Opinion
C.A. No. WC-2010-0604
01-13-2017
MICHAEL COCCI AND BRENDA COCCI v. THE TOWN OF SOUTH KINGSTOWN THROUGH ITS ZONING BOARD OF REVIEW AND ITS MEMBERS, ROBERT L. TOTH, IGOR RUNGE, ROBERT JOHN CAGNETTA, STEPHANIE ANN OSBORN AND ERNEST D. GEORGE, JR., AND CLIFFORD J. FANTEL AND DONNA FANTEL
ATTORNEYS: For Plaintiff: Paul Demarco, Esq. For Defendant: John F. Kenyon, Esq. Leonard L. Bergersen, Esq. Michael A. Ursillo, Esq. Nancy Letendre, Esq.
DECISION MATOS , J. Before this Court is Michael Cocci and Brenda Cocci's (collectively, the Plaintiffs) appeal of a decision of the Town of South Kingstown Zoning Board of Review, acting as the Planning Board of Appeal (the Board of Appeals). The Board of Appeals' decision overturned a decision of the South Kingstown Planning Board (the Planning Board). The Board of Appeals' decision permitted Clifford J. and Donna Fantel's proposed two-lot subdivision of an existing residential compound lot. For the reasons stated herein, this Court reverses and remands the decision of the Board of Appeals.
I
Facts and Travel
Defendant Clifford J. Fantel (Fantel) and the late Bernard Singleton (Singleton) developed the Broad Hill Residential Compound (the Compound); the Compound consisted of nine lots. The final plan for the Compound was recorded in 1994. Singleton and Fantel wrote and recorded a Declaration of Conditions, Restrictions and Limitations that was to apply to each lot in the Compound. See South Kingstown Land Evidence Records Book 538, Pages 61-68 (the Declaration). The Declaration states:
"it is the desire and intention of said Bernard H. Singleton and Clifford J. Fantel to impose certain protective conditions, restrictions and limitations upon each and all of the lots of said plat as recorded.Section 17 of the Declaration states that "[n]o lot shall be further subdivided." Id. at 4. Contemporaneous with the filing of the Declaration, a second declaration was filed which included the binding acknowledgement that "[n]o further development of the tract or lots therein shall be permitted except by application therefor to the Planning Board of the Town of South Kingstown under the provisions of the Subdivision Regulations in effect at the time of such application." Warranty Deed, dated Feb. 23, 1999. This acknowledgement was required to be made and recorded pursuant to the Subdivision Regulations. (Planning Board decision at 2, ¶ 5.)
"NOW, THEREFORE, said Bernard H. Singleton and Clifford J. Fantel do for themselves, their successors and assigns, hereby declare and covenant that the conditions, restrictions and limitations hereinafter set forth shall run with the said land and be binding on the said Bernard H. Singleton and Clifford J. Fantel and all parties and persons claiming by, through or under them and binding upon all owners of any lot on said plat and the heirs and assigns of said owners." (Declaration at 1.)
On January 19, 1994, after the final plan for the Compound and the Declaration were recorded, a consent document was executed by Mr. Fantel and Mr. Singleton. (Broad Hill Association LP Consent.) The consent document purported to reserve the right,
"subject to the approval of the Planning Board of the Town of South Kingstown, to amend the plans of the plats entitled 'REVISED FINAL PLAN for Broad Hill'*** in any way or manner, including but not limited to, the right to change the location, size and elevation of streets, utilities, lot lines and
boundaries, and/or the number of lots and the boundaries thereof within the two sections of the Broad Hill Residential Compounds; and to that end, pursuant to the reserved powers of the Declaration and Paragraph 3 of the Statements as to Residential Compounds annexed thereto, with regard to any and all lots which as of date hereof are still under ownership of the Developer and Declarant, hereby waives Paragraph Seventeen (17) of the Declaration. . ." Id.The Broad Hill Association LP Consent was never recorded. See Planning Board decision, Nov. 12, 2009 (Planning Board decision).
All nine lots within the Compound were transferred from Mr. Singleton and Mr. Fantel to new owners. Mr. Fantel and his wife became the owner of Lot 6, and the Plaintiffs became the owners of Lot 8. Compl. at ¶¶ 1, 3. In May 2006, the Fantels applied for a minor subdivision of Lot 6. The application for the minor subdivision was not complete until 2009 when the Fantels amended their application to include Planning Board relief from section 17 of the Declaration as a condition of final approval. Therefore, the Planning Board reviewed the Fantels' application as an application for a minor subdivision and an amendment to the Compound's 1993 final plan approval.
The Planning Board held a public hearing regarding the Fantels' application on August 11, 2009. (Planning Board decision.) At the hearing, three of the Compound's lot owners—Michael Cocci, Brian Crosby, and John Santini—testified in opposition to the Fantels' requested subdivision. Id. at 2-3, ¶ 9. Each lot owner that testified asserted that his decision to purchase his lot was based in part on the fact that he was aware that the lots in the Compound could not be further subdivided. Id. A representative from the home owner's association, Paul DeMarco, also spoke in opposition to the application. Id.
The Planning Board denied the Fantels' application holding that the Broad Hill Association LP Consent document has no legal effect on the Declaration because the Broad Hill Association LP Consent document has not been recorded. Therefore, the Fantels were not free from the restriction against further subdivision under section 17 of the Declaration. Id. at 3, ¶ 2.
Apart from the Declaration prohibiting the further subdivision of lots, South Kingstown's Subdivision Regulations require that
"[n]o parcel that has been developed as a residential compound shall be further subdivided or reduced in size or acreage; provided, however, that this shall not prevent the development of a residential compound in phases as long as future phases to be developed are specifically discussed in the project record before the Planning Board and explicitly designated and shown on the approved Conceptual Master Plan and/or the approved Preliminary Plan and then recorded on the Final Plat." South Kingstown Subdivision and Land Development Regulations (2012) Sec. IV(B)(4)(c).A subdivision application is consistent with the Comprehensive Plan if it is consistent with the Subdivision Regulations. See South Kingstown Comprehensive Plan (establishing that policies must be in line with the Subdivision Regulations and that Subdivision Regulations will be regularly reviewed and updated to be consistent with the policies outlined in the Comprehensive Plan). The Planning Board considered the Subdivision Regulations and determined that the Fantels' "proposed subdivision is inconsistent with the requirements of the South Kingstown Comprehensive Community Plan." (Planning Board decision at 3, ¶ 3(I).) In reaching this determination, the Planning Board assumed, as required, that the Town of South Kingstown's adopted Subdivision Regulations were consistent with the Comprehensive Plan. Id. at 4, ¶ 3(I) Then, the Planning Board analyzed whether the Fantels' application was consistent with the substantive requirements of the Subdivision Regulations. Id. The Planning Board noted
"that the proposed two-lot subdivision [would] result in a Compound that meets most of the requirements of the current Subdivision Regulations with the exception of the requirement that 'each component lot shall not be changed after having received final approval from the Planning Board. (Section IVB.4.d)."' Id.
Because the Planning Board found that the Fantels' application was inconsistent with the subdivision limitation contained in the Subdivision Regulations, the Board concluded "that absent approval of a waiver, the Board must make a negative finding with regard to Comprehensive Plan consistency." Id. The Planning Board then addressed the waiver requirements, holding that although it had authority to waive the requirement that a component lot within a compound shall not be changed after having received final approval of the Planning Board, it would be contrary to the intent and general purpose of the regulations for residential compounds. See id. at 4, ¶ 4. Additionally, the Planning Board held that all owners of lots in the Compound were bound to the Declaration; thus, the Planning Board concluded that waiving the restriction against further subdivision of a component lot would be unreasonable without the endorsement of the homeowner's association because the restriction was aimed at protecting all the current and future owners of lots within the Compound. Id. Therefore, the Planning Board found that "the relief required for the approval of the Minor Subdivision [was] legally unattainable under the current Subdivision Regulations." Id. at 3, ¶ 3.
The South Kingstown Zoning Ordinance states that: "Residential compounds are intended to preserve the rural character of the town by permitting low-density residential development on large parcels of land while relieving the applicant from compliance with the design and improvement standards applicable to other subdivisions." South Kingstown Subdivision and Land Development Regulations (2012), Sec. IV(B)(1)(b). The Planning Board held that "[the] relaxation of the design and public improvement standards [in residential compounds] precipitates the need for covenants and restrictions common to all owners of lots within the residential compound." Planning Board decision at 5, ¶ 4(a). The restrictions and covenants are to protect all current and future owners of component lots.
The Fantels appealed the Planning Board's November 12, 2009 decision. The Board of Appeals held a meeting on July 21, 2010. The Board of Appeals granted the Fantels' appeal. (Board of Appeals decision, Aug. 5, 2010 (Board of Appeals decision).) The Board of Appeals issued its one-paragraph, written decision on August 5, 2010. The Board of Appeals' decision did not directly address section 17 of the Declaration or the Planning Board's references to the prohibition, contained in the subdivision regulations, against further subdivision of component lots in a recorded residential compound. See Planning Board decision at 3, ¶¶ 2, 3. Additionally, the Board of Appeals' stated in its decision that the proposed subdivision of the Fantels' "lot did meet all of the requirements of the subdivision regulations." See Board of Appeals decision. However, the decision at no point explained how the Fantels' application met the subdivision regulation requiring that no lot or parcel developed as a residential compound shall be further subdivided or reduced in size. See South Kingstown Subdivision and Land Development Regulations (2012), Sec. IV(B)(4)(c). In fact, the Board of Appeals did not address the regulation at all. The Plaintiffs timely filed their appeal of the Board of Appeals' decision with this Court on August 24, 2010.
The totality of the Board of Appeals' decision is as follows:
"The Decision of the Board is as follows:
"Mr. Toth moved to uphold the appeal of the appellant on the grounds that the Planning Board made clear error, and prejudicial procedural error, by impermissibly relying on, and basing its decision on the existence and effect of private rights or covenants, when the Board found, at Page 5 of its decision, 'Therefore, the Board concludes that waiver of the restriction on further subdivision of a component lot is unreasonable without the endorsement of the Broad Hill Homeowners Association.' In addition, the lot did meet all of the requirements of the subdivision regulations, and therefore we find that the Planning Board's decision should be reversed due to lack of support by the weight of the evidence in the record. "
II
Standard of Review
Rhode Island state law dictates that when a board of appeals reviews a decision of a planning board:
"[T]he board of appeal shall not substitute its own judgment for that of the planning board or the administrative officer but must consider the issue upon the findings and record of the planning board or administrative officer. The board of appeal shall not reverse a decision of the planning board or administrative officer except on a finding of prejudicial procedural error, clear error, or lack of support by the weight of the evidence in the record." G.L. 1956 § 45-23-70(a).
The Board of Appeals is responsible for keeping "complete records of all proceedings including a record of all votes taken, and shall put all decisions on appeals in writing. [Additionally,] [t]he board of appeal shall include in the written record the reasons for each decision." Sec. 45-23-70(d). The Rhode Island Supreme Court has stated that when a municipal board is "acting in a quasi-judicial capacity, [it] must set forth in its decision findings of fact and reasons for the action taken." Sciacca v. Caruso, 769 A.2d 578, 585 (R.I. 2001) (internal citations omitted).
Pursuant to § 45-23-71, a party aggrieved by an application for the subdivision of land may appeal the decision of the board of appeals to the Superior Court. See West v. McDonald, 18 A.3d 526, 531 (R.I. 2011). Subsection (c) of § 45-23-71 prescribes the standard of review that this Court uses when considering these appeals:
"The court shall not substitute its judgment for that of the planning board as to the weight of the evidence on questions of fact. The court may affirm the decision of the board of appeal 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, ordinance or planning board regulations provisions;
"(2) In excess of the authority granted to the planning board by statute or ordinance;
"(3) Made upon unlawful procedure;
"(4) Affected by other error of law;
"(5) Clearly erroneous in view of the reliable, probative, and substantial evidence of the whole record; or
"(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." Id. (quoting § 45-23-71).When considering an appeal from a board of appeals' decision, the Superior Court "does not consider the credibility of witnesses, weigh the evidence, or make its own findings of fact"; instead, the court gives deference to the local planning board's findings of facts. Munroe v. Town of E. Greenwich, 733 A.2d 703, 705 (R.I. 1999); see also West, 18 A.3d at 531 (citing Munroe, 733 A.2d at 705; Kirby v. Planning Bd. of Review of Middletown, 634 A.2d 285, 290 (R.I. 1993)).
During the Superior Court's review of a board of appeals' decision, the Superior Court examines the entire record to determine if substantial evidence supports the board of appeals' finding. 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, 245, 405 A.2d 1167, 1170 (1979)). 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 Bd. of Review of N. Kingstown, 818 A.2d 685, 690 n.5 (R.I. 2003) (quoting Caswell v. George Sherman Sand & Gravel Co., 424 A.2d 646, 647 (R.I. 1981)). A board's decision can be reversed or remanded if there is not substantial evidence in the record to support the board's decision or if the board's decision fails to make findings of facts regarding a petition's compliance with pertinent statutory provision. See Bernuth v. Zoning Bd. of Review of New Shoreham, 770 A.2d 396, 402 (R.I. 2001).
When a board's decision fails to make findings of facts or provide a legal basis for their decision, it inhibits judicial review. See Cullen v. Town Council of Lincoln, 850 A.2d 900, 905 (R.I. 2004). If the Superior Court cannot determine whether the board of appeals reviewed the record—making factual, not conclusory, findings and applying the proper legal principles to the facts in a thorough, noncursory way—then the minimal requirements for the board of appeals' decision are not met and "judicial review of a[n] [appeals] board's work is impossible." May-Day Realty Corp. v. Bd. of Appeals of Pawtucket, 107 R.I. 235, 239, 267 A.2d 400, 403 (1970).
III
The Board of Appeals' Decision
To grant a subdivision, the findings of fact of the granting body must be supported by legally competent evidence on the record. Sec. 45-23-60(b). A board of appeals is required to include the reasoning behind its decision. See § 45-23-70(d). The Rhode Island Supreme Court has made clear that boards of appeals are "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." Bernuth, 770 A.2d at 401 (internal quotations omitted) (citations omitted).
In order to reverse the Planning Board's decision and grant approval to subdivide, the Board of Appeals' decision would have had to make findings of fact supported by legally competent evidence in the record that supported the subdivision. Additionally, because the Board of Appeals' review of the Planning Board's decision is limited, it would only be able to reverse the decision of the Planning Board if it found prejudicial procedural error, clear error, or lack of support by the weight of the evidence in the record in the Planning Board's decision. While the Board of Appeals' decision purported to find such flaws in the Planning Board decision, it failed to point to what evidence in the record supported its holdings. See Board of Appeals decision.
Here, the Board of Appeals had before it a five page decision from the Planning Board which contained numerous findings of facts and conclusions of law. (Planning Board decision.) However, the Board of Appeals' conclusory decision did not address the majority of the Planning Board's findings and conclusions. (Board of Appeals decision.) Specifically, and significantly, the Board of Appeals did not address section 17 of the Declaration or the subdivision regulation that prohibits further subdivision of component lots in a residential subdivision after a subdivision received final approval. See id. Additionally, the Board of Appeals' decision did not set forth any evidentiary support for its one apparent conclusory finding that the subdivision application met all the requirements of the Subdivision Regulations. Further, the Board of Appeals' decision also seemingly misstated the Planning Board's holding in stating that the decision relied on private rights or covenants; when, in actuality, the Planning Board held that the relief requested was legally unattainable under the current Subdivision Regulations. (Board of Appeals decision; Planning Board decision.)
The Planning Board made eleven finding of facts which addressed the original creation of the Compound in 1993, the Declaration, and other recordings relevant to the Compound, the Broad Hill Association LP Consent, the travel of the Fantels' application, the testimony presented to the Planning Board at the hearing on the application, and the covenants within the Declaration. The Planning Board also made four conclusions of law addressing the fact that the public hearing was necessary; the Planning Board's holding on the Fantels' request for relief from the condition in section 17, given the validity of the Broad Hill Association LP Consent in light of the recorded Declaration; the Planning Board's holding on the Fantels' request for a minor subdivision, given the consistency of the subdivision application with the Subdivision Regulations; and the Planning Board's finding on whether it would be appropriate for the Planning Board to grant the Fantels a waiver of a specific subdivision regulation.
The Board of Appeals' decision made no other findings of fact. See Board of Appeals decision.
As the pertinent subdivision regulation is not even addressed in the Board of Appeals' written decision, this Court cannot determine what made the Board of Appeals assert that "the lot did meet all of the requirements of the subdivision regulations." Board of Appeals decision; see also Bernuth, 770 A.2d at 401. The assertion is conclusory and not a factual finding or a thorough application of the Subdivision Regulations to the facts of the case. Therefore, the Board of Appeals' decision fails to meet the minimum requirements for judicial review as this Court cannot discern whether the Board of Appeals considered the findings and record of the Planning Board. See § 45-23-71(a); May-Day Realty Corp., 107 R.I. at 239, 267 A.2d at 403. Accordingly, this Court finds that remand is required. See Cullen, 850 A.2d at 905; Bernuth, 770 A.2d at 401; May-Day Realty Corp., 107 R.I. at 239, 267 A.2d at 403.
IV
Conclusion
After reviewing the entire record, this Court finds that the decision of the Board of Appeals does not allow for judicial review pursuant to § 45-23-71(a). The decision appears to be made in excess of the Board of Appeals' authority under § 45-23-71(a). The Board of Appeals' decision failed to address a pertinent recorded covenant, an important subdivision regulation, and misconstrued the findings of the Planning Board. Accordingly, the decision of the Board of Appeals is reversed, and the case is remanded to the Board of Appeals so that it can make necessary findings supported by competent evidence in the record and limit its review of the Planning Board's decision pursuant to § 45-23-71(a).
This Court is cognizant of the fact that the original subdivision application was made over ten years ago and that equitable principles favor adjudications of applications within a reasonable time period. See Sakonnet Rogers, Inc. v. Coastal Res. Mgmt. Council, 536 A.2d 893, 897 (R.I. 1988) (disfavoring remand that can further delay the appellate process). However, the state of the record presented to the Court does not permit such adjudication at this time.
This case has been pending before the Superior Court for six years. The Coccis filed their Complaint on August 24, 2010. They filed their memorandum in support of their appeal almost two years later, on January 17, 2012. The Board of Appeals filed their response on February 13, 2012, but the Fantels sought a number of extensions to file their memorandum in opposition, to and including July 31, 2014. The parties did not seek to have the matter assigned until January 1, 2015.
Counsel shall submit an appropriate order for entry consistent with this Decision.
ATTORNEYS:
For Plaintiff:
Paul Demarco, Esq.
For Defendant:
John F. Kenyon, Esq. Leonard L. Bergersen, Esq. Michael A. Ursillo, Esq. Nancy Letendre, Esq.