DocketNumber: C.A. No. PC 01-3726
Judges: SAVAGE, J.
Filed Date: 11/2/2007
Status: Precedential
Modified Date: 7/6/2016
The subdivision approval process consists of four stages: (1) an applicant's submission of a pre-application sketch plan to the Planning Board; (2) an applicant's submission of a preliminary plat to the Planning Board; (3) an applicant's submission of a final plat to the Planning Board; and (4) a public hearing. The Planning Board's approval of a subdivision of property is not final until it conducts a public hearing. The applicant can appeal to the Zoning Board of Review if the Planning Board denies its application. At the pre-application sketch plan phase, the applicant must submit an "informal drawing which shows the basic design and facilities of a proposed subdivision." Town of Cumberland Subdivision Regulations, Section I, Article B, Item 5. The purpose of requiring an applicant to submit a pre-application sketch plan is to prevent a landowner from incurring the cost and expense of planning and development if the subdivision concept, on its face, is unacceptable to the Planning Board.
The property at issue, which has only 94.93 feet of public road frontage, is a preexisting nonconforming lot of record with less than the required 100 feet of frontage. The Gaffneys proposed to subdivide the property into three lots: a 1.04 acre lot containing the existing dwelling and two new lots consisting of 1.04 acres and 1.03 acres, *Page 3 respectively. The proposed new lots do not have any frontage on a public street and would be accessed by a 40 foot private right-of-way over the first lot.
On October 15, 1990, the Gaffneys began the process of obtaining subdivision approval by submitting their pre-application sketch plan to the Planning Board. The minutes of the meeting reflect a discussion as to whether the Planning Board would accept the proposed right-of-way. According to the minutes, one board member stated that it would not be a problem. The Planning Board voted to grant pre-application approval, subject to the availability of water to the parcel and also the requirement that the proposed right-of-way be conveyed specifically in the deeds.
On August 18, 1992, the Gaffneys submitted a preliminary plat to the Planning Board for conditional approval. Again, the plan reflected a private 40 foot right-of-way to provide access to the two proposed new parcels. The Planning Board voted to approve the preliminary plat with the following conditions: (1) the final plat must show the proposed relocation of the garage because the right-of-way runs through the present location of the garage; (2) the final plat must show a cul-de-sac at the end of the right-of-way so that emergency vehicles can turn around; and (3) the Gaffneys must list zoning on the drawing, add a general note with regard to topography, and provide proof of individual sewer disposal system (ISDS) approval.
The Gaffneys did not submit a final plat to the Planning Board for approval until April 19, 1994. The Planning Board questioned why the Gaffneys waited so long to return for continued approval. Thomas Letourneau, an abutting property owner, advised the Planning Board of some serious surface water problems on the Gaffneys' property. The Planning Board voted to deny the Gaffneys' petition because a significant number of *Page 4 requirements for the final plat — including engineering input, information on water, and a new abutter's list — were not met, and the Gaffneys had not returned to the Planning Board until well after the six-month deadline.
On July 19, 1994, the Gaffneys resubmitted their preliminary plat to the Planning Board for approval. The Planning Board voted to grant preliminary approval and allow the Gaffneys to submit their final plat on September 20, 1994. During that September meeting, the Planning Board reviewed correspondence from Mr. Letourneau, which raised a number of concerns regarding surface water, and voted to continue the hearing on the final plat and require the Gaffneys to bring the plans up to subdivision standards.
The Planning Board held the continued hearing on the Gaffneys' request for final plat approval on October 18, 1994. The minutes reflect extensive discussion regarding drainage and the fact that the lots did not have 911 house numbers. Regarding the lots' lack of frontage, Planning Board Member Joseph Simanski stated that the Planning Board can waive the frontage requirements, but that it would set a bad precedent to permit a number of lots with private drives. The Planning Board then denied the motion to approve the Gaffneys' final plat.1 The Planning Board's stated reasons for denying approval were as follows: "(1) Section 5, Article E, Item 1, ``Footage'; (2) Section 5, Article C, Item 4, ``No Private Streets'; (3) 911 cannot assign numbers properly based on the fact that the proposed lots are not on public or proposed streets; [and] (4) the Board needs a signed signature from the Town Engineer stating he approved of the drainage *Page 5 systems and the galley systems[, which would control water flow on the property]." Meeting Minutes, Cumberland Planning Board, October 18, 1994.
The Planning Board held a further public hearing on the Gaffneys' request for approval of the final plat on February 21, 1995, at which John Andrews, their professional engineer, asked it to reconsider its decision to deny approval of the final plat. Mr. Andrews submitted a letter stating that the Highway and Sewer Superintendent had no problem with the proposed surface water retention design. Mr. Andrews also stated that 911 coordinators indicated to him that there is an acceptable way to assign numbers on a private drive. The Planning Board then voted to reconsider the Gaffneys' application for final plat approval. Mr. Letoureau again spoke regarding the surface water problems. He stated that he previously wanted to subdivide his land, but that the Planning Board denied his application for the same reasons. The Planning Board members generally stated that they had no problem with frontage. The Planning Board then voted to continue the hearing on the final plat for further review of the 911 issues and for additional engineering information.
At the continued final plat hearing on March 21, 1995, the Gaffneys submitted a letter from the 911 office stating that it did not have a problem with the house numbering on the private drive. Mr. Letourneau spoke about the proposed septic system being too close to a well. The Planning Board denied the motion to approve the final plat and scheduled the matter for a public hearing.
The Planning Board held a public hearing on April 18, 1995, at which time Mr. Letoureau submitted pictures showing the surface water on his property. Mr. Gaffney stated that the drainage plan would take care of the run-off problems. The Planning *Page 6 Board voted to deny the Gaffneys' application for the following reasons: (1) lack of street frontage; (2) private road prohibited; and (3) the proposed subdivision is contrary to the Subdivision Regulations.2 On June 14, 1995, the Zoning Board upheld the Planning Board's decision for the same reasons.
The Gaffneys did not appeal the Zoning Board decision to the Superior Court, but instead filed a charge of discrimination with the Rhode Island Commission for Human Rights on April 18, 1995.3 In their charge, the Gaffneys named as respondents: the Town of Cumberland; the Cumberland Zoning Board of Review; George Cross, Finance Director; and N. David Bouley, Town Planner. The Gaffneys alleged that the respondents discriminated against them by interfering with their right to own, enjoy, and use their property free from discrimination due to race and color in violation of the Rhode Island Fair Housing Practices Act, R.I.G.L. 1956 §
In its decision of June 5, 2001, the Commission made findings of fact. It found that while the pre-application sketch plan must contain the location of private wells within 200 feet of the proposed subdivision, the Subdivision Regulations do not contain any explicit standard for the distance that a septic field must be from a private well. The *Page 7 Rhode Island Department of Environmental Management Regulations provide that no person shall locate any part of an ISDS within 100 feet of a private well and that the minimum distance from a private well to a seepage pit is 200 feet. The final plat depicts the locations of the proposed septic system on the three lots, all of which are more than 100 feet from the abutters' wells, and the seepage pits are more than 200 feet from the abutters' wells. Neither the Zoning Board nor the Planning Board gave the distance of proposed septic systems from private wells as a reason for denial.
The Commission further found that, while the Subdivision Regulations require that all lots front an existing or proposed street, the Planning Board has the authority to waive this requirement. At the time of the denial of the Gaffneys' final plat, several houses already had been built in the late 1980's on Diamond Hill Road that did not front an existing street. Mr. Simanski testified that the Planning Board did not approve of private rights-of-way and that there were problems with this subdivision from the beginning. However, Mr. Simanski, at the first Planning Board meeting, moved to grant pre-application approval subject to the rights-of-way being conveyed in deeds. At another meeting, he stated that he wanted a cul-de-sac at the end of the right-of-way for emergency vehicles and approved the preliminary plat. He also moved to continue the hearing on the final plat, and the minutes indicate that the Board members had no problem with the proposed driveways and generally stated that they had no problem with frontage.
The Commission concluded that the Gaffneys did not prove by a preponderance of the evidence that N. David Bouley discriminated against them on the basis of race, and it dismissed the complaint against him with prejudice. However, the Commission held *Page 8
that the Town of Cumberland; the Cumberland Zoning Board; and George Cross, Finance Director,4 discriminated against the Gaffneys in violation of §
*Page 9(g) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error or law;
(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
R.I.G.L. 1956 §
The Rhode Island Supreme Court has held that the Rhode Island Commission for Human Rights is not an agency that has the authority to review decisions of an administrative agency, although it has "coordinate powers to adjudicate" specific statutory violations concerning discrimination. School Comm. v. State Comm'n for HumanRights,
It is well-settled that a party aggrieved by agency action must first exhaust his or her administrative remedies before bringing a claim before this Court. See Burns v. Sundlun,
In response, appellees contend that their allegations of racial discrimination against appellants fall squarely within the purview of the FHPA, appellants are precluded from asserting that such allegations do not fall under the FHPA because they failed to raise that argument at the Commission hearing, and appellants need not be "owners" or specifically violate §
Under Rhode Island law, the Superior Court may review an administrative agency's determination of its own jurisdiction. See E.Grossman Sons, Inc. v. Rocha,
In addressing appellants' argument that the FHPA does not give the Commission jurisdiction to hear the Gaffneys' allegations of racial discrimination, this Court must apply basic tenets of statutory construction. If the statutory language is "clear on its face, then the plain meaning of the statute must be given effect." Gilbane Co. v.Poulas, *Page 14
Furthermore, while interpreting one provision of this state's FHPA, the Rhode Island Supreme Court recognized that a literal reading of the statute cannot be ignored or disregarded simply because §
The statutory scheme in the case at bar involves the Rhode Island Fair Housing Practices Act, which is designed "to safeguard the right of all individuals to equal opportunity in obtaining housing accommodations free of discrimination." R.I.G.L. 1956 *Page 15
§
[i]t shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this chapter. No owner under this chapter or any agent of these shall discriminate in any manner against any individual because he or she has opposed any practice forbidden by this chapter, or because he or she has made a charge, testified, or assisted in any manner in any investigation, proceeding, or hearing under this chapter.
R.I.G.L. 1956 §
It is no surprise that a portion of this statute mirrors the text of the federal Fair Housing Act (FHA), which states in pertinent part, as follows:
It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by [sections relating to discrimination in the sale or rental of housing, residential real estate-related transactions, or the provision of brokerage services].
Under federal law, § 3617 of the FHA can be violated even absent a violation of another provision of the federal FHA.11 See Stackhousev. DeSitter,
Using this federal law instructively, it is appropriate to interpret §
Moreover, properly according significance to each sentence of §
Because a "housing accommodation" is defined as "any building or structure or portion of any building or structure, or any parcel of land, developed or undeveloped, which is occupied or is intended, designed, or arranged to be occupied, or to be developed for occupancy, as the home or residence of one or more persons," it clearly falls within the purview of the FHPA. See id. §
Appellants counter, however, that the Commission's decision is affected by error of law, asserting that the Planning Board has no power to waive such requirements. Rather, appellants argue that power to waive the frontage and public road requirements is vested solely in the Cumberland Zoning Board of Review.
The Town's Zoning Ordinance sets forth dimensional regulations consisting of, in part, a 100 foot minimum lot frontage15 requirement for residential lots with public sewer and water facilities. The Town's Subdivision Regulations similarly provide that "[a]ll lots shall front an existing or proposed public street . . . [and] have a minimum of one *Page 20 hundred (100) feet of frontage." Subdivision Regulations, Section V, Article E, Item 1. Unfortunately, the subdivision proposed by the Gaffneys did not meet the frontage requirements set forth in the Zoning Ordinance or Subdivision Regulations. In fact, neither of the new lots proposed by the Gaffneys had any frontage at all. Additionally, the proposed right-of-way for the new lots was not intended for public use.
Although the proposed plans do not conform to the Subdivision Regulations, the regulations provide for flexibility under certain circumstances. See Subdivision Regulations, Section V, Article G. Specifically, the Town's Subdivision Regulations provide for deviation from the applicable standards in the following circumstances:
[w]here strict adherence to these design standards is not feasible due to special conditions of the land or other features of the subdivision, or where in the Board's opinion such adherence would not allow for [the] best design, the Planning Board may vote to modify the requirements in Section V [which includes private streets and frontage], provided that such modification is not contrary to the general intent of these Regulations.
Subdivision Regulations, Section V, Article G. The ability of the Planning Board to vote to modify requirements, as permitted by Article G, consequently includes factors related to design, such as private street and frontage restrictions, which are defined in Section V.See id.; see also Subdivision Regulations, Section V, Article E. Although certain design requirements may be modified, however, it is important to recognize that Article G of Section V simultaneously places limits on the degree of modification. "Such modification shall not include the reduction of lot standards below the requirements of the Zoning Ordinance of the Town of Cumberland." Subdivision Regulations, Section V, Article G. This clause effectively limits the Planning Board's ability to modify lot requirements in circumstances where modification would cause the property to fall below the 100 foot minimum frontage and public street requirements of the Town's Zoning Ordinance.Id.; *Page 21 see also R.I.G.L. 1956 §
Thus, because the Gaffneys' plan, if approved by the Planning Board with modifications, would produce lots violating the Town's Zoning Ordinance, the Planning Board did not possess proper authority to allow the Gaffneys to deviate from the Subdivision Regulations. The Commission erroneously concluded otherwise.16 As a result, the Commission's decision is affected by error of law. This case must be remanded to the Commission for proper consideration of this factor in evaluating whether appellants discriminated against the Gaffneys.
In connection with this remand, the Commission should consider the distinct roles of the Planning Board and Zoning Board in the subdivision approval process. In circumstances where a proposed subdivision violates both subdivision requirements and a municipality's zoning ordinance, R.I.G.L. 1956 §
*Page 22[w]here an applicant requires both a variance from the local zoning ordinance and planning board approval, the applicant shall first obtain an advisory recommendation from the planning board, as well as conditional planning board approval for the first approval stage for the proposed project, which may be simultaneous, then obtain conditional zoning board relief, and then return to the planning board for subsequent required approval(s).
R.I.G.L. 1956 §
Although the Gaffneys' efforts to follow the statutory procedure for obtaining both dimensional relief and subdivision approval were deficient, this Court recognizes that the record does not indicate that the Gaffneys were either aware of this procedure or apprised of its existence by appellants. Certain expectations, as follow, arise from contacts with the Planning Board:19 *Page 23
[p]re-application meetings allow the applicant to meet with appropriate officials, boards and/or commissions, planning staff, and, where appropriate, state agencies, for advice as to the required steps in the approvals process, the pertinent local plans, ordinances, regulations, rules and procedures and standards which may bear upon the proposed development project.
R.I.G.L. 1956 §
In addition, the Commission must properly analyze the liability of each appellant separately with respect to the Gaffneys' discrimination claim. The Planning Board and the Zoning Board are separate bodies having distinct responsibilities. See id. at §
While acting as the Subdivision Board of Review, the Zoning Board retains the following powers:
(1) To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by the Planning Board in the enforcement of the Regulations.
(2) To hear and decide special exceptions to the terms of the Regulations upon which such Board of Review is authorized to pass.
(3) To authorize, upon appeal in specific cases, such variance in the application of the terms of the Regulations as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of such regulations will result in unnecessary hardship and so that the spirit of the Regulations shall be observed and substantial justice done.
Subdivision Regulations, Section II, Article B. In exercising the aforementioned powers, the Zoning Board "may, in conformity with . . . the Regulations and in the proper exercise of its discretion, reverse or affirm wholly or partly or may modify the decision or determination as ought to be made and to that end shall have all the powers of the Planning Board from whom the appeal was taken." Subdivision Regulations, Section II, Article C. While rendering its decision, a zoning board cannot substitute its own judgment for that of the planning board; rather, it must consider the issue on the board's findings and record. R.I.G.L. 1956 §
The Commission must analyze the liability of the appellants in relation to the Gaffneys' discrimination claim in light of the duties outlined above.21 It may not simply impute liability to the Zoning Board based on the Planning Board's activities, as the expectations for the Zoning Board's execution of its responsibilities differ substantially in character from the Planning Board's. Thus, upon remand, the Commission must consider the Gaffneys' discrimination claim in relation to the responsibilities vested in appellants by the applicable laws and their activities in tending to those responsibilities. It must determine whether, but for discriminatory intent, the Zoning Board would have reversed the Planning Board decision, granted the Gaffneys a variance (that they did not request), and allowed them to proceed with their requested subdivision.
This Court recognizes that the Commission, in the event that it makes a finding of discrimination, is permitted to order appellants "to cease and desist from the unlawful housing practices, and to take such further affirmative or other action as will effectuate the purpose of this chapter." R.I.G.L. 1956 §
In ordering appellants to approve the Gaffneys' final subdivision plan subject to the conditions discussed at Planning Board meetings, the Commission erroneously suggests that the appellants had the authority to complete this action. The Planning Board, a party not named in the Commission's complaint, had the authority to approve a subdivision proposal. See Subdivision Regulations, Section III (outlining responsibilities of Cumberland Planning Board with respect to subdivision applications); see also Noonan v. Zoning Bd. of Review,
If, however, the Zoning Board approved the Gaffneys' subdivision without first authorizing conditional approval of a variance, its actions may have been contrary to the applicable law, which sets forth the procedure to be followed by an applicant seeking both subdivision approval and a variance.22 Moreover, in approving the subdivision plan, the Zoning Board might have violated the Subdivision Regulations regarding frontage and public streets, which is not permitted by the rules governing its operations. See Subdivision Regulations, Section II, Article C (requiring Zoning Board to act "in conformity with the Subdivision Regulations"). Finally, the Gaffneys did not formally request a variance. See Subdivision Regulations, Section II, Article D, Item 2 (stating "[a]pplication for special exceptions or variances shall be filed with the Board of Review in the manner prescribed by the rules of the Board of Review"). As a result, the Zoning Board may or may not have been acting within its "discretion" in exercising its appellate *Page 28 powers to grant a variance which was not properly before it.23See Subdivision Regulations, Section II, Article C (permitting alteration of Planning Board's decision "in conformity with . . . the Regulations and in the proper exercise of its discretion).
In creating the first of the two alternative remedies — that of requiring appellants to grant subdivision approval — the Commission presupposed that this remedy was legally proper in light of the Zoning Board's authority. As the Commission made an error of law, as found previously by this Court, this remedy was also affected by legal error. Moreover, it is unclear under what authority the Commission could award this remedy, particularly where the Gaffneys failed to appeal the final zoning decision. This aspect of the remedy, therefore, must be addressed further by the Commission on remand.
The second of the two alternative remedies also may have been affected by the Commission's error of law. This aspect of the remedy must be addressed on remand as well. It is true, however, that upon finding that unlawful housing practices have occurred, the Commission may "order . . . damages . . . including reasonable attorney's fees incurred at any time in connection with the commission of the unlawful act. . . ." R.I.G.L. 1956 §
As a result, the identity of such official is interchangeable, as the successor individual will be responsible for executing the same duties as his predecessor upon judgment against the municipality. See Richmondv. Kettelle,
(1) in the exercise or enjoyment of any right protected by [those sections of the Act relating to discrimination in the sale or rental of housing, residential real estate-related transactions, or the provision of brokerage services]; (2) on account of the person's having exercised or enjoyed such a right; and (3) on account of his having aided or encouraged any other person in the exercise or enjoyment of such a right.
Stackhouse v. DeSitter,
Appellants ask this Court to interpret §
It is this portion of the FHPA that appellants contend they could not have violated because they are not owners, or persons having "the right to sell, rent, lease, or manage a housing accommodation." Id. at §
[w]here an applicant requires both a variance from the local zoning ordinance and planning board approval, the applicant shall first obtain an advisory recommendation from the planning board, as well as conditional planning board approval for the first approval stage for the proposed project, which may be simultaneous, then obtain conditional zoning board relief, and then return to the planning board for subsequent required approval(s).
R.I.G.L. 1956 §
In light of the convoluted procedural history of this case and the questions remaining, the parties may wish to agree that the applicant may pursue the subdivision approval process anew in tandem with a requested variance. While this Court cannot compel this course of action, it would be a way to avoid further protracted litigation and expense to all parties and would address the ultimate issue. Arguably, the extensive passage of time, the course of the intervening discrimination litigation and the manner in which the case was handled before the Planning Board and Zoning Board would make any application filed today (which presumably would include a request for conditional Planning Board relief, conditional Zoning Board relief, and a requested variance) reflective of a substantial and material change of circumstances intervening between the denial of the applicants' subdivision application in 1995 and today that would make a renewed application proper. See May-Day Realty Corp. v. Board of Appeals ofPawtucket,
School Committee of South Kingstown v. State Commission for ... , 1995 R.I. LEXIS 174 ( 1995 )
Lemoine v. DEPARTMENT OF MENTAL HEALTH, R. & HOSP. , 320 A.2d 611 ( 1974 )
Champlin's Realty Associates, L.P. v. Tillson , 2003 R.I. LEXIS 165 ( 2003 )
E. Grossman & Sons, Inc. v. Rocha , 118 R.I. 276 ( 1977 )
State v. LaPlume , 118 R.I. 670 ( 1977 )
Town of Richmond v. Wawaloam Reservation, Inc. , 2004 R.I. LEXIS 98 ( 2004 )
Rhode Island Employment Security Alliance, Local 401 v. ... , 2002 R.I. LEXIS 11 ( 2002 )
Newport Shipyard, Inc. v. Rhode Island Commission for Human ... , 1984 R.I. LEXIS 632 ( 1984 )
United States v. City of Hayward, United States of America ... , 36 F.3d 832 ( 1994 )
Mine Safety Appliances Co. v. Berry , 1993 R.I. LEXIS 56 ( 1993 )
Narragansett Wire Co. v. Norberg , 118 R.I. 596 ( 1977 )
May-Day Realty Corp. v. PAWT. APPEALS BD. , 107 R.I. 235 ( 1970 )
Richmond v. Kettelle , 42 R.I. 192 ( 1919 )
Laufman v. Oakley Bldg. & Loan Co. , 408 F. Supp. 489 ( 1976 )
Retirement Board of Employees' Retirement System v. DiPrete , 2004 R.I. LEXIS 61 ( 2004 )
Center for Behavioral Health, Rhode Island, Inc. v. Barros , 1998 R.I. LEXIS 171 ( 1998 )
Gilbane Co. v. Poulas , 1990 R.I. LEXIS 119 ( 1990 )
Bunch v. Board of Review, Rhode Island Department of ... , 1997 R.I. LEXIS 68 ( 1997 )
Helen Smith and Herman Smith v. Tianna Stechel , 510 F.2d 1162 ( 1975 )
In Re Advisory Opinion to the Governor , 1999 R.I. LEXIS 152 ( 1999 )