Opinion
C.A. WC-2017-0171
04-04-2018
CHRISTOPHER CALLACI Plaintiff/Appellant v. ZONING BOARD OF REVIEW OF THE TOWN OF EXETER, TRADE WIND INVESTMENTS, LLC AND CAROL J. MANN Defendants/Appellees
For Plaintiff: Kelly M. Fracassa, Esq. For Defendant: Stephen J. Sypole, Esq.
Washington County Superior Court
For Plaintiff: Kelly M. Fracassa, Esq.
For Defendant: Stephen J. Sypole, Esq.
DECISION
TAFT-CARTER, J.
Christopher Callaci (hereinafter Mr. Callaci)-an abutting landowner- appeals the March 24, 2017 decision of the Zoning Board of Review of the Town of Exeter (Zoning Board) granting Trade Wind Investments, LLC's petition for dimensional variances to construct a house on property located at 350 William Reynolds Road, Exeter, Rhode Island. The Zoning Board objects. Jurisdiction is pursuant to G.L. 1956 § 45-24-69. For the reasons set forth herein, this Court remands this matter to the Zoning Board to make written findings of fact and conclusions of law.
I Facts and Travel
Trade Wind Investments, LLC (Trade Wind) of 567 South County Trail, Suite 111, Exeter, Rhode Island submitted an application to the Town of Exeter for dimensional relief for property located at 350 William Reynolds Road, Exeter, Rhode Island (the Property) on January 18, 2017. (Zoning Appl.) The Property, owned by Carol J. Mann, consists of .65 acres or 28, 314 square feet. (Zoning Appl.; Tr. at 11.) It is situated in Zoning District CR-5 and is a preexisting, nonconforming plot of land. (Zoning Appl.; Tr. at 11-12.) Trade Wind sought to construct a 1600 square foot, three-bedroom, single-family dwelling on the Property. (Decision; Zoning Appl.; Tr. at 4.) The zoning application requested dimensional relief "under Exeter Zoning Ordinance, Article II, Section 2.4.2.1 (acreage); 2.4.2.2 (street frontage); 2.4.2.4 (front setback); 2.4.2.6 (left and right side setback)[;] and 2.4.2.7 (rear setback) to construct a 3 bedroom single family dwelling." (Decision; Zoning Appl.) Trade Wind specifically requested the following dimensional relief:
| Ordinance Requirement | Variance Requested | |
| (1) | Min. lot area .................................... 5 | acres ....................................... 4.35 acres |
| (2) | Min. frontage ................................... 350 | ft. . ......................................... 220 ft. |
| (3) | Min. front yard setback .................. 100 | ft. . .......................................... 14 ft. |
| (4) | Min. right side yard setback ........... 100 | ft. . .......................................... 62 ft. |
| (5) | Min. left side yard setback ............. 100 | ft. . .......................................... 59 ft. |
| (6) | Min. rear yard setback ..................... 150 | ft. . .......................................... 49 ft. |
A public hearing was held by the Zoning Board on March 9, 2017. At the conclusion of the hearing, the Zoning Board granted Trade Wind's application by a vote of four to one with Board Member McMillan opposing Trade Wind's application. (Tr. at 74.) However, the decision granted the application by a vote of five to zero. (Decision.) The approval was conditioned on the building of the proposed dwelling in accordance with the plans submitted to this Zoning Board on the hearing date. (Tr. at 72-74.)
The Zoning Board recorded its written decision on March 24, 2017. (Decision.) Mr. Callaci filed a timely appeal on April 12, 2017. (Complaint.) The Zoning Board filed its objection on December 6, 2017. (Zoning Board Objection.)
II Standard of Review
Rhode Island General Law § 45-24-69 provides the Superior Court with the specific authority to review zoning board decisions. The statute sets forth that:
"The court shall not substitute its judgment for that of the zoning board of review as to the weight of the evidence on questions of fact. The court may affirm the decision of the zoning board of review or remand the case for further proceedings, or may reverse or modify the decision if substantial rights of the appellant have been prejudiced because of findings, inferences, conclusions, or decisions which are:
"(1) In violation of constitutional, statutory, or ordinance provisions;
"(2) In excess of the authority granted to the zoning board of review by statute or ordinance;
"(3) Made upon unlawful procedure;
"(4) Affected by other error of law;
"(5) Clearly erroneous in view of the reliable, probative, and substantial evidence of the whole record; or
"(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." Sec. 45-24-69(d); see Irish P'ship v. Rommel, 518 A.2d 356, 359 (R.I. 1986) (matter was remanded to the Zoning Board of Review).
Judicial review of an administrative action is "essentially an appellate proceeding." Notre Dame Cemetery v. R.I. State Labor Relations Bd., 118 R.I. 336, 338, 373 A.2d 1194, 1196 (1977). The Superior Court must "examine the whole record to determine whether the findings of the zoning board were supported by substantial evidence." Lloyd v. Zoning Bd. of Review for Newport, 62 A.3d 1078, 1083 (R.I. 2013) (citing Apostolou v. Genovesi, 120 R.I. 501, 507, 388 A.2d 821, 824 (1978)). "Substantial evidence is defined as 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." Iadevaia v. Town of Scituate Zoning Bd. of Review, 80 A.3d 864, 870 (R.I. 2013) (citing Pawtucket Transfer Operations, LLC v. City of Pawtucket, 944 A.2d 855, 859 (R.I. 2008) (internal quotes omitted)).
III The Zoning Board Decision
It is undeniable that "[t]he zoning board of review shall include in its decision all findings of fact and conditions, showing the vote of each participating member. . . ." Sec. 45-24-61. The purpose of this statute is to allow the decision to be reviewable by the Superior Court. Thorpe v. Zoning Bd. of Review of N. Kingstown, 492 A.2d 1236, 1236-37 (R.I. 1985) ("This court has stated on numerous occasions that a zoning board of review is required to make findings of fact and conclusions of law in support of its decisions in order that such decisions may be susceptible of judicial review."). The board must write a comprehensive decision, but:
"The minimal requirements for a decision of a zoning board of review would be the making of findings of fact and the application of legal principles in such a manner that a judicial body might review a decision with a reasonable understanding of the manner in which evidentiary conflicts have been resolved and the provisions of the zoning ordinance applied." Id. at 1237.
The Court must review the decision, not for form, but content, and ensure that the "board members resolved the evidentiary conflicts, made the prerequisite factual determinations, and applied the proper legal principles." Irish P'ship, 518 A.2d at 358. "These basic requirements 'have to do with facilitating judicial review, avoiding judicial usurpation of administrative functions, assuring more careful administrative consideration, helping parties plan their cases for rehearings and judicial review, and keeping agencies within their jurisdiction.'" Cullen v. Town Council of Lincoln, 850 A.2d 900, 904 (R.I. 2004) (quoting Hooper v. Goldstein, 104 R.I. 32, 44, 241 A.2d 809, 815 (1968)).
It is well settled that if the zoning board does not provide a decision with proper findings of fact and conclusions of law, "the court will not search the record for supporting evidence or decide for itself what is proper in the circumstances." Irish P'ship, 518 A.2d at 359 (citing Hooper, 104 R.I. at 44, 241 A.2d at 815). Rather, the Court "will either order a hearing de novo or remand in order to afford the board an opportunity to clarify and complete its decision." Hooper, 104 R.I. at 44, 241 A.2d at 815-16. In Bernuth v. Zoning Bd. of Review of New Shoreham, 770 A.2d 396, 402 (R.I. 2001), the Rhode Island Supreme Court remanded the zoning board's decision finding that
"[a]lthough the zoning board in this case made findings of fact regarding other statutory requirements for a dimensional variance, it made no findings of fact specifically addressing the requirements of § 45-24-41(d)(2). There was no discussion in the written decision of what the board considered to be the hardship suffered by the applicants, nor was there any discussion of reasonable alternatives or a lack thereof necessitating relief." Id. at 402
Here, the Zoning Board's Decision sets forth five criteria as a basis for granting the Application. (Decision.) However, the Decision fails to set forth sufficient findings of fact established by the collective Zoning Board addressing the dimensional variance requirements set out in § 45-24-41. (Decision.) For example, the Zoning Board makes the following findings:
"1) Based upon the testimony that the surrounding area is comprised of similarly sized lots with single family homes similar to the one proposed and that the proposed home would be consistent with the residential zoned area, the hardship from which the applicant seeks relief is due to the unique Characteristics of the subject land and not to the general characteristics of the surrounding area and not due to a physical or economic disability of the applicant.
"2) In light of the above described testimony, including testimony that in planning the proposed home, the applicant has sought to minimize the need for variance relief as much as possible and that the subject lot has not been subdivided, the hardship is not the result of any prior action of the applicant and does not result primarily from the desire of the applicant to realize greater financial gain.
"3) Based upon the testimony that the proposed home will be consistent with the character of the surrounding area and that a similar home has previously been constructed in the area several times, the granting of the requested variances will not alter the general character of the surrounding area or impair the intent of purpose of the Exeter zoning ordinance or the Exeter comprehensive plan.
"4) Based upon the testimony that the applicant has sought to minimize the need for dimensional relief as much as possible in the proposed plan, the relief to be granted is the least relief necessary.
"5) In light of the testimony stating that as to this residential use zoned lot, if the application were denied, it would have no other use, the hardship that will be suffered by the owner of the subject property if the dimensional variances are not granted shall amount to more than a mere inconvenience." (Decision.)
"Those findings must, of course, be factual rather than conclusional, and the application of the legal principles must be something more than the recital of a litany." Irish P'ship, 518 A.2d at 358-59. In addition, the Zoning Board's Decision fails to set forth "the vote of each participating member, and the absence of a member or his or her failure to vote" as set forth in § 45-24-61, as well as any conditions placed on the application by the Zoning Board. Sec. 45-24-61 (requiring the board to "include in its decision all findings of fact and conditions, showing the vote of each participating member, and the absence of a member or his or her failure to vote"). Here, the Decision merely states that the Zoning Board voted in favor of granting the application with a vote of 5-0, failing to mention the condition placed on this approval. (Decision.)
The standard of review that the Zoning Board must adhere to in granting the petition is § 45-24-41. For the purposes of this review, the Decision is insufficient. Bernuth, 770 A.2d at 402. The Zoning Board must develop and articulate which facts support the granting of the Decision and must also set forth in its Decision how each board member chooses to vote. Sec. 45-24-61; Bernuth, 770 A.2d at 402 ("[T]he zoning board's decision was conclusional and failed to apply the proper legal principles, thereby making judicial review of the board's work impossible.") The failure to include findings of fact and conclusions of law render this Court's task on appeal impossible. Lloyd, 62 A.3d at 1083 (citing Apostolou, 120 R.I. at 507, 388 A.2d at 824). Accordingly, this Court remands this matter to the Zoning Board for a decision containing specific findings of fact and conclusions of law.
IV Conclusion
After review of the entire record, this Court finds the Decision of the Zoning Board is in violation of statutory and ordinance provisions. For these reasons, the matter is remanded to the Zoning Board for findings of fact and conclusions of law. This Court will retain jurisdiction. Counsel shall submit the appropriate order for entry.