Opinion
C. A. KC-2015-0818
07-31-2017
S.G. ASSOCIATES, INC. v. JAMES RENGIGAS, as Applicant, THE CITY OF WARWICK ZONING BOARD OF REVIEW, DONALD G. MORASH, JR., RICHARD CORLEY, BEVERLY STURDAHL, MARK MCKENNEY AND EVERETT O'DONNELL, As Members of the Warwick Zoning Board of Review
For Plaintiff: John J. DeSimone, Esq. For Defendant: Peter D. Ruggiero, Esq.; Glen R. Whitehead, Esq.
Kent County Superior Court
For Plaintiff: John J. DeSimone, Esq.
For Defendant: Peter D. Ruggiero, Esq.; Glen R. Whitehead, Esq.
DECISION
LANPHEAR, J.
This matter is before the Court on the appeal of Plaintiff, S.G. Associates, Inc. (S.G. Associates), from a decision of the City of Warwick Zoning Board of Review (the Board). The Board's decision granted Defendant James Rengigas' (Mr. Rengigas) requests for certain dimensional variances in order to construct a one-story fast-food restaurant. S.G. Associates is an abutting landowner and a direct business competitor. Jurisdiction is pursuant to G.L. 1956 § 45-24-69.
I
FACTS AND TRAVEL
Mr. Rengigas is owner of the subject property located at 875 Oakland Beach Avenue, Warwick, Rhode Island and otherwise known as Assessor's plat 375, Assessor's lot 437. (Hr'g Tr. (Tr.) 5, July 21, 2015.) The property measures approximately 11, 917 square feet and is zoned General Business. Id. The property's current structure is a single-family home. Id. Prior to the current single-family structure, the property was the location of the original Gus's Restaurant. Id. at 5-6. The property is bounded by a private parking lot to the north, S.G. Associates' existing restaurant to the south, and open space and residential property to the west. Id.
In December of 2014, Mr. Rengigas submitted his first application-described as petition number 10186- requesting a dimensional variance to demolish an existing structure on the property and construct a new 32-foot by 42-foot one-story building. (Tr. 5, Jan. 13, 2015.) Mr. Rengigas sought to reinstate the former use of the property to operate a fast-food restaurant that would sell, among other things, "clamcakes, " and "chowder." Id. The proposal included offering customers four stools inside and an additional twenty seats outside. Id. In this application, Mr. Rengigas requested dimensional variances to allow him to operate the restaurant with less than the front and side yard setback, off street-parking spaces, and landscape buffer as required by the Warwick Zoning Ordinances. Id. at 5-6.
A duly noticed hearing for the requested dimensional variance was held on January 13, 2015 and March 10, 2015. S.G. Associates was present at both hearings in opposition to Mr. Rengigas' application. On March 10, 2015, the Board voted to deny Mr. Rengigas' application reasoning that the requested building is too large for the size of the property. (Tr. 69-70, Mar. 10, 2015.) Additionally, the Board expressed concerns regarding the small number of parking spaces proposed and the degree of relief that would be needed in order to permit construction of the building. Id. at 70. On April 22, 2015, the Board issued its written decision denying Mr. Rengigas' application (petition number 10186) for a dimensional variance.
This hearing resulted in a continuance for Mr. Rengigas to modify the site plans and amend the application to seek proper relief.
The fast-food restaurant proposed by Mr. Rengigas in his first application required one parking space per fifty (50) square feet of gross floor area. Therefore, Mr. Rengigas was required to provide twenty-seven (27) off-street parking spaces. However, Mr. Rengigas proposed only sixteen off-street parking spaces.
Two months later, on May 11, 2015, Mr. Rengigas filed a second application-described as petition number 10221-requesting dimensional relief for the same property located at 875 Oakland Beach Avenue in Warwick, Rhode Island. Mr. Rengigas petitioned for dimensional variances in order to demolish the existing structures on the property and construct a one-story building to operate a fast food restaurant. However, the second application proposed construction of a 32-foot by 28-foot building rather than the 32-foot by 42-foot building previously proposed. Thus, the second application proposed to construct a smaller building. Additionally, Mr. Rengigas no longer requested relief from the required number of off-street parking spaces. Instead, Mr. Rengigas' second application only requested that the building have "less than required front yard and side yard setbacks, dumpster having less than required setback from open space, outside seating having less than required side yard and front yard setbacks, [] less than required setbacks for parking, [and] less than [the] required landscaping and landscape buffer[.]" (Second Appl. 3A.)
Mr. Rengigas' second application is unclear as to the specific zoning ordinances from which he seeks relief. Therefore, this Court cross-referenced the Board's exhibits to determine Mr. Rengigas' variance requests and the applicable Warwick Zoning Ordinance. For purposes of clarity, this Court provides the below table to detail Mr. Rengigas' requests in relation to the relevant ordinances.
Warwick Zoning Ordinance Requirements
Mr. Rengigas' Second Application Variance Requests
Section 300, Table 2B, footnote 2
Commercial building or use must be set back a minimum of 40 feet from an abutting residence district and open space district
Site plan details that rear-yard setback is 40-feet; however, the restaurant is approximately 39.6-feet from the rear property boundary. Degree of relief is 0.5-feet, or 1.3% deviation. Additionally, trash storage area proposed is to be situated approximately 16.5-feet from rear property boundary. Degree of relief is 23.5-feet or 59% deviation.
Section 300, Table 2B, General Business Zone
Requires a 15 feet side yard setback
Requested 8-foot side yard setback. Degree of relief is 7-feet or 47% deviation.
Section 300, Table 2B, General Business Zone
Requires a 25 feet front and corner side yard setback
Requested 15.9-foot front side yard setback. Degree of relief is 9.1 feet or 36% deviation.
Section 505.1 (A), Landscaping and Screen Requirements for Non-Residential Uses
A 10-foot-wide landscaped border must be provided across the entire frontage of the lot except for any curb cuts
Requested a 5-foot landscape border in front of the building or 50% deviation.
Section 505.1 (B), Landscaping and Screen Requirements for Non-Residential Uses
A 20-foot wide landscaped border must be provided along any property line that abuts a residence district or open space district
Requested a 0-foot to 18-foot landscape border abutting the rear A-7 District. Degree of relief is 2-feet or 10% deviation.
Section 505.6 (B) (2), Landscaping and Screen Requirements for Non-Residential Uses
A minimum of 5% interior landscaping is required for the purpose of planting shade trees and shrubs.
Site plan details planting islands along easterly corner for approximately 160 square feet for a 73% deviation. The westerly corner for approximately 540 square feet or a 10% deviation.
Section 601.8 (B), Accessory Buildings and Uses, Nonresidential
Accessory buildings and uses shall not be located in any required front, side, corner side or rear yard
Site plan details proposed garage in side yard
Section 701.3, Setbacks of Parking Spaces
No parking space or aisle can be less than ten feet from any front or corner side yard property line. No parking space or aisle can be less than five feet from any building. Parking spaces less than ten feet from any building shall be separated from the building by raised curb, bumper or wheel guards.
Requested 0-feet to 3-feet parking setback. Deviation would be 40%.
Pursuant to Article IV of the Warwick Zoning Board of Review's Written Rules of Procedure, an applicant will not be given a new hearing within a year of being denied unless "it is alleged that new facts have arisen which could not have been presented to the Board at the time of its hearing, or where the ownership of the property involved has changed. See Article IV, Warwick Zoning Board of Review Written Rules of Procedure (Jan. 26, 1965). Accordingly, on June 9, 2015, the Board held a public hearing to determine whether new facts had arisen since the denial of Mr. Rengigas' first application. (Tr. 1-2, June 9, 2015.) At this hearing, S.G. Associates opposed the granting of Mr. Rengigas' new hearing on the second application. Id. at 3.
The Board acknowledged that the second application included a proposal for construction of a smaller building. Id. at 17-18. The Board further noted that the second application proposed a less intensive use of the land compared to that sought in the first application. Id. The Board described the second application as a new petition. Id. After conducting a full hearing and considering all arguments, the Board determined that new facts existed to allow Mr. Rengigas' second application to be heard two months after the denial of his first application. Id. at 30-31. On July 16, 2015, the Board issued its written decision. (Board's Decision, July 16, 2015). Neither party filed an appeal of the Board's July 16, 2015 written decision.
Thereafter, on July 21, 2015, the Board held a duly noticed public hearing to determine whether to grant the requested dimensional variances in Mr. Rengigas' second application. At the hearing, various individuals testified in support of and against Mr. Rengigas' request for dimensional relief. First, Richard Crenca (Mr. Crenca) of the Planning Department for the City of Warwick (the Department) made an initial recommendation to the Board. (Tr. 5-10, July 21, 2015.) Mr. Crenca noted that the property which is zoned General Business
was previously being used as a single-family home. Prior to that, it was the location of the original Gus's Restaurant. The Petitioner intends to reinstitute the former use of the property and sell, among other items, clamcakes and chowder. The operation will provide two counter stools inside and seating for 20 outside . . . [t]he area of . . . Oakland Beach Avenue has developed into a successful area for restaurants, beach front and open space. The use of this property as another restaurant would be consistent with the surrounding uses as well as with the City's Comprehensive Plan. Id. at 5-6.
Mr. Crenca recommended that the Department would have no objection to the relief requested by Mr. Rengigas contingent on the approval of fifteen stipulations. Id. at 7.
The Department's stipulations are as follows:
Number one, the Petitioner shall tie into the Warwick sewer system.
Number two, any basement or crawl space below grade shall be less than six feet in height from the floor to the ceiling. Number three, the Petitioner shall utilize a previous surface for on-site parking.
Number four, the Petitioner shall submit a drainage plan prepared by a registered professional engineer to the City engineer for review and approval. Said plan shall be prepared in accordance with State regulations.
Number five, there shall be no net increase in run-off from the site onto abutting properties and the street.
Number six, roof drainage will be retained in a manner acceptable to the City engineer.
Number seven, the dumpster shall be closed with a solid fence and solid evergreen hedge. The dumpster shall also have a cover and shall remain closed at all times.
Number eight, the Applicant shall submit a landscape plan to the City landscape coordinator for review and approval.
Number nine, a physical separation/protection shall be provided between the street and the outdoor seating. That protection, whether concrete planters, bollards, or other means, must be reviewed and approved by the Building Official prior to the issuance of a certificate of occupancy.
Number ten, the Petitioner shall receive a physical alterations permit from the City engineer prior to the issuance of a building permit.
Number eleven, a soil erosion and sedimentation control permit may be required as determined by the City engineer and the Building Official.
Number twelve, all exterior lighting shall be shielded and directed away from any abutting property.
Number 13, a six-foot stockade fence shall be erected along the rear property line to screen the property from abutting open space and residential zones.
Number 14, no expansion of this use without prior approval of the Zoning Board.
And number 15, substantial compliance with the plans and testimony as presented to the Board and substantial compliance shall be determined by the Building Official. Tr. 7-10, July 21, 2015.
Next, Mr. Rengigas' attorney, Robert Flaherty, testified that Mr. Rengigas was petitioning for a scaled-down and radically different building proposal in comparison to his first application. Id. at 10. Attorney Flaherty stated that Mr. Rengigas sought to demolish existing structures on the property in order to construct a 32 by 28-foot building to operate a fast-food restaurant. Id. at 11. Attorney Flaherty explained that dimensional variances are necessary because, based on the configuration of the lot and Oakland Beach Avenue, the location of the building would not permit compliance with the required frontage. Id. Attorney Flaherty also asserted that given the configuration of the area, no building on Oakland Beach Avenue conforms to the frontage requirements. Id. Moreover, Attorney Flaherty provided that the property was the site of the original Gus's Restaurant and that the property has been in Mr. Rengigas' family since 1924. Id. Lastly, Attorney Flaherty noted that the restaurant is the only practical use of the property and that literal enforcement of the Ordinance would cause undue hardship for Mr. Rengigas since the property is not appropriate for residential use. Id. at 12.
An expert in real estate brokerage, Robert DeGregorio, was next to testify in support of Mr. Rengigas. Id. at 13. Mr. DeGregorio testified that the proposed use of the property is "extremely consistent" with the other uses in the area and would conform to the surrounding area. Id. at 16. Mr. DeGregorio testified the proposed building would not alter the nature of the surrounding buildings or businesses. Id. Mr. DeGregorio opined that there is no other practical alternative use other than commercial and that the current dwelling located on the property is an "unattractive nuisance." Id. Mr. DeGregorio asserted that the proposed commercial use would not have an adverse effect on the property values in the surrounding area because Mr. Rengigas would be "taking a rundown building and . . . making a new business that will conform with the area." Id. at 17. Lastly, Mr. DeGregorio testified that an alternative commercial use, such as an office building, would not be appropriate on Oakland Beach Avenue. Id. at 22.
Next, Mr. Rengigas briefly testified in support of his application. Mr. Rengigas described details of his site plan and the proposed layout of the building. Id. at 26-32. Additionally, Mr. Rengigas addressed concerns regarding the use of the basement in the building. Id. at 28. Mr. Rengigas clarified that he plans to have mechanicals for hot water, as well as possible storage for paper goods, located in the basement. Id. at 28-29. However, Mr. Rengigas testified that he has not yet discussed the proposal with the building department and therefore he could not offer specifics. Id. at 31-32.
Paul Bannon, an expert on traffic and transportation, testified next in support of Mr. Rengigas' application. Id. at 34. Mr. Bannon testified that he reviewed the site plan that was proposed by the site engineer. Id. at 35. He testified that he visited the site at different times of the day and week to observe traffic conditions. Id. Mr. Bannon further testified that he collected accident data from the City of Warwick to determine whether there were safety issues that existed in the area. Id. As a result of his study, Mr. Bannon concluded that Mr. Rengigas' building would have no adverse effect on the public health and safety in the area of Oakland Beach Avenue and that an adequate and safe access can be provided at the proposed building's driveway. Id. at 36.
Mr. Cabral, whom the Board qualified as an expert in engineering, testified in opposition to Mr. Rengigas' second application. Id. at 38. As an initial matter, Mr. Cabral first testified that the proposed site is not the original site for Gus's Restaurant, but rather Gus's Restaurant was located on an adjacent property. Id. at 41-42. Mr. Cabral claimed that the subject site was actually the location of a food stand that existed from 1924 to 1934. Id. at 42. Therefore, Mr. Cabral testified that the prior use of the property was not a commercial restaurant as stated, but was solely a single-family home since 1934. Id. at 42.
Mr. Cabral next testified as to the engineering issues regarding the variances that Mr. Rengigas had requested. Id. at 43. Mr. Cabral expressed concerns regarding the magnitude of the number of variances requested. Id. at 44. Mr. Cabral stated that the cumulative impact of the requested variances makes it clear to an engineer that the proposal is not suitable for the subject property. Id. at 45. Mr. Cabral testified that if the proposal was for a retail store with an office space rather than the proposed restaurant, then the proposal would be more suitable for the property in accordance with the zoning ordinance. Id. at 45-46. Mr. Cabral clarified that the purpose of his testimony is to show that there are other uses allowed in the zone that can fit the subject property without numerous variances being requested. Id. at 47.
Additionally, Mr. Cabral expressed concern regarding the parking spaces required by Warwick Zoning Ordinances. Id. at 53. Specifically, Mr. Cabral testified that should Mr. Rengigas ultimately utilize the basement for storage, then a seven-foot clearance is required. Id. However, Mr. Cabral stated that the required seven foot clearance was not specified in Mr. Rengigas' application. Id. Mr. Cabral testified that if Mr. Rengigas plans to utilize storage, then additional parking would be required. Id. In essence, Mr. Cabral advised that the number of variances requested evidences that the subject property is not appropriate for the use requested. Id. at 57.
Edward Pimental, qualified as an expert in land use, was next to testify in opposition to Mr. Rengigas' second application Id. at 58. Mr. Pimental agreed that the restaurant is a permitted use as the subject property is located in a General Business Zone. Id. at 61. However, Mr. Pimental expressed concern over the lack of off street and on street parking offered. Id. at 64-65. Mr. Pimental expressed that the deficient parking could "result in both [an] inconvenience for visitors and patrons and disruption to surrounding uses." Id. at 65. Mr. Pimental reviewed the parking spaces of Mr. Gravino, an abutting property owner and owner of S.G. Associates. Id. Mr. Pimental testified that Mr. Gravino owns an estimated one hundred and fifty spaces spread across his properties in order to accommodate his customers. Id. at 66. Mr. Pimental testified that Mr. Gravino needs only forty to fifty parking spaces for to satisfy the zoning ordinance. Id. Thus, Mr. Pimental appeared to argue that Mr. Gravino is a business owner that strives to adhere to the City's Comprehensive Plan by solving some of the parking deficiency issues. Id. In contrast, Mr. Pimental claimed that Mr. Rengigas' request for ten variances does not align with the City's Comprehensive Plan goals and objectives. Id. at 66-67. Mr. Pimental stated that "[t]he magnitude [of variances] that we are talking about, with some of them a hundred percent [deviation], I would say cannot possibly meet the burden of the [least] relief necessary." Id. at 74. Mr. Pimental clarified that the variances requested are a hundred percent deviation as a cumulative effect. Id. at 77. In sum, Mr. Pimental testified that Mr. Rengigas' proposal could overburden the area reducing the number of parking greatly and potentially forcing visitors out of the area due to inconvenience. Id. at 89.
Finally, William Coyle, an expert in real estate, was the last witness to testify in opposition to Mr. Rengigas' second application. Id. at 92. At the hearing, Mr. Coyle testified that he identified the impact that Mr. Rengigas' proposal would have on the surrounding properties, both commercial and residential. Id. at 93. Mr. Coyle discussed the deficiency in parking around Oakland Beach Avenue and the traffic issues that exist. Id. at 97-98. Mr. Coyle claimed that the area is already having trouble servicing restaurant customers in that area. Id. at 98. Mr. Coyle further testified that the specific use requested requires variances in excess of what should be needed and that there are other uses that are more appropriate requiring less relief. Id. at 99. Mr. Coyle also expressed concern regarding the building plan lacking sufficient information. Id. at 102. Mr. Coyle claimed that should Mr. Rengigas add an oil boiler or a walk-in refrigerator- two structures that are typical of the use requested-additional parking spaces would be needed. Id. at 103. However, Mr. Coyle testified that it would be difficult to add the additional required parking spaces once the building is complete. Id.
Ms. Julie Finn, a frequent visitor of the Oakland Beach Avenue area, also commented in opposition to Mr. Rengigas' second application. Id. at 117-118. Ms. Finn opined that the area does not warrant another take-out fast-food restaurant. Id. at 118. Ms. Finn expressed concerns regarding the amount of trash and litter around the beach. Id. She claimed that it was the fault of the area businesses for not picking up the trash from their customers and therefore adding another restaurant would only contribute to the problem. Id.
After the Board considered all of the testimony and other evidence, Board Member O'Donnell made a motion to approve Mr. Rengigas' application. Id. at 119. Board Member Sturdahl seconded the motion. Id. at 120. During discussions, Board Member O'Donnell commented that it is Mr. Rengigas' right to open a restaurant in the area. Id. Board Member McKenney (Mr. McKenney) also explained that failing to grant the application would result in a hardship on Mr. Rengigas. Id. Mr. McKenney stated that the testimony offered concluded that the property values would not be negatively affected; the setbacks were appropriate; and that the hardship was due to the unique characteristics of the property and not the general characteristics of the surrounding area. Id. He further expressed that the evidence is in favor of the type of business being a good fit for the surrounding area and that the type of alternative uses proposed were not conducive to the surrounding area. Id. at 121. Mr. McKenney noted that a little competition could also relieve the crowding on the sidewalk. Id. at 122. Board Member Corley further opined that he believed anti-competition was the "main motivating factor from [S.G. Associates] . . ." in objecting to Mr. Rengigas' application. Id. at 125-126
Following further comments by the Board, Board Member Morash voted against the motion. Finally, Mr. Rengigas' second application was approved four to one. The Board issued its written decision on August 20, 2015.
In its written Decision, the Board noted that the hardship from which Mr. Rengigas seeks relief is due to the unique characteristics of the subject land or structure and not to the general characteristics of the surrounding area. See Decision 3, Aug. 20, 2015. The Board reasoned that the property is the only single-family residential structure on that stretch of Oakland Beach Avenue zoned as General Business. Id. The Board found that the hardship is not the result of any prior action of Mr. Rengigas and was not from his desire to realize greater financial gain. Id. The Board noted that the current structures have been in existence longer than any prior zoning regulations. Id. The Board further acknowledged that the new restaurant would keep the character of the area and be more in conformance with the surrounding area than the existing single-family structure. Id. The Board further found that the restaurant would not diminish the use, value or enjoyment of the subject property or surrounding properties. Id. The Board determined that this relief requested is the least relief necessary as Mr. Rengigas changed his prior plan. Id. Finally, the Board concluded that the proposal would enable Mr. Rengigas to build an adequate sized building sufficient to operate the restaurant. Id.
On September 3, 2015, S.G. Associates timely filed an appeal of the Board's August 20, 2015 decision. Thereafter, on January 5, 2017-more than six months after filing its initial memorandum-S.G. Associates filed a supplemental memorandum raising procedural issues in relation to the Board approving the request to hear Mr. Rengigas' second application within one year of being denied. Mr. Rengigas filed a reply to the supplemental memorandum, which was supported by the Board, arguing that the procedural issues are untimely because S.G. Associates never appealed the Board's written decision granting the hearing of Mr. Rengigas' second application. Mr. Rengigas further argued that the Board was acting within its discretion to reconsider Mr. Rengigas' second application.
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." Section 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) (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 Newport, 594 A.2d 878, 880 (R.I. 1991) (citing DeStefano v. Zoning Bd. of Review of Warwick, 122 R.I. 241, 244, 405 A.2d 1167 (1979)). Substantial evidence is described 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." Lischio v. Zoning Bd. of Review of the Town of N. Kingstown, 818 A.2d 685, 690 n.5 (R.I. 2003) (citing Caswell v. George Sherman Sand & Gravel Co., 424 A.2d 646, 647 (R.I. 1981)). The Superior Court also gives give 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
A
Board's Approval of Second Application
On appeal, S.G. Associates argues that the Board's decision must be reversed essentially on two main grounds. First, it argues that the Board's July 16, 2015 decision to grant Mr. Rengigas' second application within one year of being denied was made upon unlawful procedure. Next, S.G. Associates contends that the Board's decision to grant the second application was an abuse of its discretion. S.G. Associates asserts that the Board's July 16, 2015 decision was in violation of Article IV of the Board's Written Rules of Procedure. Specifically, S.G. Associates claims that no evidence or testimony was offered to support Mr. Rengigas' request for a new hearing within a year of being denied other than the submission of his new application.
Article IV states:
"[n]o application shall be in order for a hearing within a period of one (1) year from the date of such denial, exception in those cases where it is alleged that new facts have arisen which could not have been presented to the Board at the time of its hearing, or where the ownership of the property involved has changed. In such cases the Board may, in its discretion, rehear the matter within the one-year period." See Article IV, Warwick Zoning Bd. of Review's Written Rules of Procedure (Jan. 26, 1965).
Under Rhode Island law, an aggrieved party may
"appeal a decision of the zoning board of review to the superior court for the county in which the city or town is situated by filing a complaint stating the reasons of appeal within twenty (20) days after the decision has been recorded and posted in the office of the city or town clerk. The decision shall be posted in a location visible to the public in the city or town hall for a period of twenty (20) days following the recording of the decision in the office of the city or town clerk." Sec. 45-24-69(a) (emphasis added).See also Sousa v. Town of Coventry, 774 A.2d 812, 814-15 (R.I. 2001) (holding zoning appeal denied because of untimely filing). It is well settled that the statute "requires that the persons who seek review of a decision of a zoning board must file a complaint in the Superior Court . . . within twenty days after the decision of the zoning board has been filed." Mauricio v. Zoning Bd. of Review of City of Pawtucket, 590 A.2d 879, 880 (R.I. 1991); see also Ryan v. Zoning Bd. of Review of Town of New Shoreham, 656 A.2d 612, 615 (R.I. 1995) (holding that board's decision was final when no party appealed within the required statutory time).
On June 9, 2015, the Board held a hearing to consider whether new facts existed to allow Mr. Rengigas' second application to proceed to a new hearing subsequent to the first application being denied within a year. See Tr. 1, June 9, 2015. The Board issued its written decision on July 16, 2015. See Decision, July 16, 2015. At that point, S.G. Associates had twenty (20) days to appeal the decision of the Board pursuant to § 45-24-69(a); Mauricio, 590 A.2d at 880. However, S.G. Associates never appealed the July 16, 2015 decision. Consequently, this Court finds that the Board's July 16, 2015 decision was a final decision granting the second application to proceed within one year of being denied, and the issues regarding the decision now on appeal are untimely. Ryan, 656 A.2d at 615. Accordingly, this Court will not address the issues raised regarding the June 9, 2015 hearing or the July 16, 2015 written decision.
This Court also notes that S.G. Associates did not raise issues regarding the Board's June 9, 2015 hearing or the July 16, 2015 decision until it filed a supplemental memorandum in January of 2017-six months after the appeals period had ended and the initial filing of S.G. Associates' Complaint.
B
Dimensional Variance
1
Findings of Fact
S.G. Associates contends that the Board's decision warrants reversal because the written decision does not contain factual findings pinpointing the evidence that supports its findings. Instead, S.G. Associates asserts that the Board's findings were a recitation of legal conclusions rather than rendering factual findings. In particular, S.G. Associates argues that the Board's decision failed to provide sufficient findings of fact to support that Mr. Rengigas' hardship was not a result of his prior actions and that his hardship is not a result of his desire to realize a greater financial gain.
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), 769 A.2d at 585 (quoting Irish P'ship v. Rommel, 518 A.2d 356, 358 (R.I. 1986)). The Supreme Court of Rhode Island has explained:
'"[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."'Bernuth v. Zoning Bd. of Review of Town of New Shoreham, 770 A.2d 396, 401 (R.I. 2001) (quoting Irish P'ship, 518 A.2d at 358-59).
With respect to the Board's August 20, 2015 written decision, this Court finds that the Board made sufficient findings of fact which address each element that is required under § 45-24-41(d)(1-4). See Board's Decision 1, Aug. 20, 2015. Specifically, in finding that the hardship Mr. Rengigas seeks relief from is due to the unique characteristics of the subject land and not to the general characteristics of the surrounding area, the Board explained that the property is the only single-family residential structure located on that stretch of Oakland Beach Avenue and is in a General Business zoning district. Id. at 3. Furthermore, the Board stated in its findings that the hardship Mr. Rengigas' seeks relief from is not a result of Mr. Rengigas' prior actions or an attempt to realize greater financial gain. Id. The Board reasoned that the current structures have been in existence on the property for many years and were in place long before any zoning regulations were established. Id. Furthermore, the Court found that the requested variance would not alter the general characteristics of the surrounding area or impair the purpose of the comprehensive plan. The Board explained its findings stating,
"[t]he proposed new restaurant building would be in keeping with the character of the area and would be more in keeping with the surrounding land uses than the existing single-family dwelling. The proposed restaurant would not diminish the use, value or enjoyment of the subject property or the surrounding properties." Id.
Next, in finding that the relief requested is the least relief necessary, the Board reasoned that Mr. Rengigas changed his original plan and is now seeking less dimensional relief. Id. Finally, the Board found not granting Mr. Rengigas' requested dimensional relief would constitute more than a mere inconvenience because the proposed size of the building is the only reasonable size to adequately operate the restaurant. Id. Thus, this Court finds that the Board's written decision clearly included an application of the necessary legal principles and supported its findings with sufficient facts and not conclusory statements. Irish P'ship, 518 A.2d at 358.
2
Substantial Evidence on the Record
S.G. Associates also argues that the Board's August 20, 2015 decision was made contrary to the substantial evidence on the record. Specifically, S.G. Associates contends that the two expert witnesses that testified in support of granting the relief did not address the standard necessary to support granting a dimensional variance. In contrast, S.G. Associates claims that its experts showed that the hardship Mr. Rengigas seeks relief from was self-created, was only to realize a financial benefit, and that the hardship suffered does not amount to the least relief necessary.
Under Rhode Island law, 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." Sec. 45-24-31(66)(ii).
In order to grant a dimensional variance, a zoning board must determine that the applicant satisfies the following standards:
"(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, with respect to the use of the dimensional variance, the zoning board must find that "the hardship suffered by the owner of the subject project if the dimensional variance is not granted amounts to more than a mere inconvenience. § 45-24-41(e)(2). 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, 818 A.2d at 692 (citing Sciacca, 769 A.2d at 582 n.6). 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).
Here, a review of the record reveals that there was substantial evidence to support the Board's finding that Mr. Rengigas met each standard required under § 45-24-41(d)(1-4) in order for a dimensional variance to be granted. First, with respect to § 45-24-41(d)(1), this Court finds that the record provides competent evidence to establish 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. Mr. Crenca, staff member of the City of Warwick's Planning Board, recommended to the Board that the subject property is zoned General Business and is currently a single-family home. (Tr. 5, July 21, 2015.) He explained that the subject property is the former location of the original Gus's Restaurant. Id. at 6. Mr. DeGregorio, recognized as an expert in real estate, opined that the current structure of the property is an unattractive nuisance to the area and that the proposed structure is reasonable and proper for the property. Id. at 16-17. It is well settled that if expert testimony is "competent, uncontradicted, and unimpeached, it would be an abuse of discretion for a zoning board to reject such testimony." Murphy v. Zoning Bd. of Review of Town of S. Kingstown, 959 A.2d 535, 542 (R.I. 2008). Therefore, the Board had evidence before it that the hardship is due to there being a unique single-family structure currently on the subject property in an area zoned for General Business. See Caswell, 424 A.2d at 648 (zoning board relied on sufficient and reasonable facts to support its findings).
Second, substantial evidence exists to support that Mr. Rengigas' hardship is not the result of any of his prior actions and is not the result of his desire to realize a greater financial gain. Sec. 45-24-41(d)(2). See Sciacca, 769 A.2d at 583-84. Mr. DeGregorio testified that the proposed restaurant would be good for the community because it is "taking a rundown building" and creating a new structure that would fit well within the Oakland Beach area. (Tr. 17, July 21, 2015.) Moreover, Mr. DeGregorio stated that the subject property is zoned for General Business and that the alternative permitted use, such as an office building, would not be in conformity with or appropriate for the area. Id. at 22-23. Mr. DeGregorio further noted that the proposal represents a reasonable and practical use of the subject property. Id. at 17. Thus, there is probative evidence of the record to establish a finding that the need for the dimensional variance to construct the building is not a result of his own actions or out of the desire for greater financial gain.
Moreover, the Board had evidence before it that Mr. Rengigas will not alter the general character of the surrounding area or impair the intent or purpose of the zoning ordinance or the City of Warwick's Comprehensive Plan. Sec. 45-24-41(d)(3). Again, Mr. Crenca and Mr. DeGregorio testified that the building would be consistent with the surrounding uses and with the City's Comprehensive Plan. (Tr. 6, 16, July 21, 2015.) Mr. DeGregorio specifically stated on the record that there would be no adverse effect on the property values of the surrounding area. Id. at 17. Additionally, Mr. Bannon, an expert in traffic and transportation, testified that his study of Oakland Beach Avenue concluded that "no adverse effect would be realized [by Mr. Rengigas' proposed use] on Oakland Beach Avenue and an adequate and safe access can be provided at the proposed driveway intersection." Id. at 36; see also Toohey v. Kilday, 415 A.2d 732, 737 (R.I. 1980) ("An increase in traffic . . . does not necessarily adversely affect the public convenience and welfare"). Mr. Bannon noted that the business proposed is "part of the village environment to service the people that go to Oakland Beach." (Tr. 37, July 21, 2015.) Board Member McKenney also commented that "the evidence was strong [that] there was a good fit in terms of this type of establishment in the surrounding area" and that "some of the suggested alternatives that were made by the objectors were really not a good fit." Id. 121. Therefore, the record clearly supports a finding that Mr. Rengigas' proposed restaurant with these dimensions would not alter the character of the surrounding community or the City's Comprehensive Plan. See Lischio, 818 A.2d at 693 (determining a mini self-storage facility zoned general business was a permitted use that would not adversely affect the general character of the surrounding area).
Next, there is substantial evidence to support that the relief to be granted is the least relief necessary. Sec. 45-24-41(d)(4). First, S.G. Associates' expert acknowledged that the dimensional variances requested did not estimate one hundred percent deviations from the zoning ordinances. (Tr. 74-75, July 21, 2015.) The evidence also provided that the setbacks requested were appropriate. Id. at 120. Mr. Rengigas' proposed site plan was also discussed with the Warwick Planning Department and was modified to conform to the Planning Department's modifications. Id. at 114. Additionally, based on the record before the Board, the second application requested a smaller building size. (Second Appl. 3A.) The Board noted that Mr. Rengigas' effort to reduce the size of the building shows that Mr. Rengigas' is requesting the least relief necessary in order to construct the building. (Tr. 126, July 21, 2015.) Accordingly, this Court finds that the record reflects substantial evidence to support the Board's finding that Mr. Rengigas' proposed use of the subject property is the least relief necessary to be able to enjoy a reasonable use of his property.
Finally, the record evidences that not granting Mr. Rengigas' dimensional variance would result in a hardship that is more than a mere inconvenience. See Lischio, 818 A.2d at 691. The testimony provides that the current structure on Mr. Rengigas' property is a single-family house on a lot that is zoned for General Business. (Tr. 5, July 21, 2015.) The majority of the surrounding area consists of businesses that service patrons. Id. at 17, 23, 37, 73. The current structure on Mr. Rengigas' property is described as an unattractive nuisance. Id. at 16. Therefore, the record reflects that Mr. Rengigas would experience a hardship that is more than a mere inconvenience if he did not obtain the dimensional relief requested or constructed an alternative permitted use such as an office building. See Lischio, 818 A.2d at 694-95. Board Member McKenney acknowledged that "if [the Board] required the Applicant here to adhere to the literal requirements of . . . all the setbacks, then it would certainly be more than a mere inconvenience and would deprive the Applicant of the full enjoyment of the use of his property." (Tr. 123, July 21, 2015.) Thus, this Court finds that the record reflects that without the dimensional variance, there is no other reasonable alternative for Mr. Rengigas to enjoy a legally permitted beneficial use of his property. Id. Accordingly, this Court is statisifed that the Board's decision 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, 424 A.2d at 648.
IV
Conclusion
After a review of the entire record, this Court finds that the Board's decision was supported by the reliable, probative and substantial evidence on the record, was not arbitrary or capricious, and was not in violation of any statutory, ordinance, or planning board provisions. Additionally, this Court finds that the Board's decision was not affected by error of law or characterized as an abuse of discretion. The substantial rights of S.G. Associates have not been prejudiced as a result. Accordingly, this Court affirms the Board's decision to grant the requested dimensional variance. Counsel shall submit an appropriate order for entry.