy for the current owner Whalerock) and a benefit to the town and the state. Negotiations [for a purchase price]  that benefit the landowner and taxpayers and that could be approved by the voters will take time to work out. All parties involved will need patience, but we believe that those negotiations should take place.”

Maybe the town ought to reconsider spending all its current excess budget surplus money on expedient capital expenditures (paying off the loan on the Police Station, paying cash to re-pave Klondike Road) and keep that money handy to add to the Open Space Bond money we narrowly escaped spending on the abandoned “Y-Gate” scandal.

We have around $4 million in excess surplus cash plus a lot left to spend in our Open Space Bond fund. If Charlestown also partnered up with RIDEM and their new open space bond cash that was approved by state voters last November, we have plenty of money to make a deal.

I suspect the minimum price for LarryLand will be the $2 million that James Barrows has pledged to pay LeBlanc in the sales-leaseback agreement they signed on December 31. Still, that’s less than the $3 million LeBlanc starting figure the last time he pitched the idea of the town buying the land.

Judge Rodgers’ decision shifts the balance of power significantly in LeBlanc’s favor. I know it’s hard for some of the hotheads living near LarryLand to swallow the idea of buying LeBlanc out, but at this point, they should realistically consider the alternatives. On balance, I think the only option that is in the best interest of Charlestown is to buy LarryLand. Presuming LeBlanc is still willing to sell, given all that has happened, instead of going forward with a commercially unviable project.


[1] Judge Savage said the Zoning Board did appalling work by issuing a decision that was “woefully deficient,” failing to detail the legal basis for its decision. She said the town of Charlestown’s challenge to the Zoning Board was terribly crafted because it failed to establish who within the town was actually bringing the suit and whether they had standing. She tossed out Whalerock’s counter-challenge to the town because she said Whalerock was raising issues that were premature. And she threw out the lawsuit of the neighbors harshly criticizing them for wasting the court’s time by submitting tons of material that were irrelevant to the case. Click here to read her decision.

[2] According to Judge Rodgers: “This Court is not persuaded that the plain and ordinary language of § 45-24-69 referencing a decision would include a subsequent, unnecessary letter to counsel restating the names of the members voting for and against the action taken.” [p. 19]

[3] In Judge Rodgers’ words “Thus, the twenty-day appeal period commences when the decision has been recorded and posted in the Town Clerk‘s office. § 45-24-69(a).” [p. 18]

On page 20, Judge Rodgers continues, “To rule as abutters suggest would effectively read additional requirements into the statute by providing that the time period for appeals is twenty days from the date of a complete, non-defective decision. Taken to its logical end, in some instances, then, a defective decision may never be ripe for appeal if an alleged defect is not rectified by the zoning board. This is an absurd result. [Emphasis added - editor] See Berman v. Sitrin, 991 A.2d 1038, 1043 (R.I. 2010) (stating that ―under no circumstances will this Court construe a statute to reach an absurd result‖) (quotation omitted).”

[4] Ironically, Charlestown is now stuck with a wind ordinance that effectively makes it impossible for everyone – including homeowners interested in a small turbine – to use wind energy EXCEPT Larry LeBlanc and Whalerock.

[5] This appears as Footnote 17 on page 41 of Judge Rodgers’ decision:

“In further support of this conclusion, this Court notes that counsel for the Planning Commission conceded at oral argument before this Court on March 11, 2013, that the role of the Planning Commission in this matter was merely advisory. As such, counsel further conceded that, even if the Planning Commission did not render its conditional approval under the Wind Ordinance, the Zoning Board could still take up Whalerock‘s application for a special use permit.”