Gara Realty, Inc. v. Zoning Bd. of Review of Town of South Kingstown

• Court: Rhode Island Supreme Court
• Writing for the Court: MURRAY
• Citation: Gara Realty, Inc. v. Zoning Bd. of Review of Town of South Kingstown, 523 A.2d 855 (R.I. 1987)
• Decision Date: 03 April 1987
• Docket Number: No. 85-45-M,85-45-M
• Parties: GARA REALTY, INC. v. The ZONING BOARD OF REVIEW OF the TOWN OF SOUTH KINGSTOWN et al. P.

Page 855

523 A.2d 855

GARA REALTY, INC. v. The ZONING BOARD OF REVIEW OF the TOWN OF SOUTH KINGSTOWN et al.

No. 85-45-M.P.

Supreme Court of Rhode Island.

April 3, 1987.

Thomas S. Hogan, Donald J. Packer, Hogan & Hogan, East Providence, for plaintiff.

Maureen McKenna Goldberg, Pawtucket, Leonard L. Bergersen, South Kingstown, for defendant.

OPINION

MURRAY, Justice.

This case is before the court on a writ of certiorari issued to review a Superior Court judgment affirming a decision of the Zoning Board of Review of the Town of South Kingstown. The review board denied the petitioner's application for a variance to install a sewage-disposal system closer to an intertidal waterway than is allowed under article 3, § 308 of the Zoning Ordinances of the Town of South Kingstown.

The property involved is located at Peninsula Road, Matunuck, Rhode Island, and recorded as lot No. 124, map No. 68, block 121. It is zoned R 20 under South Kingstown's zoning ordinances which permits, among other uses, construction of single-family dwellings.

The petitioner, Gara Realty, Inc., purchased the lot in 1980. Thereafter, petitioner applied to the building inspector for a building permit to construct a single-family dwelling on the lot. Because the lot size precluded the possibility of constructing a sewage-disposal system 150 feet from Potter Pond as required by article 3, § 308, of the Zoning Ordinances of the Town of South Kingstown, the building inspector denied petitioner's application.

In a letter dated February 17, 1982, the building inspector advised petitioner to obtain a variance from the zoning board of review. The review board denied petitioner's request for a variance, and petitioner appealed to the Superior Court. In a bench decision rendered on November 28, 1984, the Superior Court judge affirmed the review board's decision. This petition for certiorari followed.

The petitioner presents several issues for review by this court: first, whether G.L.1956 (1977 Reenactment) § 42-17.1-2, as amended by P.L. 1978, ch. 131, § 6, supersedes article 3, § 308, of the South Kingstown zoning ordinances; second, whether the review board applied an erroneous standard for review of petitioner's request for a variance; third, whether the decision of the review board is substantially outweighed by the evidence presented; and fourth, whether the review board violated petitioner's rights under the United States and Rhode Island Constitutions.

In reviewing an action of a zoning review board, the Superior Court "must examine the entire record to determine whether 'substantial' evidence exists to support the board's findings." DeStefano v. Zoning Board of Review of Warwick, 122 R.I. 241, 245, 405 A.2d 1167, 1170 (1979). On certiorari, we determine whether competent legal evidence supports the decision of the Superior Court. Id.

The petitioner argues that § 42-17.1-2, as amended by P.L.1978, ch. 131, § 6, supersedes article 3, § 308, of the South Kingstown zoning ordinances as a matter of law. Section 308(B) of the zoning ordinances provides that:

"No disposal trench, disposal bed, cesspool, seepage pit or other facility designed to leach liquid wastes into the soil shall be located within 150 feet of an intertidal salt marsh or within 150 feet of the line of mean high water of any tidal water body as defined in regulations adopted by the Coastal Resources Management Council of the State of Rhode Island and subsequent amendments thereto."

Public Laws 1978, ch. 131, § 6 provides in part that it is the prerogative of the director of environmental management, "to establish minimum standards, subject to the approval of the environmental standards board, relating to the location, design, construction and maintenance of all sewage disposal systems." The Department of Environmental Management Rules and Regulations Establishing Minimum Standards Relating to Location, Design, Construction, and Maintenance of Individual Sewage Disposal Systems, SD 2.16 (1980), provides for separate approval of "individual sewage disposal systems that are located within fifty (50) feet of a marsh, swamp, bog or pond."

The petitioner contends that the state provisions conflict with § 308, rendering it inoperative. The petitioner relies on Wood v. Peckham, 80 R.I. 479, 98 A.2d 669 (1953), for the proposition that where the State Legislature has sought to regulate a particular area, a municipality cannot regulate the same conduct.

The petitioner's reliance on Wood is misplaced. Regulation SD 2.16 merely sets forth "minimum" requirements for the construction of septic systems which are to be located on property adjacent to an intertidal waterway. Clearly the intent of chapter 131 was to grant municipalities the option of providing additional restrictions concerning the construction of individual waste-water facilities. It was, therefore, the prerogative of the town of South Kingstown to create more restrictive requirements, such as the 150-foot setback regulation set forth in § 308. Consequently, we affirm the decision of the trial court upholding the validity of § 308.

The petitioner next argues that the trial court erred in holding that it had the burden of proving "unnecessary hardship" in order to obtain the variance. We agree.

In order to determine whether petitioner sustained its burden of proof before the zoning review board, it is necessary to determine what is the appropriate standard of proof. The burden is dependent upon the nature of the relief sought. We have previously distinguished between...