Kenlin Properties, LLC v. City of East Providence , 2016 R.I. LEXIS 89 ( 2016 )


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  •                                                         Supreme Court
    No. 2013-321-M.P.
    (PC 11-7249)
    Kenlin Properties, LLC et al.         :
    v.                      :
    City of East Providence et al.        :
    NOTICE: This opinion is subject to formal revision before
    publication in the Rhode Island Reporter. Readers are requested to
    notify the Opinion Analyst, Supreme Court of Rhode Island, 250
    Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
    3258 of any typographical or other formal errors in order that
    corrections may be made before the opinion is published.
    Supreme Court
    No. 2013-321-M.P.
    (PC 11-7249)
    Kenlin Properties, LLC et al.           :
    v.                        :
    City of East Providence et al.          :
    Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
    OPINION
    Chief Justice Suttell, for the Court. This Court granted a petition for writ of certiorari
    filed by the City of East Providence and the East Providence Zoning Board of Review (zoning
    board) (collectively, the city) seeking review of a judgment of the Superior Court. The zoning
    board had affirmed a notice of violation issued by the East Providence zoning officer finding
    several violations of a use variance that had been granted in 1998 to the owner and operator of a
    facility known as Pond View Recycling (Pond View). Kenlin Properties, LLC (Kenlin) and
    TLA-Providence, LLC (TLA), as the owner and operator of Pond View, appealed to the Superior
    Court from the zoning board’s decision upholding the notice of violation. 1 A trial justice of the
    Superior Court reversed the zoning board, concluding that the zoning board’s decision was
    clearly erroneous and made upon unlawful procedure. For the reasons set forth in this opinion,
    we quash the judgment of the Superior Court.
    1
    At the time the appeal from the zoning board’s decision was filed in the Superior Court, Kenlin
    was the owner of the property and TLA was the operator of the business. However, TLA entered
    into receivership in March 2012.
    -1-
    I
    Facts and Procedural History
    The property at issue in this appeal is located at One Dexter Road in East Providence (the
    property) and at present is owned by Kenlin. At the time of the notice of violation, the property
    was operated as a construction and demolition (C&D) debris processing facility known as Pond
    View.
    When the application for a use variance was originally filed in January 1998, Pond View
    was registered with the Rhode Island Department of Environmental Management (DEM) as a
    processing facility. The then owner and the proposed lessee of the property applied to the zoning
    board for a use variance to operate Pond View as a facility for “primarily the recycling of natural
    and processed wood materials into mulch products.” The application described the property as
    covering 15.614 acres containing three buildings: a 67,578-square-foot brick and block industrial
    warehouse, a 24,583-square-foot metal warehouse, and a 24,990-square-foot metal warehouse.
    The list of “proposed construction and uses” requested permission to “allow incidental metal
    separation as an accessory use.” The application sought a variance under which “[l]imited metal
    reclamation [would be] permitted, if it [was] carried on in an enclosed building,” and other
    special conditions “which would permit immediate [outside] operation of the wood recycling
    operation” for eighteen months, at which time “an enclosure designed specifically for the C&D
    and wood processing or recycling machine” would have been built.
    Prior to voting on the application, members of the zoning board questioned Kenneth
    Foley, the proposed lessee of the property, regarding the storage of product, an enclosure for the
    grinder, and a sound-absorbing berm. Foley responded that there would be an open-ended
    building that “looks like a greenhouse,” and an earth berm to absorb the sound, plus a tree buffer
    -2-
    zone at the property line. The zoning board unanimously granted the application but imposed
    four conditions on the use variance: (1) limiting the grinding of materials to 150 tons per day; (2)
    restricting the grinding hours from 8 a.m. to 4 p.m. daily Monday through Friday and 8 a.m. to
    noon on Saturday; (3) constructing a berm before grinding operations commence; and (4)
    completing the grinder enclosure within eighteen months.
    In February 2003, DEM granted Pond View a license, pursuant to G.L. 1956 § 23-18.9-
    8(a)(1), 2 to increase the processing capacity to 500 3 tons per day. In 2005, the city sought both a
    declaratory judgment declaring that Pond View was violating its use variance by receiving more
    than 150 tons per day of C&D debris and an injunction precluding Pond View from operating its
    facility. A justice of the Superior Court issued a declaratory ruling holding that: the original use
    variance remained “valid and intact,” that the “principal regulatory authority” was the state, that
    “only those zoning regulations that [did] not inhibit the state regulatory scheme [could] be
    utilized,” and that the city was not prohibited from pursuing “any putative violation of a local
    zoning ordinance” through normal administrative procedures.
    Subsequently, on May 27, 2011 the city zoning officer issued a notice of violation to
    Pond View alleging violations of the use variance granted in 1998. The zoning officer reviewed
    Pond View’s 1998 variance application and site plan, the transcripts from the 1998 hearings, and
    the 2011 DEM-approved site plan. After reviewing the documents, the zoning officer found that
    it was “abundantly clear that the approved ‘open storage’ area was constrained to the pad
    illustrated on the site plan submitted in conjunction with the ‘[a]pproved [v]ariance,’” and that
    2
    General Laws 1956 § 23-18.9-8(a)(1) states in pertinent part that “[n]o person shall operate any
    solid waste management facility or construction and demolition (C&D) debris processing facility
    or expand an existing facility unless a license is obtained from the director except as authorized
    by § 23-18.9-8.”
    3
    On May 2, 2011, DEM granted Pond View a 1,500-tons-per-day license.
    -3-
    “[t]he present/proposed operation [had] well exceeded the ‘approved’ pad-site.” The zoning
    officer further found that it was “abundantly clear that the ‘[a]pproved [v]ariance’ was limited to
    150-tons, and not simply the grinding of 150-tons [because] ‘Pond [V]iew’ repeatedly testified as
    to the exact quantity * * *.” After further review of the hearing transcripts, the zoning officer
    also found that it was “abundantly clear that wood products would be the predominant material
    handled, and for which a variance [had been] granted.” However, the zoning officer found,
    wood products comprised less than half of the incoming C&D materials at Pond View.
    Additionally, the zoning officer stated that “Pond View has continuously argued that there is a
    unique distinction between the hours of operation and hours allocated to the ‘grinding’
    component of the operation. However, no such distinction was offered during testimony.” The
    zoning officer also found that there was no longer an “earthen berm with natural vegetation
    atop,” which had been “a specified condition of approval [of the variance].” The zoning officer
    further noted that Pond View testified to having “one grinder” on the property but, in its 2011
    DEM submission, it added a second machine, which the zoning officer concluded was “outside
    the scope of the ‘[a]pproved [v]ariance.’”
    The zoning officer ultimately cited Pond View for: exceeding the approved open storage
    area; expanding beyond the 150-ton limit approved in the 1998 use variance; accepting products
    other than wood; operating beyond the permitted hours of operation; failing to maintain an
    earthen berm; and adding additional equipment to the site. In or about June 2011, Kenlin and
    TLA appealed the notice of violation to the zoning board.
    The zoning board held hearings in the fall of 2011 and issued a unanimous decision on
    October 19, 2011, denying Kenlin and TLA’s appeal. In affirming the decision of the zoning
    officer, the zoning board made the following findings of fact:
    -4-
    “1. The [b]oard has considered the findings of the [z]oning
    [o]fficer;
    “2. The [b]oard has considered the recommendation of the
    [p]lanning [b]oard;
    “3. The use for which the variance was granted was primarily the
    recycling of natural and processed wood into mulch products;
    “4. That the operation today is not primarily the recycling of
    natural and processed wood into mulch products;
    “5. The types of materials being taken in and processed exceed
    what was applied for and granted in the variance;
    “6. There are presently two grinding machines at the operation;
    “7. The permitted use allows for one grinding machine;
    “8. That material currently processed such as tires, concrete, vinyl
    siding exceed the use permitted by the variance;
    “9. That * * * based upon testimony presented and the photos
    entered into evidence, the record shows that the petitioner has open
    storage on the premises that exceeds the limits of the permitted
    use;
    “10. Based upon the testimony and the findings from the records,
    the petitioner is processing in excess of the tonnage that’s allowed
    to be processed[.]”
    Kenlin and TLA, on behalf of Pond View, appealed the zoning board’s decision to the
    Superior Court on December 23, 2011. Before the Superior Court, Kenlin and TLA argued that
    the zoning officer and zoning board erred in considering documents and testimony outside of the
    recorded variance.   Kenlin and TLA also argued that “the 2006 [d]eclaratory [j]udgment
    preclude[d] re-litigation of the issues of daily tonnage limits and the acceptance and processing
    of concrete because the [2006 declaratory judgment] considered the scope of the 1998 [use
    variance] as well as the actual use of the [p]roperty.” Conversely, the city maintained that the
    zoning officer and zoning board “properly looked beyond the four corners of the [variance] to
    determine what was permitted,” and that the zoning board properly affirmed the zoning officer’s
    decision. 4
    4
    As the appeal in Superior Court was brought by Kenlin and TLA, the city challenged TLA’s
    standing because of its receivership. However, the trial justice rejected that argument because,
    although TLA was in receivership and its operations had since ceased, TLA had operated the
    -5-
    On August 2, 2013, the trial justice issued a written decision reversing the decision of the
    zoning board. The trial justice noted that the zoning officer and zoning board “relied on sources
    outside the [variance] to construe the conditions to include items not approved in 1998.”
    Specifically, the trial justice determined that the variance “[did] not impose: site plan
    restrictions[,] open storage restrictions[,] limits on daily tonnage receipt or processing[,] limits on
    the types of materials that may be accepted or processed[,] limits on the [f]acility’s hours of
    operation[,] a requirement for an earthen berm with trees atop[,] or a limit to one machine on the
    [p]roperty.” The trial justice held that the zoning officer and zoning board “were without
    authority to revisit the prior[] [zoning] [b]oard’s work to create a violation.” The trial justice
    concluded that “conditions must be clearly expressed to be effective,” thus, the zoning board
    “erred in upholding the [notice of violation] and in finding violations with respect to the scope of
    the use, materials, and the [s]ite [p]lan.”
    On the issue of collateral estoppel, the trial justice was “satisfied that the requirements for
    collateral estoppel [were] met” in this case because, identical to the 2006 declaratory judgment
    action, the city was again a party, Kenlin and TLA were in privity with Pond View, “the tonnage
    and material receipt issues [were] ‘identical’ * * *[,] and the prior proceeding resulted in a
    final judgment.”     Thus, the trial justice held that “[t]he 2006 [d]eclaratory [j]udgment
    bar[red] re[-]litigation of the grinding and concrete processing issues.” Ultimately, the trial
    justice held that Kenlin and TLA’s “substantial rights were prejudiced because the [d]ecision of
    the [z]oning [b]oard, affirming the [z]oning [o]fficer’s [n]otice of [v]iolation, was clearly
    facility since 2008, held a license from DEM, and had been leasing the premises from Kenlin.
    Thus, the trial justice determined that TLA was an aggrieved party as defined by the Zoning
    Enabling Act, G.L. 1956 chapter 24 of title 45.
    -6-
    erroneous and made upon unlawful procedure.” Thus, the trial justice granted Kenlin and TLA’s
    appeal, and final judgment entered on September 6, 2013.
    Subsequently, the city filed a petition for writ of certiorari with this Court, seeking review
    of the Superior Court’s decision. We granted the city’s petition and issued a writ on May 5,
    2014. Before us, the city argues that the trial justice erred by: (1) “substituting her judgment for
    that of the * * * zoning officer and zoning board in determining the scope of the [1998 use
    variance]; (2) “holding that the [c]ity could not consider the application, site map, and testimony
    at the 1998 public hearing[s] in determining the scope of the use that was granted to Pond View
    in the 1998 [use] variance; (3) by analyzing the conditions of the 1998 use variance instead of
    the scope of the 1998 use variance; and (4) “in applying collateral estoppel to preclude the
    zoning officer from raising the ‘tonnage’ and ‘concrete’ issues regarding Pond View’s use of the
    facility.”
    II
    Collateral Estoppel
    A threshold issue in this case is whether the zoning officer and zoning board were
    precluded by the doctrine of collateral estoppel from raising the “tonnage” and “concrete” issues
    when considering whether Pond View violated the use variance.
    A
    Standard of Review
    “The determination of whether collateral estoppel should be applied presents a question
    of law[.]” Casco Indemnity Co. v. O’Connor, 
    755 A.2d 779
    , 782 (R.I. 2000). “[T]herefore we
    * * * review this issue de novo.” 
    Id. -7- B
    Discussion
    The city argues that the trial justice “erred in applying collateral estoppel principles to
    preclude the zoning officer from raising the ‘tonnage’ and ‘concrete’ issues regarding Pond
    View’s use of the facility.” Conversely, Kenlin contends that the trial justice correctly applied
    the doctrine of collateral estoppel and “properly precluded the [c]ity from re[-]litigating the
    issues that had been decided against it in the 2006 declaratory judgment proceeding.”
    “Under the doctrine of collateral estoppel, an issue of ultimate fact that has been actually
    litigated and determined cannot be re-litigated between the same parties or their privies in future
    proceedings.” Foster-Glocester Regional School Committee v. Board of Review, 
    854 A.2d 1008
    ,
    1014 (R.I. 2004) (quoting George v. Fadiani, 
    772 A.2d 1065
    , 1067 (R.I. 2001)). We have held
    that collateral estoppel applies when the case meets three requirements: “(1) the parties are the
    same or in privity with the parties of the previous proceeding; (2) a final judgment on the merits
    has been entered in the previous proceeding; [and] (3) the issue or issues in question are identical
    in both proceedings.” 
    Id. The 2006
    declaratory judgment that entered to dispose of the 2005 litigation between the
    city and Pond View provided as follows:
    “1. The original variance issued to Pond View * * * [was] valid
    and intact;
    “2. The principal regulatory authority for [Pond View] [was] the
    State of Rhode Island and only those zoning regulations that [did]
    not inhibit the state regulatory scheme [could] be utilized; and
    “3. The City of East Providence [was] not prohibited from
    pursuing, through normal administrative procedures, any putative
    violation of a local zoning ordinance, subject to paragraph 1.”
    Here, the city is again a party, Kenlin is in privity with Pond View, and a final judgment on the
    merits was entered by the 2006 declaratory judgment. Therefore, the first two requirements of
    -8-
    collateral estoppel are met. See Foster-Glocester Regional School 
    Committee, 854 A.2d at 1014
    .
    The hearing justice in the earlier litigation, however, did not purport to resolve the tonnage issue,
    nor did he ever address the processing of materials other than wood products. 5
    A careful review of the hearing justice’s 2006 bench decision reveals the limited nature
    of the court’s ruling. He began by noting that Pond View operates a “solid waste management
    facility in East Providence * * * where their [principal] activity seems to be the processing of
    wood for recycling and redistribution * * *.” This is clearly consistent with the scope of the
    original use variance as determined by the zoning officer and zoning board of review. The
    hearing justice then quoted from the transcript of the 1998 zoning board hearing at which the use
    variance was granted and indicated that a difference of opinion had arisen over time as to
    whether the 150-tons-per-day limit applied to receiving materials or to the grinding operations
    only. The hearing justice did not resolve this issue definitively, stating at first that “it seems as
    though there is not an adequate basis for [the city’s] conclusion” that the limit applied to both
    grinding and receipt, rather, “the focus for the variance was on the grinding.”
    The hearing justice then set forth the respected positions of the parties. The city, as
    plaintiff, was seeking to enjoin further operation of the facility as well as a declaration that “the
    facility is currently being operated without any appropriate license from the [c]ity”—whereas,
    the position of the defendant, Pond View, was that it had not given up its use permit, and could
    continue to operate.
    The hearing justice was careful to “limit the role of the [c]ourt * * * in terms of some
    global declaration about the rights and duties of the parties.” He found that the state, through
    DEM and the Solid Waste Management Corporation, was the principal regulatory authority, but
    5
    We shall refer to the Superior Court justice who decided the city’s complaint requesting
    declaratory relief as the hearing justice.
    -9-
    that “[did] not in any way oust the [c]ity from doing pretty much what it wishes to with its
    zoning ordinances.” He concluded that Pond View had not forfeited its use variance.                  In
    referencing a license issued in 2003 by DEM to Pond View permitting it to process 500 tons per
    day, the hearing justice said: “I do not believe this [c]ourt is in a position to give any sort of go[-]
    ahead or declare, yes, they can start processing 500 tons next week * * *.” He reiterated that
    local zoning laws apply but that they may not be “employed to shut a facility down that is
    otherwise conforming to the strictures imposed by the [s]tate on these kinds of facilities.” He
    ultimately held that “only those zoning regulations that do not inhibit the state regulating scheme
    may be utilized.”
    It is our opinion that neither the declaratory judgment itself nor the hearing justice’s
    decision resolved the issues of how much tonnage Pond View was permitted to process per day
    and the types of materials it was permitted to process. The hearing justice specifically stated that
    he would not declare how many tons it could start processing, and it is clear from his decision
    that he considered Pond View to be a wood-processing facility.              Moreover, the judgment
    provides that the city is “not prohibited from pursuing, through normal administrative
    procedures, any putative violation of a local zoning ordinance,” subject to the original variance.
    It is clear from the record that the hearing justice chose not to address the specific arguments on
    the tonnage or materials that Pond View was permitted to process at its facility. Thus, the third
    requirement of collateral estoppel is not met and the city was not barred from pursuing violations
    based on the amount or type of material accepted at Pond View.
    - 10 -
    III
    The Scope of the 1998 Use Variance
    A
    Standard of Review
    The Superior Court’s authority to review a zoning board’s decision derives from G.L.
    1956 § 45-24-69(d), which provides in pertinent part:
    “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 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.”
    “On a petition for certiorari from a Superior Court judgment that has entered after an appeal from
    a municipal zoning board’s decision, we confine our review to a determination of whether the
    trial justice acted within his or her authority as set forth in § 45-24-69.” Iadevaia v. Town of
    Scituate Zoning Board of Review, 
    80 A.3d 864
    , 870 (R.I. 2013) (quoting Sciacca v. Caruso, 
    769 A.2d 578
    , 582 (R.I. 2001)).
    On appeal, we do not weigh the evidence; rather, “we review the record to determine
    whether substantial evidence existed to support the Superior Court justice’s decision.” 
    Iadevaia, 80 A.3d at 870
    (quoting Pawtucket Transfer Operations, LLC v. City of Pawtucket, 944 A.2d
    - 11 -
    855, 859 (R.I. 2008)).     “Substantial evidence is defined as ‘such relevant evidence that a
    reasonable mind might accept as adequate to support a conclusion, and means [an] amount more
    than a scintilla but less than a preponderance.’” 
    Id. (quoting Pawtucket
    Transfer Operations,
    
    LLC, 944 A.2d at 859
    ). “We do not reverse a Superior Court justice’s decision unless it can be
    shown that the justice misapplied the law, misconceived or overlooked material evidence, or
    made findings that were clearly wrong.” 
    Id. (quoting Pawtucket
    Transfer Operations, 
    LLC, 944 A.2d at 859
    ).
    B
    Discussion
    The city contends that the underlying issue before the zoning board was the “scope or
    character of the 1998 use variance granted,” not the “specific conditions imposed upon [the
    variance].” The city argues that the trial justice erred in holding that the zoning official and
    zoning board could not consider the application, site map, and testimony at the public hearing in
    determining the scope of the variance. Thus, the city argues that the trial justice erred “by
    substituting her judgment for that of the * * * zoning officer and zoning board in determining the
    scope of the original 1998 Pond View use variance which was a question of fact to be
    determined by the zoning official and zoning board.” Moreover, the city maintains that the trial
    justice “erred in applying a ‘conditions’ analysis to the issue of the scope of the 1998 variance.”
    Kenlin argues that the trial justice “did not substitute her judgment for that of the * * *
    zoning board” because, Kenlin maintains, “the meaning of the variance and its conditions is a
    question of law and not of fact.” Kenlin avers that the trial justice “correctly held that the zoning
    board erred in considering matters other than the recorded variance * * * in determining the legal
    - 12 -
    meaning of the variance” and that she “applied the correct analysis in determining the scope of
    the 1998 variance.”
    A “use variance” is defined by § 45-24-31(65)(i) as “[p]ermission to depart from the use
    requirements of a zoning ordinance where the applicant for the requested variance has shown by
    evidence upon the record that the subject land or structure cannot yield any beneficial use if it is
    to conform to the provisions of the zoning ordinance.” 6 In other words, a use variance provides
    relief “when an owner seeks to employ land for a use not permitted in that zoning district under
    the applicable zoning ordinance.” Sciacca, 
    769 A.2d 582
    n.5. We have described a variance as
    “a constitutional safety valve to prevent confiscation of one’s property” from burdensome zoning
    ordinance regulations. Northeastern Corp. v. Zoning Board of Review of New Shoreham, 
    534 A.2d 603
    , 605 (R.I. 1987). Since a variance provides relief from a zoning ordinance, it is
    “strictly construed to limit relief to the minimum variance which is sufficient to relieve the
    hardship.” 83 Am. Jur. 2d Zoning and Planning § 812 (2016).
    The power to grant a use variance is entrusted to the zoning board of review. See § 45-
    24-41(a). “In granting a variance * * * the zoning board of review * * * may apply the special
    conditions that may * * * be required to promote the intent and purposes of the comprehensive
    plan and the zoning ordinance of the city or town.” Section 45-24-43. However, we have held
    that “such conditions on a grant permitting a use of the land [are] effective only when
    specifically and clearly stated in the record.” Town of Warren v. Frost, 
    111 R.I. 217
    , 221, 
    301 A.2d 572
    , 574 (1973). Furthermore, “conditions placed upon a variance * * * are placed upon
    the use of the premises and run with the land”; thus, “where there are conditions or restrictions
    6
    We are hard-pressed to find in the record of the 1998 proceedings before the zoning board any
    evidence that the applicants would be deprived of all beneficial use of the property if the
    variance was not granted. The issue was not raised at the hearings, nor was the grant of a
    variance ever appealed. Thus, the issue is not before us.
    - 13 -
    on the use of land, they must appear as of record and be clearly stated in the documents or
    instruments evidencing the title thereto.” 
    Id. Here, in
    determining the scope of the use variance, the zoning officer reviewed the 1998
    variance, application, hearing transcripts, and site plan. Based on these documents, the zoning
    officer determined that the scope was “abundantly clear”: Pond View would contain the area of
    open storage, the facility would be primarily for the recycling of natural and processed wood
    materials into mulch products, the amount of materials “coming in” and “going out” would be
    limited to 150 tons, the hours of operation would be Monday through Friday, 7 a.m. to 5 p.m.
    and Saturday 7 a.m. to noon, an earthen berm would be maintained with natural vegetation atop,
    and one machine would be on site. Additionally, in upholding the zoning officer’s notice of
    violation, the zoning board found that the 1998 use variance was granted “primarily [for] the
    recycling of natural and processed wood into mulch products” and that “the permitted use
    allow[ed] for one grinding machine.” In affirming the violation, the zoning board found that
    Pond View was exceeding the scope of the use variance by recycling more than the permitted
    primary use of recycling “natural and processed wood into mulch products,” accepting products
    other than wood, processing materials other than what was granted in the variance, surpassing
    the approved open storage area, and adding additional equipment to the site. The zoning board
    also cited Pond View for violating the conditions imposed in the variance by expanding beyond
    the 150-ton limit approved in the 1998 use variance.
    On appeal in the Superior Court, the trial justice reversed the zoning board, holding that
    the zoning board erred as a matter of law by finding violations premised on conditions outside
    those stated in the 1998 use variance. Specifically, the trial justice determined that the 1998 use
    variance had not “impos[ed] site plan restrictions[,] open storage restrictions[,] limits on daily
    - 14 -
    tonnage receipt or processing[,] limits on the types of materials that may be accepted or
    processed[,] limits on the [f]acility’s hours of operation[,] a requirement for an earthen berm with
    trees atop[,] or a limit to one machine on the [p]roperty.” The trial justice noted that “conditions
    must be clearly expressed to be effective,” and held that the zoning board “erred in upholding the
    [notice of violation] and in finding violations with respect to the scope of the use, materials, and
    the [s]ite [p]lan” because the 1998 use variance “contain[ed] no such restrictions.”
    The question before us is whether the scope of a use variance must be explicitly
    described in the decision granting the variance or whether it may be construed by referring to the
    entire public record, including the application, exhibits, and hearing transcripts. If the former,
    the question is one of law to be determined by the court; if the latter, it is a question of fact to be
    determined by the zoning board subject to judicial review pursuant to § 45-24-69. We begin our
    inquiry by reviewing relevant statutory provisions. Sections 45-24-41(c) 7 and (d) 8 require that
    7
    Section 45-24-41(c) states:
    “In granting a variance, the zoning board of review requires
    that evidence to the satisfaction of the following standards is
    entered into the record of the proceedings:
    “(1) That the hardship from which the applicant seeks relief is
    due to the unique characteristics of the subject land or structure
    and not to the general characteristics of the surrounding area; and
    is not due to a physical or economic disability of the applicant,
    excepting those physical disabilities addressed in § 45-24-30(16);
    “(2) That the 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) That 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 upon
    which the ordinance is based; and
    “(4) That the relief to be granted is the least relief necessary.”
    8
    Section 45-24-41(d) states, in relevant part:
    “The zoning board of review shall, in addition to the above
    standards, require that evidence is entered into the record of the
    proceedings showing that: (1) in granting a use variance the subject
    - 15 -
    the record of the proceedings include evidence pertaining to the hardship from which the
    applicant seeks relief, including that the relief is the least relief necessary, and also that the
    property cannot yield any beneficial use if relief is not granted. Section 45-24-61 9 provides that
    the written minutes, records of the examination, findings of fact, and other official actions of the
    zoning board be recorded and filed in the office of the zoning board and that the decision
    granting a variance be recorded in the land evidence records.
    Our case law is not especially abundant on the subject of whether the public record may
    be considered in determining the scope of a use variance. In an action to enjoin an alleged
    violation of a zoning ordinance, we looked to the evidence in the record, including the testimony
    of various witnesses in considering whether certain activities exceeded a previously granted use
    variance. 
    Frost, 111 R.I. at 218
    , 
    221, 301 A.2d at 572-73
    , 574. We reiterated, however, the
    principle enunciated in Strauss v. Zoning Board of Review of Warwick, 
    72 R.I. 107
    , 
    48 A.2d 349
    land or structure cannot yield any beneficial use if it is required to
    conform to the provisions of the zoning ordinance.
    Nonconforming use of neighboring land or structures in the same
    district and permitted use of lands or structures in an adjacent
    district shall not be considered in granting a use variance * * *.”
    9
    Section 45-24-61 states, in pertinent part:
    “(a) Following a public hearing, the zoning board of review
    shall render a decision * * * [and] shall include in its decision all
    findings of fact and conditions, showing the vote of each
    participating member, and the absence of a member or his or her
    failure to vote. Decisions shall be recorded and filed in the office
    of the city or town clerk * * * and is a public record. The zoning
    board of review shall keep written minutes of its proceedings,
    showing the vote of each member upon each question, or, if absent
    or failing to vote, indicating that fact, and shall keep records of its
    examinations, findings of fact, and other official actions, all of
    which shall be recorded and filed in the office of the zoning board
    of review in an expeditious manner upon completion of the
    proceeding.
    “(b) * * * Any decision evidencing the granting of a variance,
    modification, or special use shall also be recorded in the land
    evidence records of the city or town.”
    - 16 -
    (1946), that conditions placed upon a variance are placed upon the use of the premises and run
    with the land and are “effective only when specifically and clearly stated in the record.” 
    Frost, 111 R.I. at 221
    , 301 A.2d at 574. 10
    We find persuasive, however, cases from other jurisdictions that have considered the
    issue.    “Under New Hampshire law, ‘[t]he scope of a variance is dependent upon the
    representations of the applicant and the intent of the language in the variance at the time it is
    issued.’” 1808 Corp. v. Town of New Ipswich, 
    20 A.3d 984
    , 986 (N.H. 2011) (quoting North
    Country Environmental Services, Inc. v. Town of Bethlehem, 
    772 A.2d 330
    , 336 (N.H. 2001)).
    In an action where a defendant had been granted a variance to “‘establish a private [airplane]
    landing area’ in front of his home,” the town sought “by bill in equity to restrain [the] defendant
    from * * * an extension * * * of the use permitted by the variance.” Town of Rye v. Ciborowski,
    
    276 A.2d 482
    , 484 (N.H. 1971). In upholding the findings of a judicial referee that the defendant
    had exceeded the scope of the use granted, the court reviewed the variance application and the
    defendant’s testimony. 
    Id. at 486.
    Similarly, the Nevada Supreme Court has pronounced: “Because a variance affords relief
    from the literal enforcement of a zoning ordinance, it will be strictly construed to limit relief to
    the minimum variance which is sufficient to relieve the hardship.” Clark County Board of
    Commissioners v. Taggart Construction Co., 
    615 P.2d 965
    , 967 (Nev. 1980). The Nevada
    Supreme Court stated that “[i]n order to determine the scope of the variance, we must consider
    both the representations of the applicant and the intent of the language in the variance at the time
    that it was issued.” 
    Id. at 968.
    10
    We note that Strauss v. Zoning Board of Review of Warwick, 
    72 R.I. 107
    , 
    48 A.2d 349
    (1946), was the direct review of the grant of a variance, whereas Town of Warren v. Frost, 
    111 R.I. 217
    , 
    301 A.2d 572
    (1973), like this case, dealt with the enforcement of a variance.
    - 17 -
    The Connecticut Supreme Court, in a case in which the issue on appeal was “whether the
    conditions attached to the granting of a variance must be explicitly described in the certificate of
    variance,” held that “such conditions should be construed not only by examining the language
    contained in the certificate of variance, but [also] by considering the entire public record,
    including the variance application, the accompanying plans and exhibits, the minutes or hearing
    transcript, and the record of decision.” Anatra v. Zoning Board of Appeals of Madison, 
    59 A.3d 772
    , 774, 782-83 (Conn. 2013). The court provided that
    “[a]mong the reasons for reviewing the public record is that a
    variance application and accompanying materials, the testimony at
    the hearing, and the comments of board members as revealed in the
    minutes and hearing transcripts provide more comprehensive
    information than the language in a certificate of variance regarding
    the changes being sought and the nature of the limitations and
    conditions imposed by a board.” 
    Id. at 781.
    In our opinion, such an approach makes eminent good sense. A use variance is inimical
    to a comprehensive zoning regime; it allows a real estate owner to use his property in a manner
    otherwise prohibited by the zoning regulations. It is “a constitutional safety valve to prevent
    confiscation of one’s property.” Northeastern 
    Corp., 534 A.2d at 605
    . Accordingly, a use
    variance is to be strictly construed to limit the relief granted to the minimum degree necessary to
    relieve the hardship. See § 45-24-41(c)(4); 83 Am. Jur. 2d Zoning and Planning § 812. In no
    case should the scope of a use variance ever exceed the relief originally requested by the
    property owner in his or her original application and testimony before the zoning board. See 83
    Am. Jur. 2d Zoning and Planning § 812 (explaining that a variance should be strictly construed
    to limit relief to a minimum). To hold otherwise would allow a prohibited use to expand through
    an inartfully worded motion by a member of a zoning board or simply through the passage of
    time. We conclude, therefore, that the determination of the scope of a use variance is a question
    - 18 -
    of fact entrusted in the first instance to the local zoning officer and then to the zoning board,
    subject to appellate review by the Superior Court.
    In this case, the original application for a use variance clearly indicated that the proposed
    use was “primarily the recycling of natural and processed wood materials into mulch products”
    and “incidental metal separation as an accessory use.” The applicants also requested special
    conditions that would allow them “to commence outside processing and recycling of wood,
    including processing of [C&D] material, immediately and do so for eighteen months after which
    [Pond View] would have built an enclosure * * * for the C&D and wood processing or recycling
    machine.”
    Here, a review of the record reveals what appears to be a good-faith effort (we have no
    reason to assume otherwise) by the applicants in 1998 to address the concerns of the members of
    the zoning board as well as of several abutters. The applicants’ counsel, after reciting a litany of
    material that would not be processed at the facility, clearly emphasized that “what we’re
    processing is wood. The product from this processing will render wood chips. * * * This is an
    environmentally-friendly operation * * *.” Foley, testifying on behalf of Pond View, indicated
    that it had a permit from DEM to process and grind 150 tons of wood products every day.
    Foley explained how the facility would operate. A machine would grind the wood, then a
    magnet would extract metal objects such as nails and door handles. These materials would be
    placed in a barrel and transported to a metal recycling facility. The C&D product would be
    received by truck, weighed to ensure that it did not exceed 150 tons per day, spot-checked, and
    dumped onto a pad. If there is a problem, Foley assured the zoning board, “we’ll put it right
    back on the truck. * * * There’s nothing that’s going to sneak by.”
    - 19 -
    In response to questioning from members of the zoning board, Foley indicated that
    “[t]here’s going to be an earth berm put in place around the machine to be landscaped, and it
    would have evergreens on the top * * *.” The hours of operation would be 7 a.m. to 5 p.m.
    Monday through Friday, and 7 a.m. to noon on Saturday. He further stated that unprocessed
    material “will always be stored in the containers inside the building.” The processed materials,
    the clean wood chips, would be stored on the concrete pad up to a maximum of 100 tons. At one
    point, the following exchange occurred between Foley and a member of the zoning board:
    “[zoning board member]: Now, you’re only going to grind wood,
    correct?
    “Foley: That’s correct. It’s not any type of grinding concrete block
    or anything.
    “[zoning board member]: You would agree that this variance
    would be limited to wood only, correct?
    “Foley: That’s right.”
    At the conclusion of the hearing, Foley specifically agreed “to a 150-ton limit of the operation
    per day,” that the “grinding hours” would be 8 a.m. to 4 p.m. Monday through Friday and 8 a.m.
    to noon on Saturday, that a berm would be installed “around the machine,” that the facility would
    recycle wood only, and that there would be no outside storage other than what was allowed
    under the existing zoning ordinance.
    A zoning board member then proposed the following findings of fact: “that the use is
    [compatible] with the neighboring land use[,] that the use does not create a nuisance in the
    neighborhood[,] that the use does not hinder the future development of the city[,] that the use
    conforms with all applicable sections to the use requested[,] [and] that the applicant would be
    deprived of any beneficial use of the property if the applicant is required to conform to the
    - 20 -
    provisions of the [z]oning [o]rdinance.” A motion was made to grant “this use variance,” which
    passed unanimously.
    We are well satisfied that, in considering the notice of violation, the zoning officer and
    zoning board properly reviewed the record to determine the scope of the use permitted by the
    1998 use variance and that the findings of fact by the zoning board were not “[c]learly erroneous
    in view of the reliable, probative, and substantial evidence of the whole record.” Section 45-24-
    69(d)(5). We hold, therefore, that the trial justice erred by reversing the decision of the zoning
    board.
    IV
    Conclusion
    For the reasons set forth in this opinion, we quash the judgment of the Superior Court and
    remand the case to the Superior Court with instructions to enter judgment for the city. The
    record of the case shall be returned to the Superior Court.
    - 21 -
    RHODE ISLAND SUPREME COURT CLERK’S
    OFFICE
    Clerk’s Office Order/Opinion Cover Sheet
    TITLE OF CASE:        Kenlin Properties, LLC et al. v. City of East Providence et al.
    CASE NO:              No. 2013-321-M.P.
    (PC 11-7249)
    COURT:                Supreme Court
    DATE OPINION FILED: June 23, 2016
    JUSTICES:             Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
    WRITTEN BY:           Chief Justice Paul A. Suttell
    SOURCE OF APPEAL:     Providence County Superior Court
    JUDGE FROM LOWER COURT:
    Associate Justice Sarah Taft-Carter
    ATTORNEYS ON APPEAL:
    For Petitioners: Lauren E. Jones, Esq.
    Robert S. Thurston, Esq.
    Timothy J. Chapman, Esq.
    For Respondents: Thomas M. Dickinson, Esq.
    James P. Howe, Esq.