COVENTRY ZONING BD. OF REV. v. OMNI DEV.

• Decision Date: 30 January 2003
• Docket Number: No. 2002-20-Appeal.,2002-20-Appeal.
• Citation: 814 A.2d 889
• Parties: TOWN OF COVENTRY ZONING BOARD OF REVIEW v. OMNI DEVELOPMENT CORPORATION.
• Court: Rhode Island Supreme Court

814 A.2d 889

TOWN OF COVENTRY ZONING BOARD OF REVIEW v. OMNI DEVELOPMENT CORPORATION.

No. 2002-20-Appeal.

Supreme Court of Rhode Island.

January 30, 2003.

Present: WILLIAMS, C.J., LEDERBERG, FLANDERS, and GOLDBERG, JJ.

Patrick J. Sullivan, Coventry, for Plaintiff.

Scott T. Spear, North Scituate, for Defendant.

OPINION

GOLDBERG, Justice.

This is a case of first impression. The Supreme Court shall pass upon the provisions of The Rhode Island Low and Moderate Income Housing Act and the authority of the State Housing Appeals Board to decide appeals brought pursuant to the act. The plaintiff, the Zoning Board of Review of the Town of Coventry (plaintiff or Coventry), is before the Supreme Court on appeal from a decision by the State Housing Appeals Board (SHAB) in favor of the defendant, Omni Development Corporation (defendant or Omni), that granted relief from provisions of Coventry's zoning and subdivision regulations in connection with a proposed residential subdivision. On February 22, 2001, Omni submitted an application for a special exception (application) to Coventry pursuant to the Rhode Island Low and Moderate Income Housing Act, G.L. 1956 chapter 53 of title 45 (act). Omni planned to construct a residential cluster development, which is a permitted use under the town's zoning and subdivision ordinances. The act is designed to promote the development of low and moderate income housing opportunities in each city and town in the state. Although § 45-53-2 of the act provides that "an equal consideration shall be on retrofitting existing wellings and assimilating low and moderate income housing into existing developments and neighborhoods[,]" and is silent with respect to residential subdivision proposals, Omni sought approval for a forty-three-lot residential subdivision for an undeveloped parcel of land. As part of its application, Omni requested relief from several provisions of the town's subdivision and zoning ordinances. After a series of hearings, Coventry approved the application and granted some, but not all, of the relief requested by Omni. Omni turned to SHAB for the remainder of its requested relief. Coventry has appealed to this Court.

Low and Moderate Income Housing

In an effort to promote increased housing opportunities for people with low and moderate incomes, § 45-53-4 of the act provides for a streamlined and expedited application procedure whereby "a single application for a special exception to build [low and moderate income] housing in lieu of separate applications to the applicable local [municipal] boards" may be submitted to the zoning board of review of a city or town by any public agency, nonprofit organization, or limited equity housing cooperative proposing to build low and moderate income housing.¹ The act requires that the zoning board of review notify each local board of the application, and conduct a public hearing within thirty days of the receipt of the application. A decision by a majority of the board shall be made within forty days after the public hearing ends. The act vests the zoning board of review with "the same power to issue permits or approvals [as] any local board or official who would otherwise act with respect to the application" enjoys, including "the power to attach to the permit or approval, conditions, and requirements with respect to height, site plan, size, or shape, or building materials * * *." Id.

Omni proposed to develop forty-three single-family homes on an undeveloped parcel of land² in the town of Coventry. The project involved the construction of a subdivision composed of twenty affordable single-family homes for families with low and moderate income and twenty-three market-rate dwellings priced for first-time home buyers in accordance with the guidelines promulgated by the Rhode Island Housing and Mortgage Finance Corporation. The proposed development is in an R-20 zone, which permits single-family homes on lots with no less than 20,000 square feet. Pursuant to Article IV of the Town of Coventry's Subdivision and Land Development Regulations (subdivision regulations), Omni proposed building a residential cluster development, a subdivision composed of smaller house lots in exchange for a greater expanse of open land, while maintaining the same density as a conventional subdivision. Significantly, Art. IV, § A3 of the town's subdivision regulations requires that land deemed unsuitable for development and land designated as street rights-of-way be subtracted from the total acreage of the parcel before a density calculation for a residential cluster development is finalized. The remaining acreage then is divided by the minimum lot size for standard subdivision lots in the zoning district where the parcel is located. The resulting figure is the maximum number of dwelling units permitted in the residential cluster development.

In this case, Omni presented a development proposal to Coventry that reflected a net profit of $3,074, and included a request for relief from several subdivision regulations and the fair-share development fee ordinance that requires an impact fee upon each new dwelling unit constructed in the town. Omni's president testified that without the requested waivers the total additional development costs would equal $362,968, a figure in excess of the anticipated net profit. Accordingly, Omni argued that for the proposed project to be economically viable, relief from the following requirements of the Town of Coventry Zoning Ordinances and subdivision regulations was necessary:

(1) Above ground utility lines in place of underground lines;

(2) Asphalt berms in place of vertical face granite or concrete curbs;

(3) Exemption from impact fees of $7,596 per unit;

(4) Exemption from constructing a bicycle path in the development;

(5) Exemption from constructing two separate means of ingress and egress by means of vehicular access streets; instead Omni proposed a single access roadway into the project and two "secondary access roads" for emergency use only and not for regular vehicular traffic; and

(6) Construction of a cul-de-sac 600 feet longer than the 800 feet permitted by the regulation.

On July 19, 2001, after a series of public hearings, Coventry voted to approve the application but denied relief from the subdivision regulations that require vertical face curbing and a secondary access road into the development. The approval required Omni to expand the width of an existing bridge on the southeast corner of the plan to a thirty-foot paved width (with two travel lanes for full roadway access). In addition, Omni was relieved of development impact fees of $7,596 on each low and moderate income unit, but not for the market-rate dwellings. Further, Coventry found that Omni had failed to submit the forms and documents required for review of issues ordinarily determined by other boards and commissions, including a final plan illustrating all public improvements or lot lines. In light of these deficiencies, Omni was required to reconfigure the lot lines in the development so that each lot was at least 15,000 square feet, without including land deemed unsuitable for development. Coventry granted defendant's request for waivers for underground utilities and a bicycle path, and granted defendant's request to construct a 1,400 foot cul-de-sac, 600 feet longer than allowable by regulation.

The defendant appealed the decision to SHAB and argued that the conditions and requirements contained in plaintiff's approval rendered the proposed project economically infeasible and that the decision was inconsistent with local needs. The SHAB reviewed plaintiff's approval pursuant to § 45-53-6 of the act and voted as follows:

"1. Vertical face curbs are not necessary for the health and safety of the occupants of the proposed housing or of the residents of the [t]own; are not necessary for the protection of the environment; are not consistent with local needs; and the cost creates an unnecessary restriction on affordability.

"2. The reconfiguring of the lot lines is not necessary for the health and safety of the occupants of the proposed housing or of the residents of the [t]own; is not necessary for the protection of the environment; is not consistent with local needs; and that the cost creates an unnecessary restriction on affordability.

"3. Widening the existing bridge to create a second full roadway access into the project is not necessary for the health and safety of the occupants of the proposed housing or of the residents of the [t]own; is not necessary for the protection of the environment; is not consistent with local needs; and the cost creates an unnecessary restriction on affordability.

"4. The Zoning Board's imposition of impact fees on the 23 market rate units makes the project economically infeasible and is overruled on the condition that any profit over the projected $3,074 (as certified by Rhode Island Housing's cost certification process) be turned over to the Town of Coventry to be administered by the same rules and regulations as the Community Development Block Grant and be used for moderate rehabilitation; and further, that the sales price of the market rate houses be in accordance with Rhode Island Housing's first-time home buyer program as it exists at the time of sale."

Further, because of concerns about development approval from agencies over which Coventry has no jurisdiction, SHAB voted to retain jurisdiction of this project. The plaintiff has appealed.

Standing

Although the issue of standing has not been raised by Omni, "[t]his question [is] of such overriding importance as to be raised sua sponte by us." DeCesare v. Board of Elections, 104 R.I. 136, 141, 242 A.2d 421, 423-24 (1968) (holding that even though parties had not orally argued or briefed the issue of standing, the Supreme Court could raise the issue sua sponte, and concluding that members of a local board of canvassers were not aggrieved parti...