Opinion
C.A. No. PC-2014-5234
07-28-2016
PAULA PEREIRA, JOSIAH BADEJO, SUSAN CAPPALLI, JANE JOHNSON, CHARLES JOHNSON, KERRI TONI, ROBERT TONI, and DAVID MILLS, Appellants v. THE ZONING BOARD OF APPEALS OF THE CITY OF PROVIDENCE; LARRY MANCINI, in his capacity as Finance Director for the City of Providence; and SWAP, INC., Appellees
ATTORNEYS: For Plaintiff: Joelle C. Rocha, Esq. For Defendant: Stephanie L. Federico, Esq. William R. Landry, Esq.
DECISION CARNES , J. Appellants Paula Pereira, Josiah Badejo, Susan Cappalli, Jane Johnson, Charles Johnson, Kerri Toni, Robert Toni, and David Mills (collectively, Appellants) appeal a decision (Zoning Board Decision) from the Zoning Board of Appeals of the City of Providence (Zoning Board) affirming a decision (CPC Decision) issued by the Providence City Planning Commission (CPC) granting preliminary plan approval of SWAP, INC.'s (SWAP) application for a Minor Land Development Project (the Application). Jurisdiction is pursuant to G.L. 1956 § 42-35-15. For the reasons set forth herein, the Zoning Board Decision is hereby affirmed.
I
Facts and Travel
The facts underlying this case are set out in further detail in Carello v. Zoning Bd. of Review of Providence, No. PC 2012-5979, 2013 WL 6714081 (R.I. Super. Dec. 17, 2013) (Vogel, J.). In 2003, David Loffredo (Mr. Loffredo) owned property located at 66 Huber Avenue in Providence, Rhode Island (the Property). Id. at *1. Mr. Loffredo applied for a use and dimensional variance (the Variance) with the Zoning Board, seeking to build a "32,500 square foot, three-story building containing 65 dwelling units." Id. (internal quotation marks omitted). It was Mr. Loffredo's intention to make the development age-qualified. Id. The Variance was approved by the Zoning Board, then sitting as the Board of Review, on April 15, 2003. Id. The Variance stated that Mr. Loffredo could "construct a building containing no more than forty (40) dwellings [sic] units." Id. (alteration in original) (internal quotation marks omitted). The Zoning Board also indicated that the Variance would expire six months after the resolution was filed, unless Mr. Loffredo obtained a legal building permit within that same timeframe. Id.
Mr. Loffredo applied to extend the Variance. Id. On March 16, 2004, the Variance was extended "for a period of six (6) months from the expiration date of Resolution No. 8696." Id. (internal quotation marks omitted). On August 18, 2004, Mr. Loffredo obtained a building permit for the construction of the foundation. Id. Although it appears that the Variance was possibly expired at the time the building permit was obtained, construction proceeded without any opposition. Building footings and water, sewer, and storm drainage were constructed. Id.
The project remained stagnant for many years. Id. In 2007, SWAP purchased the Property and existing construction. Id. Rhode Island Housing assisted in financing the purchase. Id. In 2012, SWAP filed an Application for preliminary plan approval to build a "40 unit affordable housing development spread across six three story buildings." Id. at *2 (internal quotation marks omitted). Whereas Mr. Loffredo intended to sell the units, SWAP intends to rent the units. Id. On July 17, 2012, the CPC approved the Application for a preliminary plan. CPC Minutes at 2-3, July 17, 2012. The CPC Decision was memorialized on July 23, 2012. See Appellants' Mem., Ex. F. Abutters timely appealed the CPC Decision to the Zoning Board. The CPC Decision was upheld at a hearing on September 19, 2012. Carello, 2013 WL 6714081, at *3.
The Zoning Board Decision was timely appealed to the Superior Court. On December 17, 2013, Associate Justice Netti C. Vogel remanded the case for insufficient findings of fact pursuant to G.L. 1956 §§ 45-23-60 and 45-23-30. Id. at *13. Judge Vogel found, inter alia, that the CPC relied on the fact that SWAP had obtained use and dimensional relief from the Zoning Board. Id. at *9. However, the CPC merely recited a conclusory statement that did not allow the Court to "meaningfully review the CPC's decision to determine whether or not the Project [was] 'in compliance with the standards and provisions of the municipality's zoning ordinance.'" Id. Judge Vogel went on to state that it was undisputed that Mr. Loffredo obtained a Variance, but the main issue remained as to whether that Variance remained in effect in 2007. Id. The CPC failed to identify which evidence it relied on in making its determination that SWAP had obtained relief from the relevant ordinance. Id. at *10.
A
CPC on Remand
At a meeting on February 25, 2014, the CPC indicated that it would not hear new evidence on remand but would simply amend the CPC Decision for further findings of fact consistent with Judge Vogel's decision. CPC Minutes at 2, Feb. 25, 2014. The CPC noted that it did not have the authority to make zoning determinations. Id. at 3. Therefore, it must rely on the opinion of the Director of Inspection and Standards. Id. A November 2011 letter from the Director, Jeffrey L. Lykins, RA (Director Lykins), stated that Resolution 8996, the Variance, was in effect. Id. Director Lykins' opinion was based on "the work that has been completed on the infrastructure and utilities and the permits taken out to date . . ." Id. (internal quotation marks omitted). As a result, the CPC found that SWAP had obtained proper use relief by way of the prior Variance sought and obtained by Mr. Loffredo. Id. Based on Director Lykins' opinion, the Variance was still in effect and valid. Id. In regard to dimensional relief, the CPC stated that the proposed development is comprised of one three-story building. Id. The CPC again cited Director Lykins' interpretation that the Variance remained in effect and that the proposed plan complied with the Variance and all other zoning ordinances. Id. All voting members voted in favor of amending the CPC Decision in light of the discussion that ensued. Id. at 3-4.
The following documents were made available to the CPC: the Maplewood Housing Development plan set and application; the CPC staff report; a memorandum from William Landry; Judge Vogel's decision; the Zoning Board Decision; the Zoning Board remand; CPC minutes from July 17, 2012; and the CPC Decision letter. CPC Minutes at 2, Feb. 25, 2014.
On March 6, 2014, the CPC issued its amended decision. The CPC succinctly stated:
"The CPC may not make zoning determinations, but must rely on the Director of Inspections and Standards in accordance with Section 106 of the Zoning Ordinance, or the Zoning Board of Appeals on an appeal from the Director's decision. The record included a letter from the Director dated November 18, 2011, which specifically stated that the zoning board resolution No. 8696 issued July 2003 was valid. The Director based his decision on 'the work that has been completed on the infrastructure and utilities and the permits taken out to date . . .', which conformed with Section 906 of the Zoning Ordinance." CPC Decision at 2.The CPC repeated this assertion when discussing use and dimensional relief from existing zoning ordinances. Id. at 3. SWAP's preliminary plan was ultimately approved. Id. at 4. Abutters timely appealed the amended CPC Decision to the Zoning Board on March 25, 2014.
B
Second Zoning Board Appeal
On June 25, 2014, the Zoning Board heard the appeal. The Zoning Board indicated that their review was limited to whether the CPC, on remand, complied with Judge Vogel's decision and issued sufficient findings of fact. Zoning Bd. Hr'g Tr., 296:18-22, June 25, 2014. Attorney for the abutters, Nicholas Goodyear (Attorney Goodyear), agreed, but argued that the CPC merely relied on the opinion of Director Lykins when the record was replete with evidence that the Variance expired in 2004. Id. at 296:23-298:16. Attorney Goodyear additionally contended that the CPC originally relied on Director Lykins' opinion, and Judge Vogel found such to be insufficient. Id. at 299:11-15. To that point, the Zoning Board explained that the original CPC Decision merely stated that "[t]he applicant has obtained relief from the Zoning Board of Review for development of a multifamily dwelling in the R2 zone. The CPC found the development had conformed in the dimensional and use requirements of the zoning ordinance." Id. at 300:1-6. The Zoning Board went on to acknowledge that the original CPC Decision made no reference to Director Lykins' opinion. Id. at 300:6-20. Attorney Goodyear continued to argue that the 2012 and 2014 CPC Decisions were essentially the same and that the record indicated that the Variance expired long before SWAP purchased the Property. Id. at 301:1-305:8.
Attorney Goodyear also claimed that Mr. Loffredo and SWAP's projects were substantially different, requiring SWAP to restart the entire process and obtain a new variance. Id. at 303:18-304:13. Attorney Goodyear cited the differences as: "more buildings, different components, it was affordable housing but remove the elderly components, the dynamics of the plan, the traffic information . . . ." Id. at 303:19-22. Attorney William Landry (Attorney Landry), attorney for SWAP, argued that SWAP's proposal was not substantially different than Mr. Loffredo's proposal. Id. at 307:14-308:22. Specifically, Attorney Landry noted that Mr. Loffredo originally sought a variance to build sixty-five units, but only forty units were permitted in the Variance. Id. at 307:14-18. SWAP's proposal had the same configuration—a single building with one roof line—and was more compact. Id. at 307:21-308:11.
When asked about whether the Variance SWAP relied on was expired, Attorney Landry maintained that it was ultimately Director Lykins' call, and Director Lykins clearly stated that the Variance was in effect. Id. at 309:4-18. Attorney Landry also noted that a building official issued the building permit in 2004, indicating that another individual also believed that the Variance had not yet expired. Id. at 309:20-310:14. Finally, Attorney Landry argued that the Variance was vested in three different ways: (1) by obtaining a building permit before the Variance expired; (2) by continuing work before the building permit expired; and (3) a tolling statute that came into effect in 2009. Id. at 312:18-313:13. These vesting mechanisms were relied upon by Director Lykins in making his determination in 2011, a determination that was not originally contested. Id. at 313:14-315:10.
Attorney Landry explained that Mr. Loffredo applied for an extension before the Variance originally expired, but that it takes time to get placed on the agenda. Id. at 310:1-7. He acknowledged that a six-month extension was granted, and that a building official interpreted that extension to be in full effect on August 18, 2004—when the building permit was issued. Id. at 310:7-14.
See also id. at 313:22-314:18 (paraphrasing Director Lykins: "the work that has been completed on the infrastructure and utilities and the permits taken out to date were paper and the permits taken out to date from neighborhoods in the city and per the tolling provision of the Rhode Island General Laws, I found that the 2003 Zoning Board of Review resolution to be valid and in effect. Work on project based on the approved 2000 variance may continue. Please submit construction documents for the remainder of the work on the project at your earliest convenience. Upon satisfactory code review, a permit will be issued, and you may commence construction.").
At the conclusion of the hearing, the Zoning Board stated that it believed the issue before it to be much narrower than indicated by either party: "I think that the decision here is . . . not to relitigate or rehear the entire argument that brought us to this point, it's to look at the CPC decision and determine whether there are sufficient facts in this decision to support their conclusions." Id. at 321:11-16. The Zoning Board unanimously affirmed the amended decision of the CPC. Id. at 333:15:23. The Zoning Board issued its Decision on October 6, 2014, stating the following relevant findings of facts:
"1. The July 23, 2003 decision of the Zoning Board of Review granted a use variance (Resolution 8696) to permit a multifamily structure containing up to forty (40) units on the subject property, which is located in the R-2 Zoning District, with associated dimensional relief.
"2. The approval was extended six months in an additional Decision dated April 13, 2004.
"3. On August 18, 2004, the City of Providence Building Official issued Building Permit No. 00466 to permit commencement of the foundation for the project.
"4. Substantial site work occurred thereafter and continued for several years.
"5. SWAP purchased the property in December of 2007 for the sum of Nine Hundred Thousand Dollars ($900,000.00) following a written affirmation from the City's Building Official, Kerry Anderson, regarding the continued "vested" status of the zoning for the project.
"6. A January 2, 2009 Department of Public Works report confirms that substantial work on the project's storm drainage system had been completed to the Department's satisfaction, and had been bonded and supported by insurance certificates and 'as built' plans.
"7. In 2009, the Rhode Island General Assembly enacted R.I. General Laws §45-24-61.1 (2012), which had the effect of 'tolling' (i.e. preserving) land use approvals that were vested as of that time.
"8. The tolling period under that statute, as amended, now extends to June 30, 2015.
"9. A letter by Jeffrey L. Lykins, R.A., the current Director of Inspection and Standards for the City dated November 18, 2011,
regarding the continued vested status of the project under the original 2003 Zoning Board Approval, the letter upon which the CPC placed special emphasis as described above, reads as follows:
'Based upon the work that has been completed on the infrastructure and utilities and permits taken out to date for Maplewoods In the City per Section [45-24-61.1] of the Rhode Island General Laws, I find the Zoning Board of Review Resolution No..8996 (sic.) to be valid and in effect. Work on this project based on the approval variance may continue . . .'
. . .
"12. The findings of the CPC were thorough and supported by the materials in the record that had been presented to it.
"13. The CPC's reliance on the Zoning Board of Review Resolution 8696 of 2003 and upon the affirmation of its continued validity by the Director of Inspection and Standards, the official duly charged with making such determination, was not clear error or prejudicial error based on the weight of the evidence in the record, including the historic zoning and project materials of record as described above." Zoning Board Resolution 9819, at 3-4 (Oct. 6, 2014).
C
Current Appeal to the Superior Court
Appellants timely appealed the Zoning Board Decision to the Superior Court on October 27, 2014. Appellants argue that the CPC and Zoning Board's Decisions were in violation of local regulations and statutory provisions, in excess of authority granted to municipal boards, made upon unlawful procedure and affected by error of law, and arbitrary and capricious. Appellants' Mem. 17-18. First, Appellants contend that SWAP does not have a vested right in the Variance because the Variance expired in 2004, and even if it did not expire, the work performed pursuant to the building permit was insufficient. Id. at 5-8. Second, Appellants posit that the CPC inappropriately relied on statements by city officials instead of engaging in their own fact finding. Id. at 8-11. Third, Appellants maintain that since SWAP's plan required an additional variance, the CPC incorrectly categorized SWAP's plan as a minor land development plan. Id. at 11-13; 14-17. Finally, Appellants argue that even if the Variance was vested, the Variance does not apply to SWAP's plan, as the plan is not in substantial accordance with the plans Mr. Loffredo originally supplied to the Zoning Board. Id. at 13-14.
In opposition, SWAP claims that the Zoning Board properly dealt with the vesting issue, placing emphasis on the city official that was charged with making formal determinations on zoning statuses. Appellees' Mem. 15-17. SWAP argues that this valid Variance covers SWAP's plan, as SWAP's plan is more compact than that of Mr. Loffredo's and both involve a single building. Id. at 17-19. As to Appellants' argument that SWAP's project was incorrectly categorized as a minor land development plan, SWAP contends that the argument hinges entirely on the premise that Appellants' argument on the vesting issue is correct. Id. at 19-20. Finally, SWAP argues that the CPC's determination on the core issue, namely the validity of the Variance, was adequately supported by the facts and record. Id. at 20-23.
SWAP describes this argument as "circular." Appellees' Mem. at 19. A plan is categorized as a major land development plan if it requires the applicant to seek additional relief. Sec. 45-23-32(21). If the Variance was not vested or inapplicable, SWAP's plan would need additional relief. And if SWAP's plan needed additional relief, it would be because the Variance was not vested or inapplicable. The Court agrees with SWAP's contention that this argument does not need to be considered on its own. If the Court finds that the Variance is vested and covers SWAP's plan, the CPC's categorization of the plan as a minor land development plan is correct, as additional relief is not required. On the other hand, if the Court finds that either the Variance is not vested or that it does not cover SWAP's plan, then additional relief would be required. If this is the case, SWAP's plan would be properly categorized as a major land development plan.
II
Standard of Review
Section 45-23-71 states that an aggrieved party may appeal a decision of the Zoning Board to the Superior Court. The section also provides the standard by which the Court shall review the Zoning Board decision:
"The court shall not substitute its judgment for that of the planning board as to the weight of the evidence on questions of fact. The court may affirm the decision of the board of appeal 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:
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 Bd. of Review for Newport, 62 A.3d 1078, 1083 (R.I. 2013) (citation omitted). "Substantial evidence has been defined as more than a scintilla but less than a preponderance." Id. (internal quotation marks omitted). The Court "may not substitute [its] judgment for that of the zoning board if [it] can conscientiously find that the board's decision was supported by substantial evidence in the whole record." Id. (internal quotation marks omitted). In reviewing the record, the Court must "scrutinize the record as a whole to determine 'whether legally competent evidence exists to support the findings . . . .'" Id. (quoting Mill Realty Assocs. v. Crowe, 841 A.2d 668, 672 (R.I. 2004)). The Court may not weigh the evidence on appeal but must rather review the record to look for substantial evidence. Bernuth v. Zoning Bd. of Review of New Shoreham, 770 A.2d 396, 399 (R.I. 2001)."(1) In violation of constitutional, statutory, ordinance or planning board regulations provisions;
"(2) In excess of the authority granted to the planning board 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. 45-23-71(c).
III
Analysis
The main issue in this administrative appeal is whether the CPC and Zoning Board were correct in determining that the Variance was valid, in full effect, and applicable to the Application. The Court notes at the onset that the determination of these issues is particularly fact intensive. The Court's judicial review is not de novo. See Kirby v. Planning Bd. of Review of Middletown, 634 A.2d 285, 290 (R.I. 1993). "[T]he Superior Court lacks the authority to consider the credibility of witnesses, to weigh the evidence, or to make its own findings of fact." Id. "Its review is confined to a search of the record to ascertain whether the board's decision rests upon 'competent evidence' or is affected by an error of law." Id. After reviewing the record of the proceedings before the CPC and Zoning Board, the Court is of the opinion that the Zoning Board Decision should be affirmed.
A
Vesting of the Variance
Appellants claim that the Variance expired in July 2004, a month before the building permit was issued to Mr. Loffredo. Appellants' Mem. 5-7. Therefore, Appellants maintain that the building permit was issued and construction commenced in reliance on an expired variance. Consequently, under this view, SWAP has not obtained relief from the applicable zoning ordinances because the Variance on which it relies is actually expired.
The Variance at issue was originally granted on July 24, 2003. Zoning Bd. Res. 8696 (July 24, 2003). The Variance stated that it "shall expire six months after the date of the filing of the resolution in the office of the Board unless the Applicant shall, within the six months, obtain a legal building permit." Id. at 7 (emphasis omitted). Mr. Loffredo applied for an extension at some point prior to the Variance's expiration. Zoning Bd. Hr'g Tr., 310:1-14, June 25, 2014. A six-month extension was granted on March 16, 2004. Zoning Bd. Res. 8696-A (Apr. 13, 2004). The extension stated: "[T]he Zoning Board of Review does hereby grant David Loffredo, an extension for a period of six (6) months from the expiration date of Resolution No. 8696, provided that the Applicant construct a building containing no more that [sic] forty (40) dwelling units." Id. Appellants contend that the Variance was originally set to expire on January 23, 2004; therefore, the Variance with the extension was set to expire on July 23, 2004. It is undisputed that on July 23, 2004 a building permit had not been obtained.
This point was brought up by SWAP's counsel in front of the Zoning Board; however, it was not contested by Appellants' counsel. Zoning Bd. Hr'g Tr., 310:1-14, June 25, 2014.
Nevertheless, on August 18, 2004, a City of Providence Building Official did issue a building permit for the foundation. See Appellants' Mem., Ex. D. August 18 falls within six months of March 16, the date Mr. Loffredo received his six-month extension. Therefore, it appears to this Court that the Building Official likely interpreted the extension to expire six months from the date the extension was granted.
While the record does indicate that Mr. Loffredo applied for the extension before the Variance was set to expire, it is unbeknownst to this Court whether the Variance was frozen pending the resolution of the extension. If the Variance was frozen pending resolution of the extension, then the extension did in fact run until mid-September 2004, rendering the building permit timely. Neither party has presented evidence on whether this may be the case.
Construction eventually commenced pursuant to this building permit. Neither the building permit nor construction was ever contested as invalid. On this fact alone, the Court finds room to pause. Mr. Loffredo expended significant resources in the initial stages of construction, including installing footings for the building and water, sewer, and stormwater drainage. See Mem. from William R. Landry, Esq. to Robert Azar, Director of Planning, City of Providence, et al. at 2 (July 13, 2012) (Landry Mem.). When SWAP eventually purchased the Property, SWAP sought confirmation that the Variance was vested. Building Official and Zoning Officer Kerry Anderson (Officer Anderson) stated that the Variance was vested "as the foundation permit was issued within the 6 month grace period allowed by an extension of the [zoning] resolution." Id., Ex. E. Officer Anderson's department also issued an official zoning certificate to confirm the vested status. Id., Ex. F. Again, neither of these determinations was ever contested.
It is the "generally accepted view that an appropriate municipal officer will not be estopped from nullifying [a building] permit issued illegally even though the holder thereof has proceeded to act pursuant to the permit." Shalvey v. Zoning Bd. of Review of Warwick, 99 R.I. 692, 700, 210 A.2d 589, 594 (1965). However, "[a]n unreasonable delay in taking an appeal from the granting of a permit, particularly where the permittee has proceeded with construction by virtue of the permit, may result in the refusal of the court to revoke an otherwise invalid permit." 6 A.L.R. 2d 960, § 7 (1949). See, e.g., Rosenthal v. City of Dallas, 211 S.W.2d 279 (Tex. Civ. App. 1948) (building permit issued for nonconforming building by mistake and construction commenced without an appeal taken). While the Court finds it unnecessary to decide whether Appellants are now estopped from contesting the validity of the Variance and subsequent building permit in light of the remainder of the analysis, the Court does acknowledge the delay, as well as the fact that Mr. Loffredo and SWAP expended substantial resources, acted in good faith, and proceeded with diligence.
Based on the above Variance, building permit, and construction, Director Lykins, the very official charged with determining the validity of zoning relief, agreed that the Variance was vested. Director Lykins stated that "[b]ased upon the work that has been completed on the infrastructure and utilities and the permits taken out to date for; Maplewoods in the City and per Section [45-24-61.1] of the Rhode Island General Laws, I find the Zoning Board of Review Resolution No.: #8996 to be valid an [sic] ineffect [sic]." Letter from Jeffrey L. Lykins, RA, Director of Inspection and Standards, to Carla DeStefano, Executive Director (Nov. 18, 2011). Determining whether the initial construction was sufficient to vest the Variance and building permit is a factual inquiry. Appellants argue that the construction was insufficient because it was merely foundational. While Providence Zoning Ordinance 906 was amended to state that a foundation permit shall not be construed as a building permit, this amendment was adopted in 2009. The version of § 906 in existence in 2004 did not contain this language, and there is no indication that this language should be applied retroactively. It is clear to this Court that work was conducted pursuant to the building permit issued, including foundation and drainage. The Court is without the authority to assess whether this particular construction was enough to vest the Variance. There is ample evidence on the record to support the conclusion that the initial construction was sufficient. Furthermore, Director Lykins also referenced the tolling statute that was in effect at the time. Section 45-24-61.1(c) tolled approvals and permits that were in effect on November 9, 2009.
After review of the entire record, the Court is satisfied as to how the Building Official and Director Lykins interpreted the extension of the Variance, building permit, and subsequent construction. Judge Vogel specifically remanded this case to the CPC to provide additional findings of fact on how the CPC arrived at the conclusion that the Variance was still in effect. The CPC and Zoning Board both explained that Director Lykins was the official charged with making this determination. According to Director Lykins, the Variance was valid and in effect. The Zoning Board found its standard of review limited to determining whether the CPC's reliance on Director Lykins was sufficient to support their finding that the Variance was vested. Just as their standard of review was limited, this Court's is as well. This Court explicitly finds that the CPC's reliance on Director Lykins' determination was sufficient to support the conclusion that the Variance was vested.
The Court is not convinced that the CPC improperly relied on Director Lykins' ultimate conclusion. The Director is charged with determining the status of a particular Variance. The CPC does not have the authority to determine whether zoning relief has been granted. It is true that it is improper to rely on statements by an official that are contrary to state law. See Zeilstra v. Barrington Zoning Bd. of Review, 417 A.2d 303 (R.I. 1980). However, the Court has already discussed and supported Director Lykins' conclusion that the Variance is vested and applicable. The inquiry involves a factual analysis that is supported by the record and applicable law. The Court's analysis halts there.
B
The Variance's Applicability to SWAP's Application
Appellants contend that the Variance, even if vested, does not apply to the Application, as the Application is substantially different from the plans proposed by Mr. Loffredo. Appellants' Mem. 13-14. The Variance permitted construction of forty units, reduced from the sixty-five units originally requested. SWAP's plan additionally proposed forty units, and it is actually more condensed than Mr. Loffredo's plan. Both plans bear a "T" shaped structure, with a singular roof. Landry Mem., Ex. B. While SWAP's building plan may contain various courtyards that give the appearance of a multi-building structure, the proposed building has been repeatedly referred to on the record as singular. See Staff Report at 2, Feb. 25, 2014 ("The Development is composed of one three story building set to the rear of the lot."); CPC Decision at 3 (same). The main difference in the plans lies in the class of individuals that will occupy the finished development. Mr. Loffredo originally intended for the development to house elderly citizens. SWAP now plans to fill the development with low-income residents, which is obviously less appealing to the abutters. Given the deference due to the Zoning Board, this Court declines to find that this difference is substantial enough to render the Variance inapplicable.
Based on the above, the Court finds that the Variance applies to the Application. The record indicates that the plans are similar and that the Application substantially complies with the conditions under the Variance. Both plans propose a single building with one roof for forty units. Additionally, both buildings bear the same shape and three-story height. Pursuant to the administrative standard of review, this Court must refrain from relitigating the issues and considering whether the plans are substantially similar when the record sufficiently supports the contention that the plans are just that.
IV
Conclusion
Based on the findings and conclusions of this Court as stated above, the Zoning Board Decision is affirmed in full. The record supports the factual finding that the Variance was vested at three points. The Variance was originally vested when the permit was issued. It continued to be vested when construction commenced and continued. Finally, it remained vested by way of the applicable tolling statute that came into effect in 2009. The Court also finds that it was not an error of law for the CPC and Zoning Board to rely on the opinion of Director Lykins, the official charged with making zoning status determinations. Furthermore, the Court finds that the Variance applied to the Application as the Application is similar to the original proposal in all material ways. Substantial rights of Appellants have not been prejudiced. The Court notes that the issues before the Court were largely factual in nature. As a result, the Court is confined to the applicable standard of review for administrative appeals and unable to reassess any factual issues contested. Counsel shall submit an appropriate order and judgment for entry consistent with this Decision.
ATTORNEYS:
For Plaintiff:
Joelle C. Rocha, Esq.
For Defendant:
Stephanie L. Federico, Esq. William R. Landry, Esq.