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Karco Investors, Inc. v. Zoning Bd. of Review of Cranston

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS PROVIDENCE, SC. SUPERIOR COURT
Apr 8, 2016
C.A. No. PC 14-4865 (R.I. Super. Apr. 8, 2016)

Opinion

C.A. PC 14-4865

04-08-2016

KARCO INVESTORS, INC., v. THE ZONING BOARD OF REVIEW OF THE CITY OF CRANSTON; DAVID CAPUANO, in his capacity as the City of Cranston Treasurer; and JOSEPH J. NATALE

For Plaintiff: Joelle C. Rocha, Esq. For Defendant: Stephen H. Marsella, Esq., Christopher J. Zangari, Esq.


Providence County Superior Court.

For Plaintiff: Joelle C. Rocha, Esq.

For Defendant: Stephen H. Marsella, Esq., Christopher J. Zangari, Esq.

DECISION

VAN COUYGHEN, J.

Karco Investors, Inc. (Appellant or Karco) brings this appeal from a decision of the City of Cranston Zoning Board of Review (Board), granting the application of Joseph J. Natale (Applicant or Natale) for dimensional relief. Jurisdiction is pursuant to G.L. 1956 § 45-24-69. For the reasons set forth herein, this Court remands this matter to the Board for further proceedings consistent with this opinion.

I

Facts and Travel

Natale owns property located at 487 Niantic Avenue in Cranston, Rhode Island, also known as Assessor's Plat 6, Lot 1283 (the Property). The Property is zoned M-2, and is an undersized lot that contains 9402 square feet. A three-family dwelling as well as a garage and shed currently exist on the Property. On or about July 29, 2014, Natale submitted an application to the Board requesting relief from the following Cranston Zoning Ordinances: § 17.92.010 (Variances), § 17.20.120 (Schedule of intensity regulations), and § 17.88.050 (Structural alterations). The Applicant requested relief from the restrictions contained in the zoning ordinance in order to allow Natale to construct a 30' x 40' two-story garage on the Property, with insufficient frontage, front, rear, and side yard setbacks. The construction of this garage would also coincide with the removal of an existing garage and shed currently on the Property.

In his application, Natale requested the relief of the zoning requirements, and noted that the new garage would be 1226.40 square feet, in contrast to the existing garage and shed, which are 600 and 128 square feet, respectively. The application also notes that Natale had submitted plans for this project to the building inspector, but was refused a permit. According to Natale, the granting of his application would cause no injury to public health, public safety, or welfare, and would not alter the essential character of the neighborhood or substantially injure the appropriate use of neighboring properties.

As was noted by his attorney at the hearing, the structures currently located on the Property were nonconforming. Therefore, in order to alter a nonconforming building, Natale is required by the Rhode Island Zoning Enabling Act to appear before the Board and seek relief. (Hr'g Tr. 7, Sept. 10, 2014); see also § 45-24-40.

A hearing was held before the Board on September 10, 2014 to determine if Natale should be granted the relief he requested. At that hearing, Natale's attorney stated that the existing structures on the lot do not conform with the intensity regulations of § 17.20.120. He argued, however, that the new garage would not increase that nonconformance, but would in fact reduce it, because the new garage would not be as close to the street as the existing garage. (Hr'g Tr. 6-7). Natale then testified that he intended to use the new, larger garage for storage purposes-specifically for the storage of his classic car collection-and had no intention of using it as an apartment or some similar use. Id. at 9. Two neighbors, George Gregorian and Frank Miranda, also testified in favor of the application. Both men cited the poor condition of the existing garage and the need for it to be repaired or replaced as their reasoning in support of Natale's application. Id. at 11-12.

Kenneth Rocha (Rocha), president of Karco, testified in opposition to Natale's application. Karco owns the property located at 11 East Josephine Street, Cranston, Rhode Island, otherwise known as Assessor's Plat 6, Lot 1279, which abuts the Property that is the subject of this appeal. Rocha objected to the size of the new garage, and opined that the new garage would alter the noncommercial appearance of the area. Id. at 14-15. Rocha also stressed his concerns that Mr. Natale may use the new structure in the future for some other purpose, rather than just for storage. Id. at 15.

At the conclusion of the hearing, the Board unanimously approved Natale's application by a vote of five to zero (5-0), on the condition that no commercial motor vehicle repair or autobody/paint work would be done on the Property. The Board issued a Notice of Decision that was recorded in the Land Evidence Records on September 16, 2014, at Book 4956, page 136. Attached and made part of that Decision were the Minutes of the September 10, 2014 hearing. In those attached minutes, the Board made the following eight (8) findings of fact:

"1. The 2010 Comprehensive Plan Future Land Use Map designates this area of Niantic Avenue as "Neighborhood Commercial." The existing 3 family on the lot, the result of a 1995 Zoning Variance, is consistent with the Neighborhood Commercial designation which allows multi-family dwellings.
"2. The existing 20' x 30' garage and an existing 8' x 16' shed will be removed.
"3. The proposed garage will have a 20' front yard setback, where 40' is required; a 6' and an 18' side yard setback, where 25' is required, and a 33' rear yard setback, where 30' is required in an M-2 zone.
"4. The 6' side yard setback (along the 40' side of the garage) abuts a single family use.
"5. The proposed garage is two stories.
"6. The existing driveway that abuts the house can accommodate two parking spaces.
"7. The Plan Commission unanimously voted to forward a positive recommendation on this application to the Zoning board.
"8. The applicant testified that due to the condition of the current garage it was necessary to replace it with a new one." (Hr'g Mins., Sept. 10, 2014).

The Board additionally stated that:

"In this case, the Board further finds that the application involves a hardship that is due to the unique characteristics of the property, and is not due to a physical or economic disability of the applicant, that the hardship does not result primarily from the desire of the applicant to realize greater financial gain, will not alter the general character of the surrounding area or impair the intent or purpose of the Zoning Ordinance or the comprehensive plan, is the least relief necessary, and that the Board finds that the applicant has met their legal burden with respect to the requirements necessary for the applicable relief. In conclusion the Board unanimously voted to grant the requested relief from Sections; l7.92.0l0 Variance and 17.20.120 Schedule of Intensity, 17.88.050 Structural Alterations." (Hr'g Mins., Sept. 10, 2014).

Karco timely filed the present appeal of that decision on October 2, 2014. All of the Appellees-Natale, the Board, and David Capuano-jointly filed their opposition to Karco's appeal.

II

Standard of Review

The Superior Court's review of a zoning board decision 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." Sec. 45-24-69(d).

"The Superior Court reviews the decisions of a plan commission or board of review under the 'traditional judicial review' standard applicable to administrative agency actions." Restivo v. Lynch, 707 A.2d 663, 665 (R.I. 1998). When reviewing a zoning board decision, the Superior Court "'lacks authority to weigh the evidence, to pass upon the credibility of witnesses, or to substitute his or her findings of fact for those made at the administrative level.'" Id. at 665-66 (quoting Lett v. Caromile, 510 A.2d 958, 960 (R.I. 1986)). Deference is given to the administrative agency in this regard. See Kaveny v. Town of Cumberland Zoning Bd. of Review, 875 A.2d 1, 7-8 (R.I. 2005). The Court must examine the entire record to determine whether substantial evidence exists to support the board's findings. Salve Regina Coll. v. Zoning Bd. of Review of City of Newport, 594 A.2d 878, 880 (R.I. 1991). '"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 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)). Thus, the reviewing court must examine the record to determine whether competent evidence exists to support the Board's findings. Compare New England Naturist Ass'n., Inc. v. George, 648 A.2d 370, 371 (R.I. 1994) (quashing Superior Court judgment based on erroneous ruling), with Bernuth v. Zoning Bd. of Review of New Shoreham, 770 A.2d 396, 401-02 (R.I. 2001) (denying relief granted by zoning board based on lack of competent evidence and remanding to Superior Court).

The deference given to a zoning board's decision by this Court, however, is conditioned upon the board providing sufficient findings of fact to support its decision. Kaveny, 875 A.2d at 8. Factual findings, amounting to more than mere conclusory statements or a "recital of a litany, " are necessary to accomplish judicial review of a zoning board decision. Bernuth, 770 A.2d at 401 (quoting Irish P'ship v. Rommel, 518 A.2d 356, 358-59 (R.I. 1986)). Regarding questions of law, this Court conducts a de novo review; consequently, the Court may remand the case for further proceedings or potentially vacate the decision of the Board if it is "[i]n violation of constitutional, statutory, or ordinance provisions." Bernuth, 770 A.2d at 399; see also § 45-24-69(d)(1).

III

Analysis

On appeal, Karco advances two arguments in its opposition to the Board's decision. As a preliminary matter, Karco contends that the Notice of Decision issued by the Board fails to comply with § 45-24-61, which requires the Board to render a decision containing the votes of each board member and its findings of fact. Karco argues that the Notice of Decision issued by the Board, standing alone, fails to set forth the votes of the members of the Board or make any findings of fact. Accordingly, Karco asserts that the Board's decision should be overturned.

Additionally, Karco contends that even if the Court were to consider the minutes from the September 10, 2014 hearing as part of the Board's written decision, the findings of fact addressed in those minutes amount to nothing more than conclusory statements, and are a mere recitation of the standards set forth in § 45-24-41. Moreover, Karco contends that the Board failed to apply its findings of fact to the standards set forth in § 45-24-41, or to otherwise explain how those facts support its decision, as is required under the statute. Therefore, even when considering the minutes from the September 10, 2014 hearing, Karco argues that the Board's decision is still inadequate and should be overturned.

A

Sufficiency of the Board's Notice of Decision

As a threshold matter, Karco argues that the Notice of Decision issued by the Board is insufficient. Section 45-24-61 of the Rhode Island Zoning Enabling Act requires that the Board render a decision within fifteen (15) days following a public hearing, and that it file that decision in the office of the city clerk within thirty (30) working days.While it is undisputed that the Board complied with the statute by filing its decision, Karco contends that its failure to include the votes of the Board members and any findings of fact in the actual Notice of Decision provided to Appellant renders the decision inadequate.

Section 45-24-61(a) reads in full:

"following a public hearing, the zoning board of review shall render a decision within fifteen (15) days. The zoning board of review shall include in its decision all findings of fact and conditions, showing the vote of each participating member, and the absence of a member or his or her failure to vote. Decisions shall be recorded and filed in the office of the city or town clerk within thirty (30) working days from the date when the decision was rendered, and is a public record. The zoning board of review shall keep written minutes of its proceedings, showing the vote of each member upon each question, or, if absent or failing to vote, indicating that fact, and shall keep records of its examinations, findings of fact, and other official actions, all of which shall be recorded and filed in the office of the zoning board of review in an expeditious manner upon completion of the proceeding. For any proceeding in which the right of appeal lies to the superior or supreme court, the zoning board of review shall have the minutes taken either by a competent stenographer or recorded by a sound-recording device."

Karco's argument is without merit. In its Notice of Decision, the Board clearly states that "a full written decision is on file in the Office of the Inspector of Buildings. . ." It is not disputed that the Board filed the minutes for the September 10, 2014 hearing-at which Natale's application was approved-contemporaneously with the Notice of Decision, or that the minutes are part of the certified record. Section 45-24-61 merely requires the Board to file its decision within thirty (30) days; the statute does not indicate that the written minutes from a hearing cannot be considered as a decision, or otherwise attached to a written decision, so long as they meet the filing requirement, as they do in the instant case. Furthermore, § 45-24-61 requires the Board to keep written minutes of its proceedings, and clearly anticipates those minutes being referenced if a decision is appealed.

Accordingly, the minutes for the September 10, 2014 hearing can be considered part of the Board's written decision, as they were filed with the Office of the Inspector of Buildings for the City of Cranston contemporaneously with the Notice of Decision, and they contain the findings of fact and votes of the Board members required by § 45-24-61. Thus, Karco's initial assertion that the Board's decision to grant Natale's request should be reversed because the Board's Notice of Decision, on its own, contains no findings of fact or votes of the Board members must fail.

It is also noteworthy that § 45-24-61(b) requires that "[a]ny decision by the zoning board of review, including any special conditions attached to the decision, shall be mailed to the applicant and to the zoning enforcement officer of the city or town… " but it does not require that the decision be mailed to parties who oppose it.

B

Adequacy of the Board's Written Decision

Karco next contends that the Board's decision is inadequate even when considering the minutes from the September 10, 2014 hearing. Section 45-24-41(c) of the Rhode Island Zoning Enabling Act sets forth the legal standards that the Board must apply when deciding whether to grant a dimensional variance:

"In granting a variance, the zoning board of review requires 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 not due to a physical or economic disability of the applicant, excepting those physical disabilities addressed in § 45-24-30(16);
"(2) That the hardship is not the result of any prior action of the applicant and does not result primarily from the desire of the applicant to realize greater financial gain;
"(3) That the granting of the requested variance will not alter the general character of the surrounding area or impair the intent or purpose of the zoning ordinance or the comprehensive plan upon which the ordinance is based; and
"(4) That the relief to be granted is the least relief necessary." Sec. 45-24-41(c).

In addition, § 45-24-41(d) of the Rhode Island Zoning Enabling Act states that when considering requests for dimensional variances:

"[t]he zoning board of review shall, in addition to the above standards, require that evidence is entered into the record of the proceedings showing that… (2) in granting a dimensional variance, 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(d).

Cranston Zoning Ordinance § 17.92.010(A) and (B) are virtually identical in substance to that of § 45-24-41(c) and (d).

Consequently, to meet the required standards both under the Rhode Island Zoning Enabling Act and the Cranston Zoning Ordinance, the Board must make specific findings of fact in its decision. See § 45-24-61 ("[t]he zoning board of review shall include in its decision all findings of fact. . . ."). Additionally, the Rhode Island Supreme Court has stated that this Court "must decide whether the board members resolved the evidentiary conflicts, made the prerequisite factual determinations, and applied the proper legal principles. Those findings must, of course, be factual rather than conclusional, and the application of the legal principles must be something more than the recital of a litany." Irish P'ship, 518 A.2d at 358-59.

It is well settled under Rhode Island law that this 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." Sec. 45-24-69. Moreover, this Court '"will not search the record for supporting evidence or decide for itself what is proper in the circumstances."' Bernuth, 770 A.2d at 401 (quoting Irish P'ship, 518 A.2d at 359). Our Supreme Court has instructed zoning boards and their attorneys to "make certain that zoning-board decisions on variance applications . . . address the evidence in the record before the board that either meets or fails to satisfy each of the legal preconditions for granting such relief, as set forth in § 45-24-41(c) and (d)." Sciacca v. Caruso, 769 A.2d 578, 585 (R.I. 2001).

In the minutes from the September 10, 2014 hearing, the Board made eight findings of fact, but never addressed which findings of fact show that the standards required in § 45-24-41(c) or (d), or Cranston Zoning Ord. § 17.92.010(C), had been met. The minutes merely provide conclusory, boilerplate language that mirrors the language of § 45-24-41 and Cranston Zoning Ord. § 17.92.010(C), and is unsupported by specific findings of fact from the record to explain how these conclusions were reached. This bare recitation of the standards, without providing sufficient findings of fact-and further, showing how those findings satisfy those standards-is not enough. See Irish P'ship, 518 A.2d at 358-59.

The Board's decision reveals nothing about how it arrived at the conclusion that Natale had satisfied the statutory requirements for the granting of a dimensional variance. Additionally, pertinent to the issues raised by Karco on appeal, the Board entirely failed to address the standard-let alone provide evidence to show that it was met-that the hardship suffered by Natale if the dimensional variance is not granted amounts to more than a mere inconvenience. See Bernuth, 770 A.2d at 402 (finding that the zoning board "made no findings of fact specifically addressing the requirements of § 45-24-41(d)(2)" in its decision to quash the Superior Court judgment affirming relief granted by the zoning board). Where a zoning board does not set forth in its decision sufficient findings of fact and reasons for its decisions rendered, this Court will not look to the record, even if substantial evidence in the record would support the zoning board's ultimate conclusions. Kaveny, 875 A.2d at 8; see also Sciacca, 769 A.2d at 585.

Accordingly, upon review of the Board's written decision, this Court finds that the Board failed to make sufficient findings of fact necessary to address the standards required under § 45-24-41(c) and (d). Although the Board did make eight findings of fact in its decision, it failed to relate those facts to the pertinent legal standard set forth in § 45-24-41(c) and (d). Moreover, it did not articulate how those facts demonstrate that the legal standard had been met, or if additional facts had been relied upon to reach its conclusions. Consequently, this Court must remand the case to the Board for further proceedings consistent with this Decision. On remand, the Board is directed to adequately set forth each of its findings of fact, based on the record before it, and to relate those findings to the standards set forth in § 45-24-41. Kaveny, 875 A.2d at 9; see also Sciacca, 769 A.2d at 585. The Board must identify the evidence that led it to approve the dimensional variance in accordance with the statutory requirements, and address how that evidence illustrates that each of the statutory requirements under § 45-24-41(c) and (d) has been met. Kaveny, 875 A.2d at 9; see also Sciacca, 769 A.2d at 585; Bernuth, 770 A.2d at 401-02.

IV

Conclusion

Upon review of the record before it, this Court finds that the Board's written decision was inadequate, as its findings of fact failed to articulate how the standards set forth in § 45-24-41 were met. Accordingly, the decision of the Board was in violation of statutory and ordinance provisions, pursuant to § 45-24-69(d)(1). Therefore, this matter is remanded to the Zoning Board of Review of the City of Cranston so that it may make sufficient findings of fact, based upon the record before it, and use such findings to address how each requirement under § 45-24-41(c) and (d) has been satisfied. This Court will retain jurisdiction.

Although the Appellant requested reasonable attorney's fees in Count II of its complaint, the Court need not address that request at this time of remand.


Summaries of

Karco Investors, Inc. v. Zoning Bd. of Review of Cranston

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS PROVIDENCE, SC. SUPERIOR COURT
Apr 8, 2016
C.A. No. PC 14-4865 (R.I. Super. Apr. 8, 2016)
Case details for

Karco Investors, Inc. v. Zoning Bd. of Review of Cranston

Case Details

Full title:KARCO INVESTORS, INC. v. THE ZONING BOARD OF REVIEW OF THE CITY OF…

Court:STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS PROVIDENCE, SC. SUPERIOR COURT

Date published: Apr 8, 2016

Citations

C.A. No. PC 14-4865 (R.I. Super. Apr. 8, 2016)

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