DocketNumber: KC-2007-1444
Judges: CLIFTON, J.
Filed Date: 5/27/2010
Status: Precedential
Modified Date: 7/6/2016
The right-of-way was created in 1956 and recorded in Book 35 at Page 153 of the East Greenwich Land Evidence Records. The grant provides for a 15' right-of-way for passage by *Page 2 foot and vehicles. In 2000, the State of Rhode Island doubled the size of the right-of-way through an easement, recorded in Book 326 at Page 66. The easement permits the "installation . . . and operation of a roadway . . . for the purpose of ingress and egress from property of grantee designated as Town of West Warwick, Tax Assessor's Plat 12, Lots 3, 4, 5 [Appellant's lot]."
The right-of-way affords Appellant access to both the East Greenwich and West Warwick lots, but may not provide a direct route to the West Warwick lot. It is alleged that Appellant must cross over approximately 250 feet of the East Greenwich lot to reach the West Warwick lot. This dispute concerns Appellant's alleged use of this portion of the East Greenwich lot in furtherance of the commercial enterprise taking place on the West Warwick lot and in violation of the East Greenwich lot's zoning.
On February 23, 2007, Appellant received a "Zoning Violation Notice" from Zoning Officer Wayne R. Pimental (Pimental). The notice informed Appellant that site inspections of the East Greenwich lot revealed two (2) violations of the East Greenwich Zoning Ordinances: (1) Appellant violated Art. III, § 2.8, which prohibits development that increases storm water runoff quantity or decreases runoff quality. Specifically, Pimental found that Appellant filled and graded the right-of-way in such a way as to cause silt and additional material to run off onto Division Road. Appellant was given thirty (30) days to submit a runoff-abatement plan to the Department of Public Works. (2) Appellant violated Art. III, § 3 Table #3.1, which classifies Appellant's East Greenwich lot as F-1, farmland/low-density residential. Pimental found that Appellant used the East Greenwich lot for commercial purposes but did not state the specific facts upon which he based this finding. Pimental recommended that Appellant seek either a zoning change or a use variance and ordered Appellant to cease the commercial activity.
Appellant filed an appeal of the Notice with the Zoning Board of Review. A hearing was *Page 3 held on August 28, 2007. Chairperson Joseph Russolino commenced the hearing by quoting the East Greenwich Zoning Ordinance that prescribes the Board's standard of review:
"All hearings on appeal to the Board that require the decision or determination made by an administrative officer, agency or the Historical District Commission shall be heard on the record and shall be subject to the notice and application procedures articulated elsewhere in this article. Appeals shall not be heard de novo. The Board shall not receive new information nor hear new testimony by the applicant or the appealed officer or agency. The Board may review the officer's or agency's file on the application and may review the minutes or notes of any official meeting(s) regarding the application. Board members may question the parties involved where clarification of any information is needed. Where new testimony is inadvertently received by the Board, which they feel sheds new light on the application, the Board shall remand the application to the appropriate officer, agency or commission. The Board shall take no further action until the officer, agency or commission has had an opportunity to review the new information and make a further determination." (R. 3-4) (citing East Greenwich, R.I. Code § 260-90 (emphasis added)).
Pursuant to Code § 260-90, the Board prohibited Appellant from testifying at the hearing. The Board consistently refused to hear from Appellant, although it questioned Appellant's attorney concerning Appellant's use of the East Greenwich and West Warwick lots.
When asked about the commercial-use violation, Appellant's attorney offered the testimony of Appellant in regards to the Board's numerous factual questions. When asked whether Appellant stopped traffic on Division Road while driving commercial vehicles across the East Greenwich lot, Appellant's attorney stated that he did not know since he had never seen Appellant drive commercial vehicles there. (R. 15.) Renu Englehart, a Board Member, replied, "I live on that road, and, in fact, what he does — those trucks actually stop traffic in both directions." (R. 15-16.) When asked again about stopping traffic, Appellant's attorney maintained that he did not know and suggested that the Board ask Appellant directly. Board member Robert Bolton then stated that Appellant's answer was not necessary because Bolton *Page 4 stated, "I can answer that question, because I have actually seen it happen myself. . . . it's a hazard that is created by these trucks . . . these large trucks, they try to make the turn . . . they back up and they keep trying to make it." (R. 16-17.)
A third factual question was asked of Appellant's attorney: The Board inquired into what times of day Appellant drives commercial vehicles over the right-of-way. (R. 17.) Appellant's attorney stated "I'd be happy to have [Appellant] answer the question, if you want." (R. 17.) Chairperson Russolino replied, "Okay. If you have someone here who could answer the question if I could speak to him for a moment." The Town Solicitor interrupted Russolino to remind him that no testimony was permitted, and that question went unanswered. (R. 17-18.)
The Board then asked Appellant's attorney the operative question: whether Appellant drove commercial vehicles over any portion of the East Greenwich lot after the state right-of-way ended. (R. 22.) Appellant's attorney stated that he did not believe so. (R. 23.) When pressed as to whether he was "testifying that at no time [the trucks] drive across a piece of East Greenwich property," Appellant's attorney stated "I'm not testifying." (R. 23). Appellant's attorney later stated that "I don't dispute there's a 250-square foot portion between the town boundaries and the end of the right-of-way with the state that crosses my client's property that's used as an access point to the property." (R. 24.)
When asked about the runoff violation, Appellant's attorney maintained that his client had not filled or graded the right-of-way and stated that the file contained no evidence of any increase in runoff by way of an engineering study or drainage calculation (R. 25-26.) The Solicitor then suggested that Pimental be called to testify. Pimental introduced himself and proceeded to testify to his rationale behind issuing the Notice if Violation regarding the runoff issue. *Page 5
Pimental admitted that his file lacks a "before" picture of the right-of-way. (R. 27, 29.) He maintained, however, that "we do know . . . there were modifications." (R. 27.) Pimental testified that he had objected to the request for an Alteration Permit to enlarge the right-of-way, but the Department of Transportation issued the permit anyway. (R. 27.) The Alteration Permit was apparently directed at clear-cutting along the right-of-way, not the alleged grading and/or filling. Like that of the commercial-use violation, the discussion of the runoff violation included the personal observations of Board members. Board member Bolton stated that "basically, one car could barely fit through . . . it looked nothing like this [Pimental's purported ``after' picture] at all." The Board then asked Appellant's attorney if the right-of-way was in fact modified. Appellant's attorney again noted the desirability of having Appellant answer the question of what occurred on Appellant's own land, but also maintained that Appellant had done no grading or filling as alleged by Pimental save for the authorized clear-cutting. (R. 30-31.)
The Board concluded the argument portion of the hearing and began its discussion. Appellant had not requested a variance, but alternate Board member Robert Durant commented at length on Appellant's failure to satisfy the statutory requirements for a variance. (R. 32-35.) Durant also detailed his own experience waiting for Appellant's commercial vehicles to enter and exit the right-of-way. (R. 34.) The Board unanimously agreed to deny the appeal. (R. 36.)
Appellant argues that the Board hearing violated its Due Process rights because Appellant was not allowed to present evidence, but three (3) members of the Board testified to what they saw happening on Appellant's property and the adjacent street. Appellant also argues that each of the Board's findings, regardless of the constitutional defect in procedure, must be overturned because: (1) the art. III, § 2.8 finding was clearly erroneous given the lack of evidence to support the allegation of grading/filling; and (2) the art. III, § 3 Table #3.1 finding was predicated upon *Page 6 an error of law because the zoning classification does not apply to the state-owned right-of-way.
"The court shall not substitute its judgment for that of the zoning board of review as to the weight of the evidence on questions of fact. The court may affirm the decision of the zoning board of review or remand the case for further proceedings, or may reverse or modify the decision if substantial rights of the appellant have been prejudiced because of findings, inferences, conclusions, or decisions which are:
(1) In violation of constitutional, statutory, or ordinance provisions;
(2) In excess of the authority granted to the zoning board of review by statute or ordinance;
(3) Made upon unlawful procedure;
(4) Affected by other error o[f] 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."
This Court, sitting as an appellate court with a limited scope of review, shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. Ctr. forBehav'l Health v. Barros,
The Court is not bound, however, by an administrative agency's determinations as to questions of law; the Court will review these questions de novo. Arnold v. R.I. Dep't ofLabor Training Bd. of Review,
Appellant argues that this denial of the opportunity to present evidence — an opportunity afforded its opponent the zoning official (Pimental) and multiple Board members whose new information aligned with the zoning official — amounted to a denial of Appellant's due process rights. Appellant also contends that the Town lacks statutory authority to limit the scope and extent of a board of review hearing. Appellant argues that Ordinance § 260-90, which broadly circumscribed Appellant's participation in the hearing, violates statutory provisions because it is "[i]n excess of the authority granted to the zoning board of review by statute." Section
The Board correctly asserts that although Appellant urged the Board to disregard the Ordinance by offering to testify numerous times (Tr. 16, 17, 18, 31), Appellant failed to specifically argue that Ordinance § 260-90 was invalid at the hearing. The Board contends that Appellant thus waived that issue on appeal to this Court. The failure to present an argument at trial constitutes a waiver of that argument on appeal.M.B.T. Constr. Corp. v. Edwards,
This Court, therefore, will address the application of Ordinance § 260-90, which prohibits the presentation of new testimony or information at a Zoning Board of Review hearing, to the proceedings below. The Court looks to Chapter 24 of Title 45 for the legislative grant of authority to limit the scope of appeals hearings. The Board maintains that §
*Page 9"The zoning ordinance establishes the various application procedures necessary for the filing of appeals, requests for variances, special-use permits, development plan reviews, site plan reviews, and other applications that may be specified in the zoning ordinance, with the zoning board of review, consistent with the provisions of this chapter. The zoning ordinance provides for the creation of appropriate forms, and for the submission and resubmission requirements, for each type of application required. A zoning ordinance may establish that a time period of a certain number of months is required to pass before a successive similar application may be filed."
"In construing a statute, the court is to establish and effectuate the intent of the Legislature." Rhode Island State LaborRelations Bd. v. Valley Falls Fire Dist.,
Furthermore, this Court will adhere to "the well-settled principle that a legislative grant of municipal power to exercise a portion of the state's sovereignty should be strictly construed."Bertrand v. Di Carlo,
Section
Our Supreme Court supports the conclusion that § 45-25-58 does not permit regulation of *Page 10
the appellate hearing. In Bertrand v. DiCarlo, our Supreme Court held that a local legislature acted ultra vires in enacting an ordinance regulating the storage of kerosene.
Besides invalidating ordinances enacted where the enabling act is silent, our Supreme Court has also invalidated municipal zoning ordinances that "restrict[] the rights conveyed in the enabling legislation." M.B.T. Const.,
In A.T. G., Inc., the issue was whether the municipality's rule — that discontinuance of an existing nonconforming use occurred automatically at the passage of one year's time — comported with the delegation permitting municipalities to deny permits to rebuild upon finding a discontinuance.
The issue here is whether the proceeding below — in which Appellant was denied the opportunity to present evidence following the issuance of Notice of Violation based upon site inspections — comports with the delegation permitting municipalities to conduct hearings and to regulate the hearing application procedure. The inquiry concerns what constitutes a "hearing" under Rhode Island law. The Board does not dispute that Appellant's rights regarding the use of its property invokes procedural due process protections. Therefore, this Court will examine whether the "hearing" provided by the Board satisfied the minimal requirements of due process under the circumstances.
"Due process in the administrative context requires the opportunity to be heard ``at a meaningful time and in a meaningful manner.'" Desrosiers v. Rhode Island Pub. Util. Comm'n Div. ofMotor Carriers,
The Board correctly asserts that strict compliance with the rules of procedure applicable in judicial trials is not required of administrative adjudications. (Appellee's Mem. 6.) *Page 12
"Minimum procedural due process does not demand strict conformance to the rules of evidence at a state administrative hearing."Sterling Shoe Co. v. Norberg,
The transcript of the hearing demonstrates that the Board did not believe its inquiry was limited by Ordinance § 260-90. The Board treated § 260-90 as a limitation on the answers the Board could receive from Appellant, but not a limit on the questions it could ask. The Board asked for evidence on all the disputed facts. Towards the runoff violation, the Board asked whether Appellant had in fact added gravel to the right-of-way. Towards the commercial-use violation, the Board asked whether Appellant did in fact drive commercial vehicles over any portion of the East Greenwich lot. Appellant's attorney lacked the personal knowledge required to provide a reliable answer, but his offers of Appellant's relevant testimony were rebuffed.
The Board is correct that strict compliance with procedural rules is not required. The *Page 13
Board does not explain, however, how an absolute bar to the presentation of any new information by Appellant, at all stages of the proceedings, nonetheless satisfied §
The Court is cognizant of administrative agencies' and municipalities' frequent use of a two-tiered standard of review.See, i.e., Envt'l Sci. Corp. v. Durfee,
Besides Ordinance § 260-90's effect on Appellant's statutory right to a hearing, the Court is troubled by the Ordinance's effect on the Board's fact-finding function. Ordinance § 260-90 forced the Board to make its decision after hearing evidence from only one side of the dispute. *Page 14 Such an incomplete presentation cannot produce accurate and reliable fact finding.
Pursuant to §
Counsel for Appellant shall submit an order consistent with this decision.
Hardy v. Zoning Bd. of Review of Town of Coventry , 113 R.I. 375 ( 1974 )
A. T. & G., Inc. v. Zoning Board of Review , 113 R.I. 458 ( 1974 )
Bertrand v. Di Carlo , 111 R.I. 509 ( 1973 )
Sterling Shoe Co. v. Norberg , 411 F. Supp. 128 ( 1976 )
M.B.T. Construction Corp. v. Edwards , 1987 R.I. LEXIS 533 ( 1987 )
Caswell v. George Sherman Sand & Gravel Co. , 1981 R.I. LEXIS 1021 ( 1981 )
Center for Behavioral Health, Rhode Island, Inc. v. Barros , 1998 R.I. LEXIS 171 ( 1998 )
Lischio v. Zoning Board of Review of North Kingstown , 2003 R.I. LEXIS 57 ( 2003 )
Rein v. Socialist People's Libyan Arab Jamahiriya , 568 F.3d 345 ( 2009 )
Larue v. Registrar of Motor Vehicles , 1990 R.I. LEXIS 5 ( 1990 )
Hartunian v. Matteson , 109 R.I. 509 ( 1972 )
Environmental Scientific Corp. v. Durfee , 1993 R.I. LEXIS 65 ( 1993 )
Rhode Island State Labor Relations Board v. Valley Falls ... , 1986 R.I. LEXIS 431 ( 1986 )
City of East Providence v. Public Utilities Commission , 1989 R.I. LEXIS 167 ( 1989 )
D'Ambra v. North Providence School Committee , 1992 R.I. LEXIS 4 ( 1992 )
Arnold v. Rhode Island Department of Labor , 2003 R.I. LEXIS 71 ( 2003 )
Biliski v. Red Clay Consolidated School District Board of ... , 574 F.3d 214 ( 2009 )