Town of Burrillville, et al. v. Pascoag Apartment Associates, LLC, et al.

Supreme Court
No. 2005-35-M.P.
(2004-12)
(2004-13)
(2004-14)
Town of Burrillville et al. 	:
v. 	:
Pascoag Apartment Associates, LLC, et al. 	:
NOTICE: 	This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.

Supreme Court
No. 2005-35-M.P.
(2004-12)
(2004-13)
(2004-14)
Town of Burrillville et al. 	:
v. 	:
Pascoag Apartment Associates, LLC, et al. 	:
Present: Williams, C.J., Goldberg, Flaherty, Suttell, and Robinson, JJ.
O P I N I O N
Justice Suttell, for the Court. We issued a writ of certiorari to review the State Housing
Appeals Board’s (SHAB) decisions that three separate applications for comprehensive permits
submitted by Pascoag Apartment Associates, LLC and Yorkshire Properties (Pascoag), Crystal
Lake Builders, LLC (Crystal Lake), and East Avenue Development Realty, LLC (East Avenue)
(collectively respondents), under the Low and Moderate Income Housing Act, G.L. 1956 chapter
53 of title 45, were, as of February 13, 2004, substantially complete under § 45-53-6(f)(1). The
three applicants presented plans and documentation to the Town of Burrillville Zoning Board of
Review in early 2004. 	While the applications were pending, the General Assembly imposed a
moratorium on the use of comprehensive permit applications by private, for-profit developers
such as the ones in this case. 	Only those applications that SHAB deemed to be substantially
complete as of February 13, 2004, were allowed to proceed. SHAB made such a determination
for all three of the projects under review. For the reasons set forth in this opinion, we reverse the
decisions of SHAB.
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I
Statutory Background
In 1991, the General Assembly enacted the Low and Moderate Income Housing Act (the
act) to address the “acute shortage of affordable, accessible, safe and sanitary housing for * * *
citizens of low and moderate income.” P.L. 1991, ch. 154, § 1 (§ 45-53-2). The act “provides for
a 	streamlined 	and 	expedited 	application 	procedure 	whereby 	‘a 	single 	application 	for 	a
[comprehensive permit] to build [low and moderate income] housing in lieu of separate
applications to the applicable local [municipal] boards’ may be submitted to the zoning board of
review of a city or town.” East Bay Community Development Corp. v. Zoning Board of Review
of Barrington, 901 A.2d 1136, 1145 (R.I. 2006) (quoting Coventry Zoning Board of Review v.
Omni Development Corp., 814 A.2d 889, 894 (R.I. 2003)). The key section of the 1991 version
of the act, codified at § 45-53-4 and since amended, directed zoning boards to hold a hearing
within thirty days of receipt of the application. P.L. 1991, ch. 154, § 1. 	Zoning boards were
required to “render a decision, based upon a majority vote of said board, within forty (40) days
after the termination of the public hearing * * *.” Id.1 If the zoning board failed to hold a public
hearing or render a decision within the forty-day window, the application was “deemed to have
been allowed and the approval shall forthwith issue.” Id. Further, if the zoning board denied the
application or granted it with conditions that made the project infeasible, the applicant could
appeal to SHAB, which then had the power to usurp the zoning board’s control over the review
process and approve the project by itself. See P.L. 1991, ch. 154, § 1 (codified as amended at
§ 45-53-5 and § 45-53-6); Town of Smithfield v. Churchill & Banks Companies, LLC, 924 A.2d
796, 807 (R.I. 2007).
1 The review process set forth in the 1991 version of G.L. 1956 § 45-53-4 survived in large part
until July 2, 2004, when the General Assembly overhauled the statute’s language. See P.L. 2004,
ch. 286, § 11.
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The original version of the act made the streamlined review process available to public
agencies, nonprofit organizations, and limited-equity housing cooperatives. P.L. 1991, ch. 154,
§ 1. Private for-profit developers could take advantage of the act only for projects that included
the construction of low or moderate income rental units that remained as such for not less than
thirty years. Id. 	On June 28, 2002, however, the General Assembly made a significant
modification to the act that allowed for-profit developers to use the streamlined review process
for non-rental housing projects with low- or moderate-income components. P.L. 2002, ch. 416,
§ 1. 	Under the revised language of § 45-53-4, for-profit developers were allowed to apply for
“comprehensive permit[s]” to build developments that included low or moderate income for-sale
housing. P.L. 2002, ch. 416, § 1. Developers thus could take advantage of “one stop shopping”
in front of a zoning board by including affordable housing in their applications in lieu of
navigating the crowded universe of local review boards. See Town of Smithfield, 924 A.2d at
797-98 n.1. Not surprisingly, the 2002 amendment opened the floodgates. Municipalities faced
a deluge of applications from for-profit developers seeking to take advantage of the streamlined
review process. See Town of Smithfield, 924 A.2d at 798.
The General Assembly reacted to the influx in early 2004 by imposing a moratorium on
applications by for-profit developers. P.L. 2004, ch. 3, § 1 (codified as amended at § 45-53-
4(b)).2 The moratorium was effective from February 13, 2004, to January 31, 2005. P.L. 2004,
2 As justification for the moratorium, the General Assembly found that:
“[I]n January 2004 cities and towns throughout Rhode Island have
been confronted by an unprecedented volume and complexity of
development 	applications 	as 	a 	result 	of 	private 	for-profit
developers using the provisions of this chapter and that in order to
protect the public health and welfare in communities and to
provide sufficient time to establish a reasonable and orderly
process for the consideration of applications made under the
provisions of this chapter, and to have communities prepare plans
to 	meet 	low 	and 	moderate 	income 	housing 	goals, 	that 	it 	is
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ch. 3, § 1. During the moratorium, the General Assembly amended the act again, effective July
2, 2004, to allow for-profit developers affected by the moratorium to move forward if their
applications were deemed to have reached “substantial completeness.” P.L. 2004, ch. 286, § 10
(codified as amended at § 45-53-6(f)(1)). Applicants wishing to continue the permitting process
under pre-moratorium standards were required to appeal to SHAB before August 1, 2004, after
which SHAB was required to “rule on December 1, 2004, on the substantial completeness of
applications as of February 13, 2004 * * *.” P.L. 2004, ch. 286, § 10 (codified as amended at
§ 45-53-6(f)(1)).
The act’s terms, which remain in force today, allow the obtainment of substantial
completeness in one of two ways. SHAB can determine that a zoning board of review acted in a
manner demonstrating that it considered the application substantially complete. P.L. 2004, ch.
286, § 10 (codified as amended at § 45-53-6(f)(1)(A)(ii)).3 In the alternative, SHAB can find
substantial completeness by applying a ten-factor list promulgated by the General Assembly.
Under this latter approach, § 45-53-6(f)(1)(i) instructs that the “determination of substantial
completeness shall be based on whether there was on or before February 13, 2004, substantial
completeness of substantially all of the following” ten factors:
“(A) A written request to the zoning board of review to
submit a single application to build or rehabilitate low or moderate
income housing in lieu of separate applications to the application
local boards;
“(B) A written list of variances, special use permits and
waivers requested to local requirements and regulations, including
local codes, ordinances, by-laws or regulations, including any
necessary to impose a moratorium on the use of comprehensive
permit 	applications 	as 	herein 	provided 	by 	private 	for-profit
developers * * *.” P.L. 2004, ch. 3, § 1 (codified as amended at
§ 45-53-4(b)).
3 This section also allows SHAB to find a project substantially complete when a zoning board
determines explicitly that the application is substantially complete. P.L. 2004, ch. 286, § 10
(codified as amended at § 45-53-6(f)(1)).
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requested waivers from the land development or subdivisions
regulations, and a proposed timetable for completion of the project;
“(C) Evidence of site control;
“(D) Evidence 	of 	eligibility 	for 	a 	state 	or 	federal
government subsidy, including a letter from the funding agency
indicating the applicant and the project;
“(E) Site development plans showing the locations and
outlines of proposed buildings; the proposed location, general
dimensions and materials for street, drives, parking areas, walks
and paved areas; proposed landscaping improvements and open
areas within the site; and the proposed location and types of
sewage, drainage and water facilities;
“(F) A report on existing site conditions and a summary of
conditions in the surrounding areas, showing the location and
nature of existing buildings, existing street elevations, traffic
patterns and character of open areas, including wetlands and flood
plains, in the neighborhood;
“(G) A tabulation of proposed buildings by type, size
(number of bedrooms, floor area) and ground coverage and a
summary showing the percentage of the tract to be occupied by
buildings, by parking and other paved vehicular areas and by open
spaces;
“(H) A master plan, if the development proposal is for a
major or minor land development plan or a major or minor
subdivision;
“(I) 	[A] 	sample 	land 	lease 	or 	deed 	restrictions 	with
affordability liens that will restrict use as low and moderate income
housing units for a period of not less than thirty (30) years; and
“(J) The list of all persons entitled to notice in accordance
with § 45-24-53.” P.L. 2004, ch. 286, § 10 (codified as amended at
§ 45-53-6(f)(1)).4
Applications found to be substantially complete are subject to remand from SHAB to the
respective zoning board for hearings pursuant to pre-moratorium standards. Section 45-53-
6(f)(2)). 	Applications deemed not to have achieved substantial completeness must proceed
under heightened procedural and density requirements applicable to post-moratorium projects.
Compare P.L. 2004, ch. 3, § 1 (codified at § 45-53-4) with P.L. 2004, ch. 286, § 11 (codified at
4 The original version of the public law listed the ten sub-elements as (i) through (x), while the
current compiled version lists the sub-elements as (A) through (J), apparently due to a compiler’s
revision in 2004. 	We will refer to the sub-elements as (A) through (J) in hopes of avoiding
unnecessary confusion.
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§ 45-53-4(a)); see also New Harbor Village, LLC v. Town of New Shoreham Zoning Board of
Review, 894 A.2d 901, 904 (R.I. 2006).
II
Facts and Procedural History
The three projects at issue in this case were submitted by for-profit developers to the
Town of Burrillville Zoning Board of Review (zoning board) shortly before the moratorium went
into effect. On or about January 12, 2004, Crystal Lake filed a comprehensive permit application
with the zoning board to build housing on 98.96 acres of vacant land composed of open fields,
wooded uplands, and wooded wetlands. Crystal Lake proposed the construction of 174 units of
two-bedroom townhouses and two- or three-bedroom detached homes, with 20 percent of the
overall total reserved as low- or moderate-income housing. 	On or about January 16, 2004,
Pascoag filed a comprehensive permit application with the zoning board to build fifty-six
apartment units on 4.05 acres of vacant land. 	The application proposed seven buildings
comprising eight units each, with 20 percent of the units reserved for people with low or
moderate incomes. Finally, on or about January 22, 2004, East Avenue filed an application for a
comprehensive permit seeking permission to build seventy-four single-family homes on 154.87
acres of vacant land. East Avenue also proposed to set aside 20 percent of the units for people
with low or moderate incomes.
Pascoag, 	Crystal 	Lake, 	and 	East 	Avenue 	all 	agreed 	to 	waive 	the 	then-existing
requirement in § 45-53-45 that the zoning board hold a hearing within thirty days of the filing of
a comprehensive permit application. Public hearings for each project were scheduled to begin on
5 The General Assembly rewrote § 45-53-4 after the February 13, 2004 moratorium went into
effect. Compare 	P.L. 2004, ch. 3, § 1 (codified at § 45-53-4(a)) with P.L. 2004, ch. 286, § 11
(same).
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March 9, 2004. 	The moratorium went into effect in the interim, on February 13, 2004, after
which the zoning board declined to proceed with the scheduled March 9 hearing.
On March 29, 2004, Pascoag, Crystal Lake, and East Avenue appealed from the zoning
board to SHAB on identical grounds. 	Each appeal argued that the zoning board should have
determined the applicability of the moratorium to their applications, as well as pass on questions
relating to applicants’ vested rights and equitable estoppel. SHAB addressed the three appeals at
public meetings on March 30 and April 20, 2004, but did not take any significant action because
it was aware that the General Assembly was considering proposed revisions to the act.6
On July 1, 2004, SHAB asked the zoning board to present its view on the substantial
completeness of the three Burrillville applications. 	If the zoning board did not deem the
applications substantially complete, SHAB requested that the zoning board specifically articulate
the alleged deficiencies. In a letter dated July 28, 2004, the zoning board informed SHAB that it
found none of the three applications substantially complete. 	The zoning board reached its
conclusion by applying the ten factors set forth in § 45-53-6(f)(1)(i). 	Specifically, the zoning
board found that all three projects failed § 45-53-6(f)(1)(i)(B), which relates to a written list of
variances, special-use permits, and waivers, and § 45-53-6(f)(1)(i)(D), which enumerates
evidence of eligibility for a state or federal government subsidy. 	The zoning board also found
that 	Pascoag 	and 	Crystal 	Lake 	failed 	to 	demonstrate 	substantial 	completeness 	for 	site
development plans as stipulated by § 45-53-6(f)(1)(i)(E). 	Finally, the zoning board determined
that East Avenue also was incomplete with respect to § 45-53-6(f)(1)(i)(C), which relates to
6 As previously discussed, the General Assembly amended the act, effective July 2, 2004, to
allow for-profit developers affected by the moratorium to appeal to SHAB if they did not receive
favorable treatment from local zoning boards of review. As long as a for-profit developer filed an
appeal before August 1, 2004, the amendment required SHAB to determine the “substantial
completeness” of the application as of February 13, 2004.
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evidence of site control, and § 45-53-6(f)(1)(i)(J), for failing to provide a list of people entitled to
notice of the proposed project.
On November 22, 2004, SHAB heard oral arguments on the three Burrillville projects.
On December 8, 2004, SHAB held another hearing and determined that Pascoag, Crystal Lake,
and East Avenue each had submitted a comprehensive permit application that was substantially
complete as of February 13, 2004. Because the zoning board had not held a hearing with respect
to any of the applications, SHAB did not address substantial completeness as defined by whether
the zoning board acted in a manner demonstrating that it considered the application substantially
complete. See § 45-53-6(f)(1)(ii). 	Instead, SHAB reached its conclusion in each case by
applying the factors set forth in § 45-53-6(f)(1)(i)(A) through (J). 	SHAB issued short written
orders primarily because SHAB had a limited amount of time to issue written orders for the
nineteen “substantial completeness” appeals then before it.7 On December 29, 2004, SHAB
issued identical orders for Pascoag, Crystal Lake, and East Avenue that each stated in pertinent
part, “Based on SHAB’s review of the administrative record, the parties’ filings on appeal and
their oral arguments and for reasons stated during its deliberations, SHAB adopted unanimously
the following finding: The application for a comprehensive permit is substantially complete of
substantially all of the elements delineated in § 4[5]-53-6(f)(1)(i)[][A-J].”8 SHAB remanded
each application to the zoning board and ordered it to proceed with hearings in compliance with
§ 45-53-6(f)(2).
7 Section 45-53-6(f)(1) did not allow SHAB to decide appeals from private developers for
substantial-completeness determinations until December 1, 2004, and the General Assembly
reconstituted SHAB’s membership effective January 1, 2005, thus providing the SHAB board as
it stood in December 2004 with a limited amount of time to issue written decisions. See
§ 45-53-7.
8 The three orders later were amended nunc pro tunc to correct a citation error.
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On January 27, 2005, the Town of Burrillville (town) petitioned this Court for issuance of
a writ of certiorari to review SHAB’s substantial-completeness determination for the Pascoag,
Crystal Lake, and East Avenue projects. 	The town also moved to stay the enforcement of
SHAB’s December 29, 2004 orders. On January 28, 2005, this Court ordered a temporary stay
while we considered the writ of certiorari and the motion for stay. 	On February 11, 2005, we
granted the writ of certiorari and continued the stay. 	Our February 11 order noted that SHAB
failed to buttress its rulings in the three cases with appropriate findings of fact and conclusions of
law. 	Accordingly, we remanded the case to SHAB and ordered it to make factual findings and
legal conclusions, and to transmit the record to us thereafter. See Kaveny v. Town of
Cumberland Zoning Board of Review, 875 A.2d 1, 9 (R.I. 2005) (remanding to SHAB and
directing it to “take care that its findings of fact are clearly set forth in its decision, referring to
the evidence presented, and that its conclusions of law are properly supported by the findings of
fact”).
As mentioned above, the General Assembly changed SHAB’s membership, effective
January 1, 2005. See P.L. 2004, ch. 286, § 12 (codified as amended at § 45-53-7(a)(i)). 	On
September 19, 2005, the reconstituted SHAB membership held a hearing and reconsidered the
Pascoag, Crystal Lake, and East Avenue projects. 	SHAB determined, relying upon Coderre v.
Zoning Board of Review of Pawtucket, 103 R.I. 575, 577-78, 239 A.2d 729, 730 (1968),9 that it
could not take its December 8, 2004 deliberations into account because SHAB’s membership had
changed on January 1, 2005. 	Therefore, SHAB proceeded to hear detailed oral arguments in
9 In that case, this Court explained “that where there has been a change in the composition of a
board of review made subsequent to the rendering of a decision which this [C]ourt remands for
clarification, completion and/or supplementation of the record on which the decision was based,
a hearing de novo on the application for relief is a jurisdictional condition precedent to a valid
decision.” Coderre v. Zoning Board of Review of Pawtucket, 103 R.I. 575, 577-78, 239 A.2d
729, 730 (1968).
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each of the three appeals and deliberated de novo in each case. 	The town raised many of the
same arguments that appeared in the zoning board’s July 28, 2004 letter to SHAB. After review
of each case, SHAB again found that each project was substantially complete as of February 13,
2004, by applying the ten-factor list in § 45-53-6(f)(1)(i), and it remanded the applications to the
zoning board for further proceedings.10
On October 17, 2005, SHAB issued written decisions for the Pascoag, Crystal Lake, and
East Avenue projects, and the administrative record was returned to this Court thereafter. 	On
November 28, 2005, the town filed a pre-briefing statement under Article I, Rule 12A of the
Supreme Court Rules of Appellate Procedure. 	For reasons that do not appear in the record,
Pascoag, Crystal Lake, and East Avenue did not file timely responses.11 On February 16, 2007,
the clerk of this Court entered an order defaulting them for failing to file a timely Rule 12A
statement, “provided, however, if the pre-briefing statement is filed on or before F[ebruary] 26,
2007 this Order shall be vacated.” 	Pascoag, Crystal Lake, and East Avenue filed the required
statement on February 26, 2007, and the case was argued before this Court on March 6, 2008.
Additional facts will be supplied as needed.
III
Standard of Review
Our previous cases explain that “[t]his Court employs a deferential standard when
reviewing a SHAB decision * * *. * * * ‘A SHAB decision may be reversed by this Court if it
violates constitutional or statutory provisions, was made in excess of statutory authority or upon
10 On 	September 	19, 	2005, 	SHAB 	voted 	also 	that 	the 	town 	did 	not 	treat 	any 	of 	the
comprehensive-permit applications as if they were substantially complete, thus rendering § 45-
53-6(f)(1)(ii) inapplicable. Pascoag, East Avenue, and Crystal Lake do not contest this particular
finding on appeal.
11 At oral argument, Pascoag, Crystal Lake, and East Avenue represented to this Court that they
did not file a pre-briefing statement because they were in negotiations with the town over the
advancement of the three projects.
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error of law, or was otherwise clearly erroneous in view of the evidence or was otherwise
arbitrary or capricious.’” Town of Smithfield, 924 A.2d at 800 (quoting West Reservoir, LLC v.
Smithfield Zoning Board of Review, 884 A.2d 977, 978 (R.I. 2005) (mem.)). “And because we
review this case under writ of certiorari, we also are mindful that ‘[o]n certiorari, this Court must
“scrutinize the record as a whole to determine whether legally competent evidence exists to
support the findings of the court below.”’” Id. (quoting Mill Realty Associates v. Crowe, 841
A.2d 668, 672 (R.I. 2004)). 	Legally competent evidence is “such relevant evidence that a
reasonable mind might accept as adequate to support a conclusion, and means an amount more
than a scintilla but less than a preponderance.” Id. at 806 (quoting Foster-Glocester Regional
School Committee v. Board of Review, 854 A.2d 1008, 1012 (R.I. 2004)).
IV
Discussion
The town advances two arguments before this Court. First, the town alleges that SHAB
erred in formulating its standard of review for substantial completeness by looking beyond the
submitted application materials and concluding there was sufficient information to conduct a
“meaningful review” or to “get started.” Second, the town argues that “material deficiencies” in
the three applications demonstrate that SHAB erred in finding each of them substantially
complete.
A
1. The Elusive Definition of Substantial Completeness
The parties in this case offer differing views on whether SHAB correctly interpreted the
meaning of “substantial completeness” in § 45-53-6(f)(1)(i). This Court has said that “[a]lthough
§ 45-53-6(f)(1)(i) fails (or, perhaps more accurately, does not even attempt) to define ‘substantial
completeness’ in any meaningful way, it does succeed in unequivocally establishing that
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information that was not included in an application prior to February 13, 2004, is excluded from
SHAB’s review.” Town of Smithfield, 924 A.2d at 801-02. In Town of Smithfield, we held that
SHAB committed an error of law when it considered information that came into existence after
the developer’s application was frozen in time on February 13, 2004, for the purposes of
determining substantial completeness. Id. at 802, 804.
In this case, the town alleges that SHAB committed a similar error by reviewing “the
determination of substantial completeness in the context of whether or not there would be an
opportunity to continue to complete the materials in the course and conduct of a [future]
hearing.” The town alleges that if “the legislature had wanted [SHAB] to inquire as to whether
there was enough to proceed forward with additional information being supplemented at the
hearing stage, it would have put such language into Section 45-53-6(f)(1).” The town points to
part of SHAB’s deliberations on September 19, 2005, when one of SHAB’s members objected to
the level of detail the town demanded from Pascoag, and stated, “I see th[e] issue as, is there
enough information on this plan for the town at least to let the person get before a board so they
can start to work on these issues. That is how it is.” The town contends that SHAB’s approach
amounts to an impermissible standard of review for determining substantial completeness
because the “one stop shopping” permitted under § 45-53-4 requires applicants to submit
complete information and relatively finite plans for the town to review. 	In the town’s view,
SHAB could reach a determination of substantial completeness only by finding that an
application was substantially complete with respect to each of the ten factors listed in § 45-53-
6(f)(1)(i).
In response, Pascoag, Crystal Lake, and East Avenue concede that SHAB members used
“phraseology” such as “determining that there was sufficient information to conduct ‘meaningful
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review’ or at least to ‘get started’” during SHAB’s September 19, 2005 hearing on the three
applications. 	Nevertheless, respondents argue that SHAB’s October 17, 2005 written decisions
for the three projects include findings of fact and conclusions of law demonstrating that SHAB
made a determination that thorough and complete application materials existed that warranted a
finding of substantial completeness under § 45-53-6(f)(1)(i). 	Accordingly, respondents allege
that SHAB’s interpretation of substantial completeness in its written decisions does not
constitute an error of law.
Pascoag, Crystal Lake, and East Avenue argue that SHAB correctly interpreted the
meaning 	of 	“substantially 	complete.” 	Relying 	upon 	principles 	of 	administrative 	law,
respondents contend that substantial completeness is an ambiguous term and that SHAB’s
interpretation 	deserves 	deference 	from 	this 	Court. 	In 	respondents’ 	view, 	requiring 	full
compliance 	for 	each 	of 	the 	ten elements 	in § 	45-53-6(f)(1)(i) 	would 	render 	substantial
completeness a meaningless term, violate the canons of statutory construction, and defeat the
Legislature’s intent to grandfather eligible housing projects under pre-moratorium standards.
Questions of statutory construction are subject to de novo review by this Court, and we
are the final arbiter on such questions. Unistrut Corp. v. State Department of Labor and Training,
922 A.2d 93, 98 (R.I. 2007). “When a statute is clear and unambiguous we are bound to ascribe
the plain and ordinary meaning of the words of the statute and our inquiry is at an end.” Id.
(citing Moore v. Ballard, 914 A.2d 487, 490 (R.I. 2007)). 	“However, when a statute is
susceptible of more than one meaning, we employ our well-established maxims of statutory
construction in an effort to glean the intent of the Legislature.” Id. at 98-99 (citing Tanner v.
Town Council of East Greenwich, 880 A.2d 784, 796 (R.I. 2005)).
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Our well-established maxims of statutory construction include specific rules in the realm
of administrative law.12 “Although this Court is the final arbiter of questions of statutory
construction, it is also true that ‘we give deference to an agency’s interpretation of an ambiguous
statute that it has been charged with administering and enforcing, provided that the agency’s
construction is neither clearly erroneous nor unauthorized.’” Rossi v. Employees’ Retirement
System, 895 A.2d 106, 113 (R.I. 2006) (quoting Arnold v. Rhode Island Department of Labor
and Training Board of Review, 822 A.2d 164, 169 (R.I. 2003)); cf. United States v. Mead Corp.,
533 U.S. 218, 229 (2001) (granting deference to agency interpretation of an ambiguous statute
when Congress contemplates administrative action with the effect of law).13 The interpretation
of a statute by the administering agency is not controlling, but it is entitled to great weight. State
v. Swindell, 895 A.2d 100, 104 (R.I. 2006). This Court will accord such deference “even when
the agency’s interpretation is not the only permissible interpretation that could be applied.”
Murray v. McWalters, 868 A.2d 659, 662 (R.I. 2005) (quoting Pawtucket Power Associates
Limited Partnership v. City of Pawtucket, 622 A.2d 452, 456-57 (R.I. 1993)). Nevertheless, our
interpretation of an ambiguous statute “is grounded in policy considerations and we will not
apply a statute in a manner that will defeat its underlying purpose.” Arnold, 822 A.2d at 169; see
also 	Parkway 	Towers 	Associates 	v. 	Godfrey, 	688 	A.2d 	1289, 	1293-94 	(R.I. 	1997)
(“administrative interpretation is entitled to great deference * * * when * * * it is consistent with
12 As this opinion, and our other decisions involving SHAB demonstrate, Justice Scalia was quite
prescient when he commented that “[a]dministrative law is not for sissies * * *.” Antonin Scalia,
Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 511 (1989).
13 In cases in which the General Assembly does not contemplate administrative action with the
force and effect of law, this Court will not presume deference to an agency’s interpretation of an
ambiguous term and may substitute its own judgment for that of the administrative agency. See
Great American Nursing Centers, Inc. v. Norberg, 567 A.2d 354, 356-57 (R.I. 1989); Lerner v.
Gill, 463 A.2d 1352, 1358 (R.I. 1983); see also United States v. Mead Corp., 533 U.S. 218, 227-
31 (2001); Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).
- 14 -

the overall purposes of the legislation”). 	Further, “the true measure of a court’s willingness to
defer 	to 	an 	agency’s 	interpretation 	of 	a 	statute 	‘depends, 	in 	the 	last 	analysis, 	on 	the
persuasiveness of the interpretation, given all the attendant circumstances.’” Unistrut Corp., 922
A.2d at 101 (quoting United States v. 29 Cartons of * * * an Article of Food, 987 F.2d 33, 38
(1st Cir. 1993)).
We conclude that in this context “substantial completeness” is an ambiguous statutory
term. 	“The pragmatic checklist in § 45-53-6(f)(1)(i)(A) through (J) establishes a seemingly
precise scorecard that, at first glance, would appear to reduce SHAB’s evaluations to a rote
exercise in inventory accounting, but the lack of a satisfactory explication of the determinative
standard undermines the objectivity of the process.” Town of Smithfield, 924 A.2d at 801. 	At
best, § 45-53-6(f)(1)(i) is a tautology that defines substantial completeness as substantial
completeness of substantially all of the ten-factor checklist in the statute. In mathematical terms,
the definition constitutes a 720-degree turn, or two full revolutions around the substantial
completeness circle. 	As we noted, “[s]uch circular language renders the statute susceptible to
any number of potential interpretations * * *.” Town of Smithfield, 924 A.2d at 801. Substantial
completeness, therefore, falls easily within our standard for ambiguous statutory terms.
Section 45-53-6(f)(1)(i) directs SHAB to make “[t]he determination of substantial
completeness * * * on whether there was on or before February 13, 2004, substantial
completeness of substantially all of the” ten factors listed in the statute. SHAB was required to
determine the substantial completeness of appealed applications and then remand applications
found to be substantially complete to local zoning boards. Section 45-53-6(f)(1)-(2). 	Thus,
SHAB is clearly the agency “charged with administering and enforcing” the fate of pre-
moratorium comprehensive permit applications that appear before it on appeal. This Court will
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thus afford a presumption of deference to SHAB’s interpretation of the phrase “substantial
completeness.” 	It is an ambiguous statutory phrase and the General Assembly charged SHAB
with its administration in the context of appeals of comprehensive permit applications from the
actions of local zoning boards. In this case, as in Town of Smithfield, 924 A.2d at 801, SHAB’s
members did not adopt a definition of substantial completeness at the September 19, 2005
hearing when SHAB voted on the three projects.14 SHAB’s October 17, 2005 written decisions,
however, set forth a working definition of substantial completeness. 	Using an “ordinary and
plain meaning” standard, SHAB defined “substantial” to mean “material,” “important,” and
“essential,” and the term “complete” to mean “having all parts or elements.”15 In our opinion,
SHAB’s definition is entitled to deference, provided it “is neither clearly erroneous nor
unauthorized.” Rossi, 895 A.2d at 113.
2. The Purpose of the Moratorium
Our analysis in this regard is informed by the language employed by the General
Assembly and by the clear purpose it manifested when it imposed the moratorium on
comprehensive permit applications by for-profit developers. The General Assembly specifically
found that in January 2004 zoning boards of review were “confronted by an unprecedented
14 SHAB’s counsel suggested the definition that appeared in its subsequent written decisions
during the September 19, 2005 hearing, but the board neither voted on the definition nor adopted
it at the hearing. In December 2004, during SHAB’s original deliberations on the three projects,
SHAB recognized explicitly that no working definition of substantial completeness existed. On
December 8, 2004, SHAB’s counsel suggested the following definition:
“We need to look at each of the ten items and determine not only if
each one is substantially complete, but in the aggregate, have
substantially all of the following been met. 	So, it is a double-
pronged analysis of substantial completion, and then globally, have
the issues been substantially complied with to allow a meaningful
review at the zoning board level.”
15 SHAB’s October 17, 2005 written decisions adopted the definition of substantial completeness
set forth in Town of Scituate v. EFC Construction, C.A. No. PC 04-912, 2005 WL 524805 (R.I.
Super. Ct. filed March 3, 2005).
- 16 -

volume and complexity of development applications as a result of private for-profit developers
using the [Low and Moderate Income Housing Act] * * *.” Section 45-53-4(b)(1); see also Town
of Smithfield, 924 A.2d at 808 (explaining that before the moratorium, zoning boards of review
were “swimming in an ocean of applications”). 	Accordingly, the General Assembly forcefully
declared that it was necessary to impose a moratorium “to protect the public health and welfare
in communities.” Section 45-53-4(b)(1). 	Significantly, the General Assembly did not prohibit
permanently the use of comprehensive permit applications by for-profit developers; rather, it
imposed a moratorium, a postponement or temporary suspension “to provide sufficient time to
establish a reasonable and orderly process for the consideration of applications * * *, and to have
communities prepare plans to meet low and moderate income housing goals.” Section 45-53-
4(b)(1). “This clear statement of statutory purpose underscores the significance of the February
13, 2004 deadline” that marked the beginning of the moratorium. Town of Smithfield, 924 A.2d
at 805.
The 	amendment 	to 	the 	act 	that 	authorized 	SHAB 	to 	determine 	the 	substantial
completeness of comprehensive permit applications as of February 13, 2004, also spoke with a
clear legislative intent.
“The obvious purpose of this subsection was to cull out eleventh-
hour applications that were completed and filed hastily to avoid the
well-publicized 	impending 	moratorium 	for 	all 	comprehensive
permit applications submitted by for-profit developers. 	A SHAB
determination under this subsection dictates whether an application
will proceed under the pre-moratorium or post-moratorium permit
review procedure. It is not a decision on the merits.” New Harbor
Village, LLC, 894 A.2d at 909.
The General Assembly’s purposes in imposing the moratorium and subsequently enacting
the amendment for well-developed comprehensive permit applications provides the landscape for
our review of SHAB’s interpretation of substantial completeness. 	We conclude that SHAB’s
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definition of “substantial” to mean “material,” “important,” and “essential,” and the term
“complete” to mean “having all parts or elements,” warrants deference from this Court. SHAB’s
interpretation of substantial completeness is a reasonable definition that easily comports with the
legislative 	purposes 	of 	the 	act. 	SHAB’s 	definition 	makes 	clear 	that 	eleventh-hour
comprehensive permit applications that were filed hastily are unlikely to be complete or to have
all the necessary parts or elements to achieve substantial completeness. 	Further, given the
General Assembly’s interest in protecting the public health and welfare, SHAB’s requirement
that comprehensive permit applications include material, important, and essential components
ensures that only those projects that give municipalities a comprehensive framework of the
proposed 	housing 	development 	can 	proceed 	under 	pre-moratorium 	standards. 	Such
“completeness” is necessary to meet the strict timelines required by the streamlined application
process. 	Under these circumstances, SHAB’s definition of substantial completeness is neither
clearly erroneous nor unauthorized, and this Court will not substitute its judgment for that of the
agency.
Were this the end of the story, this Court would affirm SHAB’s written decisions and
order that the three projects continue their journey through the approval process under pre-
moratorium standards. 	A review of SHAB’s September 19, 2005 hearing and its October 17,
2005 written decisions, however, reveals that SHAB misapplied its own definition in deciding
the substantial completeness of the comprehensive permit applications submitted by Pascoag,
Crystal Lake, and East Avenue. SHAB’s decision-making focused upon sufficiency rather than
substantial completeness, and it repeatedly considered whether the applications contained
enough information for the town to “get started.”
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3. The SHAB Decisions
SHAB’s written decisions for Pascoag, Crystal Lake, and East Avenue each conclude that
the applications contained ample information to allow the parties to proceed with meaningful
evidentiary 	hearings. 	In 	Pascoag’s 	case, 	SHAB 	was 	“convinced 	that 	Pascoag 	placed
considerable time and effort into the drafting of its Application.” One of the primary disputes in
the case centered around the type and detail of waivers and variances required for the project.
SHAB found that Pascoag “sufficiently identified its requested relief,” and reasoned that “any
* * * 	disputes 	regarding 	the 	scope 	of 	required 	relief 	are 	proper 	topics 	for 	evidentiary
development during the Zoning Board’s hearings on remand.” 	Similarly, with respect to site
development plans, SHAB determined that “Pascoag has presented sufficiently detailed drawings
and data to place the Zoning Board on notice” and that “landscaping and drainage issues may be
properly addressed as more advanced engineering data is produced later in the zoning process.”
SHAB also noted that the “Zoning Board has acknowledged that Pascoag provided sufficient
information as to seven of the ten elements in § 45-53-6(f)(1)(i)(A-J).” SHAB reasoned that the
seven 	stipulated 	elements 	were 	arguably 	sufficient 	on 	their 	own 	to 	satisfy 	substantial
completeness. 	Regardless, SHAB concluded that Pascoag’s application contained sufficient
information for the three disputed elements, and that therefore the application was substantially
complete.
SHAB’s written decisions for the Crystal Lake and East Avenue projects employ similar
language and methodology as in the Pascoag written decision. With respect to Crystal Lake and
East Avenue, as in the Pascoag case, SHAB noted that the zoning board did not dispute the
sufficiency of six or seven of the elements of the ten-factor checklist in § 45-53-6(f)(1)(i). As in
the Pascoag written decision, SHAB was “convinced” that East Avenue and Crystal Lake spent
- 19 -

considerable time and effort in drafting their applications. 	The Crystal Lake and East Avenue
written decisions both posit that the scope of applicable relief for disputed waivers and variances
could be refined and resolved fully at evidentiary hearings on remand. 	Concerning the Crystal
Lake project, SHAB determined that a site development plan issue involving a sewer easement
could be addressed at evidentiary hearings on remand before the zoning board. With respect to
East Avenue, SHAB minimized the developer’s failure to include an abutters list, finding that it
could be submitted properly at the outset of the remanded evidentiary hearings before the zoning
board. SHAB determined that the omission of the abutters list “is not fatal to the determination
of the substantial completeness of East Avenue’s Application.” 	SHAB concluded in the East
Avenue and Crystal Lake written decisions that six or seven stipulated elements arguably were
sufficient on their own to satisfy substantial completeness. 	Moreover, SHAB concluded that
East Avenue and Crystal Lake’s applications contained sufficient information for the remaining
three or four disputed elements, and that therefore their applications were substantially complete.
SHAB’s three written decisions speak primarily of sufficiency, and they rationalize that
any alleged deficiencies can be cleaned up on remand in front of the zoning board. 	This
approach contravenes the very definition SHAB laid out for itself. 	SHAB’s definition makes
clear that comprehensive permit applicants must do more than submit “sufficient” information
that merely puts the zoning board “on notice” of potential problems to be solved on remand to
the zoning board.
More fundamentally, a review of the September 19, 2005 hearing reveals that SHAB did
not apply the substantial-completeness standard set forth in its October 17, 2005 written
decisions. Each written decision contains language similar to “By a 5-0 vote, SHAB concluded
that the Application was, as of February 13, 2004, substantially complete as to substantially all of
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the ten elements delineated in § 45-53-6(f)(1)(i)(A-J) * * * .” 	The written decisions, however,
do not expound upon SHAB’s deliberations at the hearing that led to the unanimous vote for
each project.
SHAB’s members applied a low standard when they considered and voted on the
Pascoag, Crystal Lake, and East Avenue comprehensive permit applications at the September 19,
2005 hearing. 	With respect to Pascoag, the following colloquy occurred between the board
members:
“MR. GOODRICH: [The town is] looking for drainage
calculations. 	They want an architect to give a soil erosion
information control plan, they gave buildings, they’re asking for
things at this stage of development which I think you don’t get
until you sit down with the board and say, we’re not going to have
a building over here in the northwest corner that is going to change
the drainage calculation, or we’re going to move this road here.
This is what towns do. 	How anyone can ask someone for a
drainage calculation when we don’t know what is going to be built,
or what is going to get developed and what is going to end up
being built is putting the cart before the horse. I see this issue as,
is there enough information on this plan for the town at least to let
the person get before a board so they can start to work on these
issues. That is how it is.
“MR. MAYNARD: I think that is how we saw it last year.”
Further, 	a 	SHAB 	member 	supported 	a 	finding 	of 	substantial 	completeness 	for 	§ 45-53-
6(f)(1)(i)(B) based on the position that “there was certainly enough information there to give the
town some idea as to what was being proposed.” 	Turning to § 45-53-6(f)(1)(i)(E), a similar
colloquy occurred between the board members:
“MR. GOODRICH: We’re not looking at the plans. 	We
have them here if we want to look at them. 	It’s clear to me that
there is definitely location of buildings, there is dimensions, there
are streets and drives, there are parking lots. 	Maybe they’re not
done to the specificity that they’re requiring, but you certainly can
determine where these buildings are and where they’re supposed to
go. Again, it’s enough for a developer, in my mind, to have a town
start working on a project, and, again, those roads, those buildings,
- 21 -

those parking areas are all going to probably change, if I know the
way towns are, because towns like doing it their way. 	I think it
would be foolhardy and crazy and expensive for someone to give
you a full set of plans when in fact you have no idea if you’re
going to build five units or fifty units. 	I find that substantially
complete.
“MR. MAYNARD: I second that.”
SHAB considered the Pascoag application first at the September 19, 2005 hearing. After
SHAB discussed and voted on the Pascoag application, less discussion ensued concerning the
Crystal Lake and East Avenue applications. 	With respect to Crystal Lake and § 45-53-
6(f)(1)(i)(B), a SHAB member again commented that “I think there is definitely enough
information that it’s substantially complete and looking at this proposal they could start working
with the developer and moving it forward. I make that in the form of a motion.” Another SHAB
member seconded the motion and SHAB passed it unanimously. 	Turning to the East Avenue
project and the issue of lack of an abutters list as required by § 45-53-6(f)(1)(i)(J), the following
colloquy occurred between the board members:
“[SHAB CHAIR]: I 	had 	asked 	[SHAB’s 	counsel] 	a
question specifically during the oral argument, I guess it wasn’t
submitted at the time because [East Avenue’s attorney] hadn’t had
an actual date, but he did indicate, as he does in his brief, or his
memorandum, that a radius map was actually submitted as part of
the application. So I think the information is necessary.
“MR. MAYNARD: It’s a question of timing.
“MR. GOODRICH: ‘We have nine of the ten items, and I
have one you didn’t do. 	I got you.’ 	I don’t think so, because I
don’t think that is the American way, and I think that if obviously
this ever got set down for a public hearing that he would have to
make a list of abutters. 	As the Chairperson just referred to, from
looking at the plan right here, I see the names of all the people that
abutted, the people here and people there. They didn’t tell us that
Adam and Joe Pesto live nearby, he didn’t. 	Is it typed on a nice
abutters list? 	No, I don’t think so, but I think it’s substantially
complete.”
- 22 -

SHAB subsequently voted to find the application substantially complete, despite the lack of an
abutters list.
SHAB discussions at the September 19 hearing demonstrate that it framed substantial
completeness as whether the developers provided enough information for the town to “start to
work” on the issues and whether the applications gave the town “some idea as to what was being
proposed.” SHAB recognized that the developers’ plans were “going to probably change,” and
considered whether “there is definitely enough information that it’s substantially complete and
looking at this proposal they could start working with the developer and moving it forward.”
Applying SHAB’s adopted substantial-completeness definition set forth in its written
decisions, this Court fails to see how an application can have “all parts or elements” that are
“material,” “important,” and “essential” when SHAB’s review takes into account merely whether
the town has “some idea” of a development proposal that is “going to probably change.”
Further, it is evident that SHAB’s East Avenue vote does not comport with its adopted definition
considering the lack of an abutters list as specified in § 45-53-6(f)(1)(i)(J). Cf. Town of
Smithfield, 924 A.2d at 804 (“We are hard-pressed, however, to fathom the complete disregard
of the plain language of a statutory provision. Section 45-53-6(f)(1)(i)(H) requires ‘[a] master
plan’ * * * .”).
SHAB’s failure to follow its own definition falls within the realm of reversible error. We
have held that “[a]n agency is bound, of course, by its own regulations.” Arnold v. Lebel, 941
A.2d 813, 821 n.2 (R.I. 2007). 	This familiar rule of administrative law does not apply in this
case, 	however, 	because 	SHAB 	did 	not 	promulgate 	a 	regulation 	to 	define 	substantial
completeness; 	rather, 	it 	defined 	the 	term 	through 	the 	adjudication 	of 	three 	contested
comprehensive permit applications. 	We must look, therefore, to the general principles of
- 23 -

administrative law for adjudicative rulemaking. 	It is a “‘simple but fundamental rule of
administrative law’” that an “agency must set forth clearly the grounds on which it acted.”
Atchison, Topeka & Santa Fe Railway Co. v. Wichita Board of Trade, 412 U.S. 800, 807 (1973)
(quoting SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)). 	In the context of adjudication, a
presumption exists that an agency will adhere to its settled rule, and the agency must explain a
departure from its prior norms. Atchison, 412 U.S. at 808. 	The grounds for departure from the
settled rule “must be clearly set forth so that the reviewing court may understand the basis of the
agency’s action and so may judge the consistency of that action with the agency’s mandate.” Id.
In this case, SHAB announced a definition for substantial completeness in its written decisions
that it had failed to apply during its deliberations or votes on the three applications. 	SHAB
offered no reasoning or explanation for its departure. 	Accordingly, we conclude that SHAB
acted in an arbitrary and capricious manner when its actions did not comport with its own
definition of substantial completeness.
B
1. Substantial Completeness as Applied to Pascoag, Crystal Lake, and East Avenue
The 	town’s 	second 	argument 	alleges 	that 	SHAB’s 	determinations 	of 	substantial
completeness for the Pascoag, Crystal Lake, and East Avenue projects all were clearly erroneous.
The town points to alleged deficiencies in each of the applications that it contends demonstrate
that SHAB erred in finding substantial completeness. The town contends that SHAB committed
an error of law by finding substantial completeness when each project lacked key elements with
respect to several of the ten factors enumerated in § 45-53-6(f)(1)(i). 	The respondents counter
that the alleged deficiencies in each of the applications do not defeat SHAB’s findings of
substantial completeness. 	The respondents argue that the large amount of information in the
comprehensive permit applications, and the fact that six or seven of the factors listed in § 45-53-
- 24 -

6(f)(1)(i) 	were 	not 	alleged 	to 	be 	incomplete 	in 	any 	way, 	demonstrate 	that 	the 	alleged
shortcomings in each application constitute minor deficiencies.
This Court remains cognizant of the purposes and structure of the Low and Moderate
Income Housing Act. 	As previously noted, the General Assembly imposed the moratorium on
for-profit comprehensive permits “to protect the public health and welfare in communities and to
provide sufficient time to establish a reasonable and orderly process for the consideration of
[comprehensive permit] applications” made by for-profit developers, and to “have communities
prepare plans to meet low and moderate income housing goals.” Section 45-53-4(b)(1). Further,
the amendment to the act that allowed comprehensive permit applications deemed substantially
complete to move forward had the “obvious purpose * * * to cull out eleventh-hour applications
that were completed and filed hastily to avoid the well-publicized impending moratorium.” New
Harbor Village, LLC, 894 A.2d at 909. 	We are also mindful that municipalities faced a
Hobson’s choice in the context of comprehensive permit applications before the moratorium
went into effect. Town of Smithfield, 924 A.2d at 807. If a zoning board delayed hearings, the
developer had the right to appeal to SHAB, at which point SHAB would have “the power to
usurp the zoning board’s control over the review process and approve the comprehensive permits
by itself.” Id. 	Before the moratorium went into effect, therefore, municipalities faced a risk of
completely 	losing 	control 	over 	projects 	that 	would 	have 	significant 	impacts 	on 	their
communities, 	or 	they 	could 	proceed 	forward 	with 	the 	expedited 	review 	allowed 	for
comprehensive permitting applications. Id.
It also bears repeating that a determination of substantial completeness is not a
determination on the merits; rather, such a finding dictates whether the application will proceed
under pre-moratorium or post-moratorium standards. See New Harbor Village, LLC, 894 A.2d at
- 25 -

909. Applicants that were denied a finding of substantial completeness as of February 13, 2004,
are free to resubmit their permit applications under post-moratorium standards. See generally
§ 45-53-4. 	Under § 45-53-4(b), the moratorium on applications by for-profit developers lasted
from February 13, 2004, until January 31, 2005. Section 45-53-4(b) allows for-profit developers
to submit new comprehensive permit applications to municipalities after July 1, 2005, or October
1, 2005, depending upon the municipality’s alacrity in developing a comprehensive plan for low-
and moderate-income housing.
a. Pascoag
The town alleges that Pascoag failed to provide sufficient information for a finding of
substantial completeness for three of the ten factors enumerated in § 45-53-6(f)(1)(i). 	In the
town’s view, the lack of information created a material deficiency in the application such that it
could not be considered substantially complete.
The town first contends that SHAB erred in considering § 45-53-6(f)(1)(i)(B), which
requires review of a “written list of variances, special use permits and waivers requested to local
requirements 	and 	regulations, 	including 	local 	codes, 	ordinances, 	by-laws 	or 	regulations,
including any requested waivers from the land development or subdivision regulations, and a
proposed timetable for completion of the project.” The town lists a litany of waivers that it says
applies to the project that Pascoag failed to mention in its comprehensive permit application,
including relief or variances for zoning and regulations relating to: maximum heights of
structures, 	structural 	density, 	off-street 	parking 	and 	loading 	and 	on-street 	parking, 	land
development review, multiunit dwellings, rubbish disposal, waiver of fees, preservation of rock
outcrops and ridgelines, steep slopes, stormwater management, drainage calculations, building
design, lot design standards for site distance, soil erosion, landscaping, and special grading
- 26 -

provisions. The town also contends that a proposed timetable for the project was not submitted,
except for the general statement that “construction is expected to commence in later 2004 and
continue at a pace dictated by market conditions.”
The town next alleges that Pascoag failed to provide “[e]vidence of eligibility for a state
or federal government subsidy, including a letter from the funding agency indicating the
applicant and the project,” as stated by § 45-53-6(f)(1)(i)(D). 	The town argues that the letter
submitted 	by 	Pascoag 	from 	Rhode 	Island 	Housing 	and 	Mortgage 	Finance 	Corporation
(RIHMFC) referred to “Granite Ridge,” and did not mention Pascoag as the project proponent.
Finally, the town alleges Pascoag failed to meet substantial completeness for § 45-53-
6(f)(1)(i)(E), which pertains to “[s]ite development plans showing the locations and outlines of
proposed buildings; the proposed location, general dimensions and materials for streets, drives,
parking areas, walks and paved areas; proposed landscaping improvements and open areas
within the site; and the proposed location and types of sewage, drainage and water facilities.” In
this category, the town contends that Pascoag is deficient in several different ways: the outlines
of the proposed building were different from the proposed building plans; no plans existed for
sewer, water, or drainage facilities; there was no landscaping plan or a plan for sidewalks; the
submitted plan did not include an explanation for siting buildings and parking facilities with
substantial elevation changes; the right-of-way notes were inconsistent with the submitted
drawings; and, finally, the submitted plan referred to land and development regulations that
either were incorrect or did not exist.
The town also notes that SHAB’s internal “Substantial Completeness Review Checklist”
for the Pascoag project indicated that several substantial completeness elements were not
adequate as of February 13, 2004. 	SHAB’s internal review noted that Pascoag was not
- 27 -

substantially complete relative to: site control, a timetable for the project, a proposed location for
sewage, drainage, and water, proposed locations for landscaping improvements and open-space
areas, reports on existing conditions for the character of open areas and wetlands, and the master
plan with respect to topography and open-space use. 	The internal review also listed partial
completeness for Pascoag’s submission of variances, special-use permits and waivers, its
submission for the general dimensions of streets and other paved areas, its report on existing
conditions for the location and nature of existing buildings, and the master plan with respect to
slope areas and rock outcroppings.
SHAB’s October 17, 2005 written decision on the Pascoag project contains reasoning for
its substantial completeness determination. 	With respect to the completeness of the requested
waivers, variances, and exceptions, SHAB noted that Pascoag submitted a list of waivers in its
comprehensive permit application, and that it provided a separate “Waiver List” prepared by an
engineering firm. SHAB concluded that “Pascoag has sufficiently identified its requested relief
from the dimensional requirements of the Zoning Ordinance” and the contested items “are
clearly identified on pages 4-5 of the Application and in the separate ‘Waiver List’ provided by”
the engineering firm. 	SHAB noted further that the parties disputed whether a parking waiver
was required, and commented that “SHAB believes this particular issue and any other disputes
regarding the scope of required relief are proper topics for evidentiary development during the
Zoning Board’s hearings on remand.”
SHAB also reviewed the sufficiency of the letter from RIHMFC. 	SHAB found that the
letter attached to Pascoag’s application was consistent in form and content compared to other
letters that SHAB had accepted over the last several years. 	SHAB further determined that the
fact that Pascoag was not identified by name was not a material issue and that the letter clearly
- 28 -

related to Pascoag’s proposed project. 	SHAB concluded that the zoning board had raised an
unduly narrow and unpersuasive objection to the letter. 	Turning to the site development plans,
SHAB’s written decision listed the project plans, architectural plans, and architectural data
submitted with the comprehensive permit application, including maps, existing condition and
concept plans, and numerical acreage data. 	SHAB determined that the submitted materials
“sufficiently show the proposed buildings, driveways, roads, parking areas, detention pond, open
areas, and sewer and water lines” and that “Pascoag has presented sufficiently detailed drawings
and data to place the Zoning Board on notice regarding the material site development issues.”
SHAB acknowledged that Pascoag would have to provide landscape plans and drainage
calculations 	in 	future 	zoning 	hearings, 	but 	stated 	that 	“SHAB 	agrees 	with 	Pascoag’s
representation that the landscaping and drainage issues may be properly addressed as more
advanced engineering data is produced later in the zoning process.”
SHAB summarized its findings about substantial completeness and the Pascoag project in
the following manner:
“[T]he Zoning Board has acknowledged that Pascoag provided
sufficient information as to seven of the ten elements in § 45-53-
6(f)(1)(i)(A-J). 	These seven stipulated elements alone arguably
may 	be 	sufficient 	to 	deem 	Pascoag’s 	Application 	to 	be
substantially complete. 	Regardless, Pascoag’s Application also
contains 	sufficient 	information 	regarding 	the 	three 	disputed
elements. 	SHAB is convinced that Pascoag placed considerable
time and effort into the drafting of its Application. Reviewing the
Application in its entirety, there is ample information to allow the
parties to proceed with meaningful evidentiary hearings addressing
its merits.”
We disagree with SHAB’s finding that the Pascoag project was substantially complete.
This Court is unable to conclude that legally competent evidence exists in the record in light of
SHAB’s adopted definition of substantial completeness. 	Although Pascoag’s comprehensive
- 29 -

permit application contained several pages of information, engineering reports, and a few large
maps, the submission as a whole hardly can be said to attain substantial completeness, defined by
SHAB as “having all parts or elements” that are “material,” “important,” and “essential.”
The comprehensive permit application did not include adequate information on drainage,
stormwater runoff, and elevation plans. According to Pascoag, the proposed site for the project
consisted of “moderately rolling topography.” We view this description with some doubt, given
that SHAB’s own internal review stated that “extreme slopes [and a] ledge exist on site.” 	A
cursory review of the “existing conditions plan” map submitted with the application reveals that
elevation for the site fluctuated between 470 and 520 feet. Nevertheless, we are unable to locate
any discussion in the application relating to an elevation plan for the site. Indeed, SHAB’s own
internal review of the project noted that the submitted master plan did not contain topography at
two-foot intervals, and that the master plan reached only partial compliance for delineating areas
of greater than 15 percent slope and rock outcroppings. 	With respect to stormwater runoff and
drainage, the application identifies the type of soil on site and the flood zone, but it provides no
indication on how these issues would be impacted by the proposed buildings, pavement, and
other improvements to the site. 	A minimal discussion of stormwater runoff and drainage for a
“moderately rolling” site with seven large buildings seems to this Court to be a material,
important, and essential element of a comprehensive permit application.
Further, it is clear to us that SHAB’s conclusion that Pascoag had “presented sufficiently
detailed drawings and data to place the Zoning Board on notice regarding the material site and
development issues” does not comport with its own definition of substantial completeness.
A review of the September 19, 2005 SHAB hearing reveals SHAB’s flawed application
of its own substantial-completeness standard. 	In discussing Pascoag’s application, various
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SHAB members commented: “they’re a work in progress, you have an opportunity to continue to
complete”; “there was certainly enough information there to give the town some idea as to what
was being proposed”; and “[i]t’s my feeling certainly there is enough there that he should have at
least got up to the plate.”
b. Crystal Lake
The town alleges that Crystal Lake failed to provide adequate information for a finding of
substantial completeness for the same three factors enumerated in § 45-53-6(f)(1)(i) as in the
Pascoag project. 	The town first points to § 45-53-6(f)(1)(i)(B) and lists a variety of alleged
deficiencies with respect to variances, special-use permits, and waivers. The town notes that the
property is located in an aquifer overlay zone and asserts that no “substantive mention or
treatment of this was highlighted in the application’s requested waivers.” In the town’s view, the
application was “substantially insufficient to fulfill the minimum requirements for identification
of waivers and other necessary relief.” The town argues that Crystal Lake did not include waiver
requests 	for 	zoning 	ordinances 	and 	land 	development 	regulations 	that 	pertain 	to: 	land
development review, residential lot requirements, lot dimensional requirements, multifamily
dwellings, yard exceptions, frontage on corner lots, vision clearance at corners, frontage
setbacks, culs-de-sac, drainage calculations, stormwater best management practices, aquifer
overlay zones, and soil and sediment control plans.
Similar to the town’s contention about the Pascoag project, the town also alleges that
Crystal Lake’s letter describing eligibility for state or federal subsidies “contained only a
reference to the project and made no indication that the applicant for this project is Crystal
Lake,” in contravention of § 45-53-6(f)(1)(i)(D). 	The town further argues that Crystal Lake’s
application did not provide an adequate site development plan as required by § 45-53-
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6(f)(1)(i)(E). 	According to the town, the site development plan did not include information
about a required sewer easement or sewer plans and water lines, inadequately described the plan
for condominium units, and proposed an inadequate timetable for project completion. The town
also notes that the application did not provide an adequate report on existing and proposed
conditions for the surrounding area, nor did it include adequate information on street elevations,
traffic patterns, open areas, off-site areas, and off-site wetlands. 	As in connection with the
Pascoag project, the town contends that SHAB’s internal review of the Crystal Lake project
identified many of the same deficiencies set forth by the town.
SHAB’s October 17, 2005 written decision on the Crystal Lake project provided reasons
for its finding of substantial completeness. With respect to § 45-53-6(f)(1)(i)(B), SHAB rejected
the zoning board’s contention that Crystal Lake should have listed additional waivers, variances,
and exceptions in its comprehensive permit application. 	SHAB reasoned that most of the
waivers that the zoning board identified involved lot-size requirements that did not apply
because Crystal Lake was not proposing new lots. SHAB concluded that Crystal Lake “met its
burden of listing sufficiently the relief it requests. 	It may ultimately be shown that additional
relief is required * * *. 	Nonetheless, the scope of the applicable relief can be refined and
resolved fully at the evidentiary hearings” on remand. 	SHAB also noted that Crystal Lake’s
statement that “construction is expected to commence in late 2004 and continue at a pace
dictated by market conditions” was a “fair and reasonable estimate of its intended construction
schedule.”
Turning to the letter Crystal Lake received from RIHMFC and § 45-53-6(f)(1)(i)(D),
SHAB reasoned that Crystal Lake would be proceeding at its peril and would not be able to
move the project forward if it submitted an eligibility letter that applied to a different party.
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SHAB found that the letter was consistent in form and content with other letters that SHAB had
accepted over the last several years and that the letter clearly related to Crystal Lake’s proposed
project. 	SHAB next addressed the sufficiency of Crystal Lake’s site development plans as
related to § 45-53-6(f)(1)(i)(E), noting that the zoning board objected only to the lack of approval
for a sewer easement. 	SHAB reasoned that the zoning board may have raised a legitimate
concern about a discrete issue, but that the parties could address it during evidentiary hearings on
remand. SHAB therefore determined that the single issue of the sewer easement was not enough
to deem Crystal Lake’s site development plans incomplete. 	Finally, at the end of its written
decision, SHAB summarized its findings relating to substantial completeness for Crystal Lake in
the same manner as it did for the Pascoag project.16
As with Pascoag, this Court is again unable to conclude that legally competent evidence
exists in the record in light of SHAB’s adopted definition for substantial completeness. 	Most
glaringly, the comprehensive permit application did not make it clear that Crystal Lake proposed
a condominium project. 	Before this Court, Crystal Lake argues that many of the town’s
references to needed waivers do not apply to the project because the proposal called for a
condominium framework with only one lot. 	A detailed review of Crystal Lake’s application,
however, reveals that its submitted materials contained only obscure references to condominiums
16 SHAB’s Crystal Lake written decision concluded:
“[T]he Zoning Board acknowledged that Crystal Lake provided
sufficient information as to seven of the ten elements in § 45-53-
6(f)(1)(i)(A-J). 	These seven stipulated elements alone arguably
may 	be 	sufficient 	to 	deem 	Crystal 	Lake’s 	application 	to 	be
substantially complete. 	Regardless, Crystal Lake’s Application
also contains sufficient information regarding the three disputed
items. 	SHAB is convinced that Crystal Lake placed considerable
time and effort into the drafting of its Application. There is ample
information 	to 	allow 	the 	parties 	to 	proceed 	with 	evidentiary
hearings addressing the merits of the Application.”
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as of February 13, 2004. 	The “proposed use” section of Crystal Lake’s comprehensive permit
application describes the number of housing units, but it makes no reference to condominiums.17
The comprehensive permit narrative prepared by an engineering firm did not include a reference
to condominium units. 	Nor did the fiscal impact study, or the planning summary report make
any such reference. 	This Court could identify only two instances in which references to
condominiums appeared in Crystal Lake’s submitted materials. The first was a passing reference
to “7 townhouse condominium units” in RIHMFC’s letter to Crystal Lake. The second reference
appeared in small print on the fifth of eight large planning maps that Crystal Lake submitted.
Crystal Lake proposed the construction of 174 housing units on nearly 100 acres of land. 	The
project’s status as a condominium complex is undoubtedly a material, important, and essential
component of a comprehensive permit application.
SHAB’s internal staff review noted other problems with Crystal Lake’s application.
SHAB’s review pointed out that the application did not contain a timetable for completing the
project, nor did it include a report on existing conditions relating to street elevations or traffic
patterns. 	The internal review also stated that Crystal Lake submitted a “very brief, general
statement” on requested variances, special-use permits, and waivers. 	Finally, the review noted
that the town took issue with sewer-line locations, and that the application did not contain a
discussion of off-site open areas or wetlands.
Although SHAB’s deliberations on Crystal Lake’s application were far less extensive
than those on Pascoag’s application, it is clear that they were infected by the same flawed
17 The “grounds for application” section of the comprehensive permit application reflects the
eleventh-hour nature of Crystal Lake’s submission to the zoning board. In that section, Crystal
Lake refers to its proposed project as being consistent with the local needs of the Town of South
Kingstown. 	The project site for the instant proposal, however, sits within the borders of the
Town of Burrillville.
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interpretation of substantial completeness. 	At the time of its September 19, 2005 vote, SHAB
made no mention, much less a specific finding, concerning the project’s status as a single-lot
condominium. The October 17, 2005 written decision merely states:
“SHAB agrees with Crystal Lake’s assessment of the issue.
The developer has met its burden of listing sufficiently the relief
that it requests. It may ultimately be shown that additional relief is
required, as the Zoning Board contends. Nonetheless, the scope of
the applicable relief can be refined and resolved fully at the
evidentiary hearings before the Zoning Board.”
It is this Court’s view, as in the case of Pascoag, that the substance of Crystal Lake’s
comprehensive permit application as of February 13, 2004, leads to the conclusion that Crystal
Lake’s application did not include “all parts or elements” that are “material,” “important,” and
“essential.”
c. East Avenue
The town alleges that East Avenue’s application failed to satisfy substantial completeness
for four of the ten factors listed in § 45-53-6(f)(1)(i). The town argues that East Avenue did not
include a sufficient list of variances, special-use permits, and waivers as stated in § 45-53-
6(f)(1)(i)(B). 	Specifically, the town contends that East Avenue failed to address the following
zoning ordinances and regulations relating to housing development review: minimum lot size
and width restrictions, lots containing wetlands, culs-de-sac, drainage calculations, traffic
circulation, stormwater best management practices, subdivision and land development fees, land
application narratives, and soil erosion and sediment control.
The town also argues that East Avenue failed to satisfy § 45-53-6(f)(1)(i)(C) because it
did not provide sufficient evidence of site control. 	Specifically, the town contends that East
Avenue did not submit evidence that it was qualified to do business in Rhode Island. To support
this assertion, the town presented to SHAB a certificate of nonexistence for East Avenue
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Development Realty, LLC, the name that appeared in East Avenue’s comprehensive permit
application. 	As such, the town argues that SHAB erroneously accepted unsubstantiated
comments from East Avenue that it was qualified to do business in Rhode Island because the
certificate of nonexistence demonstrates there was no legally competent evidence in the record to
support the contention.
The town further alleges that East Avenue failed to provide evidence of eligibility for
state or federal subsidies in violation of § 45-53-6(f)(1)(i)(D). The town alleges that a letter from
RIHMFC in East Avenue’s application contained a reference to the project but did not name East
Avenue as the applicant. Finally, the town contends that East Avenue failed to provide a list of
abutters with the application, in violation of § 45-53-6(f)(1)(i)(J). The town argues that SHAB’s
finding of substantial completeness without any evidence of an abutters list demonstrates its
predisposition to deem the applications substantially complete without competent evidence.
SHAB’s October 17, 2005 written decision on the East Avenue project delineated
reasoning for its finding of substantial completeness. 	With respect to the list of requested
waivers, variances, and special-use permits under § 45-53-6(f)(1)(i)(B), SHAB’s written decision
noted that East Avenue’s comprehensive permit application included the town zoning ordinance
from which it sought relief. 	SHAB concluded that East Avenue sufficiently identified its
requests for relief, and that any disputes about the need for additional relief adequately could be
addressed on remand during evidentiary hearings before the town zoning board. 	SHAB also
noted that East Avenue’s statement that “construction is expected to commence in late 2004 and
continue at a pace dictated by market conditions” was a “fair and reasonable estimate of its
intended 	construction 	schedule.” 	Turning 	to 	the 	evidence 	of 	site 	control 	and 	§ 45-53-
6(f)(1)(i)(C), SHAB addressed the town’s argument that East Avenue’s official corporate name
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listed in its comprehensive permit application did not exist as a corporate entity in Rhode Island.
SHAB dismissed the argument as a “red herring,” reasoning that the zoning board “has not
submitted any credible evidence into the record to prove that the developer is not qualified to do
business in Rhode Island.”
SHAB next addressed East Avenue’s eligibility for a state or federal subsidy and § 45-53-
6(f)(1)(i)(D). 	SHAB employed similar reasoning as it used in the Pascoag and Crystal Lake
written decisions, finding that the absence of East Avenue’s name from RIHMFC’s letter was
not a material issue. 	SHAB concluded that the letter was consistent in form and content with
other letters that SHAB had accepted over the last several years and that the letter clearly related
to East Avenue’s proposed project. 	SHAB explained that East Avenue would be proceeding at
its peril and would not get its project off the ground if it submitted an eligibility letter that
applied to a different party.
With respect to the absence of an abutters list and § 45-53-6(f)(1)(i)(J), SHAB noted that
East Avenue said that it did not submit the list with its application so that it could submit a
current list when a public hearing was scheduled. SHAB concluded that the lack of the abutters
list was not fatal to the determination of substantial completeness for East Avenue’s application,
reasoning that the list could be submitted properly at the outset of the evidentiary hearings after
remand to the zoning board. 	Finally, at the end of its written decision, SHAB summarized its
findings relating to substantial completeness for East Avenue in the same manner as it did for the
Pascoag and Crystal Lake projects.18
18 SHAB’s East Avenue written decision concluded:
“[T]he Zoning Board acknowledged that East Avenue provided
sufficient information as to six of the ten elements in § 45-53-
6(f)(1)(i)(A-J). 	These six stipulated elements alone arguably may
be sufficient to deem East Avenue’s application to be substantially
complete. 	Regardless, East Avenue’s Application also contains
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As with Pascoag and Crystal Lake, this Court is unable to conclude that legally
competent evidence exists to support SHAB’s finding of substantial completeness for the East
Avenue project. First and most evidently, East Avenue’s application failed to include a list of
abutters. Given that § 45-53-6(f)(1)(i)(J) specifically lists an abutters list as one of ten factors in
the substantial completeness calculus, East Avenue’s promise to submit the list at a public
hearing after February 13, 2004, is of no moment.
The dearth of information in East Avenue’s application concerning requested variances
and special-use permits under the zoning ordinance, as well as the lack of any requested waivers
from subdivision regulations, is also significant. 	Moreover, detailed plans were not submitted,
nor was relief requested, relative to regulations concerning drainage systems, stormwater
management practices, or soil erosion and sediment control. East Avenue’s requested deferral of
the submission of fiscal impact reports and traffic reports until the public hearing stage of the
review process is also noteworthy. As the town argued before this Court, the limited amount of
information presented by East Avenue made it difficult to understand the project’s impact on the
town.
Finally, we note that East Avenue’s comprehensive permit application, submitted on or
about January 22, 2004, listed the owners of the site as Donald P. St. Angelo, Sr. and Richard St.
Angelo. 	The applicant name in the application and its supporting materials appeared as East
Avenue Development Realty, LLC. As evidence of site control in the application, East Avenue
stated, “See Real Estate Agreement information attached. 	Applicant is nominee of ‘Buyer’.”
sufficient 	information 	regarding 	its 	list 	of 	requested 	relief,
evidence 	of 	site 	control 	and 	funding 	eligibility. 	SHAB 	is
convinced that East Avenue placed considerable time and effort
into the drafting of its Application. There is ample information to
allow the parties to proceed with evidentiary hearings addressing
the merits of the Application.”
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The attached real estate agreements, in turn, named the two Mr. St. Angelos as sellers and
Empire Acquisition Group, “or its nominee or assignee” as the buyer. At the time East Avenue
submitted its application, however, East Avenue Development Realty, LLC, was not qualified to
do business in Rhode Island,19 and, therefore, could not stand as Empire Acquisition Group’s
nominee because it did not exist as a corporate entity.
This Court concludes, therefore, as in the cases of Pascoag and Crystal Lake, that a
review of East Avenue’s comprehensive permit application as of February 13, 2004, did not meet
SHAB’s definition of substantial completeness—viz., it did not contain “all parts or elements”
that are “material,” “important,” and “essential.”
V
Conclusion
It is clear to us that the General Assembly unmistakably established a very high bar to the
use of comprehensive permit applications by for-profit developers when it imposed the
moratorium as of February 13, 2004, a moratorium required expressly for the protection of the
public health and welfare. 	The substantial completeness determination was not intended as a
savings clause to grandfather those applicants who were able to meet the deadline by filing an
application sufficient only to “g[e]t up to the plate” or “to give the town some idea as to what
was being proposed.” 	Such applicants were not entitled to proceed under the pre-moratorium
standards; they were, however, entitled to refile their applications when the moratorium
terminated.
19 The Office of the Secretary of State of the State of Rhode Island and Providence Plantations
issued the certificate of corporate non-existence on July 22, 2004. 	A subsequent filing in this
Court indicates that East Avenue Development Company, LLC came into legal existence on
February 2, 2004. Further, East Avenue’s legal name did not match the name it submitted in its
comprehensive permit application.
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We are mindful of the difficulties SHAB faced as it struggled to implement an
appropriate analysis in the discharge of its statutory duty to determine whether comprehensive
permit applications filed before February 13, 2004, were substantially complete. It is, moreover,
evident to us that many members of SHAB were very experienced in the practicalities of
marshaling land development projects through the myriad municipal agencies and boards from
which approvals must be obtained. 	The streamlined process created by the Low and Moderate
Income Housing Act, however, was anything but a traditional land development permitting
process, particularly as evidenced by the moratorium suspending its use by for-profit developers.
It is our opinion that the General Assembly intended to preserve only those applications that, in
SHAB’s definition, contained all parts or elements that are material, important, and essential.
Those applicants whose applications were not substantially complete were not entitled to proceed
under the pre-moratorium standards.
Although we grant deference to the definition of substantial completeness SHAB adopted
in its written decisions of October 17, 2005, we conclude that SHAB acted arbitrarily and
capriciously by misapplying the definition to the three applications under review. 	We further
conclude with respect to all three applications that SHAB’s ultimate findings of substantial
completeness were not supported by legally competent evidence. 	Accordingly, we reverse the
decisions of the State Housing Appeals Board, to which we remand the papers in the case.
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