Opinion
C. A. WC-2019-0237
09-17-2020
FRENCHTOWN INVESTORS, LLC Appellant v. THE ZONING BOARD OF REVIEW OF THE TOWN OF NORTH KINGSTOWN; JAMES LATHROP, in his capacity as the Town of North Kingstown Finance Director; DRYVIT SYSTEMS, INC., and EIP PRECISION PARK, LLC Appellees
For Plaintiff: Joelle C. Rocha, Esq. Nicole Martucci, Esq. For Defendant: Nicholas J. Hemond, Esq. Matthew F. Callaghan, Jr., Esq.
For Plaintiff: Joelle C. Rocha, Esq. Nicole Martucci, Esq.
For Defendant: Nicholas J. Hemond, Esq. Matthew F. Callaghan, Jr., Esq.
DECISION
TAFT-CARTER, J.
Before this Court is an appeal from an April 25, 2019 decision (Decision) of the Town of North Kingstown Zoning Board of Review (the Board) granting Appellee Dryvit Systems Inc. (Dryvit) the issuance of dimensional variances. Jurisdiction is pursuant to G.L. 1956 §§ 45-24-69, 45-24-69.1, and 42-92-1 et seq.
I
Facts and Travel
Appellant, Frenchtown Investors, LLC is a Rhode Island Limited Liability Company. Compl. ¶ 1. Appellant is the owner of properties located in (1) North Kingstown, Tax Assessor's Plat 177, Lots 29 and 30 (consisting of approximately 33.84 acres); and (2) East Greenwich, Tax Assessor's Plat 17, Lot 10 on Map 31 (consisting of approximately 10.25 acres). Id. The Board is a municipal Board. Id. ¶ 2. John Gibbons is the Chairperson of the Board. Id. Appellee James Lathrop (Lathrop) is the Finance Director of the Town of North Kingstown and is being sued in his capacity as such. Id. ¶ 3. Dryvit is the applicant of the dimensional variances. Id. ¶ 4. Dryvit produces and sells components of Exterior Insulation and Finish Systems (EIFS) to the construction industry. (Application attachment at 1.)
Dryvit is a global business with manufacturing plants in a number of North American locations, as well as in Europe. Id. In support of Dryvit's business growth expansion, Dryvit wants to consolidate three of its manufacturing plants (Toronto, Canada, West Warwick, Rhode Island, and Cranston, Rhode Island) into one location at 200 Frenchtown Road, North Kingstown, Rhode Island. Id. Storage of cements is required for Dryvit's manufacturing process. Id. The storage of cements is done by utilizing silos for producing EIFS. Id. Appellee EIP Precision Park, LLC (EIP) is the record owner of the property located at 200 Frenchtown Road, otherwise known as Assessor's Plat 177, Lot 003 (the Property). Compl. ¶ 5.
On January 29, 2019, Dryvit applied for dimensional variances to construct eight (8) silosranging in size from 47' to 64.8' (the Project). Id. ¶ 7. The maximum structure height in a Light Industrial zone is 35'; the building itself is 26' tall. (Planning Commission Report at 3.) The proposed height of silos is in excess of 35'. Compl. ¶ 7.
See Application for Development Plan Review
Silo Number
Material
Silo Height
Fill Pipe Height
1
Type SF-10 Cement
50.5 ft
57.9 ft
2
Glass Sand
50.5 ft
57.9 ft
3
Type 30 Cement
50.5 ft
57.9 ft
4
#18 Grout Sand
57.6 ft
64.8 ft
5
Glass Sand
57.6 ft
64.8 ft
6
#20 Grout Sand
57.6 ft
64.8 ft
7
Calcium Carbonate
39.0 ft
47.0 ft
8
Kaolin Clay
39.0 ft
47.0 ft
On March 5, 2019, the North Kingstown Planning Commission convened to discuss a modification of Dryvit's Development Plan Review. (Planning Commission Report at 2.) The application was before the Planning Commission because the property is zoned Light Industrial and is located within the groundwater recharge and wellhead overlay district, which requires Development Plan Review by the Planning Commission. Id. at 3. Supervising Planner Maura Harrington stated that Dryvit's proposal is consistent with the Light Industrial zoning and with the Commercial Comprehensive Plan. Id. Ms. Harrington explained that the Planning Commission would have to make a recommendation to the Board because the property lies over the Town Wellhead. Id. The nearest residential property is more than 1400' away. Id. Dryvit clarified that if it ceased to do business at that site it would remove the silos. Id.
Regarding the Town's Hunt Wellhead Protection Area, Jeff Pugh assured the Planning Commission that the silos are self-contained and that they hold no toxic or hazardous products. Id. at 4. The Planning Commission listed three conditions for Dryvit's application: 1) Dryvit will remove the silos if the process is terminated; 2) the owner and planning staff will work together to come up with an annual report on septic usage to determine if the system remains viable; 3) Dryvit will supply copies of the Material Safety Data Sheets to the Planning Department. Id. at 8. The Planning Commission approved the application and recommended it to the Board. Id. at 9.
On March 26, 2019, the Board held a hearing regarding the application. Compl. ¶ 8. Attorney Restivo, the representative for Dryvit, outlined the application request for dimensional variances for the eight silos which would exceed the height allowance of 35' for Light Industrial (LI) zones. (Decision at 3.) Mr. Restivo explained that there is an existing single-story warehouse on the property, with an industrial use, which is consistent with both the LI zoning district and with the Comprehensive Plan designation of LI. Id. Jeff Pughe testified that the location of the silos is critical for several reasons: 1) to efficiently convey the materials into the mixing operation; 2) to allow for enough materials to be stored between deliveries to meet customer demand; and 3) to convey the materials via gravity. Id. Mr. Pughe explained that "[i]t is normal procedure to base the design on the tallest silo and then to construct all other silos of the same size and volume to have maximum flexibility to store materials in those silos. In this instance, because of the height limitation, and in the interest of the least relief necessary, the silos were designed at different heights, specific to the material and the part of the process." Id. Mr. Pughe testified that the proposal would be within the allowable limits for industrial performance standards as set out in Section 21-111 of the zoning ordinance. Id. Moreover, Mr. Pughe continued, if the silos were not granted, it would be an inconvenience because they would have to move their operation to another plant along the East Coast. Id. at 4.
The Board heard additional testimony. Josh Rosen, Project Engineer and Project Manager with Principe Engineering Inc. was sworn in as Dryvit's expert. Id. Mr. Rosen testified that the site plan as prepared met all the setback requirements for LI zones, including the increased setback requirement to the General Business parcel it abuts, which has an increased setback from 30' to 50'. The proposed setback at this location is in excess of 135'. Id. John Hennessy, landlord for the property, on behalf of EIP testified that the lease indicated that Dryvit would have to remove all fixtures, silos, and anything associated with it, including the interior of the building, at the conclusion of the lease. Id.
Appellant's attorney, Mr. Souza, asserted that the Appellants are hopeful to develop a retail plaza. (Tr. 33, Mar. 26, 2019.) William E. Coyle, an appraiser and consultant, was recognized as an expert before the Board. Id. at 50. Mr. Coyle outlined that Dryvit's requested dimensional variance does not meet the standards needed for the purposes of a dimensional variance. Mr. Coyle testified that:
"The reason it's not as short as it could be, as we've heard earlier and as we anticipated, was that the additional cost to convey the materials into the process differently than straight gravity would be more expensive. And therefore, it would be for financial reasons that they have decided to move in that fashion, which is, again, contrary to one of the rules. We can't do it for financial gain." Id. at 50-51.
Mr. Coyle reiterated that granting Dryvit's application would result in a diminution of value of Appellant's property. Mr. Coyle's professional opinion was that prospective tenants will ask about the silos. Id. at 52. Mr. Coyle testified that having eight silos in excess of the thirty-five foot maximum height would have a negative impact on Appellant's property. Id. at 56. The Board, however, stated that they found Dryvit's request to be reasonable. Id. at 76. The Board appreciated how Dryvit proposed three different heights on the silos instead of requesting eight silos of the highest height. Id. at 76, 88.
On April 23, 2019, a second hearing was held. This hearing involved the Board members summarizing the prior testimony, a discussion of the findings of fact, and a discussion of whether to approve Dryvit's application. The Board put in place two conditions for approval: 1) Dryvit's application must be in strict conformance with the Site Development Plan; and 2) all silos must be decommissioned if Dryvit ceases the use on the property. (Tr. 10-11, Apr. 23, 2019.) The Board unanimously approved the application 5-0. Id.
On April 25, 2019, the Board issued a Decision approving dimensional variances for the Project. Compl. ¶ 9. The Decision is recorded in the Land Evidence Records on April 25, 2019 at Book 3185 page 259. See Compl. Ex. A.
The instant appeal followed. Pursuant to § 45-24-69, Appellant contends that its substantial rights were prejudiced by the Board's Decision. Compl. ¶ 12. Appellant also contends that the Board granting the application violates § 45-24-69. Id. Additionally, Appellant is seeking attorneys' fees pursuant to § 42-92-3 (the Equal Access to Justice for Small Businesses and Individuals). Appellant requests that this Court reverse the Board's grant of the application and deny the application.
II
Standard of Review
Section 45-24-69 governs zoning board appeals. When an aggrieved party appeals a decision of a zoning board of review to the Superior Court, the Superior 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." Section 45-24-69(d). On appeal, the Superior 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." Id.
It is the function of the Superior Court to "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 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." Caswell v. George Sherman Sand & Gravel Co., Inc., 424 A.2d 646, 647 (R.I. 1981). The Court must give deference to the zoning board on findings of fact. Pawtucket Transfer Operations, LLC v. City of Pawtucket, 944 A.2d 855, 859 (R.I. 2008). "The trial justice may not 'substitute [his or her] judgment for that of the zoning board if [he or she] can conscientiously find that the board's decision was supported by substantial evidence in the whole record.'" Lloyd v. Zoning Board of Review for City of Newport, 62 A.3d 1078, 1083 (R.I. 2013) (quoting Apostolou, 120 R.I. at 509, 388 A.2d at 825). If the Court "can conscientiously find that the board's decision was supported by substantial evidence in the whole record," the decision must be upheld. Apostolou, 120 R.I. at 509, 388 A.2d at 825.
III
A
The Board's Decision
Appellant argues that the Board's Decision lacks sufficient evidence granting Dryvit dimensional variances pursuant to § 45-24-41. Dryvit, on the other hand, argues that there was substantial evidence to support the Board's findings.
For a board to approve a dimensional variance, it must find that an applicant satisfied the requirements of § 45-24-41-(d)(1-4). Section 45-24-41 governs dimensional variances. In order to grant a dimensional variance, the board must consider the following evidence for a dimensional variance:
"(1) That the hardship from which the applicant 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 applicant, 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 applicant and does not result primarily from the desire of the applicant 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 consider an additional factor pursuant to § 45-24-41. This additional factor applies to a dimensional variance. "[T]he 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). In Lischio v. Zoning Board of Review of Town of North Kingstown, 818 A.2d 685, 691 (R.I. 2003), our Supreme Court has held that a property owner seeking a dimensional variance is entitled to relief where, if the variance is not granted, "the hardship suffered by the owner of the subject property if the dimensional variance is not granted amounts to more than a mere inconvenience, which means that there is no other reasonable alternative to enjoy a legally permitted beneficial use of one's property." (Quoting § 45-24-41(d).) With regard to the aforementioned statutory requirements, the Board relied on testimony during the hearings, presentations, and exhibits. As will be explained below, the Board satisfied all the aforementioned statutory requirements for a dimensional variance delineated in § 45-24-41(d)(1-4)-(e)(2).
B
Hardship and Unique Characteristics of the Land
First, Appellant contends that the record is devoid of an inference that the hardship alleged by Dryvit has anything to do with the unique characteristic of the subject land. Dryvit argues that if it were to conform to the thirty-five-foot height requirement, it could not adequately operate a gravity fed manufacturing system within nine feet between the top of the production process and the height limit. Dryvit contends that the silos cannot be made any shorter without compromising their functionality. The Board found that the hardship from which Dryvit sought relief was due to the unique circumstances of the subject land. (Decision at 6.) Moreover, the Board relied heavily on Mr. Pughe's testimony:
"The Board: Now, why do you need silos in excess of 35 feet tall to make this product?
"Pughe: Well, the first element is the material has to be stored above the roof of the material. So above the process.
"The Board: It has to be above 29 feet?
"Pughe: It has to be, it's actually 26 feet to the top of the mezzanine.
"The Board: Is that because you would enter, the product would enter the building at that point?
"Pughe: Yes. It has to enter the building at the top of the interior height of the building.
"The Board: So you could have a 35-foot silo, but you would only be able to use 9 feet of product before it stopped feeding into the building; is that right?
"Pughe: Theoretically, but you would never design a process that way.
"The Board: Did Dryvit explore any other alternatives to these silo sites?
"Pughe: We explored several different designs. The reason we settled on this one was because if we were to make a silo height shorter, it would have to be larger in diameter. It would be too far from the process. If you can imagine these eight silos being between the diameter, they would have to extend down the entire length of the building." (Tr. 36-37, Mar. 26, 2019.)
The Board found that there was a hardship present in terms of meeting the height requirements for the LI zone and the functional space needed of each silo for storage purposes based on material being stored as it begins at twenty-six feet. (Decision at 6.) This Court "lacks authority to weigh the evidence, to pass upon the credibility of witnesses, or to substitute his or her findings of fact for those made at the administrative level. Restivo v. Lynch, 707 A.2d 663, 666 (R.I. 1998) (internal quotation omitted). The Court therefore finds that the Board's Decision regarding this first standard was supported by substantial evidence in the whole record because the hardship stems from the unique characteristics of the structure and land. See Lloyd, 62 A.3d at 1083 (if the Court finds that the zoning "board's decision was supported by substantial evidence in the whole record," then the zoning board's decision must stand).
C
Hardship and Financial Gain
Second, Appellant argues that Dryvit created its own hardship when it leased the property located in an LI zone, knowing that a dimensional relief would be required to complete its manufacturing relocation plan as desired. Dryvit argues that the criteria of granting a dimensional variance is not intended to be utilized to prevent new permitted uses of a subject property simply by virtue of the existence of dimensional standards. The Board found that the hardship is not a result of any prior action. (Decision at 6.)
Appellant argues that there were other viable options in a General Industrial zone that Dryvit did not choose to occupy, and, as a result, Dryvit created its own hardship. The record does not support that Appellant raised these arguments with the Board. Thus, this Court will not entertain them on appeal. Appellant should have presented these arguments to the Board. See Ridgewood Homeowners Association v. Mignacca, 813 A.2d 965, 977 (R.I. 2003) (finding that a party cannot, for the first time on an appeal before the Superior Court, disclaim the need for a dimensional variance).
The North Kingstown Zoning Ordinance Section IV: Dimensional Regulations Table 2C imposes a maximum height restriction of thirty-five feet in the LI zone. A self-created hardship is employed "where one acts in violation of an ordinance and then applies for a variance to relieve the illegality." Sciacca v. Caruso, 769 A.2d 578, 584 (R.I. 2001) (internal quotation omitted). The self-created hardship rule applies to dimensional variances. Id. In Sciacca, 769 A.2d at 584-85, Caruso sought relief from dimensional zoning requirements that became applicable to her substandard lot only because of her earlier illegal subdivision of the property before the planning board. The Supreme Court held that the trial justice failed to note that the hardship Caruso sought to avoid via the requested variance was entirely of her own making. Id.
Here, the record is void of evidence that Dryvit participated in activities causing hardship prior to applying for a dimensional variance. Dryvit has not subdivided the land as seen in Caruso, nor did Dryvit build the property at issue. Dryvit simply leased the property. Dryvit underwent the application process, met with the Planning Commission, and participated in hearings with the Board to seek relief from the hardship that stems from the character of the property. The record contains substantial evidence that the hardship is not a result of Dryvit's prior action. See Decision at 6.
Additionally, Appellant argues that the Board's Decision was driven by Dryvit's financial gain. In support, Appellant offers Dryvit's narrative.
"[T]he silo size and conveyance system are designed in such a way to deliver sand volume to the mixing process to meet the process design capacity (customer demand). Therefore, smaller silos would result in a plant capacity that will not meet customer demand. The related return on investment would result in a decision to abandon the planned expansion in North Kingstown in favor of another Dryvit plant outside of Rhode Island." Ex. H at 1-2.
Dryvit does not dispute this narrative. Notwithstanding, Dryvit maintains that there was no financial gain involved, rather it is Dryvit's desire to remain in Rhode Island. Presently, Dryvit operates a West Warwick plant and a Cranston plant. On cross-examination, Mr. Pughe was questioned about the cost to have the manufacturing plant in North Kingstown, Rhode Island.
"Souza: Would it be more costly for you to have the EIFS manufacturing process in Georgia rather than in Rhode Island?
"Pughe: No. Actually, the cost to manufacture would be lower.
"Souza: But would you have to pay to ship it up here?
"Pughe: For Northeast customers, yes." (Tr. 38, Mar. 26, 2019.)
The above testimony demonstrates that it would be less expensive to have Dryvit manufacture elsewhere.
Furthermore, it is well settled that the fact that a "use may be more profitable or that a structure may be more valuable after the relief is granted is not grounds for relief." Lischio, 818 A.2d at 691. However, § 45-24-41 does not expressly exclude the possibility of any financial gain if a height variance were granted. See V.S.H. Realty, Inc. v. Zoning Board of Review of City of Warwick, 103 R.I. 16, 20, 234 A.2d 355, 357-58 (1967) (finding that the grant of a variance permitting the erection of a building thereon not complying fully with the side and rear lot line restrictions would not violate the public interest). Rather § 45-24-41 requires the Board to determine whether the alleged hardship itself primarily results from a desire for financial gain.
With respect to a desire for financial gain, the Board relied on Mr. Pughe's testimony. Mr. Pughe testified that the height is more of an operational requirement than it is purely economic. (Tr. 24-25, Mar. 26, 2019.) Board member Lemieux stated, "I find that it's more of a consolidation of their business rather than to specifically make an economic gain." Id. at 77. Thus, the Board found that granting the application is essential for consolidation. Regarding jobs, Dryvit was hoping to add at least 150 employees. Id. at 37. Board member Gibbons stated, "I'm also a person concerned about the economy and jobs. I think that's very important. We're not supposed to consider economics, but jobs are important, jobs, jobs, jobs. I think that's a good thing." Id. at 77-78. Board member Wietman made it clear that the decision was not based on bringing jobs in the area. Id. at 76-77. Overall, the record reflects that Dryvit was not primarily motivated by financial gain. The Board found that the hardship does not result primarily from the desire of greater financial gain. (Decision at 6.) This Court is satisfied that sufficient evidence existed for the Board to conclude that the dimensional variance was not sought primarily from the desire of the applicant to realize greater financial gain and that Dryvit did not create its own hardship.
D
Character of the Surrounding Area
Third, with respect to the next prong under § 45-24-41, Appellant contends that Dryvit's dimensional variance will have a negative impact on the character of the surrounding area. The Board, however, had evidence before it that the construction of the eight silos will not alter the general character of the surrounding area or impair the intent or purpose of the zoning ordinance or the Town of North Kingstown's Comprehensive Plan. Specifically, the Board averred that the proposal for the erection of eight silos for the continued operation of an existing industrial use is consistent in an LI zone and in an area designated LI in the Comprehensive Plan. (Decision at 6.) In reaching this decision, the Board considered the parties' exhibits and testimonies.
Mr. Coyle, the real estate appraiser who was recognized by the Board as an expert, testified on behalf of Appellant. Mr. Coyle testified that the eight silos would cause harm to Frenchtown's proposed development. (Tr. 53, Mar. 26, 2019.) Mr. Coyle explained that it would slow down any interest in the site until somebody could puzzle out what is actually going on the property. Id. Mr. Coyle went on to testify that the eight silos would have a negative impact on Appellant's property. Mr. Coyle was asked if he was able to quantify the financial effect and he could not. Id. at 56. Mr. Coyle's reasoning was that because the building has not been built yet, he could not quantify the negative impact. Id.
Appellant's witness Andy Kushner, Division President of RE/MAX Commercial in East Greenwich, testified that he had solicited potential retail tenants for the Appellant. Id. at 43. Board member Wietman questioned Mr. Kushner concerning his conclusion that Appellant would face a negative impact because of a visual of a silo. Mr. Kushner stated:
"I think it's more art than science. There is no formula that says if you build a silo the value of your property drops by X percent. It's more a question in my mind of, if you make the property more obviously industrial, it makes it more difficult to attract tenants who are not industrial." Id. at 45.
The Board pressed Mr. Kushner again on an amount for a negative impact. Mr. Kushner's response was:
"I can't quote a study. I can't quote a formula or a metric. It's just, if you were to go to a shopping center, you would generally not want it to be next to an obvious industrial manufacturing facility. This manufacturing facility currently sits pretty low and unobtrusive. So I suspect there will be some impact. I can't quantify the number." Id. at 45-46.
The Board found Mr. Kushner's response unavailing. Board member Gibbons stated:
"It strikes me that if I were a potential tenant for that property, the first thing that I would be concerned, gravely concerned about is the fact that my neighbor is light industrially zoned and not likely to change. What they want to do here is light industrial." Id. at 47.
Generally, "'there is no talismanic significance to expert testimony [and it] may be accepted or rejected by the trier of fact.'" Murphy v. Zoning Board of Review of Town of South Kingstown, 959 A.2d 535, 542 (R.I. 2008) (quoting Restivo, 707 A.2d at 671). It is also well settled that "if expert testimony before a zoning board is competent, uncontradicted, and unimpeached, it would be an abuse of discretion for a zoning board to reject such testimony." Id. Both of the Appellant's witnesses were unable to quantify an amount for the alleged negative impact. Mr. Coyle also admitted that determining a negative impact regarding the requested dimensional variances would be speculative. (Tr. 61, Mar. 26, 2019.)
Here, the Board elected to rely on the visual assessment from Dryvit which showed that there will be a minimal visual impact as a result of the silos due to the existing vegetation and buffer when viewed from the surrounding vantage points. (Decision at 6.) The Board determined that the visual assessment provided a visual representation to depict that although the silos will be in excess of 35', they will not alter the general character of the industrial neighborhood. Id. The Board found that Dryvit's proposal "remains consistent with both the Light Industrial zoning objective and Comprehensive plan text which allows for 'clean' industry and light manufacturing, which is intended for industrial sites immediately adjacent to residential neighborhoods as well as near environmentally sensitive areas and for the development of businesses that do not draw additional retail traffic." Id. In reaching this decision, the Board found that in June 2013, the abutting parcels, Appellant's property, and EIP's property were also zoned LI and designated as LI in the Comprehensive Plan for more than forty years. Id.
The Board found that although the silos will be in excess of thirty-five feet, they will not alter the general character of the Industrial area and will not impair the intent or purpose of the Comprehensive Plan upon which this chapter is based. (Tr. 7, Apr. 23, 2019.) This evidence satisfies the Court that competent evidence existed for the Board to conclude that the dimensional variance does not alter the character of the surrounding area. See Mill Realty Associates v. Crowe, 841 A.2d 668, 672 (R.I. 2004); see also Carria v. Schilling, No. 2015-0145, 2016 WL 6902293, at *5 (R.I. Super. Nov. 10, 2016) (quoting Mill Realty Associates, 841 A.2d at 672) ("When reviewing a zoning board's decision, the Court relies on the board's written decision and 'the entire record to determine whether substantial evidence exists to support the board's findings.'").
E
Least Necessary Relief
Next, Appellant contends that there is no evidence in the record that the relief to be granted is the least relief necessary. Appellant contends that there is no operational requirement that the silos almost double the maximum allowable building height for the LI zone in which the Property sits. The Board found that the storage of materials needs to begin at the height of the building for operational requirements. (Decision at 7.)
There is testimony demonstrating that the height of the silos is not able to be reduced. Mr. Pughe stated:
"Most importantly, the height of the silos is critical because the materials are conveyed via gravity. So if you think of the process, the materials are stored in the silos kind of at the top level. Mid-level on the interior of the building is a mezzanine where the mixing equipment is held and the product is mixed. The floor level is where the mixed materials are then dispensed and packed. It's kind of a three-story or three-layer process using gravity to feed down through the process." (Tr. 6, Mar. 26, 2019.)
Regarding the least relief necessary, Mr. Pughe testified that because of the thirty-five-foot height limitation, Dryvit spent a lot of time and gave heavy consideration to the least relief. Id. Mr. Pughe stated:
"In this case because of the height limitation, we decided to give up some flexibility, but again in the interest of least relief, design each silo specific to a material and specific to that part of the process. So that's why you see three different height silos, three at the tallest height, three medium height, and two others at the lower height. They're specific to material, and they're based on the volume of material that is needed for that particular part of the process." Id. at 7.
The Board found that Dryvit deviated from the usual design process which utilizes the maximum height for all silos, in an effort to request the least relief necessary for each silo. (Decision at 7.) See Gardiner v. Zoning Board of Review of City of Warwick, 101 R.I. 681, 690-91, 226 A.2d 698, 703 (1967) (upholding the grant of a dimensional variance where "as a practical matter," applicant could not build his home without relief). In the present case, Dryvit could not begin production until the dimensional variances are granted. Accordingly, this Court finds that the record reflects substantial evidence to support the Board's finding that Dryvit's proposed use of the subject property is the least relief necessary to be able to enjoy a reasonable use of his property. Lischio, 818 A.2d at 694-95 (finding that dimensional relief was the least relief necessary and denial of the variance would result in more than a mere inconvenience because "without dimensional relief petitioners would be left with no other reasonable alternative to enjoy any legally permitted beneficial use of their property") (emphasis in original).
F
Mere Inconvenience
Lastly, Dryvit argues that without the exact height relief requested it cannot manufacture its product at the Property. Appellant argues that Dryvit had other reasonable alternatives available such as lowering the silo heights like it does at its other facility. See Ex. K. Planning Commission Report at 4. The record reflects otherwise. Dryvit explained that there are no silos at their Cranston plant. The silos in West Warwick are roughly fifty feet, and those silos will be taken down as the space moves more to office space. Id. Mr. Pughe explained to the Board that the height is needed to be able to relocate, to be able to consolidate and have the manufacturing operation. (Tr. 24, Mar. 26, 2019.) From this evidence, the Board found that the structure would not be more valuable after the relief is granted because the silos are specific to the Dryvit operational requirement, and the silos will have to be decommissioned if the use on the Property ceases as per the lease agreement and as conditioned as part of the Board's Decision. (Decision at 7.) The record evidences that not granting Dryvit's application for a dimensional variance would result in a hardship that is more than a mere inconvenience. See Lischio, 818 A.2d at 691. Thus, this Court finds that the record reflects that without the dimensional variance, the Board's Decision-that Dryvit would suffer more than a mere inconvenience regarding the legally permitted beneficial use of his property-is not clearly erroneous.
G
Attorneys' Fees
Appellant is seeking reasonable attorneys' fees for the costs incurred as a result of bringing this appeal against the Board. Appellees are not requesting attorneys' fees. Section 42-92-3 governs an award of reasonable litigation expenses. Section 42-92-3(a) provides:
None of the parties' memoranda discuss attorneys' fees.
"Whenever the agency conducts an adjudicatory proceeding subject to this chapter, the adjudicative officer shall award to a prevailing party reasonable litigation expenses incurred by the party in connection with that proceeding. The adjudicative officer will not award fees or expenses if he or she finds that the agency was substantially justified in actions leading to the proceedings and in the proceeding itself. The adjudicative officer may, at his or her discretion, deny fees or expenses if special circumstances make an award unjust. The award shall be made at the conclusion of any adjudicatory proceeding, including, but not limited to, conclusions by a decision, an informal disposition, or termination of the proceeding by the agency. The decision of the adjudicatory officer under this chapter shall be made a part of the record and shall include written findings and conclusions. No other agency official may review the award."
Here, Appellant is a party as defined by § 42-92-2. The Board is an agency as defined by § 42-92-3. See Tarbox v. Zoning Board of Review of Town of Jamestown, 142 A.3d 191, 201 (R.I. 2016) (ruling that a zoning board is an agency under the Equal Access to Justice for Small Businesses and Individuals). The March 26 and April 23, 2019 hearings the Board held which led to their ultimately granting a dimensional variance to Dryvit are adjudicatory proceedings pursuant to § 42-92-2. See Campbell v. Tiverton Zoning Board, 15 A.3d 1015, 1025 (R.I. 2011) (finding that the "adjudicatory proceeding is one that occurs at the agency level either administratively or quasi-judicially, not an adjudicatory proceeding in Superior Court"). However, the Board's Decision regarding attorneys' fees must be substantially justified. Section 42-92-2(7). Under the substantial justification test, "the Government now must show not merely that its position was marginally reasonable; its position must be clearly reasonable, well founded in law and fact, solid though not necessarily correct." Taft v. Pare, 536 A.2d 888, 893 (R.I. 1988) (internal quotation omitted).
Here, based on the two hearings and the Board's Decision, this Court finds that the Board's Decision to grant Dryvit dimensional variances was at least "reasonable, well founded in law and fact, [and] solid though not necessarily correct." Id. The Board did not prejudice Appellant's substantial rights. Further the Board's Decision does not violate § 45-24-69. Accordingly, Appellant's request for attorneys' fees is denied. See Campbell, 15 A.3d at 1025 (finding that "[a]lthough the act provides that a court reviewing the 'underlying decision of the adversary adjudication' may make 'an award for fees and other expenses, '. . .the Superior Court was not reviewing such a decision and correctly declined to grant the Campbells relief under the act").
IV
Conclusion
After review of the entire record, this Court finds that the Board's Decision granting the dimensional variances was supported by reliable, probative, and substantial evidence of record; was not made upon unlawful procedure; and did not constitute an abuse of discretion. Substantial rights of the Appellant have not been prejudiced. The request for attorneys' fees is denied. Counsel shall submit to the Court an appropriate judgment for entry.