Opinion
C.A. No. PC-2018-9216
09-09-2019
NICHOLAS TOLIAS, Plaintiff, v. THE ZONING BOARD OF REVIEW FOR THE TOWN OF GLOCESTER, by and through its members, GARY MEINERTZ, CYRIL CROWLEY, JOSEPH TRUNZO, TRACEY DONNELLY, and STEVEN F. WINSOR, Defendants.
ATTORNEYS: For Plaintiff: Timothy J. Robenhymer, Esq. For Defendant: William L. Bernstein, Esq.
DECISION VOGEL , J. Nicholas Tolias (Appellant) brings this appeal from a decision (the Decision) of the Zoning Board of Review for the Town of Glocester (the Zoning Board or Board), denying his application for dimensional relief. The Court exercises jurisdiction over this matter pursuant to G.L. 1956 § 45-24-69. For the reasons set forth herein, this Court remands the Decision to the Zoning Board to make additional factual findings and conclusions of law.
I
Facts and Travel
The Appellant owns property located on Spring Grove Drive in the Town of Glocester (the Property), otherwise known as Assessor's Plat 13, Lot 21. Zoning Board Hr'g Tr. (Tr.) at 2:5-7, Oct. 25, 2018. The Property, located in an R-2 residential zone, is comprised of approximately forty-three acres and encompasses all of Spring Grove Pond. Pl.'s Mem. at 2; Tr. at 4:11-12; 23-24. The R-2 zone permits, among other uses, single-family dwellings and requires a minimum lot size of two acres. Glocester Zoning Ordinance (Ordinance) Article III § 350-13.
Appellant agreed to sell the Property to Kyle Boyle (Mr. Boyle or Applicant) prior to filing the application to the Zoning Board. Pl.'s Appeal Mem. at 1, n.1; Tr. at 9:22-10:5. The sale of the Property to Mr. Boyle is pending. Tr. at 9:22-10:3. As a condition precedent to the sale, Mr. Boyle needs to obtain relief from the Zoning Board from the required front and side setbacks applicable to the Property. Pl.'s Appeal Mem. at 1, n.1. Thus, Appellant is listed on the application to the Zoning Board as "Owner," and Mr. Boyle is listed as "Applicant." Id. Pursuant to § 45-24-69(a), "[a]n aggrieved party may appeal a decision of the zoning board of review to the [S]uperior [C]ourt . . . " Therefore, Appellant has standing as the owner of the Property to appeal the Board's Decision. See § 45-24-31(4)(i) (an aggrieved party is "[a]ny person, or persons, or entity, or entities, who or that can demonstrate that his, her, or its property will be injured by a decision of any officer or agency responsible for administering the zoning ordinance of a city or town"). Moreover, with respect to Applicant, it is well-settled that "one who has a binding contract to purchase property has standing to seek relief from a zoning ordinance." Annicelli v. Town of South Kingstown, 463 A.2d 133, 139 (R.I. 1983) (citing Packham v. Zoning Board of Review of City of Cranston, 103 R.I. 467, 472, 238 A.2d 387, 389-90 (1968)).
The Applicant seeks to build a single-family dwelling on the upland area of the Property. The upland area is approximately forty-eight thousand square feet in area. Tr. at 4:13-14. In order to construct the dwelling, the Appellant requests relief from Ordinance § 350-13. Id. at 2:8-13. Ordinance § 350-13 requires a seventy-five-foot setback from the front and fifty-foot setback from the side of the Property. Ordinance § 350-13. The proposed plan requires thirty-nine feet of relief from the front setback and twelve feet of relief from the side setback. Tr. at 2:13-17.
The Zoning Board held a properly advertised hearing on October 25, 2018. Id. at 1; Zoning Board Record: Notice of Pubic Hearing, Oct. 10, 2018. At the hearing, civil engineer and project planner Thomas D'Angelo (Mr. D'Angelo) presented testimony in support of the requested variance on behalf of the Appellant. Tr. at 2:18-19; 3:4-11; Zoning Board Decision at 1. Mr. D'Angelo stated that the Appellant is seeking a dimensional variance due to the size of the Property. Tr. at 4:20-22. The Appellant requests that the Zoning Board allow for setbacks of thirty-nine feet from the front and twelve feet from the sides of the Property. Id. at 2:13-17. Mr. D'Angelo argued that the if the Property were only forty-eight thousand square-feet—the size of the upland area—then the Property would be undersized, and the Appellant would not require such a dimensional variance. Id. at 7:6-13. Pursuant to Ordinance § 350-66(B), undersized lots require setbacks of only thirty feet from the front and ten feet from the sides and rear of the property. Ordinance § 350-66(B); Tr. at 4:22-5:3. However, because the Property is approximately forty-three acres due to its inclusion of Spring Grove Pond, Ordinance § 350-15 mandates that the Appellant adhere to larger side and frontage setback requirements. Ordinance § 350-15; Tr. at 5:3-5. Mr. D'Angelo noted that all the lots surrounding the Property are "quite a bit smaller" than the Property and are also smaller than the upland area. Tr. at 5:6-7; 6:23-7:3.
Additionally, Mr. D'Angelo testified that the Department of Environmental Management previously approved "both septic and wetlands" permits necessary to build on the Property. Id. at 4:14-20. In describing where the proposed single-family dwelling will be built on the Property, Mr. D'Angelo stated that Mr. Boyle chose the location with the least environmental impact. Id. at 12:1-2. Mr. D'Angelo further explained, "We have kept it at the highest point of the land. We could have stayed to the right, which probably aesthetically is a nicer area, but we stayed in the better environmental area for this." Id. at 5:20-24. The house cannot be built any further back because "we would be within the wetlands buffer." Id. at 9:15-17.
During the hearing, Vice Chairman Steven Winsor (Vice Chairman Winsor) asked Mr. D'Angelo for a "compelling reason" for why the Board should approve the application." Id. at 11:6-8; Zoning Board Meeting Minutes, Oct. 25, 2018 (Zoning Board Minutes) at 5. In response, Mr. D'Angelo reiterated that the Property is bigger than any other property in the area and that the Appellant is installing a state-of-the-art septic system that is "[e]nvironmentally . . . better than any system around." Tr. at 11:9-14.
Four abutters appeared before the Zoning Board in opposition to the dimensional variance, and abutters Steven and Geraldine Brown (collectively, Mr. and Mrs. Brown) submitted a letter in opposition to the variance that Steven Masello (Mr. Masello) read before the Zoning Board. Abutter Carol Nadeau expressed concerns over how building on the Property will impact Spring Grove Pond, including concerns about rising bacteria levels in the pond. Tr. at 15:4-13; 16:21-24. Next, abutter Joseph Roccio (Mr. Roccio) explained that he opposes the variance out of concern for how building on the Property will impact his house, which is located directly next door to the Property. Id. at 24:19-21. Mr. Roccio noted that he specifically opposed the degree of the variance and that he would prefer for the Appellant to reduce the variance on the side closest to his house. Id. at 25:16-23. Mr. Roccio's wife, Donna Roccio (Ms. Roccio), also appeared before the Zoning Board as an abutter in opposition to the variance. Id. at 26:5-9. Ms. Roccio questioned whether the Appellant created his own hardship in buying and attempting to build on the Property knowing that conditions exist on the Property rendering it difficult to build there. Id. at 27:8-20; 30:10-13.
Thereafter, Mr. Masello read a letter from Mr. and Mrs. Brown, who could not attend the hearing, expressing their strong objection to the variance, which they believe is "excessive." Id. at 30:21-31:11. Lastly, abutter John Wrenn (Mr. Wrenn) stated that he also opposes the variance due to its effect on Spring Grove Pond and the surrounding area. Id. 34:11-17. Mr. Wrenn expressed his frustration over the poor condition and mismanagement of Spring Grove Pond as he can longer utilize the pond for recreation. Id. at 11-20.
After hearing statements from the abutters, Vice Chairman Steven Winsor made a motion to deny the Appellant's application for a variance. Id. at 38:13-17; Zoning Board Minutes at 6. Vice Chairman Winsor stated, "In this case, the [Appellant] in effect creates his own hardship by intending to purchase a piece of property that requires, in my opinion, an excessive amount of relief from the dimensional regulations." Tr. at 39:7-11. In making the motion to deny the application, Vice Chairman Winsor further reasoned, "I believe it serves the community by leaving the property as is, a wooded area, bordering a pond." Id. at 39:14-16. Board member Tracey Donnelly seconded the motion to deny the application. Id. at 39:23-24; Zoning Board Minutes at 7. The remaining members of the Zoning Board unanimously voted to deny the application for a variance. Id. at 40:12-19.
The Zoning Board recorded its Decision denying the Appellant's application for a dimensional variance on November 30, 2018. See Zoning Board Decision. The Appellant timely appealed the Board's Decision to this Court on December 19, 2018. See Compl.
II
Standard of Review
Pursuant to § 45-24-69, the Superior Court possesses appellate jurisdiction to review a zoning board's decision. Section 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." Sec. 42-24-69(d).
In reviewing the action of a zoning board of review, the court "'must examine 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 is defined as 'such relevant evidence that a reasonable mind might accept as adequate to support a conclusion, and means [an] amount more than a scintilla but less than a preponderance.'" Iadevaia v. Town of Scituate Zoning Board of Review, 80 A.3d 864, 870 (R.I. 2013) (quoting Pawtucket Transfer Operations, LLC v. City of Pawtucket, 944 A.2d 855, 859 (R.I. 2008)) (bracket in original). Further, substantial evidence is "only by that which [the court] determine[s], from [its] review of the record, has probative force due to its competency and legality." Salve Regina College, 594 A.2d at 880.
However, if a zoning board failed to '"resolve[] the evidentiary conflicts, [make] the prerequisite factual determinations, and appl[y] the proper legal principles[,] . . . judicial review of a board's work is impossible."' Bernuth v. Zoning Board of Review of Town of New Shoreham, 770 A.2d 396, 401 (R.I. 2001) (quoting Irish Partnership v. Rommel, 518 A.2d 356, 358-59 (R.I. 1986)). The court will not "search the record for supporting evidence or decide for itself what is proper in the circumstances" if the zoning board fails to state findings of facts. Irish Partnership, 518 A.2d at 359 (citing Hooper v. Goldstein, 104 R.I. 32, 44, 241 A.2d 809, 815 (1968)). Therefore, the court may remand the matter for further factfinding when the decision is rendered upon insufficient findings. Bernuth, 770 A.2d at 402; Sciacca v. Caruso, 769 A.2d 578, 585 (R.I. 2001). Additionally, if the board has applied the incorrect legal standard, the court may remand the matter to the board for the application of the appropriate standard. Hugas Corp. v. Veader, 456 A.2d 765, 770-71 (R.I. 1983).
III
Analysis
On appeal, Appellant asserts that the Zoning Board's Decision denying his application for a dimensional variance is not supported by substantial evidence. Specifically, Appellant contends that the Board's Decision is clearly erroneous because the Appellant presented sufficient evidence satisfying each element of § 45-24-41(d).
Pursuant to § 45-24-41(e)(2) of the State Zoning Enabling Act, zoning boards must apply the following standard when considering an application for dimensional variance:
"In granting a dimensional variance, [the Appellant must show] that the hardship suffered by the owner of the subject property if the dimensional variance is not granted amounts to more than a mere inconvenience. 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." Sec. 45-42-41(e)(2).The Appellant must satisfy each element of § 45-24-41(d) to demonstrate that the hardship "amounts to more than a mere inconvenience." Lischio v. Zoning Board of Review of Town of North Kingstown, 818 A.2d 685, 692 (R.I. 2003) ("in order for a request for a dimensional variance to be granted the [Appellant] must satisfy the requirements for both § 45-24-41(c) and (d)(2)"). Section 45-24-41(d) provides, in pertinent part:
"(1) That the hardship from which the [Appellant] 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 [Appellant], excepting those physical disabilities addressed in § 45-24-30(a)(16);Ordinance § 350-8 mirrors § 45-24-41 and requires that an applicant seeking a dimensional variance satisfy the same evidentiary threshold as that of § 45-24-41(d). See Ordinance § 350-8(E).
"(2) That the hardship is not the result of any prior action of the [Appellant] and does not result primarily from the desire of the [Appellant] to realize greater financial gain;
"(3) That the granting of the requested variance will not alter the general character of the surrounding area or impair the intent or purpose of the zoning ordinance or the comprehensive plan upon which the ordinance is based; and
"(4) That the relief to be granted is the least relief necessary." Sec. 45-24-41(d).
Furthermore, a zoning board, "'when acting in a quasi-judicial capacity, must set forth in its decision findings of fact and reasons for the action taken.'" Sciacca, 769 A.2d at 585 (quoting Irish Partnership, 518 A.2d at 358). Our Supreme Court has cautioned zoning boards "to make certain that zoning-board decision on variance applications (whether use or dimensional) address the evidence in the record before the board that either meets or fails to satisfy each of the legal preconditions for granting such relief[.]" Id. at 585. The zoning board's findings must '"be factual rather than conclusional, and the application of the legal principles must be something more than the recital of a litany."' Id. (quoting Irish Partnership, 518 A.2d at 358-59). If these '"minimal requirements"' are not satisfied, the zoning board's decision is not "susceptible of judicial review." Bernuth, 770 A.2d at 401 (quoting Irish Partnership, 518 A.2d at 359).
Here, the Zoning Board's Decision denying Appellant's application for a dimensional variance is not supported by sufficient findings of fact and conclusions of law. The Board listed only three findings of fact in its Decision:
"1. The property is located in an R-2 zone and requires a 75 foot front set back and 50 feet side yard setbacks.In rendering its Decision, the Board simply stated:
"2. The Planning Board forwarded [sic] recommendation in favor of granting the petition.
"3. Applicant proposes to construct a single family residence on the property and the applicant did not offer any testimony as to whether a residence requiring less zoning relief could be built on the property." Zoning Board Decision at 2.
"Applicant and owner have failed to present evidence to the Board's satisfaction that:
"1. The hardship was not the result of any prior action of the applicant/owner.
"2. That the granting of the petition would not impair the intent or purpose of the zoning ordinance.These bare conclusory statements are nothing more '"than the recital of a litany"' and are devoid of specific findings of fact or conclusions of law. See Sciacca, 769 A.2d at 585 (quoting Irish Partnership, 518 A.2d at 358-59). The Board merely lists the requirements of § 45-24-41(d) without articulating the specific evidence upon which it relied in denying Appellant's application. See Bernuth, 770 A.2d at 402. Moreover, there is "no discussion in the written [D]ecision of what the [B]oard considered to be the hardship suffered by the [Appellant]," and why this hardship did not constitute more than a mere inconvenience. Id.
"3. The hardship is not primarily motivated by the desire to realize a greater financial gain.
"4. The relief requested is the lease [sic] amount of relief necessary." Id. at 2-3.
After reviewing the Zoning Board's Decision, this Court finds that the Board failed to make sufficient findings of fact and conclusions of law. Given the inadequacy of the Board's findings, this Court will not "search the record for supporting evidence or decide for itself what is proper in the circumstances." Irish Partnership, 518 A.2d at 359 (citing Hooper, 104 R.I. at 44, 241 A.2d at 815). Accordingly, this Court must remand the Decision to the Board for further findings of fact and conclusions of law. On remand, the Board is directed to set forth its findings of fact adequately and to relate the findings to the applicable law. See § 45-24-41(d); Irish Partnership, 518 A.2d at 358. The Board must articulate the specific evidence that supports the decision consistent with statutory requirements. Id.
IV
Conclusion
Upon review of the entire record, this Court finds that the Board's Decision lacks the requisite findings of fact and conclusions of law. Therefore, the Zoning Board's Decision violates statutory provisions, is arbitrary and capricious, and is characterized by abuse of discretion. Substantial rights of the Appellant have been prejudiced. Accordingly, this Court remands the Decision to the Zoning Board to make sufficient findings of fact and conclusions of law consistent with this Court's Decision.
Counsel shall submit the appropriate judgment for entry.
ATTORNEYS:
For Plaintiff: Timothy J. Robenhymer, Esq. For Defendant: William L. Bernstein, Esq.