Opinion
C. A. WC-2018-0448
02-07-2020
PAUL A. HOOPER and KIMBERLY F. HOOPER v. RICHARD JURCZAK, ROBERT CAGNETTA, MICHAEL HENRY, JOHN BERNARDO, and WILLIAM ROSEN, in their capacities as members of the Town of South Kingstown Zoning Board of Review, and MTK ESM, LLC
For Plaintiff: Kelly M. Fracassa, Esq. For Defendant: Joshua S. Parks, Esq. Elizabeth M. Noonan, Esq. Amy H. Goins, Esq.
For Plaintiff: Kelly M. Fracassa, Esq.
For Defendant: Joshua S. Parks, Esq. Elizabeth M. Noonan, Esq. Amy H. Goins, Esq.
DECISION
MONTALBANO, J.
This matter is before the Court on appeal from an August 16, 2018 Decision (Decision) of the Zoning Board of Review of the Town of South Kingstown (Board) which approved an application for dimensional variances for MTK ESM, LLC (MTK). The Board's approval granted MTK dimensional relief for insufficient parking, as well as three dimensional setback variances. Paul and Kimberly Hooper (Appellants or Hoopers) only appeal approval of the parking variance. Jurisdiction is pursuant to G.L. 1956 § 45-24-69.
The Appellants have not appealed the granting of the three setback variances by the Board. Therefore, this Court will only consider the issuance of the parking variance. See McGarry v. Pielech, 108 A.3d 998, 1004-05 (R.I. 2015) (stating that under the "raise-or-waive" rule, "[e]rrors not claimed, questions not raised and points not made ordinarily will be treated as waived"). Accordingly, the Court will not set forth the evidence concerning said setback variances.
I Facts and Travel
MTK is a limited liability corporation organized under the laws of the State of Rhode Island. MTK is the record owner of 650 Succotash Road, Wakefield, Rhode Island, also identified as South Kingstown Tax Assessor's Map No. 87-2, Lot 4 (Subject Property). (Decision at 1.)Perry Raso is MTK's principal and is also the principal of another Rhode Island corporation known as 629 Succotash, LLC, which owns and operates a nearby restaurant called the Matunuck Oyster Bar (Restaurant). Id.
The record before the Court was submitted in an appendix form. However, the parties have stipulated that this appendix contains the entire record.
On November 16, 2017, subsequent to its purchase of the Subject Property, MTK acquired an adjacent strip of land from the State Department of Transportation which it merged with the Subject Property. (Board Tr. 8, 11, May 16, 2018.) After this merger, the Subject Property became approximately 1.04 acres in size. Id. at 11. The Appellants are abutting neighbors of the Subject Property. (Decision at 1.)
The Subject Property is located on a coastal pond, bordered by Point Judith Pond to the east and Potter Cove Channel to the north. (Board Tr. 10-11, May 16, 2018.) It is irregularly shaped and includes a small peninsula that juts into a salt marsh between Point Judith and Potter's Pond. (Decision at 1-2.) The majority of the Subject Property consists of a gravel and sand surface, and only 21.7% of the Subject Property is buildable. Id. at 2. When MTK purchased the Subject Property in 2017, it was operating as a marina. (Board Tr. 7, May 16, 2018.) In addition to the marina, the Subject Property included a small residential cottage, a storage shed, and two other buildings-one of which contained an ice cream shop, the other contained a fish market. (Variance Appl. at 1.) Some of the buildable portion of the Subject Property is located within a flood zone, including the cottage, which is located on the peninsula but within the setback area. (Decision at 2.)
The Subject Property is zoned commercial waterfront and, thus, can be used for marine-oriented businesses such as marinas, fishing, marine services, commercial docks, and shellfish hatcheries. (S. Kingstown Zoning Ordinance, § 101B (Ordinance).) The Ordinance also permits parking lots in commercial waterfront zones. (Ordinance § 301, Schedule of Use Regs. Table.) MTK purchased the Subject Property with the stated intent of continuing to operate the marina; to eliminate the fish market and ice cream shop; to build and operate a shellfish hatchery in place of the existing cottage; and to provide additional parking for the Restaurant by adding a valet parking lot. (Board Tr. 35-36, May 16, 2018.) To accomplish these objectives, MTK submitted a Conceptual Master Plan Application to the South Kingstown Planning Board (Planning Board) for a major land development project to develop the two-story shellfish hatchery and create a principal use parking lot on the Subject Property. (Variance Appl., Planning Board Decision, Applicant's Ex. 1.)
On March 27, 2018, the Planning Board conducted a hearing on the Application. Id. In a subsequent written decision, the Planning Board approved the Application, but conditioned it on, among other things, MTK securing parking and setback variances from the Board. Id. The Planning Board recommended that the Board take favorable action as to the requests for dimensional relief. Id.
Accordingly, on April 13, 2018, MTK submitted an Application to the Board requesting a twenty-eight-space dimensional parking variance, as well as three setback variances. (Variance Appl., Am. Ex. A.) In its application, MTK stated that its request for a twenty-eight-space variance is based on the following information:
"The property currently has 47 parking spaces existing and 141 required for its existing mixed use. Applicant proposes an increase to 115 spaces where 143 spaces are required for the new mixed use.
As such, Applicant seeks a variance for a 28 space deficiency, which is a decrease from the current 94 space deficiency. Specifically:
Hatchery: 4 required, 4 provided (new)
Marina: 131 required, 37 existing and 39 proposed (+2)
Parking: 72 proposed (new)
Applicant meets the parking requirements for the new hatchery and principal parking use and is reducing the nonconformity at the marina by providing two more spaces than currently exist and which has historically functioned well with the 37 spaces, thereby supporting the request for relief." (Variance Appl. Am. Ex. A.) (Emphasis added.)
The Board conducted public hearings on the Application on May 16, 2018, June 20, 2018, August 7, 2018, and August 15, 2018. At the hearings, MTK presented testimony from the following individuals: Richard St. Jean, a registered engineer and expert in engineering, Perry Raso, principal of MTK, John Carter, a registered landscape architect and expert in landscape architecture, and Paige Bronk, an expert in planning. In addition to testimonial evidence, numerous documentary exhibits were introduced. As the Court is only considering the issue of the parking variance, it will limit its factual recitation of the hearing to those witnesses whose testimony was relevant to said issue; namely, Mr. St. Jean and Mr. Raso.
Mr. St. Jean developed the plans for MTK's Application and testified as to the Subject Property's history and layout. (Board Tr. 11, May 16, 2018.) He further testified that the marina property "was grandfathered in by C.R.M.C. before there were parking requirements required for the marina" and "[w]hat we're proposing is, basically, a parking lot with a hundred fifteen cars." Id. The remainder of his testimony concerned the location of the proposed hatchery. Id. at 10-17.
Mr. Raso's testimony primarily concerned the proposed oyster hatchery. Id. at 18-51. However, with respect to parking, he testified that MTK's proposal to use part of the Subject Property for seventy-two valet parking spaces was motivated, at least in part, by the Restaurant's parking being frequently at or over capacity, which in turn causes traffic to back up on Succotash Road. Id. at 39. He stated that the South Kingstown Police asked him "to make sure that traffic was kept off Succotash Road because it was a safety hazard, and I purchased the marina at a great expense . . . being able to park there is imperative for me to keep that road clear. . . ." Id. He also testified that he did not intend to have any retail stores on the Subject Property because he wanted to "avoid anything that's going to increase parking there . . . I thought about opening up a retail shop or fish market, but I think that the purpose-the purchase of the marina was, frankly, for the parking." Id.
Testifying in opposition to the Application, the Appellants presented testimony from the following individuals: Dr. Hauke Kite-Powell, an expert in Aquaculture and Oceanography, and Ashley Sweet, an expert in planning. The Appellants also testified. In addition, lay witnesses Carmen Charbonneau and Patricia Gleason testified in opposition to the Application. Once again, the Court will limit its factual recitation to the witnesses whose testimony was relevant to the issue of parking; namely, Ashley Sweet, the Hoopers, Carmen Charbonneau, and Patricia Gleason.
Ms. Sweet testified that, in her professional opinion, the parking variance does not meet the requirements of the Town's Ordinance for dimensional relief. (Board Tr. 33, June 20, 2018.) She opined that the requested relief would allow MTK to provide parking spaces for use by a separate property rather than the Subject Property and, as a result, the Board is actually allowing the Subject Property to become less conforming. Id. at 24-25, 87-88. During Ms. Sweet's testimony, the Board repeatedly pointed out that the Restaurant was not part of the Application and was hesitant to allow any testimony relating to MTK's use of Subject Property parking spaces for Restaurant parking. Id. at 29, 41, 46-47, 80-81. In support of her testimony, Ms. Sweet stated:
"You are being asked for relief on parking. Understandably, the off-site parking, valet parking lot, is not in an application before you, but is relevant to this issue, because they're requesting for relief from you for the marina parking, but showing that they can provide it for another use. . . . [y]ou're actually allowing them to become less conforming . . . ." Id. at 87-88.
Ms. Sweet further testified that, under the Ordinance, a marina is required to have 1.5 parking spaces per boat slip. (Board Tr. 31-32, June 20, 2018.) Therefore, she continued, since the marina contains 87 boat slips, 131 dedicated spaces are required for marina parking. Id.at 24-26. She stated that MTK's current proposal provides for thirty-nine parking spaces dedicated to marina parking and, therefore, the proposal only increases the number of marina spaces from thirty-seven to thirty-nine-leaving the marina with a ninety-two-space parking deficiency. Id. Meanwhile, she explained, the seventy-two new parking spaces for principal use parking will be used as valet parking for the Restaurant. Id. at 24, 32.
Ms. Sweet later testified that, rather than containing thirty-seven parking spaces, the Subject Property instead contained eighty-four parking spaces at the time of MTK's purchase. (Board Tr. 6-14, Aug. 7, 2018.) She presented a certified application submitted by the marina's previous owner to Coastal Resource Management Council (C.R.M.C.) in 2008, in which the previous owner represented that the marina had eighty-four parking spaces. Id. at 5-6. Said application involved a request to add twenty boat slips to the marina, but eventually was withdrawn. Id. at 6-7. Ms. Sweet further testified that, to her knowledge, there existed no Town or C.R.M.C. records indicating that the Subject Property contained only thirty-seven marina parking spaces at the time of purchase, as represented by MTK. Id. at 14. The Board reluctantly admitted the C.R.M.C. application with the understanding that "[w]e will take it for what it's worth." Id. at 13.
Next, Mr. Hooper testified against the Application. He testified regarding his frustration at the number of cars "just puzzled in" to the parking lot. Id. at 21. Referring to the Restaurant, Mr. Hooper further testified that his concern was with "[t]he proliferation of what has happened across the street, the expansion and what it's cost." Id. at 36. Mrs. Hooper also expressed her concern about parking, stating that "the restaurant has already over burdened [sic] the piece of land that it's on, and we all know that because there's not enough parking. It's just turning into a mess." Id. at 72.
Carmen Charbonneau testified that area residents already are bothered by overflow parking from the Restaurant, noting that the parking lot on the Subject Property is always full on weekends. (Board Tr. 84, May 16, 2018.) She testified as to her concern regarding backed up traffic on Succotash Road and her inability to access her driveway because "people are coming every which way." Id. Patricia Gleason's testimony echoed this sentiment as she noted her frustration with the high volume of cars being parked at the Subject Property for the Restaurant's use. Id. at 86.
After considering the Application, the testimony, and exhibits presented, the Board voted four-to-one to approve MTK's request for a twenty-eight-space parking variance. (Board Tr. 125, Aug. 7, 2018.) In its written decision approving MTK's request, the Board concluded that the requested relief complied with conditions in the Ordinance. (Decision at 4-5.) The Board acknowledged the Appellants' concerns regarding traffic and congestion but concluded that those problems would not be exacerbated by allowing the property to be used as overflow parking. Id. It also found that the parking variance was the least relief necessary, since it would actually decrease the parking deficiency at the marina by two spaces. Id. In considering whether granting the Application would alter the general characteristic of the surrounding area, it found that "overflow parking for the restaurant will not exacerbate traffic or other concerns" since "the parking deficiency will be decreasing." Id. The Board added that "the restaurant is already operating, and the Board's approval of parking relief for the Property will not result in adverse effects on the surrounding area." Id. The Hoopers timely appealed the Board's Decision.
II Standard of Review
Pursuant to Section 45-24-69, the Superior Court has jurisdiction to review appeals of zoning board decisions. Specifically, § 45-24-69(d) 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."
"[T]he 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) (quoting E. Grossman & Sons, Inc. v. Rocha, 118 R.I. 276, 285, 373 A.2d 496, 501 (1977)). Specifically, 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)).
"Substantial evidence" in this context refers to "[an] amount more than a scintilla but less than a preponderance." Pawtucket Transfer Operations, LLC v. City of Pawtucket, 944 A.2d 855, 859 (R.I. 2008) (citing Caswell v. George Sherman Sand & Gravel Co., Inc., 424 A.2d 646, 647 (R.I. 1981)). Thereby, "[a] trial justice may not 'substitute [his or her] judgment for that of the zoning board if [he or she] can conscientiously find that the board's decision was supported by substantial evidence in the whole record.'" Lloyd v. Zoning Board of Review for City of Newport, 62 A.3d 1078, 1083 (R.I. 2013) (citing Apostolou v. Genovesi, 120 R.I. 501, 509, 388 A.2d 821, 825 (1978)). Consequently, if the record is "completely bereft of competent evidentiary support," the decision must be reversed. Sartor v. Coastal Resources Management Council, 542 A.2d 1077, 1083 (R.I. 1988).
III Analysis
According to the Rhode Island Zoning Enabling Act, a dimensional variance is defined as
"[p]ermission to depart from the dimensional requirements of a zoning ordinance, where the applicant for the requested relief has shown, by evidence upon the record, that there is no other reasonable alternative way to enjoy a legally permitted beneficial use of the subject property unless granted the requested relief from the dimensional regulations." Section 45-24-31(66)(ii).
Parking restrictions fall within '"dimensional variance [requirements]"' of a zoning ordinance. See Sako v. Delsesto, 688 A.2d 1296, 1298 (R.I. 1997) (quoting Bamber v. Zoning Board of Review of Foster, 591 A.2d 1220, 1223 (R.I. 1991)). A dimensional variance will be granted only after an applicant satisfies the requirements of both §§ 45-24-41(c) and (d)(2). See Lischio v. Zoning Board of Review of Town of North Kingstown, 818 A.2d 685, 692 (R.I. 2003). To grant a request for a dimensional variance, a zoning board must find that an applicant has satisfied the following four-prong standard:
"(1) That the hardship from which the applicant seeks relief is due to the unique characteristics of the subject land or structure and not to the general characteristics of the surrounding area; and is not due to a physical or economic disability of the applicant, excepting those physical disabilities addressed in § 45-24-30(a)(16);
"(2) That the hardship is not the result of any prior action of the applicant and does not result primarily from the desire of the applicant to realize greater financial gain;
"(3) That the granting of the requested variance will not alter the general character of the surrounding area or impair the intent or purpose of the zoning ordinance or the comprehensive plan upon which the ordinance is based; and
"(4) That the relief to be granted is the least relief necessary." Section 45-24-41(d); see also Ordinance, Article 9, § 907, Variances and special use permits.
Moreover, the zoning board must receive competent evidence "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. The fact that a use may be more profitable or that a structure may be more valuable after the relief is granted is not grounds for relief." Section 45-24-41(e)(2).
The Intent and Purpose of the Ordinance
In their memorandum, Appellants argued that reducing the parking nonconformity beyond the two spaces that MTK currently proposes would better serve the intent and purpose of the Ordinance. However, MTK avers that the intent of the Ordinance is to reduce the parking deficiency. Further, MTK asserts that a parking lot in a commercial waterfront zone is a permitted use as of right, no matter the reason for that use.
Here, the Subject Property is zoned as a commercial waterfront (CW) district. (Variance Appl., Am. Ex. A.) According to the Ordinance, "[t]his district recognizes the use of the waterfront areas of the Town for such marine-oriented businesses as marinas, fishing, marine services, and commercial docks." (Ordinance, Appendix A, Article 1, § 101B.) In a CW district, a fish hatchery, marina, boat storage, and parking lot are permitted as of right. See Ordinance, Appendix A, Article 3, § 301, Use Codes 04, 33.4, 52.1, and 64.1, respectively.
A zoning board's interpretation and application of a zoning ordinance is given weight and deference by the court "provided its construction is not clearly erroneous or unauthorized." Cohen v. Duncan, 970 A.2d 550, 562 (R.I. 2009). While clear and unambiguous language in an ordinance is examined by its plain and ordinary meaning, the court must "'establish[] and effectuate[] the legislative intent behind the enactment.'" See Pawtucket Transfer Operations, LLC, 944 A.2d at 859 (quoting State v. Fritz, 801 A.2d 679, 682 (R.I. 2002)). Furthermore, it is well settled that when determining restrictions upon an owner's use of its property "in instances where doubt exists as to the legislative intention, the ordinance should be interpreted in favor of the property owner." Earle v. Zoning Board of Review of City of Warwick, 96 R.I. 321, 324-25, 191 A.2d 161, 164 (1963).
The basis of zoning is "a determination of what uses and structures it is necessary and desirable to provide for within the community and which are compatible with each other, combining the compatible uses into a district, and giving space and appropriate territory to each class of use." 4 Arlen Rathkopf, The Law of Zoning and Planning, § 10:1 (Dec. 2019 Update). A mixed use is defined as "[a] mixture of land uses within a single development, building, or tract." Section 45-24-31(50). In this case, the Ordinance is designed to, inter alia, "[p]rovide for a range of uses and intensities of use appropriate to the character of the Town and reflecting current and expected future needs[.]" (Ordinance, Appendix A, Article 1, § 100(E).) Significantly, a parking lot is permitted as of right in a CW zone. See Ordinance, Appendix A, Article 3, § 301. When an ordinance provides "that off-street parking shall be 'on the site of the principal structure' it is intended to serve, a variance is required to locate the parking at a location across the street from the principal structure." Rathkopf, § 83:24. Importantly, variances for off-site parking are "looked upon with favor where they facilitate the use of premises for a use which is otherwise in accordance with district regulations." Id. § 83:34.
With respect to the parking issue, the Town Solicitor noted that "parking as a principal use, is permitted in this zone, and that's what it would be if the applicant is permitted to continue using the property for restaurant parking, and it could be the restaurant, it could be some other use, right, it could be valet to downtown Wakefield." (Board Tr. 99:8-14, Aug. 7, 2018.) As set forth in the Application, when MTK purchased the Subject Property in 2017, the Subject Property as a whole was considered nonconforming by parking. (Variance Appl., Am. Ex. A.) MTK sought a twenty-eight-space variance, decreasing the existing ninety-four space variance. Id. Moreover, MTK proposed an additional two spaces to marina parking, decreasing the parking deficiency and bringing the total to thirty-nine marina spaces. Id. The goal of zoning restrictions upon nonconforming uses is the "speedy termination of the nonconforming use[]." See Rathkopf, § 73:8. Thus, in a CW zone where parking is already permitted as of right, the "speedy termination" of a nonconforming use adheres to the intent of the Ordinance. MTK, in reducing the parking deficiency, is effectively lessening the existing nonconformity. See generally, Jacobs v. Mishawaka Board of Zoning Appeals, 395 N.E.2d 834 (3d Dist. Ind. 1979) (holding that an existing nonconforming use might be changed to a nonconforming use of the same or less restriction).
The Board found that "[t]he parking situation on the [Subject] Property will be improved due to improved configuration and parking management." (Decision at 5.) Further, the Board explained, "It is unlikely that the [Subject] Property will be fully parked at any given time, because the peak period of parking demand for the marina use does not coincide with the peak period of parking demand for the restaurant." Id. In making this finding, the Board relied upon its own knowledge of the surrounding area as well as the fact that the Subject Property had been used as overflow parking for the restaurant for some time. See id. Thus, the Board found that the variance will not impair the intent and purpose of the Ordinance. Id. at 4. This Court agrees. Substantial evidence in the record supports the Board's finding in this regard.
Hardship
Appellants argue that the "hardship" a variance seeks to relieve must exist on the property for which the applicant seeks the variance. Specifically, Appellants contend that the hardship impacts only the Restaurant and not the Subject Property. Further, Appellants argue that including a new valet parking use to the marina necessarily restricts the already-inadequate parking for the marina. Additionally, Appellants argue that the Board lacked the authority to legalize MTK's prior illegality in using the Subject Property to park the Restaurant's overflow. Conversely, MTK contends that since the Subject Property is zoned in a CW district, parking as a principal use- even if to serve as valet parking for the Restaurant-is permitted as of right. In its memorandum, counsel for the Board argued that MTK was seeking to add parking as a principal use on the Subject Property not for the primary purpose of realizing greater financial gain, but to legalize the existing conditions.
As set forth in § 45-24-41, in granting a variance, a zoning board must have competent evidence 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[.]" Section 45-24-41(d)(2). Specifically, in granting a dimensional variance, the hardship suffered if the dimensional variance is not granted must "amount[] to more than a mere inconvenience." Section 45-24- 41(e)(2). Accordingly, "'the award of a variance was never intended to afford relief from a mere personal inconvenience experienced by a property owner or as a guise to guarantee such an individual a more profitable use of his property.'" Rozes v. Smith, 120 R.I. 515, 521, 388 A.2d 816, 820 (1978) (quoting Gartsu v. Zoning Board of Review, 104 R.I. 719, 720-21, 248 A.2d 597, 598 (1968)).
The Court notes that the "mere inconvenience" standard has undergone several changes. In 1991, the Legislature defined "more than a mere inconvenience" to mean that "there is no other reasonable alternative to enjoy a legally permitted beneficial use of one's property." See Sciacca v. Caruso, 769 A.2d 578, 583 (R.I. 2001). However, in 2002, the General Assembly subsequently removed the "no other reasonable alternative" language from § 42-24-41(d)(2). See Lischio, 818 A.2d at 692 ("We recognize that the revised language in the 2002 amendment lessens the burden of proof necessary to obtain dimensional relief and an applicant need show only that the effect of denying dimensional relief amounts to more than a mere inconvenience.").
In this case, the Board found that the hardship was not the result of any prior action of MTK because the hardship existed before MTK purchased the Subject Property, and said hardship currently remains because the Subject Property was already nonconforming by dimension as to parking. (Decision at 4.) Importantly, the notion of a self-created hardship is "'most properly employed where one acts in violation of an ordinance and then applies for a variance to relieve the illegality.'" Sciacca v. Caruso, 769 A.2d 578, 584 (R.I. 2001) (quoting 7 Patrick J. Rohan, Zoning and Land Use Controls § 43.02[6] at 43-66 (1998)). Additionally, the Board in its Decision noted that MTK "is seeking to add parking as a principal use not primarily in order to realize greater financial gain, but to legalize the existing conditions whereby the [Subject] Property is used as overflow parking for the restaurant located across the street[.]" (Decision at 4.)
This Court finds that substantial evidence in the record supports the Board's finding in this regard. The Subject Property was acquired by MTK in 2017, and thus "[t]he existing situations were not created by [MTK]. . ." See Board Tr. 66:16-19, May 16, 2018; see also Sciacca, 769 A.2d at 583 (holding that "a variance may not be granted to the owner of a substandard lot where such lot was created by the deliberate conduct of the applicant"). The Board found that "the proposed parking plan will safely and adequately accommodate the proposed uses on the [Subject] Property[.]" (Decision at 5.) The Board further explained that if the dimensional variance were denied, MTK would "be required to find an alternative location for overflow parking for the restaurant. . . ." Id. The Board noted this hardship amounts to more than a mere inconvenience because "employees and customers of the restaurant require parking in close proximity to the restaurant and there are limited locations in the surrounding area that could serve this purpose." Id. Because the hardship amounts to more than a mere inconvenience, is not the result of any prior action of MTK, and does not result from the desire of MTK to realize greater financial gain, this Court finds that the Board properly granted the variance for parking.
Least Relief Necessary
Appellants contend that MTK under-calculated its requested parking variance by listing seventy-two valet parking spaces as "proposed," and actually needs a variance of ninety-two spaces rather than twenty-eight. Additionally, Appellants argue in their memorandum that MTK's desire to use the Subject Property to solve the Restaurant's parking issue is not reasonably necessary for the full enjoyment of this permitted use and consequently does not satisfy the "least relief necessary" standard.
An applicant seeking a dimensional variance must prove that "the relief sought is minimal to a reasonable enjoyment of the permitted use to which the property is proposed to be devoted." Standish-Johnson Co. v. Zoning Board of Review of City of Pawtucket, 103 R.I. 487, 492, 238 A.2d 754, 757 (1968); see also Lincoln Plastic Products Co. v. Zoning Board of Review of Town of Lincoln, 104 R.I. 111, 242 A.2d 301 (1968) (reversing zoning board's grant of twenty foot variance from setback requirements where there was no evidence that twenty feet was the least relief necessary for enjoyment of use). Further, a zoning board may not grant more relief than is necessary simply to suit the preferences of a particular applicant. See Roland Chase, Rhode Island Zoning Handbook 2d (2011) § 157 Minimum Relief Necessary (citing DiDonato v. Zoning Board of Review of Town of Johnston, 104 R.I. 158, 242 A.2d 416 (1968)).
According to the Ordinance, both marinas and hatcheries have their own parking requirements. See Ordinance, Appendix A, Article 7, § 711. Specifically, the proposed hatchery requires 4 spaces and the marina requires 1.5 spaces per boat slip, or 131 spaces. (Board Tr. 59: 22-24, June 20, 2018.) Where thirty-seven marina spaces are existing, MTK proposed an additional two spaces for marina parking, bringing the total to thirty-nine. (Variance Appl., Am. Ex. A.) Additionally, MTK proposed an additional seventy-two parking spaces for a principal parking use. Id. In summary, although the existing uses of the Subject Property require a total of 141 parking spaces, only 47 parking spaces exist. Id. Thus, MTK sought to increase the number of parking spaces to 115, where 143 are required given the new mix of uses, generating a 28-space deficiency. Id. In turn, Appellants in their memorandum argue that MTK actually requires a variance of ninety-two spaces rather than twenty-eight spaces. The Board disagreed with that analysis. See generally Decision at 5.
With respect to the necessity of the use, Mr. Raso testified before the Board that the Rhode Island Department of Transportation approved a crosswalk on the south side of Succotash Bridge, which would allow for pedestrians to cross safely from the Subject Property to the Restaurant. (Board Tr. 34:17-22, May 16, 2018.) Moreover, Mr. Raso stated, "For me to avoid anything that's going to increase parking there, people . . . and traffic . . . but I think that the purpose - the purchase of the marina was, frankly, for the parking." Id. at 39:1-7. Consequently, the requested relief was minimally tailored to suit the hardships being incurred by both MTK and the community at large. See Lischio, 818 A.2d at 686-87 (holding that the trial court erred in resting its decision on the use of the parcel rather than the relief requested).
Here, the Board found that "[g]ranting a parking variance that actually decreases the parking deficiency on the [Subject] Property is the least relief necessary to alleviate the hardship of the parking deficiency." (Decision at 5.) Furthermore, due to the close proximity between the Subject Property and the Restaurant, pedestrians will be able to cross safely between the two properties and many issues pertaining to traffic will likely be relieved due to the increased availability of parking spaces. Given these alleviated hardships and the minimal amount of relief sought to enjoy the permitted uses of the Subject Property, the Board properly concluded that the requested variance was the least relief necessary.
The General Characteristic of the Surrounding Area
The Appellants also argue that the Board's finding that the variance would not alter the general character of the surrounding area constituted an abuse of discretion because it refused to exercise its judgment on this issue. Specifically, Appellants assert that the Board relied upon the "improper factor" that the parking deficiency will be decreasing, and instead should have recognized that it was effectively legalizing an existing overflow problem that changes the landscape of the surrounding area for the worse. Appellants also raised concerns as to traffic and congestion. (Board Tr. 31:3-6, Aug. 7, 2018.) On the other hand, MTK argued in its memorandum that the variance is intended to improve parking efficiency and to improve ingress and egress.
"It is well settled that the law of zoning governs the use of the land itself, not those who occupy it." Preston v. Zoning Board of Review of Town of Hopkinton, 154 A.3d 465, 468 (R.I. 2017). Moreover, because the interests of the general community and the immediate neighborhood do not always coincide, "the community-wide need for commercial or industrial facilities usually takes precedence over objections by adjacent property owners." Rathkopf, § 41:5. Moreover, "it seems uncontrovertible that in the practical and political arena of boards of appeals, if all other things are equal, a variance with a public benefit will more likely be granted than one lacking public benefit, but still causing no harm." Id. § 58:8.
Here, a parking lot is a permissible use; thus, this Court's inquiry is confined to whether the dimensional relief requested would adversely impact the general characteristic of the surrounding area. The Subject Property is irregularly shaped, has a "lower topography," and is separate from residential zoning districts. (Board Tr. 66:5-8, May 16, 2018.) Further, the Subject Property is located on a water channel between Point Judith Pond and Potter Pond and is surrounded by tidally influenced coastal waterways. (Variance Appl., Planning Board Decision, Applicant's Ex. 5.) The Subject Property is small-roughly one acre in size-and has two vehicular access points from Succotash Road. Id. This Court finds that the hardship from which MTK seeks relief is due to the unique characteristics of the subject land and not to the general characteristics of the surrounding area. See § 45-24-41(d)(1).
With regard to traffic and congestion, Ms. Charbonneau testified for the Appellants that she "can't get out of [her] driveway[]" because the road is blocked by congestion from the valets and overflow parking-a difficulty that is further exacerbated in the summer months by beach traffic. (Board Tr. 84:9-16, May 16, 2018.) During his testimony, Mr. Raso explained that he "had an issue with the Town, the South Kingstown police where they wanted [him] to make sure that traffic was kept off Succotash Road because it was a safety hazard, and [he] purchased the marina at a great expense. [He] wouldn't be able to drastically alleviate that stress on Succotash Road and traffic on Succotash Road, and so being able to park there is imperative for [him] to keep that road clear. . . ." Id. at 39:8-17. Mr. Cagnetta stated, "if the Oyster Bar was in downtown Wakefield, we'd have a nightmare, no offense. But, you know, it would be a challenge, but I think, you know, recognizing the challenge that was created . . . aside from picking up his building and moving it 30 miles inland . . . there's been a good effort - faith effort to alleviate some of the traffic on the road as well as to organize the way people park. . . ." (Board Tr. 114:7-15, Aug. 7, 2018.) The Board went on to infer that "that's part of why [Mr. Raso] would spend money to buy this property, which is generally to get the cars off of the state road." Id. at 87:13-16.
While the Board acknowledged the Appellants' concerns, the Board relied upon its own knowledge of the surrounding area as well as MTK's parking plan to determine that the overflow parking "will not exacerbate traffic or other concerns." (Decision at 4.) "It has been posited that where a given level of traffic would be generated by another use of the property that is allowed as of right, a . . . permit cannot be denied on ground of traffic considerations where the same or a lesser level of traffic would be created." Rathkopf, § 61:33. Specifically, the "new principal use parking spots will be stacked and require valet systems for moving the cars in and out." (Decision at 4.) Logistically, the Board also noted that it would be "unlikely that the Property will be fully parked at any given time, because the peak period of parking demand for the marina use does not coincide with the peak period of parking demand for the restaurant." Id. at 5.
Consequently, this Court holds that the Board's finding that the requested variance would not alter the general characteristic of the surrounding area was supported by substantial evidence in the record.
IV Conclusion
After reviewing the entire record, this Court is satisfied that substantial rights of the Appellants have not been prejudiced, and the Board had sufficiently competent evidence before it and it was within the Board's authority to grant MTK's request for dimensional variance relief with respect to the parking on the Subject Property. Accordingly, this Court is satisfied that the Board's Decision granting MTK's request was not characterized by an abuse of discretion, not clearly erroneous, or in violation of constitutional, statutory, or ordinance provisions. Nor was the Board's Decision made upon unlawful procedure or affected by other error of law. See § 45-24-69(d). 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. Id.; see also Caswell, 424 A.2d at 648. Counsel for the prevailing parties shall submit an order in accordance with this Decision.