Opinion
C.A. WC-2015-0161
01-03-2018
THE NEW CASTLE REALTY COMPANY v. RAYMOND DRECZKO, JR., AMANDA MAGEE, CLIFFORD VANOVER, MICHAEL CHAMBERS, and JOSEPH QUADRATO, in their capacities as members of the Town of Charlestown Zoning Board of Review
For Plaintiff: Kelly M. Fracassa, Esq. For Defendant: Robert E. Craven, Esq.; Wyatt A. Brochu, Esq.
For Plaintiff: Kelly M. Fracassa, Esq.
For Defendant: Robert E. Craven, Esq.; Wyatt A. Brochu, Esq.
DECISION
LANPHEAR, J.
This matter is before the Court on the appeal of Plaintiff, The New Castle Realty Company (New Castle), from a decision of the Town of Charlestown Zoning Board of Review (the Board). The Board's decision denied Plaintiff's requested relief for a special use permit to install a septic system and dimensional variances on a parcel of land consisting largely of wetlands. Jurisdiction is pursuant to G.L. 1956 § 45-24-69.
I.
FACTS AND TRAVEL
New Castle is the owner of the 1.91 acre lot (Subject Property) on Timber Ridge Road in Charlestown described as Lot 40 on Charlestown Tax Assessor's Map 25. (Hr'g Tr. (Tr.) 4, 7, Mar. 17, 2015.) The Subject Property presently lies in an R-3A Zone permitting residential cluster subdivision use and requires a minimum of three (3) acres of land; thus, the property is presently non-conforming. (Variance and/or Special Use Permit Appl. 1.) The Subject Property is an unimproved legal lot measuring approximately 12, 463 square feet. (Variance and Special Use Permit Appl. 1; Tr. 5.)
On January 14, 2015, New Castle submitted its application to the Board requesting a special use permit to install an Onsite Wastewater Treatment System (OWTS) in accordance with Art. XIII, § 218-78, and dimensional variances in accordance with § 218-41 to construct a 22 x 32 foot, three-bedroom, single family dwelling. (Variance and Special Use Permit Appl. 1; Variance Dimensional Relief and Special Use Permit Suppl. Sheet; Decision of Zoning Board (Decision), Mar. 23, 2015.) New Castle's application requested 5' in frontage relief from the permitted 40' creating 35' in proposed frontage; and 15' in right side relief from the permitted 25' creating 10' in proposed right yard setback. (Tr. 44; Decision, Mar. 23, 2015.)
The transcript as well as the Board's written Decision inaccurately reflects the requested relief as Section 217-78. The correct section upon which New Castle seeks a Special Use Permit is reflected in New Castle's Application for Variance and/or Special Use Permit.
Mr. Greene acknowledged that New Castle's Application mistakenly requested dimensional variances for 10 feet of side yard relief and 10 feet of front line relief, instead of 15 feet of side yard relief and 10 feet of front line relief. (Tr. 44).
Prior to the March 17, 2015 Board hearing, a public hearing was held at the Rhode Island Department of Environmental Management (DEM) Wetlands Division for approval of New Castle's application requesting a wetlands permit for the Subject Property. (Tr. 7-8.) New Castle's application was subsequently approved by DEM Wetlands. (Tr. 8.) DEM also approved New Castle's application siting a three-bedroom dwelling and denitrification ADVANTAX septic system on the Subject Property. (Tr. 9.)
A duly noticed public hearing with the Board was held on March 17, 2015. Testifying at this hearing was Richard A. Greene, local land surveyor and OWTS designer. (Tr. 4.) Mr. Greene represented New Castle and William A. Lampe, President of New Castle, at this hearing. (Tr. 4.) No other person testified at this hearing. (Tr. 45.) No correspondence was received by the Board regarding New Castle's Petition. (Tr. 45.)
Application No. 12-0222. (Tr. 8.)
At the public hearing, Mr. Greene offered a plan (the Plan) for the Subject Property reflecting the requested relief on the Subject Property. (Tr. 7.) This Plan was submitted to DEM and approved. (Tr. 8.) Specifically, the Plan depicted the placement of the proposed 22x32 three-bedroom structure; wetlands plantings required under the wetlands permit acquired by DEM; and the 15x10 ADVANTAX AX20 denitrification septic system on the Subject Property. (Tr. 7-9.) Mr. Greene testified that DEM Inland Wetlands noted in their approval that "it wasn't a negative aspect of the application. . . ." (Tr. 8.)
Mr. Greene testified that DEM Inland Wetlands requested New Castle to site the proposed structure as far as possible towards the street. (Tr. 11.) Mr. Greene acknowledged that while part of this structure was located in the wetlands buffer zone, DEM conditioned approval of its permit upon the planting of shrubs, trees or other forms of vegetation to preserve the wetlands. (Tr. 11; RIDEM Permit to Alter Freshwater Wetlands, July 29, 2014.)
Mr. Greene testified that the ADVANTAX denitrification system is a 1500 gallon tank with a bottomless sand filter. (Tr. 9.) William Lampe, President of New Castle, testified that the ADVANTAX septic system does the least amount of damage to the wetlands. (Tr. 39.) According to Mr. Greene's testimony, the septic system "is placed as far as possible from the wetlands edge and still remains within the limits of the DEM approval process." (Tr. 9.) Mr. Greene concluded that the proposed relief noted on the Plan "meets the criteria that we need to have for the special use permit and the dimensional variance for the dwelling itself." (Tr. 9.) Board Member Vanover opined, however, that while these advanced systems reduce nitrogen, they don't reduce phosphates which have the most negative impact on the wetlands. (Tr. 39.)
Mr. Greene testified at the hearing that the siting of the septic system is the most critical aspect of the application in order to locate it as far away as possible from the wetlands. (Tr. 25, 28.) He noted that the septic system must be sited at least 10 feet from the easement line in order to comply with DEM regulations. (Tr. 26.) Accordingly, it was noted at the hearing by Mr. Greene that DEM advised the best siting of the dwelling was 35 feet from the easement line with the septic system located 10 feet from the easement line. (Tr. 26.) Mr. Greene noted that while neither the Plan nor DEM's approval permit reflected or commented on the installation of a lawn, the presumption that a lawn would be installed on the Subject Property is purely speculative. (Tr. 17-18.) Board Member Vanover disputed DEM's approvals commenting that DEM's lack of input on the area surrounding the Subject Property is a "glaring omission on their part" as DEM mentions nothing about the area surrounding the house. (Tr. 21.)
Solicitor Craven noted that an easement, owned by the Town, is located on the Subject Property. (Tr. 22-23.) Mr. Warner stated that the property line for the Subject Property begins at the edge of this easement owned by the Town and not at the edge of the pavement of the street. (Tr. 23.) Building within 35 feet of the property line is prohibited. (Tr. 23.)
Mr. Greene testified that a soil evaluation was performed on the Subject Property resulting in a water table depth of 10 feet. (Tr. 13.) Board Member Chambers stated at the public hearing that his measurements taken on the Subject Property showed a depth of 5.5 feet, later noting that this figure was the "worst case" scenario considering snow and possible meltdown and rise of the wetlands. (Tr. 12-13.) Mr. Greene noted that the soil is a gravel based soil which would allow the soil to drain quickly. (Tr. 13.)
Following further comments by the Board, New Castle's application for a special use permit was denied four to one. (Decision, Mar. 23, 2015.) In its written decision, the Board found New Castle's special use permit application "would not significantly contribute to public welfare; that the welfare of the general community will not be substantially served; that the proposal is not consistent with the current Zoning Ordinance . . . ." (Decision, Mar. 23, 2015.) In denying New Castle's application for a special use permit, Board Member Vanover commented that the granting of a special use permit "will be inimical to the public health, safety and general welfare of the community because of the impact the effluent will have on the wetland." (Decision, Mar. 23, 2015.) Board Member Chambers further opined that the granting of the Applicant's special use permit "could pose a threat to drinking water." (Decision, Mar. 23, 2015.)
Additionally, New Castle's application for dimensional variances was denied four to one. (Decision, Mar. 23, 2015.) The Board questioned whether New Castle's hardship stemmed from its own actions taken in 1974 when the lot was subdivided by New Castle albeit conforming to existing Town Ordinance at that time. (Tr. 57-59; Decision, Mar. 23, 2015.) Mr. Lampe testified at the public hearing that at the time of the subdivision, it was an approved, conforming lot with a frontage requirement of 35 feet. (Tr. 31.) However, since that time, the zoning has changed, requiring 40 feet of frontage and a minimum of three (3) acres of land. (Tr. 31-32.)
Board Members denying relief to New Castle were conflicted on whether the requested relief was the least relief necessary. (Decision, Mar. 23, 2015.) Board Member Vanover opined that he did not find the requested relief to be the least relief necessary noting New Castle's unwillingness to consider suggestions in trying to move the house further away from the wetlands by making it smaller, or by reducing the home from a three-bedroom house to a two-bedroom house. (Decision, Mar. 23, 2015; Tr. 59.) In response to Board Member Vanover's inquiry to alter the size of the proposed dwelling, Mr. Greene commented that reducing the dwelling to a two-bedroom house would not alter the size of the septic system unit. (Tr. 29.) Mr. Greene testified that it would, however, affect the value of the real estate. (Tr. 29.)
Mr. Greene testified that the surrounding houses in the neighborhood are three-bedroom raised ranch homes. (Tr. 42.) Mr. Greene noted that all of the lots are relatively small ranging from approximately 80, 000 to 90, 000 square feet. (Tr. 42.) Board Member Vanover pointed out that a two-bedroom home would produce less effluent running into the wetlands. (Tr. 29.)
Board Member Quadrato opined that the requested dimensional variances would alter the general character of the surrounding area as it would be a much smaller house and much closer to the property line in the area. (Decision, Mar. 23, 2015; Tr. 57.) Lastly, all Board Members denying relief agreed that the requested relief was contrary to the public interest and welfare of the community. (Decision, Mar. 23, 2015.) The Board issued its written decision on March 23, 2015. New Castle timely appealed.
II
STANDARD OF REVIEW
Section 45-24-69 grants this Court jurisdiction to review the decision of a municipal zoning board. This Court's review is governed by § 45-24-69(d), which provides, in pertinent part:
"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).
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." Mill Realty Assocs. v. Crowe, 841 A.2d 668, 672 (R.I. 2004) 14 (quoting Apostolou v. Genovesi, 120 R.I. 501, 506-08, 388 A.2d 821 (1978)). Thus, when reviewing a zoning board's decision, this Court "must examine the entire record to determine whether 'substantial' evidence exists to support the board's findings." Salve Regina Coll. v. Zoning Bd. of Review of City of Newport, 594 A.2d 878, 880 (R.I. 1991) (citing DeStefano v. Zoning Bd. of Review of City of Warwick, 122 R.I. 241, 245, 405 A.2d 1167 (1979)). The Superior Court also gives deference to the zoning board's findings because the zoning board is "presumed to have knowledge concerning those matters which are related to an effective administration of the zoning ordinance." Pawtucket Transfer Operations, LLC v. City of Pawtucket, 944 A.2d 855, 859 (R.I. 2008).
III
ANALYSIS
On appeal, New Castle argues that the Board's decision warrants reversal because it violated § 45-24-69(d). Preliminarily, New Castle argues that the Board's decision lacks sufficient findings of fact and conclusions of law. New Castle contends that the Board's findings, inferences, conclusions, and decision in denying New Castle a special use permit and dimensional variances were arbitrary and lacked a reasonable basis in law and fact.
New Castle contends the Board's decision denying New Castle's application for a special use permit warrants reversal because the Board "improperly substituted its own lay opinions for the expert analysis of the Department of Environmental Management . . ." in viewing septic systems in environmentally sensitive areas. (New Castle Mem. 1.) New Castle also contends that the Board "second-guessed" DEM's approval of the permit approving the installation of the ADVANTAX septic system on the Subject Property. (New Castle Mem. 15.) More specifically, New Castle asserts that the Board's March 23, 2017 decision was made contrary to the substantial evidence on the record and that no evidence or expert testimony was presented by the Board to support the opinions of its Members. According to New Castle, "DEM approval of an OWTS application satisfies this standard [Charlestown Zoning Ordinance], and the board lacks the expertise to second-guess DEM, at least not without expert testimony showing that DEM failed its duties." (New Castle Mem. 12.)
A
The Board's Decision
1
Findings of Fact and Conclusions of Law
As a threshold issue, New Castle argues that the Board's decision violates § 45-24-61. Specifically, New Castle argues that the Board's decision lacks sufficient findings of fact and conclusions of law.
Under Rhode Island law, the Legislature has mandated that "[t]he zoning board of review shall include in its decision all findings of fact." Sec. 45-24-61. Moreover, the courts have consistently held 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." Cranston Print Works Co. v. City of Cranston, 684 A.2d 689, 691 (R.I. 1996); Sciacca v. Caruso, 769 A.2d 578, 585 (R.I. 2001) (quoting Irish P'ship v. Rommel, 518 A.2d 356, 358 (R.I. 1986)).
In the decision, the Board fails to enumerate specific findings of fact as required by § 45-24-61(a). Therefore, this Court culled those findings from the record. While it may be challenging to set forth findings when various members denied approval for different reasons, the Board should first attempt to establish findings of fact with each future application.
In Bernuth v. Zoning Bd. of Review of Town of New Shoreham, 770 A.2d 396 (R.I. 2001), the high court remanded a decision wherein the zoning board had approved variances without setting forth specific findings. The court declared:
"The Legislature has mandated that '[t]he zoning board of review shall include in its decision all findings of fact . . ."' Sec. 45-24-61.
"In addition, this Court has long held 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.
"[W]e must decide whether the board members resolved the evidentiary conflicts, made the prerequisite factual determinations, and applied the proper legal principles. 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. These are minimal requirements. Unless they are satisfied, a judicial review of a board's work is impossible.
"[W]hen the board fails to state findings of fact, the court will not search the record for supporting evidence or decide for itself what is proper in the circumstances." Bernuth, 770 A.2d at 401 (citations omitted.)
With respect to the Board's March 23, 2015 written decision, this Court finds that the Board made sufficient findings addressing each element required under Sec. 218-23 of the Charlestown Zoning Ordinance. (Decision, Mar. 23, 2015.) Specifically, the Members found that the issuance of a special use permit "would not significantly contribute to public welfare; that the welfare of the general community will not be substantially served; that the proposal is not consistent with the current Zoning Ordinance . . . ." (Decision, Mar. 23, 2015.) Board Member Vanover concurred in noting that the requested "special use permit doesn't comply with the comprehensive plan which this ordinance is based on because of the potential impact of the septic system on the wetlands . . . ." (Tr. 54.) Board Member Vanover denied New Castle's application for a special use permit commenting that the granting of a special use permit will have an adverse impact and create conditions that
"will be inimical to the public health, safety and general welfare of the community because of the impact the effluent will have on the wetland; that the requested special use permit does not comply with the Comprehensive Plan upon which this Ordinance is based on because of the potential impact of the septic on the wetland . . . ." (Decision, Mar. 23, 2015; see also Tr. 54.)
Furthermore, Board Member Quadrato opined that he "cannot see how there couldn't be a negative impact on the wetland . . ." and that the requested special use permit relief "could pose a threat to drinking water." (Decision, Mar. 23, 2015.) Board Member Chambers opined that the total buildable lot size was insufficient considering the presence, characteristics, and distance from the wetlands. (Tr. 51, 58.) Board Member Chambers noted that the total aggregate run off into the wetlands behind the Subject Property would only increase if the special use permit is granted as the runoff from an abutting property, Lot 51, also drains into the wetlands behind the Subject Property. (Tr. 51.)
The Board's decision included sufficient findings of fact and conclusions of law. Accordingly, the decision is not in violation of statutory or ordinance provisions. In the future, the Board is to set forth its facts and conclusions separately and clearly and by a vote of the Board.
2
Substantial Evidence on Record to Support Denial of Special Use Permit
As required by the Charlestown Zoning Code § 218-23A, a landowner must obtain a special use permit to install an OWTS within 100 feet of a wetland. Here, New Castle sought to install an ADVANTAX denitrification septic system on the far right side of the Subject Property, well within the 100 foot buffer zone protecting the wetlands, thus requiring a special use permit. (Tr. 50.) Pursuant to Sec. 218-23A, New Castle applied for a special use permit from the Board, which petition was denied on March 23, 2017. (Decision, Mar. 23, 2015; Tr. 51.)
New Castle argues that the Board's March 23, 2015 decision denying its application for a special use permit was made contrary to the substantial evidence on the record. It is the Applicant's burden to establish the grounds for the variances. The Court does not hold that the burden of proof has shifted. New Castle suggests that Board members lacked expertise relating to environmental affairs and arbitrarily substituted the Board's lay opinions for that of DEM.
Under Rhode Island Law, a Special Use Permit is defined as "[a] regulated use that is permitted pursuant to the special-use permit issued by the authorized governmental entity, pursuant to § 45-24-42." Sec. 45-24-31(62). In addition, § 218-78 of the Charlestown Zoning Ordinance requires a special use permit to be obtained for the installation of any device "designed to leach liquid wastes into the soil." Section 218-78 provides as follows:
"No facility designed to leach liquid wastes into the soil shall be located in areas outlined below, except by the granting of a special use permit. Exception: The repair or alteration of an existing waste disposal system.
"(1) Within one hundred feet of a boundary of a fresh water or coastal wetland as defined by Rhode Island General Laws §§ 2-1-14 and 2-1-20. Sec. 218-78."Lloyd v. Zoning Bd. of Review for City of Newport, 62 A.3d 1078 (R.I. 2013) (noting special use permit is generally related to a specific use that is not allowed under the applicable ordinance absent zoning board approval).
According to § 45-24-42, the issuance of a special use permit shall be granted by the zoning board of review or by the planning board or commission pursuant to § 45-24-46.4. In accordance with the Charlestown Zoning Code, the appropriate standard in determining whether or not to grant a special use permit is as follows:
"[a] special use permit may be approved by the Board following a public hearing if, in the opinion of the Board, that evidence to the satisfaction of the following standards has been entered into the record of the proceedings:
"(1) The public convenience and welfare will be substantially served;
"(2) It will not result in adverse impacts or create conditions that will be inimical to the public health, safety, morals and general welfare of the community.
"(3) The requested special use permit will not alter the general character of the surrounding area or impair the intent or purpose of this Zoning Ordinance or the Comprehensive Plan upon which this Ordinance is based;
"(4) That the granting of a special use permit will not pose a threat to drinking water supplies;
"(5) That the use will not disrupt the neighborhood or the privacy of abutting landowners by excessive noise, light, glare, or air pollutants;
"(6) That the sewage and waste disposal into the ground and the surface water drainage from the proposed use will be adequately handled on site;
"(7) That the traffic generated by the proposed use will not cause undue congestion or introduce a traffic hazard to the circulation pattern of the area." Charlestown Code § 218-23A.
The Board noted that the granting of a special use permit would not substantially serve the public convenience and welfare and would have a negative impact on the general community and on the wetlands. (Decision, Mar. 23, 2015.) Specifically, the Board points to Board Member Quadrato's denial of the special use permit based upon his own measurements of the Subject Property and in his viewing of the water table as being very high and only increasing in height due to the drainage from the lot across the street from the property. (Tr. 51.) Board Member Quadrato opined that he "cannot see how there couldn't be a negative impact on the wetland . . ." and that the requested relief "could pose a threat to drinking water." (Tr. 52; Decision, Mar. 23, 2015.) See Murphy v. Zoning Bd. of Town of S. Kingstown, 959 A.2d 535, 542 (R.I. 2008); Goldstein v. Zoning Bd. of Review of City of Warwick, 101 R.I. 728, 227 A.2d 195 (1967). Board Member Chambers voted against granting the special use permit for the same reasons, noting that he believed the requested relief was insufficient to keep the wetlands safe. (Tr. 51.) The Board pointed to Board Member Vanover's concerns over the potential environmental impact on the wetlands:
". . . There is a lot of effort going into mitigation with quite an expensive planting. It has to do with the disturbance that's going to happen when you drill the well and put in the waterline. Right around the house, which is within the wetlands zone which you have approval to alter, there is nothing about how right around the house is going to be dealt with." (Tr. 18.)
Board Member Vanover further explained his apprehension towards New Castle's proposed septic system in noting that the "O.W.T.S. does not reduce all the [nitrogen] . . . It doesn't reduce the phosphates, which has more impact on the wetlands than the nitrogen from what I understand." (Tr. 53.)
3
Expert Testimony
New Castle argued that the Board's baseless criticism of DEM's approval of New Castle's OWTS renders its denial of the special use permit arbitrary and an abuse of discretion. New Castle asserts that DEM possesses unquestioned expertise concerning OWTS design, installation, and use. Moreover, New Castle argues "[a]bsent any evidence that New Castle's DEM-approved OWTS would actually harm the wetland, the board had no business second-guessing an agency with unquestioned expertise in an area where the board has none." (New Castle Mem. 15.)
Zoning boards may rely on their own knowledge regarding zoning matters. Goldstein, Id. at 728, 227 A.2d at 195. However, in relying on their special knowledge regarding zoning matters, the zoning board must include in its decision the basis for which its rests its knowledge. Del Toro v. Zoning Bd. of Review of Town of Bristol, 82 R.I. 317, 107 A.2d 460, 462 (1954) ("… if [the board] substitutes evidence within its own knowledge or from a view, we have held that there should be something in the decision to inform us of the grounds and basis thereof sufficiently for us to perform our duty without speculation").
The Board may substitute its own knowledge in place of an expert's testimony if it is outweighed by evidence within the Board's own knowledge. Smith v. Zoning Bd. of Review of City of Warwick, 103 R.I. 328, 237 A.2d 551 (1968) (zoning board gave sufficient reasons for expressly rejecting testimony of experts and acted properly in basing its decision on its own knowledge of area). The Rhode Island Supreme Court held in Murphy that expert testimony proffered to zoning board may be attacked in several ways, including personal knowledge and observations of board members. 959 A.2d at 542 n.6; see also Restivo v. Lynch, 707 A.2d 663 (R.I. 1998) (noting no error in city council, acting as plan commission, basing its rejection of subdivision on personal knowledge of poor drainage history of proposed site where several council members made detailed personal observations of drainage problems on record).
The Rhode Island Supreme Court held in Cullen v. Town Council of Town of Lincoln, 893 A.2d 239, 248 (R.I. 2006) that DEM is the proper agency vested with exclusive power to determine issues concerning the preservation and regulation of wetlands. See generally G.L.1956 §§ 2-1-18 through 2-1-24; Carter Corp. v. Zoning Bd. of Review of Town of Lincoln, 98 R.I. 270, 201 A.2d 153 (1964). In reconciling the holdings of Goldstein and Cullen, the Rhode Island Supreme Court found that DEM standards, in the granting of a special use permit, may not be consistent with the standards of the local town council. Milardo v. Coastal Res. Mgmt. Council of R.I., 434 A.2d 266, 273 (R.I. 1981) ("[t]hus, although a plan such as plaintiff's might comport with specific Department of Health standards for the granting of a variance, it might nevertheless represent potential damage to the coastal environment under the standards of the council") The Rhode Island Supreme Court further noted in Milardo:
"The Department of Health was charged with the specific task of determining whether plaintiff's ISDS would 'pollute' the 'waters' of the state under very specific definitions of those terms. Concurrently, the council was given the broader responsibility to protect against a reasonable probability of harm to the total coastal environment from various activities, including sewage disposal. We have no doubt that the Legislature could have assigned both functions to the same agency. In choosing not to do so, the Legislature doubtless considered the need for special types of expertise in the discharge of the separate but similar functions of both agencies." Id. at 273.
Here, there were various other factors considered by the Board in the approval of a special use permit which were not considered by DEM in issuing their approval. Id. In doing so, the Board noted in its Memorandum:
"DEM did approve Plaintiff's proposal; however, that does not constitute automatic approval of the required special use permit. Namely, should the Zoning Board find that any of the seven requirements for a special use permit (set forth above) are not be fulfilled, a denial of the special use permit is appropriate." (Def.'s Mem. 4.) See Charlestown Code § 218-23.
The Board may review DEM's findings as DEM approval is limited only to that on which DEM is authorized to espouse such opinions. Milardo, 434 A.2d at 273. DEM and the zoning board have distinct responsibilities. It is clear that the Board took into consideration the findings and permit approval issued by DEM and gave deference to this agency's expertise and knowledge regarding environmental affairs. (Tr. 20-21, 42, 54; Decision, Mar. 23, 2015.) Thus, New Castle's contention that the Board's special knowledge relates only to the administration of the Town's zoning ordinance and related local conditions and not expertise in any particular trade, occupation, or profession, even if related to land use, fails.
B Dimensional Variance
1 Misapplication of Law
New Castle contends that the Board's decision warrants reversal because it arbitrarily applied § 45-24-41(c) in holding New Castle's hardship to be self-created and that New Castle did not seek the least relief necessary. Specifically, New Castle argued that the Board misapplied the "least relief necessary" standard and "arbitrarily ignored uncontradicted evidence in the record."
According to the Zoning Enabling Act, a dimensional variance is defined as:
"Permission to depart from the dimensional requirements of a zoning ordinance, where the applicant for the requested relief has shown, by evidence upon the record, that there is no other reasonable alternative way to enjoy a legally permitted beneficial use of the subject property unless granted the requested relief from the dimensional regulations. However, the fact that a use may be more profitable or that a structure may be more valuable after the relief is granted are not grounds for relief." Sec. 45-24-31(66)(ii).
In addition, in order to grant a dimensional variance pursuant to § 45-24-46.4, a zoning board must determine that the applicant satisfies the following standards:
"In granting a variance, the zoning board of review, or, where unified development review is enabled pursuant to § 45-24-46.4, the planning board or commission, 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 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." Sec. 45-24-41(d).
Moreover, the Rhode Island Supreme Court held in Bernuth that "[t]he zoning board of review shall . . . require that evidence is entered into the record of the proceedings showing … 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." 770 A.2d at 400. The Rhode Island Supreme Court explained that "more than a mere inconvenience" means that "there is no other reasonable alternative to enjoy a legally permitted beneficial use of one's property." Lischio v. Zoning Bd. of Review of Town of N. Kingstown, 818 A.2d 692, 695 (R.I. 2003) (citing Sciacca, 769 A.2d at 582 n.6); DiDonato v. Zoning Bd. of Review of Town of Johnston, 104 R.I. 158, 242 A.2d 416, 420 (1968) (noting "more than a mere inconvenience" means "that an applicant must show that the relief he is seeking is reasonably necessary for the full enjoyment of his permitted use.") However, 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. Sec. 45-24-31(66)(ii).
i
Self-Created Hardship
The Board found that New Castle's hardship was self-created because New Castle owned the subdivision-while operating under a different company name-at the time the Subject Property was subdivided in 1974. (Decision, Mar. 23, 2015.) The Board also found that the Subject Property should have never been created as a building lot. (Decision, Mar. 23, 2015.) Board Member Vanover opined that the hardship was self-created by New Castle, noting that New Castle has "been the owner of this property since the very beginning. It was their design. It was their plan. I don't agree that they can blame the town as was suggested . . . ." (Tr. 58-59.)
However, the Rhode Island Supreme Court in Slawson v. Zoning Bd. of Review of Town of Barrington, 102 R.I. 552, 232 A.2d 362 (1967) held that "the hardship purportedly imposed by the adoption of the amendment to the ordinance and from which applicants seek to be relieved, actually results not from the amendment to the ordinance, but from applicants' division of the land after the amendment was adopted-this being a classic example of hardship self-created." Id. at 555-56, 232 A.2d at 364 (emphasis added.) It is well settled that
"[t]he powers of boards of review to grant variances pursuant to the provisions of G.L.1956, s 45-24-19(c), or exceptions pursuant to the provisions of a local ordinance are designed to provide a landowner with a means of having his property relieved from the terms of an ordinance, with which terms the property in question cannot conform at the time such terms became effective. They are not intended as a method of sanctioning conditions which do not conform, for the reason that such conditions were brought about by the landowner subsequent to the adoption of the zoning regulations." Slawson, 102 R.I. 552, 232 A.2d at 364; Denton v. Zoning Bd. of Review of City of Warwick, 86 R.I. 219, 133 A.2d 718 (1957); Moschetti v. Zoning Bd. of Review of Town of Johnston, 102 R.I. 532, 231 A.2d 783 (1967).
Here, the Subject Property was subdivided prior to the amendment to the Charlestown Zoning Ordinance requiring the minimum three acre lot size. (Tr. 5-6; 34-35.) Board Member Dreczko noted that "[t]he applicant couldn't have had the foresight, whipped out the crystal ball to say, I should have reduced this." (Tr. 49.) See Saravo Bros. Constr. Co. v. Zoning Bd. of Review of Town of Johnston, 102 R.I. 442, 231 A.2d 9 (1967). Therefore, this Court finds that New Castle's hardship was not self-created because the Subject Property was conforming at the time the land was subdivided in 1974 by the applicant. Slawson, 102 R.I. at 552, 232 A.2d at 362.
ii Least Relief Necessary
New Castle argues that the Board's request to reduce the size of the dwelling, to move the house further back on the Subject Property, and to reduce the dwelling to a two-bedroom home was a mischaracterization of the standard of least relief necessary. New Castle argues that the proposed relief constitutes the least relief necessary because the Petition seeks to build a dwelling that "will be a much smaller house" than surrounding houses in the community. (New Castle Mem. 8.) Lastly, New Castle argues that the placement of the proposed dwelling constitutes the least relief necessary because of the constricting wetlands and wetlands buffer zone rendering most of lot unusable. (New Castle Mem. 7.)
In granting a dimensional variance, an applicant must also show, in addition to the elements required by § 45-24-46, "[t]hat the relief to be granted is the least relief necessary." Sec. 45-24-41(d)(4); see also Lischio, 818 A.2d at 690. The Rhode Island Supreme Court has held that ". . . an applicant seeking a dimensional variance has the burden before the zoning board of showing that a factual basis appears in the record to support the proposition that there is 'no other reasonable alternative' that would allow the applicant to enjoy a legally permitted beneficial use of the property." Bernuth, 770 A.2d at 401. See also § 45-24-41(d)(2), which states that in granting a variance, the zoning board of review shall require that evidence be entered into the record "[t]hat 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." Id.
In denying New Castle's Petition for dimensional variances, Board Member Vanover noted that his denial was based on New Castle's unwillingness to "consider suggestions about moving the dwelling further away from the wetland by reducing the size . . . ." (Decision, Mar. 23, 2015; Tr. 59.) At the public hearing, Board Member Vanover questioned Mr. Greene as to whether he considered making a smaller house. (Tr. 28.) In response, Mr. Greene stated that he felt that "the 22x32 was actually quite conservative . . . we think that we are at a size that's adequate for a family to reside in without making it any smaller." (Tr. 28.) Moreover, Mr. Lampe testified at the public hearing of his disinclination to continue collaborating with DEM in order to modify the proposed Plan to take into consideration the Board's suggestions:
"N[umber one] I doubt if I went back to them [DEM] and asked them to change it to something else that they would be all that receptive. N[umber two] Quite honestly, I don't plan on trying. I'm not trying to be cocky. I don't mean it that way. We've already gone through everything with them and put it where we could . . . We have too much time and effort invested. I want to move forward and not try to do that." (Tr. 40.)
Mr. Greene suggested at the public hearing that any reduction in the size of the proposed dwelling would affect the marketability and value of the real estate. (Tr. 28-29.) Mr. Greene also testified that a reduction in the number of bedrooms "affect[s] the value of the real estate." (Tr. 29.) Mr. Lampe likewise testified that a two-bedroom house is "not a feasible house in this day and age" because two-bedroom houses are "not popular" to a potential buyer. (Tr. 32-33.) The marketability and value to a potential buyer of this dwelling are simply not grounds for relief in the granting of a dimensional variance. Bernuth, 770 A.2d at 396; D'Angelo v. Knights of Columbus Bldg. Ass'n of Bristol, R.I., Inc., 89 R.I. 76, 151 A.2d 495 (1959).
Therefore, while the record reflects that while New Castle's hardship was not self-created, the requested relief does not reflect the least relief necessary. Lischio, 818 A.2d at 691; Bernuth, 770 A.2d at 402 n.9(c)(4). Accordingly, this Court is satisfied that the Board's decision denying New Castle's Petition for dimensional variances was supported by the substantial evidence on the record and was not an abuse of discretion or clearly erroneous. See § 45-24-69(d) ("[t]he 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"); see also Caswell v. George Sherman Sand & Gravel Co, Inc., 424 A.2d 646, 648 (R.I. 1981).
IV
CONCLUSION
After a review of the entire record, this Court finds that the Board's written decision denying the special use permit was supported by reliable and substantial evidence on the record, and its decision denying the dimensional variances was not clearly erroneous. The substantial rights of The New Castle Realty Company have not been prejudiced as a result. Accordingly, this Court affirms the Board's written decision to deny the requested special use permit and dimensional variances. Counsel shall submit an appropriate judgment for entry.