Sawyer v. Cozzolino, s. 89-366-M

• Decision Date: 24 July 1991
• Docket Number: Nos. 89-366-M,s. 89-366-M
• Citation: 595 A.2d 242
• Parties: Jeffrey A. SAWYER et al. v. Eugene J. COZZOLINO et al. P., 89-367-M.P.
• Court: Rhode Island Supreme Court

Page 242

595 A.2d 242

Jeffrey A. SAWYER et al. v. Eugene J. COZZOLINO et al.

Nos. 89-366-M.P., 89-367-M.P.

Supreme Court of Rhode Island.

July 24, 1991.

John J. Gentile, Jr., Kelly Fracassa, Vincent J. Naccarto, Nardone, Turo & Naccarto, John R. Payne, Jr., Westerly, for plaintiffs.

Lauren Jones, Jones Associates, Providence, David Gervasini, Westerly, Eleanor Brown, Providence, Howard Street, Jr., Leniha, Moone, Gallogly & Comolli, Westerly, for defendants.

OPINION

WEISBERGER, Justice.

This case comes before us on the petition for a writ of certiorari brought by Michael J. Beddard and Anita Beddard and the Westerly Town Council. ¹ The plaintiffs, Jeffrey A. Sawyer and Cathleen A. Alban (plaintiffs), are the owners of a parcel of land in the town of Westerly designated as lot No. 98 on tax assessor's plat No. 150. The property in question is located in an R-30 residential zone that, according to the Westerly Zoning Ordinance, requires single-family dwelling sites to have a minimum lot size of 30,000 square feet and a minimum lot frontage of 120 feet. The plaintiffs' property has a total area of approximately 95,380 square feet and a 200-foot lot frontage. An existing residence is located on the front portion of the lot.

On September 11, 1987, plaintiffs filed a variance application with the Westerly Zoning Board. The plaintiffs sought to create a new building lot on the rear portion of lot No. 98. The plaintiffs' application requested a 100-foot frontage variance for the planned rear lot. Access to the rear lot would be accomplished via a 20-foot-wide strip that would run approximately 200 feet alongside the front lot. That strip would then join the rear lot at an angle.

A public hearing regarding plaintiffs' variance application was held before the Westerly Zoning Board (the board) on October 7, 1987. In their application plaintiffs stated as grounds for hardship:

"We, the applicants, are purchasing 136 Watch Hill Rd., Westerly, RI as a summer home and would like to share this pretty area with an extended family member. We have more than adequate acreage, adequate side, and rear yard lines, however, we are shy frontage. We appeal to you because we would like to subdivide the above lot # 98 to create another building lot." ²

Further, at the hearing, Cathleen Alban testified:

"The hardship would be there is an awful lot of land there much more * * * (inaudible). A beautiful area, we appreciate the area, it would be easier to take care of the area if it were smaller and if we shared it with someone who we felt as though we would like to be in close proximity with."

Several abutting homeowners and neighbors voiced objections to the application. Thomas Lenihan, the attorney representing some of the objectors, argued that the real issue before the board was a subdivision of the property. Lenihan stated that "[the] applicants themselves, although not lawyers, use the word subdivide. They are asking to subdivide * * *. There is no question that they are using the word subdivision because this is what they want to do."

In the dialogue among the board members to clarify the issue, chairman Thomas L. Toscano, Jr., stated:

"What they are really looking for is a split lot and a variance on frontage. That's exactly what it is. * * * No, [the prior applicant] was not asking for a split lot. He was not splitting the lot. The property line was staying the same and he was going to put two houses on it. There is the difference. [The prior applicant] was going to maintain one lot with two houses. This is not the case here. This is looking for a split lot, to have two lots out of one."

At the conclusion of the hearing, board member Cynthia A. O'Brien-Luzzi moved to disapprove plaintiffs' application on the following grounds:

"I feel that it will be contrary to the public interest, and the public interest being of the Watch Hill and Turtleback Road area, when the existing lots average approximately 90,000 square [feet] you know the type of area that you are building in and you buy because you want more land around you. I think its lovely that you would like to share your property with someone, but at the same time when that lot is [split] there may not be a loving relationship that passes on from time to time. Also, there is no hardship shown."

Board member John O. Pescatello approved the motion "based on the fact that there is no hardship and I also believe that it would decrease the value of the land surrounding it and it's not in the best interest of the (inaudible)."

Board member Eugene J. Cozzolino disapproved the motion, stating that the board had "approved other frontage variances in other areas of town as long as [the variance] didn't make it smaller in width or length or square footage." Regarding the sizes of the lots in the area, Cozzolino noted, "Zoning said 30,000 square feet so that's why I disapprove the motion."

Board member Michael Turano voted to disapprove the motion since in his opinion there was a hardship in that the rear portion of plaintiffs' lot was landlocked. Turano also noted that the board had approved similar motions on prior occasions.

Chairman of the board Toscano also voted to disapprove the motion, relying to a great extent upon the past record of the board in voting to approve similar applications regarding lots in various parts of Westerly. According to Toscano, in all the prior zoning applications "everything was met but road frontage and that's all we're talking about is road frontage, we're not talking about square footage, we're not talking about sideline variances or anything, we're talking about road frontage."

The motion to deny the application did not have sufficient votes to pass. At the advice of the town solicitor, a second motion was made to approve plaintiffs' application. Three members voted to approve the application, and two voted to deny it. Section XIV(B) of the Westerly Zoning Ordinance requires four concurring votes to grant a variance. Thus plaintiffs' application was not approved.

The plaintiffs appealed the decision to the Washington County Superior Court pursuant to G.L.1956 (1980 Reenactment) § 45-24-20. On May 6, 1988, Michael J. Beddard and Anita Beddard intervened as party defendants. ³

On June 28, 1989, the trial justice issued a written decision reversing the zoning board's denial of plaintiffs' variance application. The trial justice ruled that the board did not properly apply the so-called Viti Doctrine ⁴ and that the board's decision was arbitrary. According to the trial justice, the primary issue in the matter was whether the board applied the correct standard in denying the application since dissenting board members relied in part upon plaintiffs' lack of sufficient hardship. The trial justice determined that the relief sought by plaintiffs was a variance from frontage requirements, more properly characterized as a deviation. Thus, the trial justice reasoned, plaintiffs need only demonstrate an adverse impact amounting to more than a mere inconvenience.

Further, the trial justice determined that literal adherence to the zoning ordinance would preclude plaintiffs from building a house on the proposed rear lot. The trial justice stated: "This lot would comply with the zoning ordinance in all respects except the frontage requirement. A strict application of the ordinance clearly amounts to more than a mere inconvenience as a matter of law."

Additionally the trial justice determined that statements made by board Chairman Toscano supported plaintiffs' allegation that the zoning board's decision was arbitrary.

The Beddards and the board filed petitions for issuance of writ of certiorari, seeking review of the trial justice's judgment. This court issued an order granting the petitions for issuance of the writ, granting the town council's motion to be substituted for the board as petitioner, and granting the Beddards' motion to consolidate the two petitions.

The determinative issue raised in this petition is whether the trial justice erred in reversing the decision of the Westerly Zoning Board of Review. Since the dispositive issue in this case is jurisdictional in nature, it may be noticed for the first time on appeal. See Cavanagh v. Cavanagh, 118 R.I. 608, 616, 375 A.2d 911, 915 (1977). Further facts will be supplied as necessary.

We note at the outset the well-settled rule that in reviewing a decision of the Superior Court in its consideration of an appeal from a municipal zoning board, this court's review is confined to a determination of whether the trial justice acted within his or her authority as set forth in G.L.1956 (1988 Reenactment) § 45-24-20. We shall not weigh the evidence but shall determine whether competent evidence exists to support the trial justice's decision. That decision will not be reversed unless the trial justice "misapplied the law, misconceived or overlooked material evidence, or made findings that were clearly wrong." Brum v. Conley, 572 A.2d 1332, 1335 (R.I.1990); Skelley v. Zoning Board of Review of South Kingston, 569 A.2d 1054, 1056 (R.I.1990).

The defendants argue that the trial justice misapplied the law and incorrectly held that the relief sought in this case could be granted as a "deviation." A review of the trial justice's decision indicates that after considering the relief requested by plaintiffs, the trial justice determined that the standard for a true variance was not applicable to the facts of the case since plaintiffs' proposed use was residential--a permitted use in an R-30 zone. The trial justice relied upon the decision of this court in Gara Realty, Inc. v. Zoning Board of Review of South Kingston, 523 A.2d 855, 858 (R.I.1987), for the proposition that a true variance is the appropriate relief when the proposed use of the property varies from the uses permitted under the ordinance. Thus, the trial justice reasoned, plaintiffs were not compelled to demonstrate that strict compliance with...