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Define “Act”
by Ron Davis

Plans for a major new shopping center in Rhode Island have gone awry as a result of a court decision that sympathizes with opponents of the project.

The plans called for construction of the shopping center in Tiverton, and the developer had applied to the Tiverton Planning Board, hoping for approval of the master plan for the development. As required by law, the board accepted the application, setting in motion a “120-day clock,” by the end of which the board would vote to approve or disapprove the application.

Also as required by law, the planning board must make its decision before the 120-day period ends. Otherwise, the board must release a certificate approving the master plan.

The planning board subsequently voted unanimously to deny the master plan application for the shopping center. But board officials failed to file a written decision until after the 120-day deadline had passed. That failure prompted the developer to demand a certificate that would allow him to proceed with construction.

In response, the planning board maintained that the requirement that the board rule on the master plan within the 120-day period does not also require that the board issue a written decision within that time frame.

In fact, the law states only that the planning board must “act” within the 120-day period and that failure to “act” within that time frame constitutes approval of an application for a project.

Therefore, the Supreme Court of Rhode Island sided with the planning board, explaining, “We do not conclude that it is clear that the failure to act within the prescribed period incorporates the requirement that the written decision be issued within 120 days under penalty of default approval.... As defined by the Random House Unabridged Dictionary, ‘act’ means ‘to do something.’ That definition clearly encompasses a boarder scope of behavior than merely filing a written decision. In fact, in this case, the planning board clearly did do ‘something.’ Within the 120-day period, the planning board voted to deny the master plan application.... Imposing the drastic sanction of the approval of an application for failing to meet the deadline for filing such a substantial written decision does not further the goals of the law, but instead serves to remove review from the hands of local officials by approving development projects simply because the planning board was unable to meet procedural strictures.” (New England Development, LLC v. Berg, 913 A.2d 363)

Decision: January 2007
Published: March 2007



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