Opinion
C.A. No. WC-2012-0785
08-25-2016
ROBERT AND DAVID BATISTA, CLAUDIO AND THERESA AMARAL v. THE TOWN OF NORTH KINGSTOWN THROUGH ITS ZONING BOARD OF REVIEW AND ITS MEMBERS, DANIEL PIRHALA, VINCENT BRUNELLE, ARTHUR CARDENTE, STEVE CRAVEN, AND BRIERLY MELLOR
ATTORNEYS: For Plaintiff: Matthew F. Callaghan, Jr., Esq.; James M. Callaghan, Esq. For Defendant: James H. Reilly, Esq.
DECISION MATOS , J. Appellants Robert Batista, David Batista (Mr. Batista), Claudio Amaral, and Theresa Amaral (collectively, Appellants) appeal a decision (Decision) from the North Kingstown Zoning Board of Review (Zoning Board), denying two variances for dimensional relief. Jurisdiction is pursuant to G.L. 1956 § 45-24-69. For the reasons set forth herein, the Decision is hereby affirmed.
I
Facts and Travel
Appellants own a parcel of land situated at the intersection of Route 102 (Phillips Street) and Route 1 (Tower Hill Road) in North Kingstown (Lot 56). Zoning Bd. Hr'g Tr. 3:2-5, Nov. 27, 2012. Lot 56 is a 28,439 square foot rectangular corner lot that is zoned Neighborhood Business. See Appellants' Mem., Ex. E; Decision at 1. Appellants intend to build a 3000 square foot building (the Building) on Lot 56 which would house two businesses—a Dunkin Donuts shop and a yet to be determined retail establishment. Decision at 1. Id. Both uses are permitted under the North Kingstown Zoning Ordinance. North Kingstown Zoning Ordinance art. III, Land Use Table; see also Decision ¶ 1. The peculiarities of the lot, however, require variances in order to accommodate the Town's established setback requirements.
Route 102 runs in an eastern/western direction and turns into Phillips Street after crossing Route 1.
Route 1 runs in a northern/southern direction and is also known in this area as Tower Hill Road.
Lot 56 is a corner lot that technically contains two front-yards and thus, it required that Appellants request two variances (the Application). Under the North Kingstown Zoning Ordinance, a parcel zoned Neighborhood Business does not have a fixed front yard setback requirement. Instead, the front yard setback "shall be the average of the existing setbacks on the same side of the street as the subject site for distance of 500 feet on both sides." North Kingstown Zoning Ordinance § 21-87(b)(2). Following this calculation, the Building must be set back 37.5 feet from Phillips Street and 45 feet from Tower Hill Road. Decision at 3. Appellants sought a 23.5 foot variance from the setback requirement on Phillips Street and a 30.5 foot variance from the setback requirement on Tower Hill Road which would allow Appellants to construct the Building within 14 and 14.5 feet from Phillips Street and Tower Hill Road, respectively. Id.
The North Kingstown Zoning Ordinance § 21-22(A) provides: "Front [lot line] means the lot line separating a lot from a street right-of-way. On a corner lot or a through lot, both lot lines which separate the street right-of-way from the lot are considered front lot lines."
In addition, North Kingstown Zoning Ordinance § 21-87(b)(1) mandates that the parking lot be located in the rear of the principal structure. The parking cannot be situated in the required rear or side yard setback or buffer area. North Kingstown Zoning Ordinance § 21-87(b)(1). Existing zoning regulations require nineteen parking spaces for the Building, sixteen for the Dunkin Donuts shop and three for the retail space. See North Kingstown Zoning Ordinance § 21-272. Appellants claim that the variances are necessary to accommodate the requisite rear parking. Zoning Bd. Hr'g Tr. 11:17-21:1, Nov. 27, 2012.
The North Kingstown Planning Commission (the Planning Commission) reviewed the Application on May 1, May 29, and August 27, 2012. See Planning Commission Mins. (May 1, 2012); Planning Commission Mins. (May 29, 2012); Planning Commission Mins. (Aug. 7, 2012). The Planning Commission recommended that the Zoning Board deny the Application. See Mem. of Rebecca P. Lamond, Principal Planner, to the Zoning Board at 5 (Nov. 20, 2012). The Planning Commission stressed concerns about the intensity of the project, the size of the Building, the parking requirements, and impact on traffic. Id. at 4-5.
A public hearing was held before the Zoning Board on November 27, 2012. David Taglianetti (Mr. Taglianetti), a civil engineer, testified that the proposed project meets all other zoning requirements aside from the front yard setbacks. Zoning Bd. Hr'g Tr. 13:22-25, Nov. 27, 2012. Mr. Taglianetti also testified that he was contracted by Appellants to design a building according to Appellants' specifications. Id. at 44:23-45:9. When asked whether the Building could be relocated to accommodate the setback requirements, Mr. Taglianetti responded that there would be inadequate space for parking. Id. at 44:8-13. Mr. Taglianetti was then asked: "[I]s there a building that would meet all of those requirements, including the parking requirement"? Id. at 44:14-16. Mr. Taglianetti maintained that the Building being proposed could not meet all of the requirements, but "[t]here may be a building" that could. Id. at 44:17-19.
Mr. Batista testified that he currently owns and operates four Dunkin Donuts shops in the North Kingstown area. Id. at 16:12-15. He elaborated on the proposed Dunkin Donuts, noting that it would produce more foot traffic as it would not contain a drive-thru window. Id. at 17:8-18:13. Mr. Batista admitted that the Dunkin Donuts itself would only require approximately 1400 to 1450 square feet. Id. at 48:7-12. He explained that he also invests in properties and is seeking to add the duplicative retail space in order to have an additional tenant and rent. Id. at 47:21-16.
Joseph Lombardo (Mr. Lombardo), a land use planning consultant, summarized a planning report that he prepared. Id. at 20:4-29:5. Mr. Lombardo testified that this particular Dunkin Donuts shop would be in accordance with the comprehensive plan and surrounding area. Id. Elaborating, Mr. Lombardo explained that the Neighborhood Business District aims to serve the community, and this particular Dunkin Donuts shop would serve community members as it would be accessible by foot. Id. at 21:13-22:15. Mr. Lombardo partially based his opinion on experience he gained from working as a location planner for Bess Eaton Donuts. Id. at 29:9-30:2. Mr. Lombardo also stated that Lot 56 was well suited for the Building and its proposed uses due to its flat surface and visibility from the intersection. Id. at 24:7-25:1. Finally speaking to the standard of review, Mr. Lombardo maintained that the Building could not be built in compliance with the Zoning Ordinance. Id. at 27:7-11; 27:20-28:3. He also noted that Lot 56 has been vacant for some time and that Appellants would experience more than an inconvenience if the Zoning Board denied the Application. Id. at 28:4-10.
Robert J. Clinton (Mr. Clinton), a transportation traffic engineer, detailed the current traffic conditions in the area. Id. at 31:18-42:15. Mr. Clinton's report indicates that the intersection currently operates at a level C during weekday mornings at peak hours and a level D during weekday evenings at peak hours and Saturday mid-day hours. Appellants' Mem., Ex. Q at 5. If the Building is not constructed, the report indicates that traffic will only increase on Saturdays during mid-day hours, to a level E. Id. Regardless, Mr. Clinton testified that the Building would only minimally increase traffic because the Dunkin Donuts will not have a drive-thru; therefore, the majority of customers will be pedestrians. Zoning Bd. Hr'g Tr. 35:25-36:23; 37:15-38:6; 37:15-38:6. Likewise, customers often avoid congested areas when selecting a convenience establishment. Id. at 36:17-23.
The traffic levels are based on "Level of Service" or LOS, with "A" being the best rating and "F" as the worst. Id. at 5. The traffic report was based on traffic patterns in December 2011. Id.
Chief of Police Thomas Mulligan (Chief Mulligan) testified that the Police Department reviews all applications referred from the Planning Commission. Id. at 65:10-16. Chief Mulligan stated that the Application gave him pause because the increased amount of pedestrians in a heavy traffic area made way for a dangerous situation. Id. at 66:21-67:12, 69:6-18.
Finally, twelve neighborhood residents spoke in opposition to the Application's approval. Id. at 76:8-95:15. The neighbors stressed that they were concerned about adding further congestion to the area. Id. at 86:24-89:5. More specifically, they explained that Wickford Middle School is located across the street from Lot 56. Id. at 79:3-83:12. The neighbors claimed that the diminished visibility raised safety concerns for children and other pedestrians in the area, especially runners. Id. at 89:8-90:7. Moreover, neighbors explained that it was difficult to assess the impact of the retail space as its use is unknown. Id. at 84:21-85:1.
At the end of the hearing, the Zoning Board commented on the fact that in 1997, Mr. Batista sought to construct a Dunkin Donuts with a drive-thru. Id. at 101:17-23. Another application was made in 1998. Id. at 102:2. Neither application made it past the Planning Commission. Id. at 101:25-102:3. After further discussion, the Zoning Board voted to deny the Application. Id. at 111:13-112:13. The Decision was issued on December 4, 2012.
The Zoning Board agreed that both the Dunkin Donuts and retail establishment were permitted uses under the Land Use Map. Decision ¶ 1. However, the placement of the Building raised visibility concerns given the surrounding area—namely, that the area is a heavily traveled roadway. Decision ¶¶ 5-7. Turning to the standard of review, the Zoning Board found that the hardship was caused by Lot 56 itself, not the surrounding area or the fault of Appellants. Decision ¶¶ 17-18. However, the Zoning Board denied the Application, because Appellants did not request the least relief necessary, and the variances were being used for financial gain. Decision ¶¶ 12, 15, 19. As to the latter, the Zoning Board found that the unknown second use, the retail establishment, was intended for financial gain. Decision ¶ 12. In relation to the former, the Zoning Board found that Appellants could have considered other options, including "a smaller building, turning the building on the parcel, utilizing only one ingress/egress to access the site." Decision ¶ 15. The Zoning Board concluded that Appellants could have redesigned or repositioned the Building to accommodate the zoning regulations, even if that meant lessening their financial gain.
Appellants timely appealed the Decision to the Superior Court on December 27, 2012. Appellants argue that the Decision is affected by error or law, clearly erroneous in light of the probative, reliable, and substantial evidence on the whole record, and arbitrary and capricious. First, Appellants contend that the Zoning Board essentially "nullified" the Zoning Ordinance, claiming that the Zoning Board denied the Application because it was not in favor of the use being proposed for Lot 56. Second, Appellants posit that the Zoning Board improperly considered traffic concerns, thus reviewing the Application as one for a special use permit. Third, Appellants claim that a review of the record does not support the conclusion that the Building would increase traffic or cause additional congestion. Finally, Appellants argue that the record does not support the conclusion that the variances would promote financial gain, or that Appellants did not request the least relief necessary.
In opposition, the Zoning Board claims that it did not deny the Application because it was in opposition to the proposed uses, nor did it consider the Application as a special use permit. Instead, the Zoning Board points to specific testimony to evidence that it used the appropriate standard and denied the Application because that standard was not met. Furthermore, the Zoning Board maintains that the record adequately supports its Decision to deny the Application. The Zoning Board explains that the traffic data was properly contradicted. Nevertheless, even assuming the traffic data was uncontradicted, the Zoning Board argues that the data is irrelevant. A review of the record, the Zoning Board contends, indicates that Appellants could have altered the position or design of the Building, requiring less or no dimensional relief, if they were willing to forego their potential financial gain from the retail establishment.
II
Standard of Review
The Superior Court possesses jurisdiction to review a zoning board decision pursuant to § 45-24-69. The statute provides:
"The court shall not substitute its judgment for that of the zoning board of review as to the weight of the evidence on questions of fact. The court may affirm the decision of the zoning board of review or remand the case for further proceedings, or may reverse or modify the decision if substantial rights of the appellant have been prejudiced because of findings, inferences, conclusions, or decisions which are:
"(1) In violation of constitutional, statutory, or ordinance provisions;
"(2) In excess of the authority granted to the zoning board
The Superior Court must "examine the whole record to determine whether the findings of the zoning board were supported by substantial evidence." Lloyd v. Zoning Bd. of Review for Newport, 62 A.3d 1078, 1083 (R.I. 2013) (citation omitted). "Substantial evidence has been defined as more than a scintilla but less than a preponderance." Id. (internal quotation marks omitted). The Court "may not substitute [its] judgment for that of the zoning board if [it] can conscientiously find that the board's decision was supported by substantial evidence in the whole record." Id. (internal quotation marks omitted). In reviewing the record, the Court must "scrutinize the record as a whole to determine 'whether legally competent evidence exists to support the findings . . . .'" Id. (quoting Mill Realty Assocs. v. Crowe, 841 A.2d 668, 672 (R.I. 2004)). The Court may not weigh the evidence on appeal but must rather review the record to look for substantial evidence. Bernuth v. Zoning Bd. of Review of New Shoreham, 770 A.2d 396, 399 (R.I. 2001).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).
III
Analysis
A
Standard for a Dimensional Variance
As a threshold matter, the Court addresses Appellants' first two arguments: that the Zoning Board (1) "nullified" the Zoning Ordinance, and (2) improperly considered the Application as one for a special use permit. There is ample support in the record to conclude that the Zoning Board denied the Application after utilizing the proper standard of review.
Appellants sought dimensional relief from two front yard setback requirements. North Kingstown Zoning Ordinance § 21-14 provides the standards for a dimensional variance:
"(1) The hardship from which the applicant seeks relief is due to the unique characteristics of the subject land or structure and not the general characteristics of the surrounding area, and is not due to a physical or economic disability of the applicant.In addition, the Zoning Board must find that "the hardship suffered by the owner of the subject property if the dimensional variance is not granted amounts to more than a mere inconvenience." Id. At the end of the November 27, 2012 hearing, the Zoning Board considered each requirement listed above and applied the dimensional variance standard. Zoning Bd. Hr'g Tr. 105:11-111:7, Nov. 27, 2012.
"(2) 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) The granting of the requested variance will not alter the general character of the surrounding area or impair the intent or purpose of this chapter or the comprehensive plain upon which this chapter is based.
"(4) The relief to be granted is the least relief necessary." Sec. 21-14.
Still, Appellants maintain that the Zoning Board improperly considered the Application as one for a special use permit, pointing to the testimony dedicated to traffic concerns. The record reflects that the Zoning Board did not improperly consider traffic impacts. Under the third criterion for a dimensional variance, the Zoning Board did not err in considering whether the Building and proposed uses would "alter the general character of the surrounding area or impair the intent or purpose" of the comprehensive plan. Sec. 21-14.
Mr. Lombardo testified that the particular Dunkin Donuts would be in accordance with the comprehensive plan. Zoning Bd. Hr'g Tr. 20:4-29:5, Nov. 27, 2012. Nevertheless, it was still within the statutory authority of the Zoning Board to hear testimony and take evidence on the congestion of the area in order to determine the characteristics of the surrounding area and the impacts that the Building would have on such with respect to an application for a variance.
In Lischio v. Zoning Bd. of Review of N. Kingstown, 818 A.2d 685, 693 (R.I. 2003), the Supreme Court noted that "when seeking dimensional relief for lawfully permitted uses the review should not focus on the use of the parcel because a legislative determination has been made previously that the use is appropriate and does not adversely affect the general character of the area." (Emphasis in original). However, the Court noted that it could "envision situations in which a request for a dimensional variance is such that the size, location or the type of relief sought will alter the general character of the surrounding area and/or the intent or purpose of the comprehensive plan or zoning ordinance." Id. For example, the Court noted that a height variance might result in a structure that is too massive for the area, or a side yard variance that would partially eliminate the sidewalk in a residential area. Id
Here, a review of the record indicates that Appellants sought to build the Building within approximately fourteen feet of the intersection. Decision at 3. This setback is approximately 37 percent of what is required for Phillips Street and 32 percent of what is required for Tower Hill Road. Given this close proximity, the Zoning Board appropriately considered the traffic impacts that would result—including the ingress and egress of Lot 56. The particular features of this project are those that the Supreme Court has envisioned meriting consideration with respect to a request for a variance. See Lischio, 818 A.2d at 693. Consequently, the Decision is not affected by error of law as the record indicates that the Zoning Board properly considered whether the Building would alter the general character of the surrounding area. More importantly, the Board did not deny the application because of traffic concerns but because the project did not meet the statutory requirements as discussed infra.
B
Application of Standard
The Decision to deny the Application is supported by ample evidence in the record. The Building was set to occupy 3000 square feet, yet as Mr. Batista testified, the Dunkin Donuts shop would only occupy 1400 to 1450 square feet. Hr'g Tr. at 48:7-12. Mr. Batista testified that he did not know what would occupy the other half of the Building. Id. at 46:19-47:12. However, the use would not likely conflict with the Dunkin Donuts because Appellants would not want competition. Id. at 47:7-13. Moreover, Mr. Batista explained that he intended to gain rent from the unoccupied space, increasing his income as a landlord of commercial properties. Id. at 48:13-16. Aside from this testimony, the second establishment is only scarcely mentioned. In fact, the record is nearly devoid of evidence on the use of this second establishment rendering the impact of the same largely unknown. See Lischio, 818 A.2d at 691 (placing the burden of satisfying the criteria for a dimensional variance on the applicant).
A stand-alone Dunkin Donuts shop would have required half of the proposed square footage, allowing Appellants to likely build the Building in compliance with the front yard setback requirements. Appellant's engineer, Mr. Taglianetti, testified that while the Building being proposed could not meet all of the setback requirements, "[t]here may be a building" that could. Hr'g Tr. at 44:17-19.
Hence, the Zoning Board found that Appellants failed to consider other options that would require less relief under existing zoning regulations, such as a smaller building or a common egress and/or ingress to Lot 56. Hr'g Tr. at 105:17-22; Decision ¶ 15. Compare with 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 use of their property."). See also Standish-Johnson Co. v. Zoning Bd. of Review of Pawtucket, 103 R.I. 487, 492, 238 A.2d 754, 757 (1968) (finding that petitioners "offered no evidence whatsoever that a realization of the particular use required a billboard of nothing less than 47.5 feet in length[;]" therefore, denial of dimensional relief was warranted); Green Falls Assocs., LLC v. Zoning Bd. of Appeals of Montville, No. CV074008582, 2010 WL 4723396, at *9-10 (Conn. Super. Ct. Oct. 28, 2010) (affirming the denial of a variance because a smaller building could have been built on the lot).
The Zoning Board's denial of the Application based on the fact that Appellants' hardship resulted primarily from their desire to increase their financial gain was supported by substantial evidence on the record. See § 21-14(2). Although increasing financial gain is an understandable and expected goal, it does not support the grant of a variance absent compliance with the statutory criteria. See 347 Humphrey St., LLC v. Bd. of Zoning Appeals of New Haven, 125 A.3d 272, 279 (Conn. App. Ct. 2015) ("[N]either financial loss nor the potential for financial gain is the proper basis for granting a variance." (quoting Schulhof v. Zoning Bd. of Appeals of Norwalk, 74 A.3d 442, 448 (Conn. App. Ct. 2013)) (internal quotation marks omitted)).
Accordingly, the Zoning Board's conclusion that Appellants could attempt to modify the Building size or position was not clearly erroneous. By failing to consider other options, Appellants failed to request the least relief necessary. As a result, the record supports the Zoning Board's conclusion that the standard for a dimensional variance has not been met because Appellants did not seek the least relief necessary and any hardship did not result in more than a mere inconvenience.
IV
Conclusion
After review of the record, this Court affirms the Zoning Board's Decision. Appellants failed to consider other options that would have lessened the relief necessary. This conclusion is supported by testimony and evidence on the record. For the reasons discussed herein, the reliable, probative, and substantial evidence of the whole record supports the Zoning Board's conclusion that the standard for dimensional relief has not been met. Substantial rights of Appellants have not been prejudiced.
Counsel shall submit an appropriate order and judgment for entry consistent with this Decision.
ATTORNEYS:
For Plaintiff: Matthew F. Callaghan, Jr., Esq.; James M. Callaghan, Esq. For Defendant: James H. Reilly, Esq.