Opinion
C.A. NC-2012-0288
01-28-2013
OLD FARM, LLC v. THOMAS D. SILVEIRA, PETER VAN STEEDEN, LUCY LEVADA, STEPHEN MACGILLIVRAY and CHARLES VAILLANCOURT, in their capacities as members of the Zoning Board of Review of the Town of Middletown
DECISION
NUGENT, J.
Before the Court is an appeal from a decision of the Zoning Board of Review of the Town of Middletown (the "Board") dismissing an application for special use permits without prejudice. Old Farm, LLC, ("Old Farm"or "appellant") requested special use permits to establish a commercial shopping center on property it owns on West Main Road, Middletown, Rhode Island. Finding it lacked jurisdiction to act on the appellant's application, the Board dismissed the application for special use permits without prejudice. Jurisdiction of the appellant's timely appeal is pursuant to G.L. 1956 § 45-24-69.
I
Facts and Travel
Appellant, whose principals are James and Sally Vanicek, owns approximately seventy-one acres of land on West Main Road, Middletown, Rhode Island, designated as Lot 55 on Tax Assessor's Plat 106 (the "property"). The property has been used agriculturally by the Vanicek family, doing business as Rhode Island Nurseries, since the late 1800s. Due to significant changes in the nursery business over the last decade, the property has become surplus to its nursery needs, and Old Farm seeks to develop the property commercially.
Old Farm proposes to construct a commercial shopping center on the property. The property is located in a General Business zoning district. In the General Business zoning district, shopping centers are permitted by special use permit. See Middletown Zoning Ordinance, § 602 "Schedule of District Regulations – Uses and Districts." Additionally, § 605 of the Middletown Zoning Ordinance limits the size of buildings in the General Business zoning district to 35, 000 square feet unless the Board grants a special use permit to exceed the 35, 000 square foot threshold.
Relying on the relevant provisions of the Middletown Zoning Ordinance, Old Farm filed a petition with the Board seeking special use permits from §§ 602 and 605 of the Zoning Ordinance "to allow a shopping center, with building footprints exceeding 35, 000 square feet in the General Business Zone . . . consist[ing] of approximately 471, 000 square feet of space located in 5 buildings with 3 of the buildings exceeding the 35, 000 square foot threshold." (Pl.'s Complaint, ¶ 9.) Subsequently, a hearing notice was duly posted and advertised to take place on April 26, 2012.
One day prior to the hearing, the Middletown Town Solicitor issued an eleven page legal opinion to the Board. (Decision at 1.) The Solicitor advised the Board that based on his review of the application and accompanying plans and on discussions with the applicants' attorneys and Town officials, the application did not request the proper relief and therefore the Board did not have jurisdiction to act on it but should dismiss it without prejudice. (Decision at 1.)
At the hearing, the Solicitor read his written opinion to the Board which then invited Old Farm to speak to the issue of the Board's jurisdiction to hear the application. (Decision at 1.) Old Farm argued against the Solicitor's position that the Board was without jurisdiction to hear the application and demanded that the petition should proceed according to the provisions of the Zoning Ordinance. (Decision at 1.) Ultimately, the Board voted unanimously to find that it did not have jurisdiction to act on the application, based on the reasoning set forth in the Solicitor's April 25, 2012 letter, and dismissed the application for special use permits without prejudice. (Decision at 1.)
Old Farm then brought a complaint in the Superior Court, seeking issuance of a writ of mandamus requiring the Board to hear Old Farm's request for special use permits. The Court denied Old Farm's request on the basis that it had an adequate remedy at law by taking an appeal of the zoning decision.
II
Standard of Review
Section 45-24-69 of the Rhode Island General Laws provides, in relevant part, that when reviewing the decision of a zoning board of review, the Superior 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, 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." G.L. 1956 § 45-24-69(d).
Judicial review of an administrative action is "essentially an appellate proceeding." Notre Dame Cemetery v. R.I. State Labor Relations Bd., 118 R.I. 336, 339, 373 A.2d 1194, 1196 (1977); see also Mauricio v. Zoning Bd. of Review of Pawtucket, 590 A.2d 879, 880 (R.I. 1991). The deference given to a zoning decision is due, in part, to the fact "that a zoning board of review is presumed to have knowledge concerning those matters which are related to an effective administration of the zoning ordinance." Cohen v. Duncan, 970 A.2d 550, 561 (R.I. 2009) (quoting Monforte v. Zoning Bd. of Review of E. Providence, 93 R.I. 447, 449, 176 A.2d 726, 728 (1962)). Accordingly, a justice of the Superior Court may not substitute his or her judgment for that of the zoning board if he or she conscientiously finds that the board's decision was supported by substantial evidence. Apostolou v. Genovesi, 120 R.I. 501, 507, 388 A.2d 821, 825 (1978). "Substantial evidence as used in this context 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." Caswell v. George Sherman Sand & Gravel Co., 424 A.2d 646, 647 (R.I. 1981) (citing Apostolou, 120 R.I. at 507, 388 A.2d at 824-25). The reviewing court "examines the record below to determine whether competent evidence exists to support the tribunal's findings." New England Naturist Ass'n, Inc. v. George, 648 A.2d 370, 371 (R.I. 1994) (citing Town of Narragansett v. International Ass'n of Fire Fighters, AFL-CIO, Local 1589, 119 R.I. 506, 380 A.2d 521 (1977)). Thus, this Court's review of a zoning board's factual findings is undertaken to ensure that a reasonable mind might accept them as adequate to support a conclusion. See Lischio v. Zoning Bd. of Review of N. Kingstown, 818 A.2d 685, 690 n.5 (R.I. 2003); Caswell, 424 A.2d at 647.
III
Analysis
A
Issues on Appeal
On appeal, Old Farm contends that the Board exceeded its powers and committed error of law when it dismissed the petition for special use permits. Specifically, appellant argues that the Board superseded its powers when it determined that provisions of the Middletown Zoning Ordinance were invalid.
Appellant further argues that the Board committed error of law in determining that a comprehensive community plan supersedes and invalidates contrary provisions of a zoning ordinance. Finally, Old Farm asserts that the Board committed error of law in determining that the petition required a use variance and dimensional relief.
In response, the Board maintains that it properly adopted the Solicitor's written opinion which concluded that Old Farm's application for special use permits was not the appropriate form of relief. The Court will address the appellant's arguments seriatim.
B
Jurisdictional Requirements
Old Farm asserts that it complied with the necessary jurisdictional requirements and that the Board should have proceeded to hear the petition as a traditional application for multiple special use permits. The Board concedes that the Old Farm application would simply require a hearing on the application for special use permits if the Board applied only the relevant Middletown Zoning Ordinances—sections 602 and 902. However, the Board adopted the reasoning of the Town Solicitor who concluded that because certain provisions of the Middletown Comprehensive Community Plan discouraged the type of "big box" stores proposed by Old Farm, "the provisions of the Middletown Zoning Ordinance that allow such a development in a General Business zone with special use permits are invalid for the property." Old Farm contends that the Board's conclusion that certain ordinance provisions were "invalid" was beyond the Board's authority.
The Zoning Board is a statutory creation and its powers and duties are prescribed by the Zoning Enabling Act in G.L. 1956 § 45-24-57. Among its powers is the power "[t]o authorize, upon application, in specific cases, special use permits, pursuant to § 45-24-42, where the zoning board of review is designated as a permit authority." Sec. 45-24-57(1)(v). The Zoning Enabling Act requires that the zoning ordinance specify the uses requiring special use permits, describe the conditions and procedures under which they may be granted, and establish criteria for the issuance of the special use permits "that shall be in conformance with the purposes and intent of the comprehensive plan and the zoning ordinance." Sec. 1956 § 45-24-42(b)(1-3).
Middletown Zoning Ordinance § 602 requires that proposed large-scale shopping centers and buildings over 35, 000 square feet in the General Business zoning district be approved by special use permit. Further, § 902 delineates the criteria the Board must apply when hearing an application for a special use permit. Old Farm argues that the Board's powers do not include the authority to rule on the validity of zoning ordinances. In Town & Country Mobile Homes, Inc. v. Zoning Bd. of City of Pawtucket, 91 R.I. 464, 468, 165 A.2d 510, 512 (1960), our Supreme Court stated that "nothing in the enabling act can be construed as conferring on boards of review jurisdiction to pass on the validity of zoning ordinances or amendments thereto." Thus, while zoning ordinances may expressly provide as a standard for issuance of a special use permit that the proposed use at the particular location be compatible with or not negatively impact the local comprehensive zoning plan, the Board exceeded its authority when it concluded that the ordinances contemplating special use permits were invalid with respect to the Old Farm petition. See 3 Rathkopf, The Law of Zoning and Planning, § 61:21 (2003) (incompatibility with comprehensive plan is a valid criterion for evaluating an application for a special use permit); see also M.B.T. Const. Corp. v. Edwards, 528 A.2d 336, 338 (R.I. 1987) (zoning board does not have the authority to consider the validity and enforceability of a municipal zoning ordinance).
C
Applicability of the Comprehensive Community Plan
Appellant next argues that the Board committed error of law in determining that the Middletown Comprehensive Community Plan superseded and invalidated contrary provisions in the Middletown Zoning Ordinance. The Board again adopted the written opinion of the Town Solicitor who opined that under Rhode Island law an amended comprehensive plan is binding even though a municipality's zoning ordinance has not been changed to conform to the new plan. Thus, the Board maintains that the Middletown Comprehensive Community Plan's alleged prohibition against "large"scale 'big"box' buildings of any kind" on the "nursery and adjacent properties along West Main Road" should be read to supersede Middletown Zoning Ordinance § 602, which allows large-scale shopping centers in the General Business zoning district through application for a special use permit.
As an initial matter, Middletown Zoning Ordinance § 902(A)(3) instructs the Board to consider the compatibility of a requested special use permit with the Comprehensive Community Plan at a public hearing on the merits of the petition. The posture of this case is unusual, however, in that the Board preemptively dismissed Old Farm's request for a special use permit before reaching the merits of the petition. Again, the Board based its decision on the Solicitor's position that language in Middletown's Comprehensive Community Plan expressly prohibits "shopping centers" or "large-scale 'big"box' buildings of any kind" in developing the "nursery and adjacent properties along West Main Road."
The Board misconstrues mere precatory language as an enforceable mandate. The section preceding the select phrases that the Board construes as a prohibition states as follows:
"8. Special Areas
In addition to the adoption of the Land Use Categories in section 1, above, this plan recommends the creation of a new zoning district in order to implement the Land Use Plan for the Future.
This Plan endorses the creation of a new zoning district to control development of this nursery and adjacent properties along West Main Road. The principal objective of this district is to preserve portions of open land, but also to permit a portion of the site to be developed as a mixed"use planned village area." Middletown Comprehensive Community Plan, Element IX, Land Use, Section 8 Special Areas, pp. IX-22 – IX 24.
This language was adopted by the Middletown Planning Board on August 13, 2003, and by the Middletown Town Council on October 20, 2003. Thereafter, the Planning Board drafted a number of proposals for a mixed-use planned village district. Following a lengthy critique by the Solicitor's office, the matter was never recommended for adoption by the Planning Board or ever adopted by the Middletown Town Council. Thus, no mixed-use village exists nearly a decade after the plan was proposed. Absent a formal adoption of revised zoning ordinances by the Middletown Town Council, the recommendations concerning the disposition of the property along West Main Road remain proposals only that may be considered by the Board at a hearing on the merits pursuant to Middletown Zoning Ordinance § 902(A)(3).
The Board cites West v. McDonald, 18 A.3d 526 (R.I. 2011), for the proposition that requirements in a municipality's comprehensive plan supersede contrary zoning provisions. West is distinguishable from the instant case. There, the East Providence City Council amended the city's comprehensive plan to decrease the residential density of the "Low Density Residential" category from 8 dwelling units per acre to 5.8 dwelling units per acre. Id. at 530. Thereafter, the city council amended the zoning ordinance to include a minimum area requirement purportedly to bring them into conformance with the comprehensive plan. Id. The West court held that with respect to a subdivision plan, the applicant was required to comply with both the terms of the comprehensive plan and the zoning ordinance. Id. at 539-40.
Here, unlike the tangible change to the number of dwelling units allowed per acre by the East Providence City Council in West, the relevant comprehensive plan sections cited by the Board contemplate a recommended "mixed"use planned village area" for portions of West Main Road that the Middletown City Council never adopted. See id. at 530. While the Board may properly consider the compatibility between Old Farm's petition for special use permits and the comprehensive plan at a hearing on the merits of the application, the Board committed error when it concluded that the comprehensive plan trumped existing zoning ordinances such that the Board lacked jurisdiction to hear Old Farm's petition.
Further, the Board's reliance on Town of East Greenwich v. Narragansett Electric Co., 651 A.2d 725 (R.I. 1994), is similarly misplaced. There, our Supreme Court refused to quash an order of the Public Utilities Commission ("PUC") that invalidated certain amendments that East Greenwich had made to its comprehensive plan to limit the exposure of electromagnetic fields emanating from the construction of new high voltage power lines within the boundaries of that town. Id. at 727. The Court noted that the PUC had the authority, pursuant to statute, to invalidate "[e]very ordinance enacted, or regulation promulgated by any town or city affecting the mode or manner of operation or the placing or maintenance of the plant and equipment of any company under the supervision of [PUC] . . . ." Id. (quoting G.L. 1956 § 39-1-30). Thus, the Court's holding that a comprehensive plan is "a binding framework or blueprint that dictates town and city promulgation of conforming zoning and planning ordinances" must be cabined in terms of the PUC's statutory authority to invalidate ordinances. To read Narragansett Electric Co., as the Board does, to stand for the proposition that a comprehensive plan invalidates existing zoning ordinances improperly broadens the Court's holding. Again, the Board does not have the power to unilaterally invalidate lawfully enacted zoning ordinances. Ultimately, the Board committed error of law when it dismissed Old Farm's petition.
D
The Need for a Use Variance and Dimensional Relief
Old Farm maintains that the Board committed error of law in determining that its petition required both a use variance and dimensional relief. The Board disagrees. It reads the Middletown Comprehensive Community Plan as expressly forbidding the proposed Old Farm development by way of special use permit. Instead, the Board concludes that Old Farm requires a use variance to pursue its development in addition to dimensional relief.
Middletown Zoning Ordinance § 602 allows the development of "[l]arge-scale shopping center[s]" through a petition for special use permit. Further, § 605 states that proposed structures with a building footprint exceeding 35, 000 square feet may be permitted by the Board through special use permit. It is well settled in Rhode Island that zoning laws should be strictly construed and that any and all doubts and ambiguities should be resolved in favor of the landowner. See City of Providence v. O'Neill, 445 A.2d 290, 293 (R.I. 1982). Further, "it is well settled that the rules governing statutory interpretation are equally applicable to the interpretation of a [zoning] ordinance." Jones v. Rommell, 521 A.2d 543 (R.I. 1987). Accordingly, if an ordinance is clear and unambiguous on its face, the words must be given their plain and ordinary meaning and the terms of the ordinance should be applied literally. Mongony v. Bevilacqua, 432 A.2d 661, 663 (R.I. 1981).
Applying the above principles to the existing Middletown Zoning Ordinance, it is clear that Old Farm's proposed use is one permitted by petition for special use permit, not a use variance. Whatever purported mandate the Board gleans from the Middletown Comprehensive Community Plan is irrelevant at this juncture given the plain language of the relevant zoning ordinances. See id. at 663. Again, § 602 makes clear that the large-scale shopping structures contemplated by the Old Farm petition are permitted by special use permit. Thus, the Board committed error of law when it concluded that Old Farm's petition required a request for a use variance.
With respect to dimensional relief, Old Farm provided a letter to the Middletown Zoning Official, Jack Kane, dated April 10, 2012, specifically stating that Old Farm sought no dimensional relief in connection with the petition. (Tr. 4/26/12 at 29.) At the April 26, 2012 hearing, Mr. Kane acknowledged this and agreed that Old Farm sought no dimensional relief. (Tr. 4/26/12 at 34.) Thus, while the Board may properly consider the necessity of dimensional relief at a hearing on the merits, the Board followed unlawful procedure when it dismissed Old Farm's petition prior to such a hearing for failure to request what it viewed as required dimensional relief.
IV
Conclusion
After reviewing the entire record, the Court is satisfied that the Board exceeded its authority and made errors of law when it dismissed appellant's application for special use permits without a formal hearing on the merits. Substantial rights of the appellant have been prejudiced. Accordingly, this Court remands the case to the Zoning Board of Review of the Town of Middletown to complete the development plan review process before a hearing on the merits of appellant's petition for special use permits. Counsel for the prevailing party shall submit an appropriate Order for entry.