Opinion
C.A. No. PC-2018-6054
12-30-2020
THREE KIDS, LLC v. Lori Lyle, Steve Kearns, John Bart, John Barr, and David DeAngelis, in their capacities as members of the Town of Lincoln's Zoning Board of Review; and, the Town of Lincoln
ATTORNEYS: For Plaintiff: John O. Mancini, Esq. For Defendant: Anthony DeSisto, Esq.
DECISION VOGEL , J . Three Kids, LLC (Appellant) appeals from a decision of the Town of Lincoln Zoning Board of Review (the Board) which denied its application for dimensional relief. The Court exercises jurisdiction over this matter pursuant to G.L. 1956 § 45-24-69. For the reasons set forth herein, the Court sustains the appeal and remands the case to the Board to make the requisite findings as to the basis of its decision.
I
Facts & Travel
Appellant owns an undeveloped 40,202 square foot parcel of real estate on Wilbur Road in the Town of Lincoln, designated as Assessor's Plat 28, Lot 80. (Board' Decision, July 10, 2018 (Decision) at 1; Application for Dimensional Variance, April 23, 2018 (Application). The vacant lot has 196.89 feet of frontage with a depth of 236.96 feet and is located in an RA-40 zone. Id. Appellant seeks to construct a single-family home on the property, which is a permitted use in an RA-40 zone. Id. (Code of Ordinances, Town of Lincoln, Rhode Island (Code of Ordinances) § 260-22). The zoning ordinance requires a minimum front yard setback of 40 feet to all structures. (Code of Ordinances § 260-22.) The proposed front yard setback would be 16 feet to the front stairs; 18.3 feet to the front porch; and 20 feet to the building itself. (Application). In light of the proposed location of the front stairs, Appellant requires a dimensional variance of 24 feet. Id.
On July 10, 2018, the Board conducted a duly noticed hearing on Appellant's application for a "[d]imensional [v]ariance seeking front yard setback relief for the construction of a new home on a vacant lot." (Notice of Public Hearing; Hr'g Tr., July 10, 2018 (Tr.)). Appellant presented testimony from Scott P. Rabideau, (Mr. Rabideau) a biologist who appeared as an expert on wetlands. (Tr. at 11.) Mr. Rabideau testified that a majority of the parcel is considered "freshwater wetland, forested, or swamp-type wetland." Id. at 13:17-22. He further explained that an intermittent stream runs through the property which requires a "100-foot riverbank wetland setback, or a buffer zone." Id. at 14:2-4. The project thus was within the jurisdiction of the Rhode Island Department of Environmental Management (DEM), and the Appellant was required to submit to the DEM an application to alter freshwater wetland. Id. at 14:11-13. DEM approved the application conditioned on a 20-foot buffer zone from the wetland edge to the house. Id. at 20:12-14. Mr. Rabideau further explained that DEM rules require the applicant to apply for a dimensional variance from the Board. Only if the requested relief is denied may the applicant return to DEM to seek permission to move the structure closer to the wetland edge, but DEM would prefer a compromise between local and State standards to allow for the development sought by the Appellant. Id. 20:18-24. He acknowledged that if the relief sought is denied, DEM probably would permit the project with the house pushed back to permit 40 feet front yard setback to avoid denying the applicant reasonable use of the property. Id. at 22:18-22. However, that would result in compromising wetland protections.
On December 19, 2018, Karen D. Allen, Town Clerk, Lincoln, Rhode Island, certified that she was transmitting "a true copy of the Lincoln Zoning Board of Review's Record" in this case. The transcript of the July 10, 2018 hearing was not included in the record. This Court reviewed that record as an exhibit appended to the Appellant's brief and brought the omission to the attention of the parties (who do not dispute the accuracy of the transcript submitted by Appellant) requesting that the true and complete record be re-certified and transmitted to the Court. It has not yet been filed.
Mr. Rabideau explained that when DEM evaluates an application for a permit to develop wetlands, the agency considers whether the property has the ability to: (1) protect surface and groundwater supplies; (2) prevent flooding; (3) provide wildlife habitat; (4) provide passive and active recreation; and (5) protect water quality. Id. at 28:8-15. He addressed the relief sought and noted that when they met with DEM, it was determined that the requested variance was the most practicable alternative that satisfied both DEM's regulations and the Town's regulations. Consequently, from the Appellant's perspective, it is the least relief necessary. Id. at 27-28. Mr. Rabideau opined that the requested variance is needed "to assure the Town and the board that the wetland functions and values are fully protected, and it's the unique characteristics of the property that are causing that." Id. at 31:18-22. Counsel for the Appellant referenced one of the stated goals of the Town's zoning code, set forth in Article I, § 260, which provides, in pertinent part that one of its purposes is
"[p]roviding for orderly growth and development which recognizes:
. . .
Mr. Rabideau noted that the requested relief was in harmony with that purpose. (Tr. 32:11-12.)
"[t]he values and dynamic nature of freshwater ponds, the shoreline and freshwater wetlands." (Code of Ordinances § 260-1(C)(3)).
Appellant presented a second witness, Edward Pimentel (Mr. Pimentel), an expert in land use and planning. Id. at 34:10-14. Mr. Pimentel also testified that the requested relief balanced preservation and protection of wetlands to the zoning ordinances and Comprehensive Plan while granting the least relief necessary. Id. at 37:1-8. He noted that the relief sought "clearly flows from the uniqueness of the property itself." Id at 42:6-7. He concluded that the natural limitations to development causes the proposed project to have a decreased building envelope, using 2.4% of the property for building purposes rather than the neighborhood average of 5.45%. Id. at 52:16-19. Mr. Pimentel testified that RA-40 zoned property includes areas of low density with natural limitations to development. Id. at 35:16-21. If approved, the house would be only slightly closer to the road than other average houses in the neighborhood. Id. at 53:8-13. He testified that the proposed house is in character with the average homes in the neighborhood. Id. at 54:21-23, 55:7-12.
The final witness presented by Appellant was Donald G. Morash, Jr. (Mr. Morash), a real estate expert. Id. at 56:6-8. He opined that although the house would be fairly close to the street, it would not impair the property values in the area. It would just be another house in the neighborhood and would not alter the general character of the surrounding area. Id. at 58. He noted that he has "always adhered to the fact that when somebody builds a new home, it only enhances the neighborhood, it doesn't distract [sic] from the neighborhood." Id. at 57-58.
Various members of the public appeared as lay witnesses to express their opposition to Appellant's application. None of the opponents presented expert testimony to challenge the opinions offered by the Appellant's three witnesses. Among the reasons the neighbors gave for opposing the Application was that the house would "stand out like a sore thumb and significantly change the character of the neighborhood forever." Id. at 70:6-8. That witness then offered an alternative design without demonstrating any expertise in the area of real estate design or development. Id. at 71-72. Another witness addressed the issue of financial gain realized by the seller of the parcel as though profit motive might impact on the Board's decision. Id. at 81:2-4. Still another witness noted that seven years earlier, he and neighbors experienced flooded basements following terrible rainstorms. Id. at 96:17-20. He did not provide competent evidence connecting flooding to Appellant's requested dimensional variance.
One neighbor, a long-term resident, seemed to lament the alteration of the area from pastureland and woods to a developed neighborhood. Id. at 76-77. She testified that the lot once was used as a dumping ground for construction when the surrounding properties were being built. Id. at 78:1-13. Another identified himself as 58 years old and noted that he had played on the property, then pastures with a running stream as a child. Id. at 99:16-20. Still another neighbor expressed concern over traffic safety and opined that if a car left the roadway and entered the front lawn of the proposed home it might crash into the house. Id. at 108-109. He offered that speculation without identifying any background in traffic planning or engineering.
Following the testimony, the Chairman of the Board made a motion to approve the application and articulated four standards upon which he based the motion: (1) The parcel is grandfathered in as a buildable lot, and there is a hardship due to the unique characteristics of the land, to wit, that it is 80% wetlands resulting in a reduced buildable area; (2) the hardship was not created by the applicant; (3) granting the variance will not alter the general character of the surrounding area; and (4) the relief sought is the least relief necessary. Id. at 118-119. He then conditioned his motion on the following: that the applicant notify the building official at various stages of excavation; that if the inspections of the property reveal any environmental problems such as odor, construction would stop; that once built, the applicant would be required to install safety devices in the form of landscape rocks or vegetation after consulting with the town engineer, police chief and traffic office; and that the applicant revise the driveway plan so vehicles would not have to back out onto the roadway. Id. at 121-122.
The Chairman then called for a vote on his motion. Board Member John Barr seconded the motion. Id. at 122. The Chairman then said he would "poll the board." Id.
Board member Lori Lyle indicated that she would vote against the motion because the applicant had "an ability to go back to DEM for less of a variance." Id. at 123. Of note, she did not address the environmental implications of denying the requested relief or whether to do so would be consistent or inconsistent with a stated purpose of the zoning code to provide for development that recognizes "[t]he values and dynamic nature of freshwater ponds, the shoreline and freshwater wetlands." (Code of Ordinances § 260-1(C)(3)).
Board member Steve Kearns referenced the citizens who appeared in opposition to the application and wondered whether there would be appeals and related costs if the Board were to deny the application. "And it leaves us in a really difficult situation due to the fact that, should we deny this application, most likely we will be involved with appeals, costs, and so on, and what is the ultimate end going to be?" Id. at 123:15-19. He concluded "I agree with my colleague, Ms. Lyle, that there are standards [although he did not articulate them] I don't think were met adequately. I am also going to vote against this." Id. at 123:21-23.
Possibly, the member was merely musing about appeal costs and was not permitting such concerns to affect his decision, even in part. However, the Court notes that the potential cost of an appeal is not an appropriate issue for a Board member to consider. "Basically and fundamentally a zoning board is an administrative body whose duties are quasi-judicial." Hassell v. Zoning Board of Review of City of East Providence, 108 R.I. 349, 351, 275 A.2d 646, 648 (1971) "[T]he term 'quasi-judicial' suggests that an administrative body will be making a determination that will have an impact on a party's rights, that it will conduct a hearing, consider evidence, and reach a decision relative to the issues raised in the complaint." Ims v. Town of Portsmouth, 32 A.3d 914, 929 (R.I. 2011).
Board member Barr voted "Aye" without explanation. Id. at 124:1. Board Member John Bart voted "No" without explanation. Id. 124:4. At that point, the Chairman voted "yes." Id. at 124:6. He then stated "[s]o we have Barr at a yes, Lyle at a no, Bart at a no. Kearns at a no, and myself as a yes. So that's three in the negative, two in the affirmative. That means your application has been denied." Id. at 124:5-10.
The Board issued its five-page Decision that was received for record by the Town Clerk on August 8, 2018. In the first four pages, the Decision merely summarized the testimony of the witnesses who appeared in support of the application and those neighbors who appeared in opposition to it. The Decision then detailed the motion to approve the application and the requirements the Chairman articulated as conditions he would place on a grant of a variance. The Decision concluded with the following statement: "Motion seconded by Member Bart. Chairman DeAngelis and Member Barr voted in favor. Members Lyle, Kearns and Vice Chair Bart voted against the motion. Therefore[,] the motion is Denied." (Decision at 5.)
Appellant took a timely appeal to this Court from that Decision. Although not claimed in the Superior Court complaint, in its memorandum in support of the appeal, Appellant requests reasonable attorneys' fees and litigation expenses pursuant to the Equal Access to Justice for Small Businesses and Individuals Act, G.L. 1956 §§ 42-92-1, et seq.
II
Standard of Review
The Superior Court exercises jurisdiction to review a zoning board decision pursuant to § 45-24-69. That section states:
"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).
In reviewing a zoning board decision, the Superior Court must '"examine the whole record to determine whether the findings of the zoning board were supported by substantial evidence."' Lloyd v. Zoning Board of Review for City of Newport, 62 A.3d 1078, 1083 (R.I. 2013) (quoting Apostolou v. Genovesi, 120 R.I. 501, 507, 388 A.2d 821, 824 (1978)). Substantial evidence is '"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."' Iadevaia v. Town of Scituate Zoning Board of Review, 80 A.3d 864, 870 (R.I. 2013) (quoting Pawtucket Transfer Operations, LLC v. City of Pawtucket, 944 A.2d 855, 859 (R.I. 2008)). The Court must affirm the board's decision if it was "supported by substantial evidence in the whole record." Lloyd, 62 A.3d at 1083. If the zoning board's decision was not supported by substantial evidence in the record, the court must reverse the board's decision. Salve Regina College v. Zoning Board of Review of City of Newport, 594 A.2d 878, 882 (R.I. 1991). Additionally, "a zoning board's determinations of law, like those of an administrative agency, are not binding on the reviewing court; they may be reviewed to determine what the law is and its applicability to the facts." Pawtucket Transfer Operations, LLC, 944 A.2d at 859 (internal quotations omitted).
III
Analysis
In determining an application for a dimensional variance, the zoning board is required to determine whether the applicant has proven that:
"(1) [T]he 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, . . . ;
"(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).
To obtain a dimensional variance, the applicant must present evidence to show 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). These requirements are mirrored in the Code of Ordinances, §§ 260-64, 260-65(B).
When a zoning board holds a public hearing, it is required to render a decision that includes "all findings of fact and conditions, showing the vote of each participating member." Section 45-24-61(a). The Supreme Court repeatedly has stated that '"a zoning board of review is 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 v. Zoning Board of Review of Town of New Shoreham, 770 A.2d 396, 401 (R.I. 2001) (quoting Cranston Print Works Co. v. City of Cranston, 684 A.2d 689, 691 (R.I. 1996)). The Court also has held that the minimum requirements of zoning board decisions are "the making of findings of fact and the application of legal principles in such a manner that a judicial body might review a decision with a reasonable understanding of the manner in which evidentiary conflicts have been resolved and the provisions of the zoning ordinance applied." Thorpe v. Zoning Board of Review of Town of North Kingstown, 492 A.2d 1236, 1237 (R.I. 1985) (citing May-Day Realty Corp. v. Board of Appeals of City of Pawtucket, 107 R.I. 235, 239, 267 A.2d 400, 403 (1970)); see also Hopf v. Board of Review of City of Newport, 102 R.I. 275, 288, 230 A.2d 420, 428 (1967) ("We have repeatedly held that zoning boards should make express findings of fact and should pinpoint the specific evidence upon which they base such findings. Additionally they should disclose the reasons upon which they base their ultimate decision because the parties and this court are entitled to know the reasons for the board's decision in order to avoid speculation, doubt, and unnecessary delay.").
Appellant argues that the Board's Decision was affected by error of law and is not supported by substantial evidence. (Pl.'s Mem. Law Supp. Appeal Decision of Town of Lincoln Zoning Board Review at 1.) Appellant argues that it proffered evidence of all necessary standards for it to be entitled to the requested dimensional variance and that it was error of law to not grant said variance. Id. at 15-16. Appellees argue that there was substantial evidence to support the Board's conclusion, namely that Appellant had the ability to ask the DEM to build closer to the wetland and that the testimony of the neighbors regarding drainage, the character of the wetlands, and the old construction debris amounted to such substantial evidence. (Defs.' Reply Mem. Law at 7-8.) The Court notes the absence of any expert testimony on the part of the objectors to support their contentions, which rendered their opinions without probative force. See Goldstein v. Zoning Board of Review of City of Warwick, 101 R.I. 728, 732, 227 A.2d 195, 198 (1967); Salve Regina College, 594 A.2d at 882.
Here, the Decision is devoid of findings of fact and conclusions of law. The written decision merely recaps the testimony, restates the Chairman's motion to approve, recites the vote, calculates and reports the result. Even a review of the transcript fails to reveal the basis for some of the members' votes. Nonetheless, it is the Decision itself that must reflect the reasoning behind the ruling. It is unclear whether the Board even considered the expert opinions offered by the witnesses presented by the Appellant or the environmental concerns that would accompany a denial of the application, let alone whether they rejected such opinions. Likewise, the Decision fails to disclose to what extent the Board relied on the lay opinions offered by the objectors, some of which appeared to be nothing more than pure speculation or opinion offered without appreciation for the statutory standards the applicant must meet in order to obtain a dimensional variance. See § 45-24-41(d); see also Salve Regina College, 594 A.2d at 882. When all expert testimony points to one conclusion regarding the necessary standards, and no competent evidence at all is adduced to rebut such expert testimony, it is an abuse of discretion to disregard that expert testimony. Id.
Clearly, an applicant for a dimensional variance must demonstrate that the relief requested is the least necessary as set forth in § 45-24-41(d)(4). Although Mr. Rabideau testified that if the Board denied the application, the Appellant could return to DEM to request permission to build the structure with a front yard setback of 40 feet, clearly that statement had to be considered in the context in which it was offered. The witness expressed a belief that DEM would "hate" to encroach farther on the wetlands and would only do so because "they are not in the business of denying reasonable use of property." (Tr. at 22:1-3.) Further, he acknowledged that the possibility that DEM may allow the applicant to build in the wetland was merely theoretical in nature. Id. at 23:2-7. The actual record before the Board was that DEM required a 20-foot buffer zone between the residence and the wetland. Speculation is not a proper basis for denying an application. See Braun v. Zoning Board of Review of Town of South Kingstown, 99 R.I. 105, 109, 206 A.2d 96, 98 (1965) ("It is obvious that a board should not lightly undertake to grant this relief by making the finding prerequisite to an exercise of its authority on the basis of speculation or conjecture.") If the Board disregarded wetland protections addressed by DEM in its permit, the Decision should have provided a reasonable basis for doing so. Here, no basis—reasonable or not—was provided. By denying the requested relief, the Board is in effect sending the Appellant back to DEM to request a revised permit to build a structure closer to the wetland. If so, the Board should address whether such result comports with or violates the purpose of the zoning ordinance requiring development that recognizes "[t]he values and dynamic nature of freshwater ponds, the shoreline and freshwater wetlands." (Code of Ordinances § 260-1(C)(3)).
It is not incumbent on the reviewing Court to examine the record to determine whether Appellant provided or failed to provide sufficient evidence to support its burden. See Kaveny v. Town of Cumberland Zoning Board of Review, 875 A.2d 1, 8 (R.I. 2005); see also Bernuth, 770 A.2d at 401 (quoting Irish Partnership v. Rommel, 518 A.2d 356, 359 (R.I. 1986) ('"[w]hen the zoning board fails to state findings of fact, the court will not search the record for supporting evidence or decide for itself what is proper in the circumstances."'))). Therefore, the matter must be remanded to the Board so that it may make the appropriate findings of fact and conclusions of law as to whether Applicant sustained or failed to sustain its burden of proof. The Court must be able to determine from the Decision the facts upon which the Board relied in making its determination and how the Board applied those facts to the applicable law.
IV
Conclusion
This Court finds that the Board failed to make the requisite findings as to the basis of its decision denying Appellant's application for a dimensional variance. The Court hereby sustains the appeal and remands this matter to the Board so that it may make further findings of fact consistent with this Decision.
Because. the Court is. remanding the matter for further proceedings and because the request was not included in the complaint, the Court denies without prejudice Appellant's request under § 45-24-69.
This Justice will retain jurisdiction over this case in the event that the decision on remand is appealed to the Superior Court. Counsel shall submit an appropriate order consistent with this Decision.
ATTORNEYS:
For Plaintiff: John O. Mancini, Esq. For Defendant: Anthony DeSisto, Esq.