Struglia v. Zoning Board of Review of Town of Smithfield

• Court: Rhode Island Superior Court
• Writing for the Court: SAVAGE, J.
• Decision Date: 06 December 2002
• Docket Number: C.A. PC 01-5732
• Citation: Struglia v. Zoning Board of Review of Town of Smithfield, C.A. PC 01-5732 (R.I. Super. Dec 06, 2002)
• Parties: ROMEO STRUGLIA, Appellant v. THE ZONING BOARD OF REVIEW OF THE TOWN OF SMITHFIELD and GEORGE D. MCKINNON, ANTONIO S. FONSECA, JR., J. ROBERT WEISBERGER, JR., DAVID L. GREENE and DEBORAH MASSE, in their capacities as Members of the Zoning Board of Review of the Town of Smithfield, Appellees

ROMEO STRUGLIA, Appellant v. THE ZONING BOARD OF REVIEW OF THE TOWN OF SMITHFIELD and GEORGE D. MCKINNON, ANTONIO S. FONSECA, JR., J. ROBERT WEISBERGER, JR., DAVID L. GREENE and DEBORAH MASSE, in their capacities as Members of the Zoning Board of Review of the Town of Smithfield, Appellees

C.A. No. PC 01-5732

Superior Court of Rhode Island

December 6, 2002

DECISION

SAVAGE J.

Before this Court is an appeal from a decision of the Smithfield Zoning Board of Review. On appeal, appellant Romeo Struglia challenges the October 10, 2001 decision of the Zoning Board that granted him a dimensional variance with regard to the subdivision of his property but conditioned the variance on the requirement that there not be any further subdivision of the property. Appellant Struglia seeks a modification of the decision that would eliminate the condition and leave intact the Board's grant of his requested variance. For the reasons set forth in this decision, this Court affirms the decision of the Zoning Board in part, reverses that decision in part, and modifies the decision, as requested by appellant Struglia.

FACTS/TRAVEL

Appellant Romeo Struglia ("appellant Struglia") is the owner of a 50 acre parcel of land located at 131 Burlingame Road in the Town of Smithfield and known as Assessor's Plat 50 Lot No. 77 in the Land Evidence Records for the Town of Smithfield (the "Property"). On July 12, 2001, he petitioned the Smithfield Planning Board (the "Planning Board") for permission to subdivide the Property into two parcels: the first parcel (Lot A) was to comprise 5 acres with road frontage of approximately 250 to 260 feet and serve as appellant Struglia's primary residence, while the remaining 45 acre undeveloped parcel (Lot B) with road frontage of 50 feet was to be sold at a later date.

The Planning Board granted this petition subject to "zoning board approval." Planning Board Minutes of Meeting (July 26, 2001); Appellees' Exhibit A. It deemed such approval to be necessary because a subdivision of the Property, as proposed, would result in each parcel lacking the requisite 350 feet of road frontage that only could be sanctioned through the Zoning Board's grant of a dimensional variance. Subsequently, appellant Struglia petitioned the Zoning Board for a dimensional variance with respect to both lots pursuant to Smithfield Zoning Ordinance, Art. V § 5.9.5.

The Zoning Board convened a public hearing on appellant Struglia's request for variance on August 30, 2001. On October 10, 2001, the Zoning Board rendered a written decision that conditionally granted appellant Struglia's request for a dimensional variance.

In its decision, the Board made several findings of fact. It referenced the applicant's hearing testimony, as follows:

[appellant Struglia] testified that he currently owns fifty (50) acres . . . [and] is seeking to carve out a portion of the property that has his home located on [it]. The remainder of the property will be sold. Mr. Struglia also testified that the remaining parcel will be kept as a single parcel of land, and will not be subdivided.

Zoning Board Decision at 1; Appellant's Exhibit D. The Zoning Board also made the following findings:

1. The hardship from which the applicant seeks relief is due to the unique characteristics of the subject land and structure and not to the general character of the surrounding area and is not due to the physical or economic disability of the applicant;

2. Said hardship is not the result of any prior action of the applicant and does not result primarily from the desire of the applicant to realize greater financial gain;

3. The granting of the requested variance will not alter the general character of the surrounding area or impair the intent or purpose of the Zoning Ordinance or the Comprehensive Plan of the Town;

4. The relief to be granted is the least relief necessary . ;

5. The Board finds, in addition to the above, that evidence has been entered into the record of the proceeding showing that:

a. The hardship that will be suffered by the owner of the subject property if the variance is not granted shall amount to more than a mere inconvenience.

Id. The Zoning Board, by a 5-0 vote, granted appellant Struglia's request for a dimensional variance but imposed the following condition: "Consistent with the representations of the applicant/owner, Lot B will be maintained in its current configuration and shall not be subject to further subdivision." Id. at 2.

On October 29, 2001, appellant Struglia timely appealed the Zoning Board's decision to this Court pursuant to R.I Gen. Laws §45-24-69. Appellant Struglia first argues on appeal that the Zoning Board's attempt to condition its grant of his requested dimensional variance on a total prohibition of future subdivision of Lot B is ultra vires, as the proper repository for such authority is the Planning Board. He also contends, inter alia, that even if the Zoning Board had such authority, the prospective total ban on subdivision of one parcel of the Property not only exceeds the scope of his variance application but also amounts to an unconstitutional taking without just compensation. Finally, appellant Struglia argues that he did not agree to a ban on such future subdivision, as the Zoning Board claims.

The Zoning Board responds that it has the authority to condition the grant of a variance on a total ban on further subdivision of the Property. The Zoning Board contends that appellant Struglia represented at the hearing that he did not intend to subdivide Lot B and that it based the condition imposed on its granting of his variance request on his representation.

STANDARD OF REVIEW

Aggrieved parties may appeal a decision of the Zoning Board to this Court. R.I. Gen. Laws §45-24-69. By statute, the Court's review of that decision:

(c) shall be conducted . . . without a jury. The court shall consider the record of the hearing before the zoning board of review . . . .

(d) The court 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 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.

Id.

Essentially, the reviewing court gives deference to the decision of a zoning board, the members of which are presumed to have special knowledge of the rules related to the administration of zoning ordinances and the decision of which must be supported by legally competent evidence. Monforte v. Zoning Bd. of Review of East Providence, 93 R.I. 447, 449, 176 A.2d 726, 728 (1962); see Braun v. Zoning Bd. of Review of South Kingstown, 99 R.I. 105, 108, 206 A.2d 96, 98 (1965) (defining competent evidence as that presumed to be possessed by members of such boards). This deference, however, must not rise to the level of "blind allegiance." Citizens Savings Bank v. Bell, 605 F.Supp. 1033, 1042 (D.R.I. 1985). This Court conducts a de novo review of questions of law; thus the Court may remand the case for further proceedings or vacate the decision of the zoning board if it is "clearly erroneous in view of the reliable, probative and substantial evidence of the whole record." von Bernuth v. Zoning Bd. of Review, 770 A.2d 396, 399 (R.I. 2001); R.I. Gen. Laws § 45-24-69 (d)(5).

ANALYSIS

Appellant Struglia argues that the Zoning Board did not have the authority to regulate the future subdivision of the Property. He contends, therefore, that the Zoning Board's grant of a dimensional variance conditioned on a ban on all future subdivision of Lot B is ultra vires. In contrast, the Zoning Board argues that it had the authority to grant the conditional dimensional variance pursuant to R.I. Gen. Laws §45-24-43 and the Smithfield Zoning Ordinance, Art. X §10.8(c)(3), which empower them to apply special conditions to the granting of a variance. The Zoning Board submits further that it based its decision to grant the dimensional variance on appellant Struglia's representation that he did not intend to subdivide Lot B in the future. The Zoning Board maintains that if it had known that appellant Struglia intended to subdivide the Property further it never would have granted the variance.

THE AUTHORITY OF THE ZONING BOARD TO CONDITION A VARIANCE ON A BAN ON FUTURE SUBDIVISION OF THE PROPERTY

It is well settled that municipal zoning is a microcosm of municipal planning and not the reverse. Arden Rathkopf and Daren Rathkopf, The Law of Zoning and Planning § 64.02 (4^th ed. 1998). Accordingly "subdivision control . . . establishes more general standards to be specifically applied by an administrative body in order to ensure that the change of use will not be detrimental to the community." Id. Thus, while zoning is immediate in its focus, planning has prospective effect. Id. Such broad-based powers, therefore, are often vested in local planning commissions that "exercise jurisdiction over the approval and development of subdivisions." Yoakley, Zoning Law and Practice § 17-5 (1979) 2001 Cum-Supp.

As with other states, the Rhode Island Development Review Act, R.I Gen. Laws §45-23-25 et seq. (the "Development Act"),...