From pot-bellied pigs to crematoriums: All RI's land-use cases end up in front of this judge
PROVIDENCE – In a little more than three months, a single Rhode Island judge – and a rather famous one at that – became the arbiter of more than 135 land-use disputes, including some high-pitched battles by frustrated homeowners, developers and the owner of the 19-million-gallon propane storage tank at the Port of Providence.
With Superior Court Judge Jeffrey Lanphear at the helm, the new "Land Use Calendar" ordered into existence by the state legislature last year has already made quick work of dozens of such cases since Jan. 1.
By early April, at least 126 pending appeals – and nine newly filed cases – had been placed on the expedited Land Use Calendar, according to state Court Administrator Julie Hamil. More have come in since.
Many of these proposals had previously run into stiff opposition locally from residents concerned about traffic, "light pollution and trash," "out-of-character" additions to their neighborhoods and, in the port's case, carbon emissions in city neighborhoods "already overburdened" with pollution, in the words of the attorney general.
The local decisions in these cases were not the end of the story. They landed on Lanphear's docket.
Here's what we know:
At least 50 cases have already been dismissed or closed out with a decision, according to the court's latest numbers.
"Sometimes agreements were worked out with the towns. Sometimes the building proposals were withdrawn. Sometimes the appeals were just dropped," court spokeswoman Lexi Kriss told The Journal.
Some of Lanphear's decisions have already been posted, including his decision to uphold the Central Falls Zoning Board's refusal to allow the owner of Broadway Transmission & Auto Repair to use part of his property to make and sell guns.
At least 68 of the 135 original cases were still pending as of April 8. (There are more now.)
They include:
Attempts to revive rejected proposals for a new hotel in Newport, a crematorium in Tiverton, and a combined Cumberland Farms gas station and convenience store alongside an Arby’s in Lincoln, according to a summary the judiciary provided to The Journal.
One pending case involves a pot-bellied pig, which residents of one Warwick neighborhood see as prohibited "livestock," while the owner contends it is "not livestock, but a family pet" and a source of pet therapy for her son's autism.
Another appeal challenges a fine related to Narragansett's attempt to limit the number of unrelated people who could live in an absentee landlord's house. The case: East Side LLC vs. Narragansett.
An even higher-profile case – Sea 3 Providence v. City of Providence – stems from the City Council's 2022 ordinance banning the “bulk storage of liquid propane gas” in all zones in the city.
Councilman Pedro Espinal's push for the ban surfaced while the owner of the marine propane terminal, Sea 3 Providence, was pursuing a planned expansion in the Port of Providence, involving rail deliveries.
The owner is no longer pursuing the expansion, but the ordinance lives on, with the owner contending it is not only unlawful, "it is [also] internally illogical because it bans propane storage for political reasons yet continues to allow the storage [at the port] of far more volatile and dangerous chemicals."
The current use of the property is allowed under a "grandfather" provision, but the company's lawyer, Nick Hemond, says the ordinance, if left to stand, could inhibit the owners from any sort of expansion or upgrade in the future.
Lanphear has given the parties until June 1 to file memorandums in the case.
Lanphear's name may ring bells
Appointed to the bench in 2003 by then-Republican Gov. Donald Carcieri, Lanphear is perhaps best known for a single decision.
He ruled in favor of the developers of a proposed expansion to Champlin’s Marina in the Great Salt Pond on Block Island that a coalition of opponents fought against for nearly 20 years.
Lanphear ruled that the mediated settlement of the 18-year battle was “created with propriety and [is] sufficiently conclusive."
But marina opponents denounced the "secret backroom deal" made in a South County hotel room, and it was struck down by the Rhode Island Supreme Court.
Further back, Lanphear was a lawyer fighting alleged pollution of the Pawtuxet River by chemical plant Ciba-Geigy, and he defended residents of a shoddily built condominium complex off Hartford Avenue in Providence.
Lanphear was also the State House lawyer for legislative Republicans for 21 years.
He was first hired to this long-running State House gig by then-House Minority Leader Lila Sapinsley and kept on by her successor, Robert Goldberg who, in more recent years, was the lawyer for Champlin's Marina.
In August 2021, The Hummel Report asked Superior Court Presiding Justice Alice Gibney whether she had any concerns about an appearance of impropriety in the Champlin's case, given Lanphear’s longtime connection to Champlin's lawyer, Goldberg.
Then-court spokesman Craig Berke responded: “Presiding Justice Gibney was not aware of any connection Judge Lanphear may have had 40 years ago with Robert Goldberg. She would rely on Judge Lanphear’s judgment in taking the case … under the Code of Judicial Conduct, which requires judges to examine their ability to be impartial in a case. Connections do not always require disqualification, under the Code."
Some pending land-use appeals may also ring bells
Sakonnet Partners, LLC v. Tiverton Zoning Board of Review: The company is fighting to open a 2,960-square-foot crematorium in Tiverton that elicited a heap of opposition and was rejected by the Planning Board. “The Planning Board kind of went out of its way and tied itself into a pretzel to come up with a theory as to why it could reject the application," said Sakonnet Partners lawyer Jay Lynch.
Harbour Realty, LLC et al. v. the City of Newport Zoning Board of Review et al.: Thomas Abruzese and his family have been trying to get their Waites Wharf hotel project through Newport’s development and permitting processes since 2019. They want a special-use permit for the hotel and a zoning variance to be able to have 118 rooms in the hotel rather than the 90 allowed on the property. In December, the Newport Zoning Board of Review rejected the application. The developer has hired former Rep. Russell Jackson. No hearings scheduled yet.
Green Development, LLC a/k/a Wind Energy Development, LLC v. Town of Exeter Zoning Board of Review, Revity Energy and Exeter Real Estate Holdings: A spat between two renewable energy developers, with Green Development contending it had "exclusive property rights to any solar project proposed or constructed on the property" that should have barred Revity's approved application. The local Planning Board disagreed.
Recent decision
In the last 10 days, Lanphear reversed a local planning board's approval of a proposed 81-acre Stone Ridge solar farm in Hopkinton.
The abutting landowners who filed the appeal – Thomas and Cynthia Sculco – also challenged the impartiality of the Planning Board vice chairman who, in response to a Facebook post calling the Sculcos “mean-spirited, Johnny-come-lately, yuppy, NIMBYs," wrote: “Remember, the Sculcos have an agenda, they are land developers."
Lanphear did not rule on the alleged bias. But in his decision, he called then-Vice Chairman Ronald Prellwitz' "conduct highly questionable," noting that he cast the deciding vote in a 3-2 tally "and, as a result, this case continued through the zoning board, to this court, and three years of litigation."
Why have a Land-Use Court calendar?
The legislation, sponsored by House Speaker K. Joseph Shekarchi and his top lieutenants, stated they hoped to solve the significant delays in Rhode Island's development permitting process that results in "lost opportunity" to other states to build housing and commercial developments. All cases on the calendar are expedited.
Asked recently why Gibney chose Lanphear to run the new Land-Use Calendar, Kriss conveyed this response from the chief justice:
“It is a difficult decision," Gibney said. "The Superior Court is comprised of seasoned colleagues who manage substantial calendars and caseloads. Ultimately, I must identify a judge who is suited to take on the added responsibility to his/her existing caseload."
“And then, if the time commitment for a special assignment exceeds early estimates, other judges are often called upon to assist.”
Which lawyers are frequently on Land-Use cases?
Some lawyers have more cases than others on the new Land-Use Calendar.
They include: William Landry, Andrew Teitz, Mike Kelly and Joelle Rocha, who takes credit on her law firm's website for helping Speaker Shekarchi draft his housing package.
"In January of 2023, Joelle was hired by House Speaker Joe Shekarchi to work with him and the House Policy team to write his housing package in 2023," according to her Duffy & Sweeney bio page. "The results were the passage of 13 bills signed into law in July of 2023, which represented the first major changes to land use law in three decades."
According to her site, she has been retained by Shekarchi for 2024 in that same role.
In a December 2023 article for the Rhode Island Bar Journal, Rocha said the 2023 amendments to the state's Zoning Enabling Act "represent a lowering of the bar for zoning relief."
House Spokesman Larry Berman confirms: "Joelle Rocha is a consultant to two House Commissions – Housing Affordability and Land Use. She has helped both Commissions draft legislation in the housing packages that have resulted from discussions at the meetings in 2023 and 2024."
She was paid $84,328 in 2023 and $32,646 so far this year.
Berman notes the Housing Affordability and Land Use Commissions that she works with meet year-round. She also works with the House Policy Office "on all the legislation in the housing packages. Including drafting the bills, testifying on them, and assisting the Representatives when the bills come to the floor."
This article originally appeared on The Providence Journal: RI's new land-use court and the judge overseeing its contentious cases
