Mike's Prof'l Tree Servs., Inc. v. City of Providence Zoning Bd. of Review

Decision Date17 January 2014
Docket NumberC.A. No. PC 13-0775
PartiesMIKE'S PROFESSIONAL TREE SERVICES, INC. v. CITY OF PROVIDENCE ZONING BOARD OF REVIEW
CourtRhode Island Superior Court

DECISION

HURST, J. This case is before the court on an appeal from a decision of the Providence Zoning Board of Review (Board). Jurisdiction is pursuant to G.L. 1956 § 45-24-69. For the reasons set forth below, this Court reverses the Board's decision.

IFacts and Travel

On January 24, 2013 the Providence Zoning Board of Review, acting as a board of appeals pursuant to § 45-24-63, upheld a decision of the Director of the Department of Inspection and Standards to issue a Notice of Violation of § 425.6 of the City of Providence Zoning Ordinance for removal of a significant tree without obtaining approval from the City Forester. The Board also upheld the Director's imposition of a penalty in the amount of $32,500 against Appellant. The penalty amount was equal to the value of the tree as calculated pursuant to § 425.6 of the City of Providence Zoning Ordinance which states:

"Penalties - any person who removes a significant tree without prior permission from the City Forester, or causes the death of a significant tree though negligent construction practices or other means as determined by the City Forester, shall be subject to a one-time fine equivalent to the value of the tree. The tree value shall be established using the Trunk Formula Method set forth in the latest edition of Guide for Plant Appraisal authored by the Council of Tree and Landscape Appraisers. Fines shall be held by the Parks Department for forestry-related uses as determined by the City Forester."

The Board held a three day public hearing during which it received exhibits, heard testimony and arguments of counsel and received memoranda from the Appellant and the Director of Inspections and Standards. The facts are largely undisputed.

On or about April 24, 2011, a limb fell from a very large tree located at 281 Williams Street in Providence, causing damage to a parked car on the property. The property owner solicited bids for the removal of the tree limb. The Appellant, Mike's Professional Tree Service Inc., was hired to remove the tree because of to its ability to remove it in the least amount of time.

According to the Appellant, its owner and principal, Michael Baird, inspected the tree and found it to be in an unhealthy condition and a danger to the surrounding area. Mr. Baird removed the fallen limb and returned with a crane four days later to remove the entire tree. He left a one foot tall stump that measure over six feet in diameter. The photographic images of the stump show that the interior of the tree was hollow and significantly damaged by disease and decay. Mr. Baird was aware that the tree was a "significant tree" within the meaning of the Ordinance and that the Ordinance required that he obtain approval from the City Forester before removing it. According to Mr. Baird, he did not contact the City Forester before removing the tree. Mr. Baird testified that it was a matter of emergency and that there was not enough time to comply with the Ordinance by contacting the Forester. However, there was evidence that fivedays had lapsed between the time when the branch fell and the day the tree was removed without any effort to contact the City Forester. Mr. Baird admitted that he did not contact the City Forester because he does not get along with him. There was evidence that, in the six previous years, Appellant had been cited for four previous violations of the same nature but never before fined.

The City Forester became aware of the tree's removal after observing the Appellant's truck traveling down the road with large chunks of tree trunk in its bed. The City Forester followed the trail of sawdust and found the freshly cut tree stump. Although the stump provided imperfect information about the tree, the City Forester did evaluate and estimate the size, health, and condition of the tree for purposes of determining the various components of the trunk formula method of a valuation. He made a comparative analysis of other existing trees. He made findings and estimated the condition of the tree. According to his testimony, he erred on the side of caution and estimated conservatively. He detailed his methodology.

About four months later, on August 31, 2011, the Director of the Department of Building and Standards issued a Notice of Violation to the Appellant. Because the tree appraisal had not been completed, the Notice of Violation did not provide a penalty amount to be imposed. On August 16, 2012, the Director supplemented and reissued the Notice of Violation to include information regarding the $32,500 penalty and the manner in which the penalty was calculated. The Appellant appealed to the Board.

During the hearing before the Board, Appellant argued that the $32,500 penalty was excessive and violated three sections of the Rhode Island General Laws: G.L. 1956 §§ 2-14-11, 45-6-2, and 45-24-60. It also argued that the penalty violated the Eighth Amendment to the United States Constitution and Article 1, Section 8 of the Rhode Island Constitution becausethere is no rational relationship between the fine and the act. Finally, it argued that the Ordinance was defective because there was no provision for an exception for emergency conditions and that the tree met the standards of § 425.6 for removal in that it was diseased and posed a danger to life and property.

Appellant also filed a written memorandum with the Board in which it argued the affirmative defense that the tree should have been removed pursuant to Municipal Code § 425.6 (B) which states:

"Required findings for approval. In order to grant permission to remove a significant tree the city forester must make one (1) or more of the following findings within thirty (30) days of receipt of the application:
(1) The tree is in poor health or diseased with an expected life span less than two (2) years.
(2) The removal of the tree is unavoidable because the tree poses a danger to human safety, health and welfare.

The Board issued a written decision on January 24, 2013. In that decision, the Board concluded it lacked the authority to rule upon the various legal challenges Appellant had made to the validity or enforceability of the Ordinance and the amount of the fine. It also noted that the Appellant's constitutional arguments were not developed or briefed. It made factual findings, ultimately finding that the Appellant had violated the Ordinance. Finally, in a 3-2 vote, it affirmed the Director's findings and decision regarding the penalty.

IIStandard of Review

The standard of review for this Court's appellate consideration of the Board's Decision is set forth in § 45-24-69(D). When reviewing a zoning board decision, this Court must examine the entire certified record to determine whether substantial evidence exists to support the finding of the board. Lloyd v. Zoning Bd. of Review of Newport, 62 A.3d 1078, 1083 (R.I. 2013);Apostolou v. Genovesi, 120 R.I. 501, 507, 388 A.2d 821, 824 (1978). Substantial evidence as used in this context means such relevant evidence that a reasonable mind might accept as adequate to support a conclusion and means an amount more than a scintilla. Pawtucket Transfer Operations, LLC v. City of Pawtucket, 944 A.2d 855, 859 (R.I. 2008). It is the essential function of the zoning board, not this Court, to weigh evidence and, with discretion, accept or reject the evidence presented. Bernuth v. Zoning Bd. of Review of Town of New Shoreham, 770 A.2d 396, 399-400 (R.I. 2001). Moreover, this Court should exercise restraint in substituting its judgment for that of the zoning board. Kaveny v. Town of Cumberland Zoning Bd. of Review, 875 A.2d 1, 7 (R.I. 2005). This Court is compelled to uphold the board's decision if the Court conscientiously finds that the decision is supported by substantial evidence contained in the record. Salve Regina Coll. v. Zoning Bd. of Review of City of Newport, 594 A.2d 878, 880 (R.I. 1991). It is only if the record is

"completely bereft of competent evidentiary support" that a board of appeal's decision may be reversed. If the Board's decision is supported by substantial evidence contained in the record, the Court may reverse the Board only upon a finding that 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."

Sec. 45-24-69(D); Lloyd, 62 A.3d at 1083 (R.I. 2013); Town of Coventry Zoning Bd. of Review v. Omni Dev. Corp., 814 A.2d 889, 898 (R.I. 2003).

IIIAnalysis

The question of whether or not the Zoning Board exceeded its authority or abused its discretion when it assessed a penalty against Appellant in an amount in excess of $500 requires discussion of the Rhode Island legislature's delegation of power to municipalities to (1) regulate land use, (2) protect and care for trees, and (3) impose penalties for violations of municipal ordinances.

a. Delegation: Legislative History

As early as the late 1700s, the Rhode Island legislature delegated to municipalities the power to enact ordinances and regulations. See Pub. L. 1798 § 2 at 326 (entitled "An act declaring Towns to be Bodies Corporate, establishing Town-Councils, regulating Town-Meetings, and prescribing the manner of recovering debts due from towns"); see also § 45-6-1 (entitled "Scope of Ordinances Permissible"). It also permitted municipalities to impose penalties for...

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