East Bay Cmty. v. Zon. Bd. of Barrington

• Decision Date: 30 June 2006
• Docket Number: No. 2004-330-Appeal.,2004-330-Appeal.
• Citation: East Bay Cmty. v. Zon. Bd. of Barrington, 901 A.2d 1136 (R.I. 2006)
• Parties: EAST BAY COMMUNITY DEVELOPMENT CORPORATION v. The ZONING BOARD OF REVIEW OF the TOWN OF BARRINGTON.
• Court: Rhode Island Supreme Court

Page 1136

901 A.2d 1136

EAST BAY COMMUNITY DEVELOPMENT CORPORATION v. The ZONING BOARD OF REVIEW OF the TOWN OF BARRINGTON.

No. 2004-330-Appeal.

Supreme Court of Rhode Island.

June 30, 2006.

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Anthony DeSisto, Providence, for Plaintiff.

Dennis T. Grieco, Providence, for Defendant.

Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.

OPINION

Justice SUTTELL, for the Court.

The Town of Barrington (town) appeals from a decision of the State Housing Appeals Board (SHAB) that would allow for the construction of a fifty-unit low or moderate income housing development. Reversing a decision of the Zoning Board of Review of the Town of Barrington (zoning board), SHAB declared the project to be consistent with local needs under the provisions of the Low and Moderate Income Housing Act (act), G.L. 1956 chapter 53 of title 45. We affirm the decision of SHAB and direct the zoning board to issue all necessary permits and approvals, subject, however, to the zoning board's authority to impose such conditions and requirements as are consistent with the act, the decision of SHAB, and this opinion.

I Facts and Procedural History

On August 27, 2003, East Bay Community Development Corporation (East Bay), a private nonprofit organization formed in 1989, applied for a comprehensive permit (permit) to develop low or moderate income housing in the town. East Bay's comprehensive permit application (application) sought to develop 8.64 acres of land near the intersection of Washington Road and Bay Spring Avenue, Assessor's plat No. 2, lot Nos. 106, 110, and 147 (site). The proposed name for the development was "Sweetbriar." The application called for the renovation of an existing single-family home and the construction of twenty-three duplexes that would create forty-seven rental units available for households earning at or below 60 percent of the area's median income. Additionally, the application proposed the construction of three single-family homes, one of which would be available for sale to a household earning at or below 80 percent of the median income, with the remaining two available for sale to households earning at or below 120 percent of the median income. In total, Sweetbriar would provide the town with fifty housing units, the great percentage of which would be designated as "low or moderate income housing" as defined by G.L.1956 § 45-53-3(5).

East Bay's application, filed with the zoning board pursuant to § 45-53-4, requested waivers from several provisions of the town's zoning ordinance (zoning regulations). Relevant to this appeal, East Bay sought a waiver from a use regulation, Barrington Zoning Ordinance, Art. IV, § 185-8 (June 22, 1994), prohibiting multifamily dwellings in zoning districts designated as "Business" districts. According to East Bay, such a waiver was crucial to the development of Sweetbriar because it would allow for the construction of the twenty-two duplexes proposed for lot No. 110. Lot No. 110 was located in a business district and comprised more than 90 percent of the entire project. Lot Nos. 106 and 147, however, were zoned for "Neighborhood Business" and, to the extent called for by the application, did not require a waiver for the construction of duplexes.¹ The remaining requests sought waivers from various municipal fees associated with the proposal and from requirements concerning dimensional area and lot coverage, off-street parking, sidewalks, and granite curbing.

The zoning board held numerous hearings between September 24, 2003, and April 1, 2004, to address East Bay's application for a permit. On May 19, 2004, the zoning board deliberated upon its findings of fact with input from the parties. On June 15, 2004, the zoning board unanimously adopted a written decision denying Easy Bay's application based on the zoning board's findings of fact. The findings relevant to this appeal provided as follows:

"1. Application does not conform to Comprehensive Plan for the Town of Barrington.

"* * * "5. * * * [A]pplication does not meet the Comprehensive Plan because the Plan calls for business or elderly housing use for the site.

"6. Safety was not adequately addressed as follows:

"• The Applicant's traffic study lacked credibility because it was performed in the summer on one day when traffic would normally be light. There was no school or regular commuter traffic, or church traffic. Furthermore, construction and road repaving were being done in the area as well as in the area of Middle Highway and Lincoln Avenue further reducing the traffic count. These roads are feeders to Washington Road.

"• Exhibit '18' was a prior traffic study done for another application on Bay Spring Avenue which contradicts the Applicant's study.

"• The plan as designed failed to meet certain fire code requirements for 17 units as to access as described in the Fire Chief's letter. The proposed road would be a race track shaped oval (Exhibit `43') which is not safe for a family residential neighborhood.

"* * *

"9. Applicant failed to show project would meet local needs as follows:

"• Did not comply with Comprehensive Plan in that the Project was neither business nor elderly housing.

"• Negative impact on public safety to surrounding area because of traffic. Safety of Town residents because of fire safety.

"• Granite curbing would be needed for safety in snowplowing and proper street drainage. No curbing requires increased maintenance by the Town. It also demarks the road from the residential property lines.

"• The density of the proposed development is significantly greater than the surrounding neighborhood and there is not enough open space for the number of units being proposed. These circumstances would alter the character of the surrounding residential neighborhood, and as a result, the proposed development does not promote better site and building design in relation to the surrounding area.

"* * *

"11. Even though the Project is too dense for this site, it would be suitable for affordable housing."

The decision concluded that, based on the testimony of witnesses, the production of exhibits, and the record as a whole, East Bay's application was "inconsistent with local needs" and "inconsistent with the state approved Comprehensive Community Plan."² Although the decision's conclusory language did not mention specifically the inadequacy with which East Bay's application addressed environmental, health, and safety concerns pertaining to current residents that ground for denial appeared in the decision's findings of fact.³

On June 22, 2004, East Bay filed a timely appeal to SHAB pursuant to § 45-53-5. SHAB held a hearing to review the decision of the zoning board on October 12, 2004, at which time the parties were able to present arguments supporting or opposing the zoning board's decision. Although SHAB did not conduct an evidentiary hearing, the parties were permitted to supplement the record from the zoning board proceedings with relevant portions of the "BARRINGTON COMPREHENSIVE COMMUNITY PLAN" (town's plan) and applicable zoning regulations. Toward the close of the October 12, 2004 hearing, SHAB deliberated upon and unanimously adopted a series of findings, the thrust of which vacated the decision of the zoning board denying Easy Bay a permit. SHAB issued a written decision to that effect on November 8, 2004, setting forth its findings of fact:

"The Town does not currently meet the ten percent affordable housing standard and does not have a plan to meet that standard.

"The Zoning Board's decision was not consistent with local needs and did not weigh the state's need for low and moderate income housing against some of the other concerns that were raised in opposition to the proposal.

"A comprehensive plan is a local zoning or land use ordinance, requirement, or regulation within the meaning of the [Low and Moderate Income Housing] Act.

"This application is not inconsistent with the Comprehensive Plan of the Town of Barrington.

"[East Bay] adequately addressed health and safety issues in its application and adequately considered environmental protection issues and requirements of the [Low and Moderate Income Housing] Act.

"There is no competent evidence in the record to support the determination of the Zoning Board that the opinion advanced by the traffic expert was not credible and not supported by evidence of record.

"As to fire safety, other proposals that were not affordable housing have been approved with conditions, and the typical time for decisions to be made regarding compliance with the fire code is when a building permit is requested and not the comprehensive permit stage of the proceeding."

Additionally, SHAB made findings specifically addressing each of the zoning board's findings of fact and provided the reasoning upon which SHAB based its findings and ultimate conclusion to "reverse[ ] the Zoning Board's decision and remand[] this matter to the Zoning Board for action consistent with this decision." SHAB noted that its reversal of the zoning board's decision, which consequently would result in East Bay's attainment of a permit to develop Sweetbriar, was "subject to [East Bay's] procurement of all necessary state and federal approvals."⁴

On November 1, 2004, the town council, by and through its solicitor, and the zoning board prematurely filed a notice of appeal pursuant to § 45-53-5, appealing SHAB's oral ruling of October 12, 2004. See Coventry Zoning Board of Review v. Omni Development Corp., 814 A.2d 889, 897 (R.I. 2003) (holding that a zoning board has standing to appeal from a SHAB decision only when "the town council, acting through its solicitor * * * intervene[s] as a party before this Court").⁵

II The Low and Moderate Income Housing Act

A. The Applicable Version of the Act

We first determine the applicable law under which this Court shall review the town's...