Opinion
KC-2023-0705
05-30-2024
MATTHEW JESTER and KAILYN JESTER Appellants, v. THE ZONING BOARD OF REVIEW OF THE TOWN OF COVENTRY; and ROBERT CROWE, in his capacity as Chair of the Zoning Board of Review of the Town of Coventry; RUSSELL LACAILLADE, in his capacity as Member of the Zoning Board of Review of the Town of Coventry; ROSS PELLETIER, in his capacity as Member of the Zoning Board of Review of the Town of Coventry; RON PELLETIER, in his capacity as Member of the Zoning Board of Review of the Town of Coventry; KEITH CLOUTIER, in his capacity as Member of the Zoning Board of Review of the Town of Coventry; and EDWARD IANNOTTI, in his capacity as Member of the Zoning Board of Review of the Town of Coventry. Appellees.
For Plaintiff: Julia Chretien, Esq. For Defendant: Stephen J. Angell, Esq., David V. Igliozzi, Esq.
Kent County Superior Court C. A. No. KC-2023-0705
For Plaintiff: Julia Chretien, Esq.
For Defendant: Stephen J. Angell, Esq., David V. Igliozzi, Esq.
DECISION
LANPHEAR, J.
Before this Court is Appellants, Matthew and Kailyn Jester's, appeal of the Zoning Board of Review of the Town of Coventry's (Zoning Board) decision, denying their application for a dimensional variance. Jurisdiction is pursuant to G.L. 1956 § 45-24-69. For the reasons set forth herein, the Jesters' appeal is denied, and the decision of the Zoning Board is affirmed for the reasons set forth herein.
I
Facts and Travel
The Jesters submitted their Application for a dimensional variance to the Zoning Board on March 2, 2023. See Compl. Ex. A (Application), at 3. The Jesters sought to build an accessory dwelling unit on their lot, comprising a garage on the ground floor and a two-bedroom dwelling upstairs. See Application 1, 27. The Jesters requested relief from the Town's minimum setback requirement of fifty feet because the proposed accessory dwelling unit would be constructed only thirteen feet from the property line. Application 2; Town of Coventry Code § 255-890. Notably, the Jesters' Property is in the shape of the letter "L," and a significant portion of the lot is less than fifty feet wide, with the developed front yard only sixty feet wide. See Application 28. As a practical matter, this means the Jesters cannot construct any structure on a substantial portion of their lot without relief from the Town's setback requirement. See Coventry Code § 255-890.
Lot 34 on Assessor's Plot 57 a/k/a 105 Acres of Pine Road, Coventry, Rhode Island.
The Jesters had recently applied for, and received, permission to construct the main home on the same undersized lot. Mr. Jester, along with Mr. Suorsa from Coventry Survey Company, appeared at the June 7, 2023 Zoning Board meeting. At this time the construction of the main house was still underway. (Mr. Suorsa testimony, R. part II, Ex. 8, June 7, 2023 transcript, 3 (June Tr.).) Mr. Jester and Mr. Suorsa testified regarding the details of the proposed accessory dwelling unit, the characteristics of the lot, and The Jesters' reasons for requesting the variance. Neighbors also testified about their concerns relating to the Jesters' Application. Specifically, abutting property owners were concerned that the second-floor dwelling would threaten the privacy they presently enjoy on their lots, that the structure would not match the character of the neighborhood because of its height, and they expressed displeasure with the idea of the Jesters renting the apartment. June Tr. at 13:1-6, 14:12-17, 21:13-23, 21:25-23:7, 24:21-22. Neighbors suggested moving the structure closer to the Jesters' main home and away from the neighbors' houses. Mr. Jester was reluctant to move the proposed accessory dwelling unit further from the neighbors' houses and toward the Jesters' main home because it would limit the yard space where his children could play, but he was amenable to other ideas to assuage privacy concerns, such as planting arborvitaes along the lot line. Mr. Jester also explained that he planned for his uncle to live in the accessory dwelling unit and that he did not intend to rent the apartment to others. Id. at 34:7-11, 15-21. At the close of the June meeting, the Zoning Board voted to visit the lot in person.
In response to concerns that abutters raised during the June meeting, the Jesters modified their initial plans and decided to place the accessory dwelling unit ten feet closer to their main home. See July 5, 2023 meeting Tr. 3:15-25 (July Tr.). As requested by Zoning Board members ahead of their visit, the Jesters staked the spot where the proposed accessory dwelling unit would be built. At some point between the June and July meetings, Zoning Board members visited the Property to see the lot in person, with the stakes in the newly suggested location.
At the meeting on July 5, 2023, the Zoning Board revisited the Jesters' Application. Neighbors and Zoning Board members expressed that, even after moving the accessory dwelling unit ten feet further from the lot line, the proposed accessory dwelling unit still did not fit the character of the neighborhood, and neighbors again expressed concerns regarding their privacy. Id. at 6:2-11, 10:25-11:19. Zoning Board members suggested that the accessory dwelling unit should be attached to the main home, which would reduce the amount of relief required for the project. Id. at 12:10-13:10. Mr. Jester expressed that he was willing to compromise, but that the accessory dwelling unit could not be attached to the main home because of the septic tank and well. See id. at 14:15-15:9. Mr. Jester testified that he could move the accessory dwelling unit another ten feet closer to the main home or create a one-story structure with a larger footprint, with the dwelling and garage both on the first floor to address the abutters' privacy concerns. Id. at 15:12-16:5.
Despite the Jesters' attempts to address the concerns of Zoning Board members and neighbors, the Zoning Board voted unanimously to deny the Application. See id. at 16:10-17:16. At the Zoning Board's meeting on August 2, 2023, it ratified its decision to deny the Application. The Zoning Board issued its written decision that same day.
The Record contains two decisions. The Jesters submitted the initial decision, signed on August 2, 2023. See the Jesters' Mem. Ex. A (the "Uncorrected Decision"). Appellees submitted a corrected version, which is not dated or signed. See Appellees' Mem. Ex. A (the "Decision"). The Uncorrected Decision states that the Jesters seek a variance "of 23 feet from the rear property line," and that the Jesters have "satisfied all criteria for the granting of the Dimensional Variance[,]" which is changed to state that the Jesters seek a variance "to reduce the rear yard setback to 13 feet from the rear property line" and that the Jesters have "failed to satisfy all criteria for the granting of the Dimensional Variance[,]" respectively. Compare Uncorrected Decision 1, 5 with Decision 1, 4. Both the Uncorrected Decision and "Corrected" Decision erroneously state that the "[Zoning Board] . . . grants said Dimensional Variance . . . ." See Uncorrected Decision 4, Decision 5 (emphasis added). This Court will consider the corrected Decision for purposes of this appeal.
In its Decision, the Zoning Board states that the Jesters sought relief "due to . . . the layout of the lot lines and the location of the [existing] OWTS [onsite wastewater treatment system (i.e., septic tank).]" (Decision 2.) Furthermore, the Zoning Board found "it does not appear that there is any hardship created by the prior action of [the Jesters]. The [A]pplication appears to be motivated by the [the Jesters'] desire for a new garage with an accessory dwelling for the family." Id. at 3. Thus, the Decision provides that the Jesters established "[t]hat the hardship from which [the Jesters] seek relief is due to the unique characteristics of the subject land . . ." and "the hardship is not the result of any prior action of the applicant [or] desire of . . . greater financial gain[.]" See §§ 45-24-41(d)(1) and 45-24-41(d)(2).
Regarding the requirement that the "requested variance will not alter the general character of the surrounding area or impair the intent . . . of the zoning ordinance[,]" the Zoning Board found that the Jesters' Application "is not related to the characteristics of the surrounding residential neighborhood." (Decision 2-3.) However, the Decision also states that "[t]he Board f[ound] that this variance would alter the general character of the surrounding area. A neighbor brought up an adequate reason for denial. [The accessory dwelling unit] doesn't fit and it is going to affect abutters. It affects privacy." Id. at 3.
The Zoning Board went on to state that it found:
"the relief [requested by the Jesters] is not the least relief necessary. The primary structure [(i.e., the main home)] is currently under construction. It may be possible to provide additional square footage that may be added within the zoning setback requirements. [The proposed accessory dwelling unit] could have been attached [to the main residence] and the variance required would have been . . . less. If it was relocated, it would be less intrusive to the houses at the back of the lot. It would have been better for the neighborhood." Id. at 3.
In considering whether denying the variance would amount to "more than a mere inconvenience," the Decision provides that:
"the hardship that [the Jesters] would suffer in not being able to build the detached garage with an accessory dwelling would not amount to more than a mere inconvenience. The [accessory dwelling unit] could be smaller or placed in a location that limits the use of the existing garage in order to more closely comply with the ordinance. It could have been attached and the variance required would have been a lot less. If it was relocated, it would be less intrusive to the houses at the back of the lot. It would have been better for the neighborhood." Id. at 3-4.
The Jesters filed their appeal in the Superior Court on August 17, 2023. (Compl.) On appeal, the Jesters argue that the Zoning Board's Decision is unsupported by evidence and contradicts credible testimony from the June and July meetings. (Jesters' Mem. 14-17, 21-22.) They also allege that the agendas for the June, July, and August meetings incorrectly described the relief requested, causing confusion at the meetings. Id. at 17-21. Furthermore, the Jesters assert that the Chairman of the Zoning Board is an abutter to their Property and violated the Code of Ethics by failing to disclose this information, participating in discussion on the Application, and then voting on the matter. Id. at 18; see G.L. 1956 chapter 14 of title 36. In response, Appellees contend that the Decision was supported by evidence on the record and properly decided notwithstanding "several obvious scrivener errors." (Appellees' Mem. 13-18.)
II
Standard of Review
Section 45-24-69(a) grants the Superior Court jurisdiction to review decisions from local zoning boards. Such review is governed by § 45-24-69(d), which 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 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 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) (emphasis added). The Court must consider "the entire record to determine whether 'substantial' evidence exists to support the board's findings." Salve Regina College v. Zoning Board of Review of City of Newport, 594 A.2d 878, 880 (R.I. 1991) (quoting DeStefano v. Zoning Board of Review of City of Warwick, 122 R.I. 241, 245, 405 A.2d 1167, 1170 (1979)).
III
Analysis
A
Whether the Zoning Board Decision is Erroneous in View of Reliable Evidence on the
Record
This Court acknowledges the Jesters' concern that meeting agendas made available before the June, July, and August meetings incorrectly advertised that the Jesters sought "thirty-seven feet (37') from [the] rear property line where fifty-feet [sic] (50') is required." Jesters' Mem. 3. While this mistake may have caused confusion among members of the public, the meeting transcripts demonstrate that Zoning Board members accurately understood the relief sought by the Jesters, as described in their Application. See June Tr. 3:22-4:19; July Tr. 2:1-17.
The Jesters' Application was submitted in March 2023, thus this Court must review the Zoning Board's Decision under the statute that existed when the Application was submitted. See East Bay Community Development Corporation v. Zoning Board of Review of the Town of Barrington, 901 A.2d 1136, 1144 (R.I. 2006). In March 2023, § 45-24-41 provided that:
"(d) In granting a variance, the zoning board of review . . . 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.
When considering whether to grant relief in the form of a dimensional variance, the zoning board of review also 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." See § 45-24-41(e)(2).
The Zoning Board's finding that "the dimensional relief sought is due to the location of the proposed . . . accessory dwelling [unit], the layout of the lot lines, and the location of the [onsite wastewater treatment system]" and "not related to the characteristics of the surrounding residential neighborhood" is supported by evidence on the record. See Decision 2. The meeting transcript reflects discussion amongst Zoning Board members, the Jesters, and abutters discussing the unusual shape of the lot and other constraints which require the Jesters to seek relief from the minimum required setback to construct the accessory dwelling unit. See June Tr. 4:24-5:11, 33:15-25. For example, the septic tank prohibits constructing the accessory dwelling unit closer to the main home and most of the remaining portion of the lot is less than fifty feet wide, requiring dimensional relief to construct any structure in the yard. See July Tr. 14:15-15:9; Application 28.
This Court questions the Zoning Board's finding that "it does not appear that there is any hardship created by the prior action of the [Jesters]." See Decision 3. First, it is clear that the design and construction of the main house, not yet built at the time of the hearing on this Application, caused a major impediment to the location of the accessory unit. The Board found that the Application "appears to be motivated by the [Jesters'] desire for a new garage with an accessory dwelling [unit] for the family" is supported by Mr. Jester's testimony at the June meeting, which the Zoning Board states it found credible. June Tr. 34:7-11, 15-21; Decision 2 (stating that "the Board finds . . . the [Jesters'] testimony and materials submitted as credible and reliable"). However, the Jesters never precluded that they would not ever receive rent or make a significant financial gain. While the Court questions whether the Zoning Board's Decision on this issue is supported by evidence and not clearly erroneous, it need not reach the question of whether the Decision was arbitrary because of this Court's holding on each of the remaining elements required to be established in the Application for dimensional relief.
The Court is troubled by this finding, but recognizes that the Zoning Board found substantial evidence to support its findings. The Jesters are already receiving relief for the ongoing construction of the main home. Now an additional separate unit is requested. It is unclear whether there will be financial gain. Some of the harm seems to be self-caused, but the Court yields to the findings of the Zoning Board.
The Zoning Board found that "this variance would alter the general character of the surrounding area . . . [because] [i]t doesn't fit and . . . [i]t affects privacy." (Decision 3.) The June meeting transcript clearly shows that neighbors were concerned that potential residents of the second-floor dwelling would be able to see into their properties and that the two-story building does not match the character of the neighborhood. To address privacy concerns, the Jesters offered to shift the proposed accessory dwelling unit twenty feet away from the initially proposed location, plant arborvitaes along the property line, or construct a one-story structure with a larger footprint, which would also address concerns that the proposed structure's height would not match other buildings in the neighborhood. See July Tr. 15:12-16:5. While these compromises clearly address concerns regarding the neighborhood's character, the Zoning Board found that the Jesters' Application would alter that character of the neighborhood, and provided its reasoning clearly relying on evidence in the Record. See Decision 3.
While well-intentioned, the Zoning Board is charged with considering the application as submitted and as noticed to the public. Offering to amend at hearing makes it challenging for the public to understand which proposal is being considered and complicates the function for members of the board who may attempt to accommodate.
The Zoning Board's Decision is not clearly erroneous as to its finding that "the [requested] relief is not the least relief necessary[.]" See Decision 3. The Zoning Board explained that the proposed accessory dwelling unit "could have been attached [to the main home] and the variance required would have been a lot less[,]" and, had the accessory dwelling unit been "relocated, it would [have been] less intrusive to the houses at the back of the lot." See Decision 3. The Jesters had testified to the fact that a septic tank prohibited attaching the proposed accessory dwelling unit to the primary residence. The Decision does not address the Jesters' assertion that the septic tank can be relocated (given that the main house is still under construction) or that the tank prohibits constructing the accessory dwelling unit on that portion of the Property. The Appellees do not directly address the issue on appeal. See Decision 3; Appellees' Mem. 15 (stating that its finding that relief was not the least necessary "was based upon the evidence in the record that supports the [Zoning] Board's conclusion that the [Jesters] have not adequately established that the requested variance will not alter the general character of the surrounding [neighborhood] or impair the intent . . . of the zoning ordinance"). This statement does not address the erroneous finding that the requested relief was not the least relief required to construct the accessory dwelling unit, which contradicts evidence at the hearing. See Decision 2 (stating that "the Board finds . . . the [Jesters'] testimony and materials submitted as credible and reliable"). Therefore, this Court holds the Decision was appropriate in finding that "the [requested] relief [was] not the least relief necessary" in light "of the reliable, probative, and substantial evidence of the whole record." See Decision 3; § 45-24-69(d)(5).
Last, this Court also concludes that the Zoning Board's finding that "the hardship that [the Jesters] would suffer in not being able to build the [accessory dwelling unit] would not amount to more than a mere inconvenience" was founded on evidence, and the lack of evidence, in the record. See Decision 3. The Zoning Board concluded that denying the Application would not amount to more than mere inconvenience because there are alternative locations where the Jesters can construct the accessory dwelling unit that would more closely align with the zoning ordinances. See id. Our Supreme Court has "define[d] the words . . . 'mere inconvenience' to mean that an applicant must show that the relief he is seeking is reasonably necessary for the full enjoyment of his permitted use." DiDonato v. Zoning Board of Review of the Town of Johnston, 104 R.I. 158, 164, 242 A.2d 416, 420 (1968). Here, the Zoning Board struggled to find an alternate location for the accessory dwelling unit, and the Jesters offered changes, on an area which was simply too small. Because a substantial portion of the lot is less than fifty feet wide and the Town Zoning Ordinances require a fifty-foot setback, the Jesters cannot practically build any structure in most of their yard. See Application 28. Even if they were able to attach the proposed accessory dwelling unit to their main home in spite of the septic tank, the Decision acknowledges the project still would require substantial dimensional relief. See Decision 3 (stating that "the variance required would have been a lot less[,]" had the accessory dwelling unit been attached to the main residence, not that relief would not be required at all (emphasis added)). While "full enjoyment of [the Jesters'] permitted use" of their lot includes uses such as constructing a detached garage, a shed, or another small structure, see DiDonato, 104 R.I. at 164, 242 A.2d at 420, the construction of an accessory dwelling unit, with a garage and driveway is a massive undertaking on a lot which already exceeds requirements for the construction of the new main home. The Board appropriately found that this project could have been smaller, attached to the home, or more closely in compliance with the ordinance
B
Zoning Board Chairman's Conflict of Interest
The Jesters assert that the Chairman of the Zoning Board is an abutter to their Property, and that his failure to recuse himself from proceedings related to the Application or even disclose that he might have a personal interest in the matter, amounts to a violation of the state's Code of Ethics. The Jesters' Mem. 18; see chapter 14 of title 36. In response, Appellees argue that this "allegation . . . does not affect the [D]ecision[,]" and that advisory opinions from the Rhode Island Ethics Commission support their contention. (Appellees' Mem. 14 (citing Advisory Op. Nos. 99-148, 98-92, 98-58, and 98-35).)
Members of zoning boards, planning boards, historic district commissions, conservation commissions, and similar local state commissions serve an onerous task. They volunteer their time committing themselves to the important but thankless tasks of making key decisions concerning development and preservation of our communities. Homeowners, neighbors, local businesspersons, and community-minded individuals-those who care about our neighborhoods- are often encouraged to accept these unpaid appointments, which require attendance at several monthly meetings and involve complex arguments ranging from groundwater flow to special uses, from rules of evidence to consistency with thick comprehensive plans, to crowded and raucous public meetings.
Inevitably, neighbors, friends, and business acquaintances appear before these appointees, or they are called upon to consider issues near their homes. While these controversies may be the issues the appointees know and care most about, they are the issues that run closest to violating our state ethics laws. Mandated by the Rhode Island Constitution, the Rhode Island General Assembly enacted a strong Code of Ethics, barring many conflicts of interests. See chapter 14 of title 36. The Rhode Island Ethics Commission enforces and adjudicates those rules.
Appointees on local commissions may unexpectedly be placed in such ethical dilemmas. When a neighbor, sister-in-law, business friend, or an issue they have worked on for years comes before them, appointees want to play a role. Indeed, the appointee may be able to add a unique light to the conversation. When the appointee serves on a small panel of five to nine members, their failure to participate may tip the balance against their friends. Some appointees are unfamiliar with the Code of Ethics, its intricacies, interpretations, or regulations. All of this makes their personal controversy more agonizing.
Of course, the Code of Ethics must be followed. Disclosures must be made; recusals may be required. Those individuals dedicating themselves to the obscure but vital positions of local and state government must stand up and walk away from the table when they are required to do so. This is not easy for them and is often unfair to them, but it is required by law.
Rhode Island's Code of Ethics requires that "public officials and employees must adhere to the highest standards of ethical conduct, respect the public trust and the rights of all persons, be open, accountable, responsive, avoid the appearance of impropriety, and not use their position for private gain or advantage." Section 36-14-1. To advance that goal, the Code of Ethics prohibits members of municipal boards from participating in their official capacity on matters in which they may have "any interest, financial or otherwise, direct or indirect" and requires that members disclose this potential conflict. See §§ 36-14-4, 36-14-5, 36-14-6, and 36-14-7. The Ethics Commission has stated that a board member who is an abutter to a property being considered before the board may have his or her "personal vested property rights . . . affected as a result of the decision" and clearly advises that, "whenever such a matter appears before . . . a member of [a zoning board,] he [or she] should (a) notify the [board], in writing, of the nature of his [or her] interest in the matter at issue, and (b) recuse from any participating or vot[ing] as a [zoning board] member in connection with said matter." R.I. Ethics Commission Advisory Opinion No. 95-27.
It is not this Court's role to jump into an ethics controversy on its own or even to address a close call. The Ethics Commission is designed to regulate such controversies. Where it is beyond doubt that officials have gone too far and circumvented the established principles of fair play or have subverted their commission's actions, the courts will step in. See Champlin's Realty Associates v. Tikoian, 989 A.2d 427 (R.I. 2010) (upholding the Superior Court trial justice's decision to conduct an evidentiary hearing regarding an agency chairperson's bias and subsequent finding that he should not have taken part in the agency's decision).
Here, neither party has established nor sought to establish a record to empower this Court to act. Accusations have been made, but, unfortunately, disparaging and ill-founded accusations are becoming commonplace in our time. As indicated, it is inevitable for local planning and zoning officials to know others in their communities and that does not necessarily render their actions null and void. Still the Court uses this opportunity to remind the officials of clear guidance from the Ethics Commission that board members should recuse themselves when a zoning board is presented with matters relating to abutting property. Again, their roles are pivotal, yet public service constitutes performing a public trust.
IV Conclusion
For the foregoing reasons, the Jesters' appeal is denied, and the Decision of the Zoning Board is confirmed.