Lischio v. ZON. BD. OF REV. OF N. KINGSTOWN

• Decision Date: 21 March 2003
• Docket Number: No. 2001-505-M.P.,2001-505-M.P.
• Citation: 818 A.2d 685
• Parties: Paul F. LISCHIO et al. v. ZONING BOARD OF REVIEW OF the TOWN OF NORTH KINGSTOWN et al.
• Court: Rhode Island Supreme Court

818 A.2d 685

Paul F. LISCHIO et al. v. ZONING BOARD OF REVIEW OF the TOWN OF NORTH KINGSTOWN et al.

No. 2001-505-M.P.

Supreme Court of Rhode Island.

March 21, 2003.

Present: WILLIAMS, C.J., GOLDBERG, J., and SHEA, J. (Ret.)

James M. Sloan, III, Providence, James Moretti, Cranston, for Plaintiff.

A. Lauriston Parks, Jamestown, for Defendant.

OPINION

GOLDBERG, Justice.

The petitioners, Paul F. Lischio and Marguerite Lischio (Lischios or petitioners) seek review by writ of certiorari of a Superior Court judgment that affirmed in part and reversed in part the decision of the respondent, the Zoning Board `of Review of the Town of North Kingstown (zoning board or respondents), which denied dimensional and use variance relief for two parcels of land owned by petitioners and located in North Kingstown. The petitioners challenge that portion of the decision of the hearing justice that affirmed the zoning board's denial of their request for a dimensional variance on one of the lots.

We grant the petition and quash the judgment. We hold that the zoning board failed to set forth any findings of fact or its reasons pursuant to G.L. 1956 § 45-24-41(d)(2) for denying the dimensional variance. We are further satisfied that petitioners demonstrated by substantial evidence that the hardship they would suffer by a denial of the requested relief amounted to a deprivation of all beneficial use of the property; a showing far in excess of the burden necessary for a dimensional variance. Moreover, we are of the opinion that the Superior Court misapplied the requirements of § 45-24-41(d) (2) as it relates to dimensional variances by inappropriately resting its decision on the use of the parcel rather than the relief requested. Therefore, we grant the petition for certiorari, quash the judgment of the Superior Court and remand this case to the Superior Court with instructions to grant the petitioner's request for a dimensional variance.

Facts and Travel

The petitioners own contiguous lots in the Town of North Kingstown (town). The lots are identified as assessor's plat 102, lot No. 129 and assessor's plat 101, lot No. 20. Lot No. 20 is landlocked and thus it has no frontage on any road. Lot No. 129 has frontage on Highbush Terrace, a road located within a residential neighborhood identified as Mountain Laurel Estates (MLE). Originally lot No. 20 consisted of more than forty-seven acres, but part of the lot was taken by eminent domain and serves as a portion of Route 4 in the Town of North Kingstown. After the subsequent Department of Environmental Management condemnation, petitioners were left with approximately sixteen acres of undeveloped land.

As noted, the state of Rhode Island in 1985 took by eminent domain a portion of petitioner's property. The land to the east of Route 4 became what is known as "Fiddlesticks," a golf-driving range. In addition, the Department of Environmental Management condemned a portion of the land situated to the west of Route 4 for a wetlands buffer, and the remaining sixteen acres became known as lot No. 20. In 1988, the North Kingstown Planning Commission granted subdivision approval for a separate parcel of land, not owned by the Lischios, which was to become a residential subdivision known as MLE; this development was to the west of lot No. 20. Highbush Terrace, a street within MLE, extended almost to the boundary of lot No. 20. To the easterly end of Highbush Terrace was a small lot designated as lot No. 129. This lot contained an express developer's plat notation designating it "for roadway purposes only." The developer of MLE subsequently conveyed lot No. 129 to petitioners by warranty deed, recorded January 10, 1992. Although described on the MLE final plan map as a roadway, lot No. 129 is zoned village residential.

The North Kingstown comprehensive plan land use map, which the town adopted in 1992 and the state approved in 1995, designated the area containing lot Nos. 20 and 129 for low-density-residential development. Both lots are also located in the town's groundwater overlay district. Despite this designation, the zoning classification for lot No. 20 remained as general business.¹ To conform with the comprehensive plan, the town amended its zoning ordinance in 1998 and rezoned all the lots surrounding lot No. 20, located within the groundwater overlay district, as rural residential with a low density of one dwelling unit for each two-acre lot. According to respondent, the town did not rezone lot No. 20 because there was an "on-going dialogue" with petitioners on alternate development proposals. The town and petitioners apparently were unable to agree on various proposed residential and commercial development options for lot No. 20, including a motel, a permitted use that was suggested by petitioners. The record discloses that the zoning classification for lot No. 20 remained general business at this time.

After numerous development proposals were rejected or outright refused by the town,² the petitioners decided to develop lot No. 20 as a mini self-storage facility. In January 2000, petitioners filed an application for a dimensional variance from the frontage requirements of lot No. 20³ and a use variance for lot No. 129 to construct a road on this lot that would connect Highbush Terrace with the otherwise landlocked lot No. 20. The zoning board conducted hearings on the application for both variances on February 8 and February 29, 2000. On March 28, 2000, the zoning board denied petitioners' application for both the requested use variance for lot No. 129 and the dimensional variance for lot No. 20. On April 11, 2000, the zoning board issued a written decision implementing the denial of the application for both variances on the ground that petitioners failed to satisfy the criteria set forth in Section 21-14 of the Town of North Kingstown Zoning Ordinance entitled, "Additional procedures — Variances."⁴ The zoning board found that, if approved, the dimensional variance would alter the character of the surrounding area by permitting an increase in dangerous traffic due to a mix of commercial and residential traffic; a confusing traffic situation because of the lack of directional signs; safety concerns for the hazardous materials that may be stored in the facility; and the diminution of property values. The board also found that granting the dimensional variance would impair the intent of the town's comprehensive plan because the area generally was designated for low-density-residential development and because of the express objective of Section D.1.2 of the North Kingstown Comprehensive Plan entitled "Land Use Vision, Goals and Objectives" that, inter alia, called for the protection of residential neighborhoods from incompatible nonresidential uses. For similar reasons, the zoning board denied petitioners' application for a use variance for lot No. 129.

The petitioners filed an appeal of the zoning board's decision in the Superior Court. Mountain Laurel Homeowners Association's motion to intervene in the appeal as a party defendant was granted. The trial justice reversed the zoning board's denial of the use variance for lot No. 129, but affirmed the decision denying the dimensional variance for lot No. 20. The trial justice concluded that lot No. 129 was intended to serve as a roadway as demonstrated by the plat notation that indicated it "be for roadway purposes only" and by the December 1998 North Kingstown Planning Commission hearing minutes in which the commission said that "Highbush Terrace has been extended to Mr. Lischio's property to provide access so that it would not become landlocked by the construction and land-taking of Route 4 * * *." In addition, the trial justice found that the roadway itself would not alter the character of the community and it would not impair the intent of the zoning ordinance or comprehensive plan. Neither party sought review in this Court of that portion of the Superior Court decision, and the variance granted for lot No. 129 is final.

With respect to the dimensional variance for lot No. 20, the trial justice focused on the use of the parcel — a mini self-storage facility — and explained that not all permitted uses of a parcel are compatible with the surrounding area. The trial justice noted that the criteria set forth in § 45-24-41(c) applied generally to variances, and was not limited to use variances. He held that the zoning board had before it substantial evidence and was thus entitled to find that a dimensional variance for a mini self-storage facility would alter the character of the community and contravene the intent of the comprehensive plan and/or the zoning ordinance. He specifically pointed to the introduction of commercial traffic as being incompatible with the area. The trial justice further found that the zoning board had record evidence that the intent of the comprehensive plan called for the area to be used for low-density-residential development. This Court issued its writ of certiorari on February 13, 2002.

Analysis

Section 45-24-69 vests the Superior Court with jurisdiction to review a zoning board's grant of an application for a variance. Section 45-24-69(d) provides "The [Superior] [C]ourt 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 statue 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...