Opinion
C. A. PC-2021-01849
06-05-2024
ISA REEDY ESTATE C/O MAY KERNAN and EDWIN WARNER, Appellants, v. TOWN OF JOHNSTON ZONING BOARD OF REVIEW; THOMAS LOPARDO, in his capacity as Chair of the Town of Johnston Zoning Board of Review; ANTHONY PILOZZI, in his capacity as a Vice Chair of the Town of Johnston Zoning Board of Review; JOSEPH ANZELONE, in his capacity as a Member of the Town of Johnston Zoning Board of Review; RICHARD LOBELLO, in his capacity as a Member of the Town of Johnston Zoning Board of Review; RICHARD FASCIA, in his capacity as a Member of the Town of Johnston Zoning Board of Review; and JOSPEH CHIODO, in his capacity as the Town of Johnston Finance Director, Appellees.
For Plaintiff: John O. Mancini, Esq. For Defendant: Joseph R. Ballirano, Esq
Providence County Superior Court
For Plaintiff: John O. Mancini, Esq.
For Defendant: Joseph R. Ballirano, Esq
DECISION
LANPHEAR, J.
Before this Court is Isa Reedy Estate c/o May Kernan and Edwin Warner's appeal from the March 10, 2021 decision of the Johnston Zoning Board of Review denying its application for dimensional variances. Jurisdiction is pursuant to G.L. 1956 § 45-24-69. For the reasons set forth herein, Appellants' appeal is denied, and the Board's decision is affirmed.
I
Facts and Travel
On February 1, 2021, Edwin Warner (the Reedy Estate) filed an application with the Board to construct a new 1,096 square-foot, three-bedroom, single-family home on a vacant, irregular shaped lot located at 0 Steere Drive, Johnston, Rhode Island, Assessor's Plat 62, Lot 72 (the Property). The Property, located in an R-40 Zoning District, was purchased by Ms. Kernan's family at a tax sale and is a substandard lot of record. Id. at 2; see also R. (Hr'g Tr. 19, Feb. 25, 2021 (Tr.)); Johnston Code of Ordinances Ch. 340, Art. X, § 340-62(A). The Reedy Estate, a home construction builder, seeks dimensional relief for: (1) lot size, as the required dimension is 40,000 square feet and the lot is 6,573 square feet; (2) lot frontage, as the required frontage is 140 feet and the lot frontage is 60 feet; (3) lot width, as the required width is 140 feet and the lot width is 65 feet; (4) lot coverage, as the required coverage is 15 percent and the lot coverage is 16.7 percent; (5) front yard, as the required front yard is 40 feet and the lot front yard is 39 feet; (6) rear yard, as the required rear yard is 75 feet and the lot rear yard is 35 feet; (7) 24 feet of left side yard relief, as the required left side yard is 35 feet; and (8) 24 feet of right side yard relief, as the required right side yard is 35 feet. See R. (Application) 3.
The R-40 Zoning District "covers a large portion of the Town into which urban-type development should logically expand as the need arises. This district is characterized by a commingling of open land interspersed with residential uses." Town of Johnston Code of Ordinances (Code of Ordinances) Ch. 340, Art. II, § 340-5(A).
On February 25, 2021, the Board held a hearing on the Application. The Reedy Estate presented a land use expert, Edward Pimentel from Pimentel Consulting, who provided testimony and a written report. Mr. Pimentel opined that, although the R-40 District designation seems to be a misnomer considering the size of the lots in the neighborhood, "the home proposed is in character with the neighborhood [and] meets all of the requisite burdens for granting of the relief sought . . ." and "[t]he [Reedy Estate] should therefore not be denied the legal right to develop the Property ...." Tr. At 11:9 11; R. (Pimentel Consulting Report) 11. The town solicitor questioned Mr. Pimentel regarding the effect that the proposed home would have on property values in the neighborhood, as other homes are larger. Mr. Pimentel responded that property valuation was not his area of expertise but added that the interests of the parties needed to be balanced; if a bigger footprint was proposed, more relief would need to be requested and the proposed home is only 15 percent smaller than others in the area. No real estate expert testified on values.
At the hearing, the Board stated that it had not been provided with, and thus had not read, the Pimentel Consulting Report prior to the hearing, although the Reedy Estate contends that the Report was provided in advance.
The Board heard additional testimony from Nicholas Veltri, a surveyor, Ms. Kernan, and another family member, James Reedy, all on behalf of the Reedy Estate. Mr. Veltri testified as to the proposed leaching wastewater system on the Property, to which the Board noted its concern due to wells in the area. The Board questioned Ms. Kernan regarding the history of the Property, to which she reiterated that her family acquired the Property at a tax sale and that her family "would like to sell the property. [They] have a financial need." (Tr. at 19:2-5, 13-18.) At several points, Ms. Kernan and Mr. Reedy stated they were planning to sell the Property and use the proceeds to construct an upgraded sewer system on the family's other properties. Id. at 19:19-23. As one relative stated, "Sadly[,] [n]ow the time has come when we would really like to benefit from the sale of the property so we can enhance our other property in Johnston." Id. at 26:23-27:2. The Board noted its concern with these intentions. Board member Fascia found Appellants "are about to sell this house or build this house for further financial gain." Id. at 25:20-22. Mr. Fascia added that the proposed home would create "a negative impact on the surrounding homes." Id. at 29:18-20. Therefore, Mr. Fascia made a motion to deny the Application. Id. at 30:12-16.
The Board filed its decision denying the Application on March 10, 2021. In its decision, the Board noted the narrative between the town solicitor and Mr. Pimentel regarding neighboring property values and added that Mr. Pimentel was not a real estate expert. The Board referenced Mr. Fascia's motion to deny the Application which stated that "[t]his project is obviously for financial gain" and "it presents the possibility of some negative impact on the abutting owners." (Decision at 3).
Appellants appealed the Board's decision to this Court on March 16, 2021.
II
Standard of Review
Section 45-24-69(d), which governs the Superior Court's review of local zoning board decisions, provides:
"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." Section 45-24-69(d).
On review, the Court must "examine the whole record to determine whether the findings of the zoning board were supported by substantial evidence." Apostolou v. Genovesi, 120 R.I. 501, 507, 388 A.2d 821, 824 (1978). "'Substantial evidence . . . means 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."' Lischio v. Zoning Board of Review of Town of North Kingstown, 818 A.2d 685, 690 n.5 (R.I. 2003) (quoting Caswell v. George Sherman Sand &Gravel Co., Inc., 424 A.2d 646, 647 (R.I. 1981)). Accordingly, the Court must limit its review "to a search of the record to determine if there is any competent evidence upon which the agency's decision rests. If there is such evidence, the decision will stand." E. Grossman &Sons, Inc. v. Rocha, 118 R.I. 276, 285-86, 373 A.2d 496, 501 (1977).
III
Statutory Requirements for a Variance
Appellants appeal the denial of the Application for a dimensional variance.
"In granting a variance, the zoning board of review . . . shall require that evidence to the satisfaction of the following standards is entered into the record of the proceedings:
"(1) That the hardship from which the [Reedy Estate] seeks relief is due to the unique characteristics of the subject land or structure and not to the general characteristics of the surrounding area; and is not due to a physical or economic disability of the [Reedy Estate], excepting those physical disabilities addressed in § 45-24-30(a)(16);
"(2) That the hardship is not the result of any prior action of the [Reedy Estate] and does not result primarily from the desire of the [Reedy Estate] to realize greater financial gain;
"(3) That the granting of the requested variance will not alter the general character of the surrounding area or impair the intent or purpose of the zoning ordinance or the comprehensive plan upon which the ordinance is based; and
"(4) That the relief to be granted is the least relief necessary." Section § 45-24-41(d).
In addition, the board must find "that the hardship suffered by the owner of the subject property if the dimensional variance is not granted amounts to more than a mere inconvenience." Section 45-24-41(e)(2). As to each of the above requirements, the burden is on the Reedy Estate "seeking relief . . . to prove the existence of the conditions precedent to a grant of relief." DiIorio v. Zoning Board of Review of City of East Providence, 105 R.I. 357, 362, 252 A.2d 350, 353 (1969).
IV
Analysis
Appellants claim there was substantial evidence in the record that all the above factors were met and that, therefore, the Board erred not only in denying the Application, but also in its failure to issue a detailed decision. In support of this contention, Appellants primarily rely on a recitation of Mr. Pimentel's Consulting Report as factual evidence and this court's decision in Ray Reedy, Inc. v. Town of North Kingstown, No. WC-2007-0664, 2009 WL 3328519 (R.I. Super. June 8, 2009) (hereinafter "the North Kingstown case"). In the North Kingstown case, the Reedy Estate called three experts, including a land planning and zoning expert, a professional engineer and land surveyor, and a real estate expert to testify before the zoning board of review in support of its application for dimensional variances and a special use permit. Ray Reedy Inc., 2009 WL 3328519 at *2. In its decision denying the application, the board made only five findings of fact, taken from the application itself, and concluded that "the applicant has not entered evidence into the record to the satisfaction of the applicable standards ...." Id. at *5. The Superior Court overturned the decision of the board because, among other things, the board's decision was conclusory and insufficient, "leav[ing] it to the Court to guess which facts led the Board to its conclusion and why" and because there was substantial evidence in the record to support the board's finding that the applicant had proved each of the factors. Id. at *5, *18.
Appellant's comparison to the board decision in the North Kingstown case is misguided. First, unlike the board in North Kingstown, the Johnston Board did more than state that there was insufficient evidence presented by the Reedy Estate. Here, the Board specifically based its denial on its conclusions that the Reedy Estate's primary motivation was financial gain and that granting relief would alter the general character of the surrounding area. Further, the Board needed only to find that the Reedy Estate failed to meet its burden as to one factor in order to deny the Application. Although the Board's decision should have been more thorough, it specified two factors on which it based its denial.
Turning to whether the hardship results from the Reedy Estate's desire to realize financial gain, the Board explicitly stated that "[t]his project is obviously for financial gain" and "is strictly for financial gain." (Board's Decision 3.) The Board also found that "this particular piece of property was purchased . . . 60 years ago, [there were] ample opportunities to do other things over that period of time." Id. At the hearing, both Ms. Kernan and Mr. Reedy testified that they hoped to build a home on the Property in order to sell it. Ms. Kernan also acknowledged that her family bought the Property at a tax sale. Neither Ms. Kernan nor Mr. Reedy testified that they attempted to sell the Property in its current state, as a vacant lot. Accordingly, based on their testimony, the Board did not err in concluding that the hardship primarily was due to the desire to realize greater financial gain. The Board had sufficient evidence to make this finding.
Next, the Board found that granting relief would alter the general characteristics of the neighborhood, stating that the project "presents the possibility of some negative impact on the abutting owners." (Decision 3.) The Board cites Mr. Pimentel's testimony and Consulting Report, where he suggested that the "home proposed is in character with the neighborhood." Id. at 2. Mr. Pimentel's Consulting Report contains his neighborhood analysis of what appears to be all the properties within 200 feet of the Property. He notes that he reviewed 47 lots, that the average lot size is 13,194 square feet, and that the average building footprint is 1,578 square feet. Viewing maps in the record, the Court notes a lot across the street is 47,976 square feet, the lot directly behind the Property is 19,000 square feet, and the neighborhood is much larger than that which Mr. Pimentel reviewed. ("200 Ft. Radius Plan" attached to Pimentel Consulting Report, Page 23 of Certified Record.) Mr. Pimentel even conceded that the proposed home is much smaller than all the houses in the area.
In justification for the denial on this ground, the Board primarily relied on its concern that granting the requested relief would impact neighboring property values. The Reedy Estate did not provide a real estate expert as it did in the North Kingstown case. Further, in the North Kingstown case, the neighborhood contained multiple homes that were smaller in size and all the lots in the neighborhood had less than the required lot size for the zoning district. Regardless, it is unclear whether such testimony was even necessary to the Board's decision. See Restivo v. Lynch, 707 A.2d 663, 671 (R.I. 1998) ("[T]here is no talismanic significance to expert testimony. It may be accepted or rejected by the trier of fact . . .[,]" particularly when "[t]he subject matter [is] not so arcane that inferences from factual lay testimony could not be drawn by members of the council based, in part, on their own expertise."). Based on the substantial evidence in the record, the Court cannot conclude that the Reedy Estate met its burden to establish that the relief requested would not alter the general character of the neighborhood.
Of note, the Board did not pass on the remaining three factors-whether the "hardship from which the [Reedy Estate] seeks relief is due to the unique characteristics" of the land, § 45-24-41(d)(1), whether the relief sought would be "the least relief necessary," § 45-24-41(d)(4), and whether the hardship posed by not granting the variances would "amount to more than a mere inconvenience," Section 45-24-41(e)(2). Evidence existed in the record that the Reedy Estate showed that the hardship resulted from the unique characteristics of the land, in that the lot is quite small; however, the Reedy Estate did not provide support for such a finding other than Mr. Pimentel's Consulting Report. Further, there is no evidence in the record beyond conclusory statements that the relief is the least relief necessary, and that denial would result in more than a mere inconvenience. The Reedy Estate produced no evidence that it had attempted to sell the vacant lot or had considered a smaller home, or any explanation as to the reasons why it chose the home as it was proposed. Therefore, unlike the North Kingstown case, the Reedy Estate in Johnston did not meet its burden in proving the conditions precedent to grant the relief based on these factors. See DiIorio, 105 R.I. at 362, 252 A.2d at 353.
Although the Board should have provided a more thorough decision, including a discussion of the other factors, there is substantial evidence in the record to support the Board's finding that the hardship was due to the desire for financial gain and that the relief, if granted, would alter the general character of the neighborhood. Thus, the Court finds that the Board's decision was justified.
As Appellants are not the prevailing party in this case, they therefore are not entitled to attorney's fees and litigation costs under the Equal Access to Justice Act. See G.L. 1956 § 42-92-3(a).
V
Conclusion
While the Court encourages local boards to discuss each of the statutory factors, a remand here is unnecessary. The appeal is denied and the Board's decision denying the Application for dimensional variances is affirmed.