Newport Daily News 2.13.06

Retail center denial is not 'a game,' Tiverton officials say

By Marcia Pobzeznik/Daily News correspondent

ÊTiverton town solicitors and attorneys for New England Development waited in Superior Court for two hours Friday to learn that they'll be back in court Feb. 27 to present arguments on the Newton, Mass., company's contention that it should be allowed to proceed with its plan to build a retail center in town.

The Tiverton Planning Board voted unanimously on Nov. 21, 2005, to deny NED's master plan application for a 275,000-square-foot upscale retail center on 44 acres of land on Souza Road. The land is zoned highway commercial. It abuts Route 24 near Fish Road.

The written decision on the Planning Board's denial was formally recorded in the town clerk's office on Jan. 13, 2006.

NED is contending that a town planning official should issue a certificate that would give the Massachusetts company the approval it needs to proceed with development plans. NED contends that the Planning Board did not meet the required time limitation and its failure to do so means that NED's plans should be approved by default.

NED contends that the decision should have been recorded by Dec. 30, 2005.

Attorneys for NED filed a petition Jan. 10 in Superior Court for a writ of mandamus, asking the court to order Planning Board Administrative Officer Noel Berg to issue to NED "a certificate as to the failure of the Tiverton Planning Board to act on NED's application for approval of its master plan application within the statutory time clock limitation," according to court documents filed by attorneys Stephen J. MacGillivray and Armando E. Batastini of the Providence law firm Edwards Angell Palmer & Dodge. "NED cannot proceed further with its development of the project without receiving the requested certificate of Mr. Berg," according to the petition to the court.

In response, town solicitors Andrew Teitz and Jeanne Scott argue that there is no requirement for a planning board to file a written decision on a master plan application within 120 days of the submission of a completed master plan application. A planning board, by law, must act on a master plan application within 120 days, and Tiverton's did in this case. NED officials were at the Nov. 21, 2005 meeting when the Planning Board voted not to approve NED's plan. NED's master plan application for the retail center, which was smaller than the original plan for a 335,000-square-foot shopping center, was submitted Sept. 29, 2005.

The board cited concerns about traffic and the impact the project would have on the rural character of the town.

In a memorandum to the court objecting to the petition for writ of mandamus, Teitz and Scott call NED's petition to the court "a blatant attempt to circumvent the authority of the Town of Tiverton to adopt and enforce a comprehensive plan and related ordinances with regard to the development of the property within the town. Unlike the plaintiff, the town and its Planning Board Administrative Officer, Noel Berg, do not consider the enormous time and effort expended by the Planning Board on this matter over the past 17 months a game."

Teitz and Scott also argue in court briefs that NED does not own the land it wants to develop and therefore does not have a clear legal right to the relief it seeks.

A writ of mandamus is not NED's only recourse in light of the Planning Board denial, they note.

NED has appealed the Planning Board ruling to the town's Zoning Board of Review.

Teitz and Scott also argue that NED does not even have the authority to conduct business in Rhode Island.

The solicitors note that a foreign limited liability company must register with the Rhode Island Secretary of State prior to transacting any business in the state and a search of the state corporations database failed to show any registration. Rhode Island law also states that a company that is not registered in the state "may not maintain any action, suit or proceeding in any court of this state until it has registered

in this state."

Attorneys for both sides waited for an hour Friday in the courtroom of Judge Stephen Nugent and after a 10 minute conference with him in his chambers, learned that Nugent was recusing himself from the case because his daughter works for Edwards Angell Palmer & Dodge, which is representing NED in this matter.

The attorneys then waited another 45 minutes to meet with Judge Edwin J. Gale in his chambers and decided on the Feb. 27 hearing date. The hearing has been set for 2 p.m.


	Newport Daily News 2.13.06 Retail center denial is not 'a game,' Tiverton officials say By Marcia Pobzeznik/Daily News correspondent ÊTiverton town solicitors and attorneys for New England Development waited in Superior Court for two hours Friday to learn that they'll be back in court Feb. 27 to present arguments on the Newton, Mass., company's contention that it should be allowed to proceed with its plan to build a retail center in town. The Tiverton Planning Board voted unanimously on Nov. 21, 2005, to deny NED's master plan application for a 275,000-square-foot upscale retail center on 44 acres of land on Souza Road. The land is zoned highway commercial. It abuts Route 24 near Fish Road. The written decision on the Planning Board's denial was formally recorded in the town clerk's office on Jan. 13, 2006. NED is contending that a town planning official should issue a certificate that would give the Massachusetts company the approval it needs to proceed with development plans. NED contends that the Planning Board did not meet the required time limitation and its failure to do so means that NED's plans should be approved by default. NED contends that the decision should have been recorded by Dec. 30, 2005. Attorneys for NED filed a petition Jan. 10 in Superior Court for a writ of mandamus, asking the court to order Planning Board Administrative Officer Noel Berg to issue to NED "a certificate as to the failure of the Tiverton Planning Board to act on NED's application for approval of its master plan application within the statutory time clock limitation," according to court documents filed by attorneys Stephen J. MacGillivray and Armando E. Batastini of the Providence law firm Edwards Angell Palmer & Dodge. "NED cannot proceed further with its development of the project without receiving the requested certificate of Mr. Berg," according to the petition to the court. In response, town solicitors Andrew Teitz and Jeanne Scott argue that there is no requirement for a planning board to file a written decision on a master plan application within 120 days of the submission of a completed master plan application. A planning board, by law, must act on a master plan application within 120 days, and Tiverton's did in this case. NED officials were at the Nov. 21, 2005 meeting when the Planning Board voted not to approve NED's plan. NED's master plan application for the retail center, which was smaller than the original plan for a 335,000-square-foot shopping center, was submitted Sept. 29, 2005. The board cited concerns about traffic and the impact the project would have on the rural character of the town. In a memorandum to the court objecting to the petition for writ of mandamus, Teitz and Scott call NED's petition to the court "a blatant attempt to circumvent the authority of the Town of Tiverton to adopt and enforce a comprehensive plan and related ordinances with regard to the development of the property within the town. Unlike the plaintiff, the town and its Planning Board Administrative Officer, Noel Berg, do not consider the enormous time and effort expended by the Planning Board on this matter over the past 17 months a game." Teitz and Scott also argue in court briefs that NED does not own the land it wants to develop and therefore does not have a clear legal right to the relief it seeks. A writ of mandamus is not NED's only recourse in light of the Planning Board denial, they note. NED has appealed the Planning Board ruling to the town's Zoning Board of Review. Teitz and Scott also argue that NED does not even have the authority to conduct business in Rhode Island. The solicitors note that a foreign limited liability company must register with the Rhode Island Secretary of State prior to transacting any business in the state and a search of the state corporations database failed to show any registration. Rhode Island law also states that a company that is not registered in the state "may not maintain any action, suit or proceeding in any court of this state until it has registered in this state." Attorneys for both sides waited for an hour Friday in the courtroom of Judge Stephen Nugent and after a 10 minute conference with him in his chambers, learned that Nugent was recusing himself from the case because his daughter works for Edwards Angell Palmer & Dodge, which is representing NED in this matter. The attorneys then waited another 45 minutes to meet with Judge Edwin J. Gale in his chambers and decided on the Feb. 27 hearing date. The hearing has been set for 2 p.m.