Opinion
C. A. PC-2023-04993
05-22-2024
MARK BRIZARD, Appellant v. TOWN OF BURRILLVILLE ZONING BOARD OF REVIEW, Appellee.
For Plaintiff: Stephen J. Sypole, Esq. For Defendant: William C. Dimitri, Esq.
Providence County Superior Court
For Plaintiff: Stephen J. Sypole, Esq.
For Defendant: William C. Dimitri, Esq.
DECISION
LANPHEAR, J.
Before this Court is Mark Brizard's appeal from the September 21, 2023 resolution of the Burrillville Zoning Board of Review denying his application seeking three dimensional variances. Jurisdiction is pursuant to G.L. 1956 § 45-24-69. For the reasons set forth herein, Mr. Brizard's appeal is denied, and the resolution of the Board is affirmed.
I Facts and Travel
About two years ago, Mr. Brizard purchased the undeveloped lakefront lot located at 0 Stag Head Drive in the Village of Pascoag, Town of Burrillville, Rhode Island, Assessor's Map 135 Lot 018. See Certified Record (R.), Zoning Board of Review Resolution (Board's Resolution) 1. The Property is a rectangular-shaped, 6,250 square foot lot with a width of 50 feet and depth of 125 feet and is located in an F-5 Zoning District (Farming/Residential). R. Application 1. Because the Property, platted in 1954, is a substandard lot of record located in an F-5 Zone, the dimensional requirements of the R-12 Zoning District (Village Residential) apply. See Code of Ordinances Ch. 30, Art. § 30-73(b); see also Hr'g Tr. 7:1-7, Sept. 12, 2023 (Tr.). In an R-12 Zone, the minimum lot size required is 7,500 square feet, the minimum lot frontage required is 75 feet, and the minimum rear-yard setback required is 30 feet. See Code of Ordinances § 30-73(b)(1). In light of the size of the Property and requirements of the R-12 zone, Mr. Brizard filed an Application on August 1, 2023 with the Board for dimensional relief from Zoning Ordinances 30-73(b) Substandard Lot of Record-Single lot dimensional requirements and 30-111 Dimensional Regulations Table-yard requirements for the R-12 Zone (the Application) in order to construct a two-story, three bedroom, 1,144 square foot single-family home. See Application 2. Specifically, Mr. Brizard requested dimensional relief of 1,250 square feet from the minimum lot size, 25 feet from the minimum lot frontage, and 10 feet from the minimum rear-yard setback. See Application 2.
The Certified Record is not numbered; thus, specific citations will be made to the individual documents contained therein.
"The farming districts, F-5 and F-2, are intended to preserve the town's rural heritage and landscape by providing large, broad lots on which the raising of animals and crops may be done with minimal impact on neighboring properties." Town of Burrillville Code of Ordinances (Code of Ordinances) Ch. 30, Art II, § 30-31(a)(2).
On September 12, 2023, the Board held a hearing on the Application. See R. Public Notice 1. Mr. Brizard presented his expert, Edward Pimentel from Pimentel Consulting, who provided testimony and a written report. See Tr. 10:21-11:1. He opined that "development of the subject property for single-family purposes is most assuredly appropriate" in light of the Comprehensive Plan and goals and objectives of the "Land Use and Housing Elements." (Pimentel Consulting Report 2.) The Board also heard testimony from abutters within 200 feet, Lisa Brisette and Elisa Reid. Ms. Brisette questioned whether the surrounding area was suitable for a development of this size and inquired as to wetlands compliance and the proposed sewer system. See Tr. 30:20-32:11, 35:22-38:4. Ms. Reid, an adjacent abutter, alleged that she did not receive notice of the hearing and stressed her concerns with the septic system. Id. at 40:18-19, 43:2-9. She also noted her concern with development on such a small parcel. Id.
Although Mr. Brizard's memorandum criticizes the abutters' questions and arguments, the abutters have a right to be heard at the public hearing and are not always represented by counsel. See Mr. Brizard's Br. in Supp. of Appeal 9. It is logical that abutters would be concerned with septic disposal and wetlands protections.
During the hearing, the Board questioned Mr. Brizard as to when and how he purchased the Property. Id. at 16:22-17:7, 53:12-55:5. Mr. Brizard responded that he purchased the Property "about two years" ago and that he believed "it was Spring of [20]21." Id. at 17:1-3. He also added that he thought he purchased it "via foreclosure." Id. at 17:6-7. The Board also voiced its concern with the size of the development and asked Mr. Brizard whether he would be willing to consider a smaller development. Id. at 57:1-61:24. To this, Mr. Brizard stated that he could reduce the footprint of the house and thereafter requested to withdraw the request for the rear set-back dimensional variance. Id. at 62:10-20. When Ms. Reid was asked whether the change in size of the development would impact her position on the Application, she responded in the negative. Id. at 66:18-67:5. At the hearing, the Board voted to deny the Application. Id. at 67:21-25.
On September 21, 2023, the Board filed its written resolution denying the Application. When analyzing whether the hardship from which Mr. Brizard seeks relief was due to the unique characteristics of the land, the Board found that the requested relief was "mostly in character with the surrounding area," and it "would result in a generally congested developed lot than the surrounding parcels." (Board's Resolution 3.) It further found that the "design . . . proved the applicant is seeking maximum financial gain as a developer" and "was well aware of the minimum requirements needed to develop the property and bought the property regardless[.]" Id. The Board also found that the requested variances would alter the general character of the surrounding area. Id. Finally, the Board found that the nonconforming parcel already did not meet the reduced lot requirements applicable in an F-5 Zone and thus Mr. Brizard was not seeking the least relief necessary. Id.
On October 3, 2023, Mr. Brizard appealed the Board's resolution to the Superior Court. He seeks reasonable attorney's fees and litigation expenses pursuant to the Equal Access to Justice Act, G.L. 1956 chapter 92 of title 42.
II Standard of Review
Section 45-24-69(d) governs the Superior Court's review of local zoning board decisions:
"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).
III
Analysis
A
Applicability of the Amended Application
The Court first addresses Mr. Brizard's argument that he is entitled to the issuance of a building permit because, at the hearing, he withdrew his request for rear-setback relief and the only relief sought by the end of the hearing was a variance for lot size. He contends that the Application now is governed by § 45-24-38(b), recently amended, which provides in pertinent part:
"Notwithstanding the failure of that lot or those lots to meet the dimensional and/or quantitative requirements, and/or road frontage or other access requirements, applicable in the district as stated in the ordinance, a substandard lot of record shall not be required to seek any zoning relief based solely on the failure to meet minimum lot size requirements of the district in which such lot is located. The setback, frontage, and/or lot width requirements for a structure under this section shall be reduced and the maximum building coverage requirements shall be increased by the same proportion as the lot area of the substandard lot is to the minimum lot area requirement of the zoning district in which the lot is located . . . ." Section 45-24-38(b).
However, the review of the Board's Resolution is based solely on the Application as it was submitted to the Board and does not include any negotiations or amendments that occurred during the hearing itself. See Vidal v. Brousseau, No. CIV. A. 01-0579, 2002 WL 1288780, at *5 (R.I. Super. June 3, 2002). An amendment during the hearing may not provide abutters with adequate notice of the Application before the Board and creates a moving target on review. Thus, the original Application, containing the three dimensional variances, is the appropriate version of the Application under review, and the version of the statute as it stood in August 2023, without the January 2024 amendment, is applicable.
B Board's Decision in Light of § 45-24-41(d)
In deciding whether to grant an application for a dimensional variance, a zoning board
"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." Section 45-24-41(d).
The Rhode Island Zoning Enabling Act, Title 45, Chapter 24 was amended effective on January 1, 2024. Because the appropriate standard to be applied on appeal is "the law in effect at the time when the applicant . . . submitted its application . . ." absent a "clear expression of retroactive application," the statute as it existed in August 2023 is applicable. East Bay Community Development Corporation v. Zoning Board of Review of Town of Barrington, 901 A.2d 1136, 1144 (R.I. 2006).
In addition to the above factors, the board must also find that there is evidence entered into the record 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." Section 45-24-41(e)(2).
First, in considering the above factors, the Board found that "the requested relief would result in a generally congested developed lot than the surrounding parcels," but added that the relief sought is "mostly in character with the surrounding area" when determining that the hardship was due to the unique characteristics of land. (Board's Resolution 3.) Mr. Pimentel, Mr. Brizard's expert, as well as the Board noted that the Property was uniquely undersized, but Mr. Pimentel's report and testimony made clear that other developed properties in the area are similarly sized. See Pimentel Consulting Report 8-9. Thus, the evidence in the record does not support the Board's decision to deny the Application based on congestion alone, considering that other small properties in the area contain homes which are uniquely undersized.
Second, with respect to the requirement that the hardship not be the result of the applicant's prior action and not primarily due to the desire to realize financial gain, the Board found that Mr. Brizard was seeking financial gain "in light of the fact that Mr. Brizard was well aware of the minimum requirements needed to develop the property and bought the property regardless of that knowledge . . . ." (Board's Resolution 3.)
In DeStefano v. Zoning Board of Review of the City of Warwick, 122 R.I. 241, 405 A.2d 1167 (1979), in which our Supreme Court held that the trial court and the zoning board's reliance upon the fact that "the petitioners allegedly knew that the lot in question was undersized at the time they made the purchase . . ." could not be "employed as support for the denial of an application." DeStefano, 122 R.I. at 247, 405 A.2d at 1171 (citing Denton v. Zoning Board of Review, 86 R.I. 219, 223, 133 A.2d 718, 720 (1957)). Although the facts of DeStefano are similar to the facts here, as the applicants there were seeking a variance and special exception to certain area and setback requirements in order to build on an undersized lot, that is where the similarities end. Id. at 248, 405 A.2d at 1168. In DeStefano, the trial justice held that "[t]he record is clear . . . appellants purchased the property knowing it was undersized" which he then used to support the affirmation of the board's decision that the applicants were not deprived of all beneficial use of their property. See DeStefano v. Zoning Board of Review, No. Z.A. 76-2, 1977 WL 190438, at *1 (R.I. Super. Apr. 11, 1977). Here, the Board did not apply Mr. Brizard's knowledge directly to its denial of the Application, but instead used this knowledge to discern his intentions. The Board questioned Mr. Brizard regarding the logistics of his purchase, and, in light of his scant answers to those questions, as well as his knowledge of the size of the property and the zoning requirements, and other factors, reasonably inferred that his primary motivation was for financial gain. Moreover, "[i]t is, as [the court] so frequently said, the burden of an applicant seeking relief before a zoning board of review to prove the existence of the conditions precedent to a grant of relief." DiIorio v. Zoning Board of Review of City of East Providence, 105 R.I. 357, 362, 252 A.2d 350, 353 (1969). Without such evidence that Mr. Brizard was not primarily motivated by financial gain, the Board was required to make its findings in light of the evidence it did have. Thus, there is substantial evidence in the record justifying the Board's denial of the Application on this ground. See New Castle Realty Company v. Dreczko, 248 A.3d 638, 648 (R.I. 2021) (upholding the denial of applicant's request for a dimensional variance because the request was primarily for financial gain).
When reviewing a local zoning board decision, the Court "'lacks [the] authority to weigh the evidence, to pass upon the credibility of witnesses, or to substitute [its] findings of fact for those made at the administrative level.'" Restivo v. Lynch, 707 A.2d 663, 666 (R.I. 1998) (quoting Lett v. Caromile, 510 A.2d 958, 960 (R.I. 1986)). Instead, the Court is "limited to a search of the record to determine if there is any competent evidence upon which the agency's decision rests. If there is such evidence, the decision will stand." E. Grossman & Sons, Inc. v. Rocha, 118 R.I. 276, 285-86, 373 A.2d 496, 501 (1977). In doing so, the Court must "examine the whole record to determine whether the findings of the zoning board were supported by substantial evidence." Apostolou v. Genovesi, 120 R.I. 501, 508, 388 A.2d 821, 824 (1978). "Substantial evidence . . . means 'such relevant evidence that a reasonable mind might accept as adequate to support a conclusion, and means [an] amount more than a scintilla but less than a preponderance."' Lischio v. Zoning Board of Review of Town of North Kingstown, 818 A.2d 685, 690 n.5 (R.I. 2003) (quoting Caswell v. George Sherman Sand & Gravel Co., Inc., 424 A.2d 646, 647 (R.I. 1981)).
Third, the Board must consider whether granting the requested variance will alter the general character of the surrounding area. Section 45-24-41(d)(3).
"[T]here is no talismanic significance to expert testimony. It may be accepted or rejected by the trier of fact . . . particularly when there is persuasive lay testimony on the actual observed effects of prior residential construction. The subject matter here was not so arcane that inferences from factual lay testimony could not be drawn by members of the council based, in part, on their own expertise." Restivo v. Lynch, 707 A.2d 663, 671 (R.I. 1998).
If the expert testimony is nonprobative or too vague or tentative it may lead to its downfall. See Hester v. Timothy, 108 R.I. 376, 275 A.2d 637 (1971); Dean v. Zoning Board of Review of City of Warwick, 120 R.I. 825, 390 A.2d 382 (1978).
Mr. Brizard argues that Mr. Pimentel's testimony was uncontradicted and established that he satisfied every element of the issuance of a dimensional variance and thus should be accepted even though there was lay testimony to the contrary. Although Mr. Pimentel opined that homes in the area have been built on lots this small, the Board found that the development would alter the general character of the surrounding area. See Board's Resolution 3. During the hearing and in his Consulting Report, Mr. Pimentel stated "that almost one-third of the entire neighborhood contains 10,000 square feet or even less land area" and that 17 percent of "[r]esidentially improved parcels rang[e] from 10,000 [square feet] or even less in land area." (Pimentel Consulting Report 8-9.) However, he avoids providing evidence of how many lots, if any, are under 6,250 square feet and how many of those lots are improved. The Consulting Report actually contains evidence that most other lots with homes are much bigger than the subject property. Id. Moreover, the Board members voiced their concerns with the size of this proposal in relation to other lots in the area multiple times during the hearing; one Board member stated "it was the lot size I think that kind of made it difficult for all the Board members here to make a decision on this." (Tr. 68:2-69:18.) Accordingly, there is substantial evidence in the record justifying the Board's denial of the Application on this ground.
Fourth, the Board must determine whether the relief to be granted is the least relief necessary. Section 45-24-41(d)(4). Here, the Board determined that "[the] lot requirements have already been reduced by the relative zoning ordinance . . . [and] [t]he Board was of the opinion that because this parcel did not meet the already reduced requirements that the applicant was not seeking the least relief necessary." (Board's Resolution 3.) Although the Court recognizes that it is not possible for Mr. Brizard to meet the minimum lot size requirement nor the minimum frontage requirement, the Board did not err in finding that the relief is not the least relief necessary as there is substantial evidence in the record that Mr. Brizard could apply for a smaller home that does not violate the rear setback requirement. See New Castle Realty Company, 248 A.3d at 648-49 (upholding the trial justice's ruling that the requested relief did not reflect the least relief necessary as the applicant could have considered a smaller house).
Finally, the hardship must be more than a mere inconvenience. See § 45-24-41(e). A "mere inconvenience" means "there is no other reasonable alternative to enjoy a legally permitted beneficial use of [the] property." Lischio v. Zoning Board of Review of Town of North Kingstown, 818 A.2d 685, 692 (R.I. 2003). Here, the Board did not pass on whether the hardship was "more than a mere inconvenience." See Board's Resolution. Accordingly, the Court presumes that substantial evidence exists in the record showing that the hardship was more than a mere inconvenience.
Because substantial evidence exists on the record to support the Board's Resolution based on the fact that the relief was not the least relief necessary and that it would alter the general character of the surrounding area, the Board's denial of the Application was appropriate. Accordingly, because Mr. Brizard is not the prevailing party in this case, he is not entitled to attorney's fees and litigation costs under the Equal Access to Justice Act. See § 42-92-3(a) ("Whenever the agency conducts an adjudicatory proceeding subject to this chapter, the adjudicative officer shall award to a prevailing party reasonable litigation expenses incurred by the party in connection with that proceeding.").
IV
Conclusion
For the reasons stated herein, Mr. Brizard's appeal is denied and the Board's Resolution denying his Application for dimensional variances is upheld.