2011-04-21 / Front Page

Supreme Court sends Clancy case back to town

By Ken Shane

In a case that dates back to 2005, the Rhode Island Superior Court in Newport once again remanded the case of David and Jennifer Clancy v. the Jamestown Zoning Board of Review back to the Board.

The court decision states that the most recent Board decision on the Clancy application was made upon an “unlawful procedure,” and that the Board failed to hold a required de novo hearing.

A de novo hearing would be a new hearing, held as if the petition had never been heard, or decided upon previously by the Board.

In 2003, Jamestown residents David and Jennifer Clancy were granted a variance that allowed them to build a glassblowing studio adjacent to their home on North Road. Two years later, the couple applied to the Zoning Board for a special-use permit that would allow them to sell their wares at their studio. The application was heard by the Board in April 2005 and was rejected.

The Clancys appealed the decision to the Rhode Island Superior Court. The appeal resulted in a December 2006 decision in which the court remanded the case back to the town’s Zoning Board. The decision specifically instructed the board to rule on the merits of the Clancy application based on the statutory requirements of the Board.

At the time of the court decision, the composition of the Board had changed and did not consist of the five members who had heard the 2005 application. In order to move things forward, both parties stipulated in August 2007 that the seven-member board could consider the case.

According to the stipulation, no new additional evidence was to be considered and no new testimony was to be given. The Board was to base its decision solely on a review of the written record.

When the remand hearing was held in October 2007, only four members of the Board — Thomas Ginnerty, Richard Boren, David Nardolillo and Don Weinberg — were present. According to law, a board of review must consist of five members. In order to meet this requirement, Joseph Logan joined the Board members in the deliberations.

Logan participated despite the fact that he was not named in the stipulation and that he had not participated in the 2005 proceedings. Logan was a member of the Board in 2005, but he had recused himself from the proceedings because at the time he was a member of the Jamestown Historical Society, which opposed the application. Neither party objected to his participation at the remand hearing.

This time the board voted 3-2 in favor of the Clancys. An approval, however, required a 4-1 vote, and the petition was once again denied. The Clancys appealed again, seeking a reversal of the Board’s decision.

In their appeal, the Clancys cited the fact that the Board had once again failed to issue specific findings of fact as to why their petition failed to meet the requirements for a special-use permit. They also referred to a resolution by the Jamestown Town Council that essentially approved the Clancy’s wish to sell their products on their property.

In the most recent decision, the court has refused to address any substantive evidence presented by the Clancys in light of a “jurisdictional defect.”

The court did not dispute that the composition of the Board had changed in such a way since the 2005 decision that it would not be possible for the five members of the 2005 Board to consider the matter on remand. The decision says, however, that the newly constituted Board had “erroneously opted to render a decision based solely on a review of the 2005 transcript.”

The court decision further states that neither the stipulation between the parties or the participation of Logan cured this “procedural flaw.”

The court further held that since there were not five Board members present at the remand hearing, the agreement of the parties was “of no legal significance,” as the parties “could not vest the Board with the jurisdiction mandated by the statute.”

The conclusion of the court is that the Board’s most recent decision was based on an “unlawful procedure” because it failed to hold a de novo hearing. The decision nullified the Board’s decision and remanded the matter back to the Board for a de novo hearing.

John Murphy, an attorney for the Jamestown Historical Society, said in a statement that, “While the special-use permit application was pending before the Zoning Board, the society was urged by parties involved with the application to agree to what appeared to us to be an improper composition of the Jamestown Zoning Board. We believed that the law required us to refrain from such an agreement. Nevertheless, the applicant went ahead with its hearing before the improperly composed zoning board.”

Murphy continued: “After it failed to get the special-use permit from that board, the applicant appealed to the Superior Court. In the appeal, the Society brought to the attention of the court the composition of the zoning board which the Society had consistently maintained was in violation of well-settled Rhode Island law.”

Murphy said that because the Clancy matter did not comply with state law, the hearing was nullified.

“The Society’s only involvement has been as an abutter,” he said, “to protect from any degradation or devaluation of the historic properties placed within its care.”

“We met the requirements of the special-use permit and what we want is in harmony with our surrounding neighborhood,” said the Clancys. “It has been six years since this process began, so it is a shame that it has not been fully resolved yet. We are weighing our options and we are optimistic about the future.”

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