Kenlin Properties, LLC v. City of East Providence

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.
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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
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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.
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“[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:
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“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
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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.
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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.
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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
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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.
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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.
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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
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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
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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.
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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
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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
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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.”
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(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.
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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
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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.”
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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
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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.
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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.