Correia v. McCoy, C.A. No. P08-00651 (R.I. Super 1/5/2009)

• Decision Date: 05 January 2009
• Docket Number: C.A. No. P08-00651.
• Parties: MARK CORREIA and MARTHA CORREIA v. JOHN McCOY, CARL E. ZOUBRA, EDWARD G. LeBLANC, CAROL VATERS, MIKE McGRATH, PAUL SANTORO, TARA CAPUANO, ROBERT CHAPUT, and MARY LOU O'NEILL In Their Capacity as Members of the Zoning Board of Review of the Town of Cumberland
• Court: Rhode Island Superior Court

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MARK CORREIA and MARTHA CORREIA v. JOHN McCOY, CARL E. ZOUBRA, EDWARD G. LeBLANC, CAROL VATERS, MIKE McGRATH, PAUL SANTORO, TARA CAPUANO, ROBERT CHAPUT, and MARY LOU O'NEILL In Their Capacity as Members of the Zoning Board of Review of the Town of Cumberland

C.A. No. P08-00651.

Superior Court of Rhode Island, Providence, Sc.

Filed: January 5, 2009.

DECISION

GIBNEY, J.

Before this Court is an appeal from a unanimous decision of the Zoning Board of Review of the Town of Cumberland (the "Board"). In its decision, the Board denied Mark Correia and Martha Correia ("Appellants") dimensional relief from the Zoning Ordinance of the Town of Cumberland (the "Ordinance") § 4.1. Appellants seek a reversal of the Board's decision. Jurisdiction is pursuant to G.L. 1956 § 45-24-69.

I Facts and Travel

In February of 2006, Appellants purchased a vacant lot located at 26 Vermont Avenue, Tax Assessor's Plat 21, Lot 52 in the Town of Cumberland (the "Property"). Prior to Appellants' purchase of the Property, the Board granted dimensional relief to Appellants' predecessor in title, Binchy, LLC. (Tr. 11/14/07 at 5.) Specifically, the Board granted a one foot variance on each side from the 10-foot side yard requirement, and a 15-foot variance from the 25-foot front yard requirement. Id. As a result, the dimensions required the house be at least 9 feet from the side lot lines and at least 10 feet from the front lot line. See id.

In the fall of 2006, Appellants' subcontractor laid the foundation. Id. at 25. In laying the foundation, Appellants relied on certain stakes in the ground which, according to the previous owner, represented the lot's boundary lines. Id. at 10. Appellant, Mr. Correia ("Mr. Correia"), assumed the stakes represented the actual boundary lines and "counted inward" 9 feet from the side yards for the subcontractor to lay down the foundation.¹ Id. The foundation was set at 32 feet long by 24 feet wide. Id. at 11. Appellants began construction of the house around January of 2007. Id. at 25. By March 5, 2007, there was an enclosed structure; that day, Building Inspector, Mr. Madden ("Mr. Madden") performed a rough inspection of the Property.² Id. at 26. Mr. Madden testified that during his March inspection, he could see the back left corner of the house was less than 9 feet away from the side property line, thus violating the 9-foot side yard requirement. Id. at 27. At that time, Mr. Madden told Appellants, "[you need] to get a surveyor in here and get this thing straightened out and tell us what was [sic] going on." Id. Mr. Madden also suggested to Appellants that they should stop constructing the house. Id. Additionally, Mr. Madden testified that, "[w]e are not allowed by law to measure [from the stake to the foundation] . . . . That is something that is the ultimate duty of the contractor/owner of the property [sic] to make sure that the foundation is done." Id.

Sometime subsequent to the inspection by Mr. Madden, Appellants had the Property surveyed.³ Id. at 7, 55-56. The survey revealed the stakes that Appellants relied upon were not representative of the true lot lines. Id. at 7. The survey showed the house violated both the side and front yard setbacks, in excess of the previous variances granted. Id. In particular, the front and back left corners of the house were only 6.20 and 7.77 feet from the side lot lines, when they should have been at least 9 feet.⁴ (See Appellants' Petition for Variance Ex. A.) Additionally, the back right corner was only 8.76 feet from the side lot line, when it also should have been at least 9 feet.⁵ (Tr. 11/14/07 at 77-78.) The front left and right corners were only 9.71 feet and 9.00 feet, respectively, from the front lot lines; they should have been at least 10 feet. See id. at 8, 17-19.

Appellants continued to construct the house until it was "ninety to ninety-five percent" complete. Id. at 15, 26. To date, a Certificate of Occupancy has not been issued because the house does not meet the required distances from the side and front lot lines. Id. at 15. As a result, Appellants applied to the Cumberland Planning Board (the "Planning Board") for dimensional relief on October 12, 2007. The Planning Board determined that "the granting of the requested variance would not be inconsistent with the Cumberland Comprehensive Plan." (11/7/07 Memorandum from the Planning Board to the Board at 1.)

Thereafter, the Board held a properly noticed hearing on November 14, 2007, whereupon Appellants, Mr. Madden, and various neighbors testified. Appellants testified they were seeking side and front yard relief because they erroneously relied on stakes already in the ground to lay the foundation. Id. at 7. Mr. Madden testified that he told the Appellants that the side yards appeared to be less than the side setback requirements and that he advised the Appellants to stop work on March 5, 2007. Id. at 26.

At the hearing, an abutter stated that a 32-foot wide house with 9-foot side yards could not comply with the set back requirements because the Property has a trapezoid shape with a 50-foot frontage that narrows towards the back. Id. at 57. Board member, Mr. McCoy agreed and stated, "[I]f [the lot] starts at 50 and narrows . . . how can we look at that and say it would work with those numbers?" Id. at 98.

Several Board members also noted their hesitation in granting additional dimensional variances. In regards to the size of the house, Board member Mr. Gannon stated, "[T]he burden falls on the builder to make sure [the documents] are correct and accurate." Id. at 93. Additionally, Board member, Mr. LeBlanc stated:

I mean we did grant relief on the first go-round in this case, which has been exceeded now . . . . [R]elief was granted. Relief was exceeded . . . . [O]therwise, they would not be here tonight seeking additional relief . . . . [T]he fact is their relief was going nine feet, and they exceeded that . . . . [T]he residents of Cumberland, the Zoning Board itself, the abutters have a right and an expectation that the decisions of the Board would be followed; and Mr. Madden pointed out back in March that there was an issue, and . . . the builders decided to, you know, press forward and hope for the best at the end. Id. at 96-100.

More significantly, Mr. LeBlanc continued to say, "[I]t seems like the burden of this problem is trying to be shifted to the Board; and we've gone through this entire process." Id. at 100. In Mr. LeBlanc's motion to deny, he stated:

I would make a motion that we deny the request for relief, in that it does not meet the criteria . . . based on the evidence and the discussion we've had here tonight to grant the variance; and specifically, it does not meet the criteria that the hardship not be a result of any prior action of the applicant . . . . And does not result primarily from the desire of the applicant to realize greater financial gain: He built this house on spec. There are real estate `For Sale' signs out in front of the house. Id. at 100-01.

On January 14, 2008, the Board recorded its unanimous decision to deny the requested dimensional variance. The Board explained, "It appears that if a Dimensional Variance is not granted to the applicant, it [sic] will not suffer an adverse impact amounting to more than a mere inconvenience since the relief being sought is a modification of relief that had been granted by the Zoning Board in February of 2006." Board Decision at 3. Furthermore, the Board found that the Appellants' hardship was self-created because they continued to build after learning that the house violated the Ordinance. Id.

The instant appeal followed the Board's decision. Appellants timely filed their appeal to this Court within twenty days of the Board's decision; the decision was recorded on January 14, 2008, and the appeal was filed on February 1, 2008. On March 6, 2008, the Board acknowledged that it had received a copy of the complaint when it waived service of a summons. Subsequently, the Board filed certified copies of the entire record on April 11, 2008.

II Standard of Review

The Superior Court's review of a Zoning Board's decision is governed by § 45-24-69. Subsection (d), in relevant part, provides as follows:

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.

In its review, this Court must give deference to the decision of the Board, the members of which are presumed to have special knowledge of the rules related to the administration of zoning ordinances. Monforte v. Zoning Bd. of Review of East Providence, 93 R.I. 447, 449, 176 A.2d 726, 728 (1962). Although this deference must not rise to the level of "blind allegiance," Citizens Savings Bank v. Bell, 605 F. Supp 1033, 1042 (D.R.I. 1985), this Court conducts a de novo review of questions of law, not questions of fact. See Monroe v. Town of East Greenwich, 733 A.2d 703, 705 (R.I. 1999) (recognizing the "`traditional judicial' review standard that is applied in administrative-agency actions"); see also Kaveny v. Town of Cumberland Zoning, 875 A.2d 1, 7 (R.I. 2005) (citing Curran v. Church Cmty. Housing Corp., 672 A.2d 453, 454 (R.I. 1996)) (recognizing a...