DocketNumber: C.A. No. WC-00-194
Judges: GAGNON, J.
Filed Date: 9/20/2001
Status: Precedential
Modified Date: 7/6/2016
One year later, in 1988, the North Kingstown Planning Commission approved the development of a parcel of land to the west of Appellant's "Lot 20" as a high density residential subdivision known as "Mountain Laurel Estates" ("MLE"). This subdivision had 81 lots, each consisting of a 1/2 acre with some open space. A street within the new subdivision, "Highbush Terrace," extended almost to the boundary of Appellant's "Lot 20." When the final plat for MLE was approved by the Planning Board and recorded on September 26, 1998, a very small lot (221 square feet) had been created on the easterly terminus of Highbush Terrace which was designated as Assessor's Plat 102, "Lot 129" ("Lot 129"). This lot had an express plat notation that it "be for roadway purposes only." In 1992, the developer of MLE conveyed "Lot 129" to Appellants by warranty deed, recorded January 10, 1992.
The North Kingstown Comprehensive Plan was adopted by the Town of North Kingstown ("Town") in 1992 and approved by the State in 1995. The land use plan map contained in the comprehensive plan designates the location of "Lots 20 and 129" for "low density residential" development. The area in which both of these lots are located has been in the Town's Groundwater Overlay District since 1974. On October 24, 1998, the Town's zoning ordinance was amended to limit the density of residential development in the Overlay District to one dwelling unit per two acres. Hence, the "low density" classification of the comprehensive plan's land use map was effectuated. In 1997, the North Kingstown Planning Commission and Planning Department were engaged in preparing a comprehensive amendment to the Town's Zoning Ordinance so as to conform the Zoning Ordinance with the Town's Comprehensive Plan, as required by §
Subsequently, the Appellants filed an application requesting a general business variance for "Lot 129" and a dimensional variance from the frontage requirements on "Lot 20," in order to conduct a self storage business on "Lot 20." The initial application submitted by the Appellants was refused by the Director of Planning for the Town. By writ of mandamus, the application was accepted by the Town. The Appellants' application proposed a self storage facility, a "permitted" use of the "general business" zoned "Lot 20," and requested that the frontage requirement on "Lot 20" be decreased from 200 feet to 51.23 feet. With regard to "Lot 129," zoned village residential, Appellants requested a use variance in order for the village residential lot to be used as highway access from the end of Highbush Terrace to Appellants' "Lot 20," which was zoned general business. They claim that this use would be in accordance with the restriction on use by the Planning Commission at the time of the creation of the lot, that "Lot 129" be used for roadway purposes only. In its April 11, 2000 decision, the Zoning Board of Review denied both the variance requests in Appellants' application. The Appellants then filed this timely appeal.
Several residents of the neighboring MLE subdivision testified in opposition to the proposed variances: Mr. Michael Heaney, Ms. Susan Brandt, Mr. Kevin Foster, Mr. Edris Crockford, Mr. Robert Beaty, Mr. Patrick McHugh, Mr. Phillip Goodwin, and Mr. Michael Vanberlo. Ms. Brandt testified that she conducted an informal survey of how many children resided in the subdivision. She testified that 111 children lived within the subdivision and that 12 lived on Highbush Terrace. She testified that children often play in the streets and that there are no sidewalks. In the winter, snow mounds necessitate that the residents walk in the street. Mr. Foster also testified that he was concerned with the residents' safety, in that children often walked to the town playground adjacent to the subdivision. Mr. Heaney testified that the proposed use is in total contrast to that of the neighborhood and submitted a videotape he recorded in order to display the area, which was viewed by the Board at the hearing. Residents testified that they would not have purchased their homes in MLE had they known about the Appellants' lot. In addition, residents cited articles pertaining to crimes and fires occurring at such facilities and expressed concern that there was only one access to the facility (through the streets of MLE) for police or fire vehicles. A recent purchaser of an MLE home who had retired after a career in the FBI, Mr. Goodwin, stated that he would prefer a fuel storage depot located on "Lot 20" as opposed to a self storage facility because self storage facilities, in his opinion, store unknown drugs and chemicals.
In addition, the Town produced two experts: Mr. Francis Perry, a registered professional engineer in Rhode Island with a Master's Degree in civil engineering; and Mr. William McGovern, a real estate appraiser and consultant for thirty years, who taught educational courses with respect to real estate appraisal. Mr. Perry testified that his impression was that the MLE roadways, which were only frequently used by residents, were upscale and strictly residential. The traffic, therefore, mainly consisted of those who had a vested interest in the community. The addition of the self storage facility would introduce a totally different kind of traffic consisting of 15% trucks. In his opinion, the mixing of the two types of traffic would be incompatible. He agreed with the Appellants as to the numbers with regard to the increased level of traffic but stated that the Appellants' experts did not address the current usage of the streets and the impact of adding commercial traffic. The impact would pose, according to his testimony, a safety concern for the children within the neighboring community of MLE. He concluded that granting the variances would result in an inappropriate mix of usages of the streets. Mr. McGovern testified that he prepared his report under the Uniform Standards of Professional Appraisal Practice and that he was therefore not testifying as an advocate. "Lot 20," he stated, is sandwiched between two residential zones. To the west, the zoned district is "rural residential"; to the east, it is "village residential." He determined the the value of the property by figuring the "highest and best use." He stated that the highest and best use for that area was "low density residential," as set forth in the comprehensive plan of the Town of North Kingstown. (2/29/00 Transcript at 52). The proposed use for "Lot 20," he testified, was contrary to the zoning ordinance and comprehensive plan and "would clearly alter and upset the character of this residential neighborhood." (2/29/00 Transcript at 53) He stated also that if the variance was granted, it would cause "irreparable harm, immeasurable dimunition in value of the residences that exist in the locus of the subject property." (2/29/00 Transcript at 55-56) The damage in value to the neighboring homes, although characterized as "minor," would nonetheless cause a 15-20% loss in value. (2/29/00 Transcript at 57) His research of statistical information on mini warehouses in New England revealed that 21% of its volume was non-residential, and that there was a 19% incidence of theft and a 12 1/2 % incidence of graffitti. He concluded that the granting of the variance would not serve the public welfare or health, safety, or morals of the community. On cross-examination, Mr. McGovern testified that if he were the Appellant, he would use the property for low density residential despite the zoning ordinance provision that the Lot was general business. He stated that the comprehensive plan took precedence over the zoning ordinance. He admitted on cross examination, however, that there was no permissible use for ot 129" other than to extend a roadway over "Lot 129" to provide access to "Lot 20."
The Town argues that the area in which both of these lots are located has been in the Town's Groundwater Overlay District since 1974. The land use plan map contained in the comprehensive plan designates the location of "Lots 20 and 129" for low density residential development. On October 24, 1988, the Town's zoning ordinance was amended to limit the density of residential development in the Overlay District to one dwelling unit per two acres; hence, the "low density" classification of the comprehensive plan's land use map.
The Town explains in its Memorandum that in 1997, the North Kingstown Planning Commission and Planning Department were engaged in preparing a comprehensive amendment to the Town's zoning ordinance so as to conform the zoning ordinance with the Town's Comprehensive Plan, as required by §
Contrary to the Appellants' assertion, the Town argues that the lots in question should not have been merged. The Town claims that § 21-311(a) is inapplicable because although "Lot 20" was nonconforming, "Lot 129" was not, as "Lot 129" lacked full compliance with the dimensional requirements of the ordinance when it was created. However, even if a merger took place, the Town argues, the resulting lot would be split zoned and the Appellants would still need to request a use variance for the portion that had been "Lot 129."
A Memorandum of Law was also submitted by Intervenor/Defendant, Mountain Laurel Estates Homeowners' Association ("Association"). In its Memorandum, the Association contends that valid legal grounds existed for the Board's denial of Appellants' application. The Association argues substantial evidence was presented at the hearing in support of the Board's determination that the proposed variances would alter the character of the surrounding area or impair the intent of the zoning ordinance or comprehensive plan. According to the Association, the record shows the proposed variances would present a dangerous traffic situation within the surrounding area due to a lack of directional signs, an increased traffic flow, and a change in the type of traffic (from solely residential traffic to combined residential and commercial traffic.) The Association argues, self storage facilities are inherently dangerous because, as indicated by the record, unknown and potentially dangerous and/or flammable items may be stored there. Additionally, Mr. McGovern testified that irreparable harm in the form of immeasurable dimunition of property value would also result if the variances were granted. The Association argues that the traffic study conducted by Appellants' expert, Mr. Perry, was deficient for its failure to address the current usage of the streets and the detrimental impact of the addition of commercial traffic to those residential streets. The Association also argues the Appellants failed to raise the issue of merging the two lots at the hearings before the Zoning Board of Review, thus waiving it. However, it argues, assuming merger was an issue, it would be consistent with the comprehensive plan to designate the larger lot for residential rather than general business purposes. Lastly, the Association attacks the Appellants' assertion that a denial results in a unconsitutional taking of their property. The Association counters that the Appellants have already been compensated for whatever damage was incurred by "Lot 20" as a result of the construction of Route 4.
"(D) The court shall not substitute its judgment for that of the zoning board of review as to the weight of the evidence on questions of fact. The court may affirm the decision of the zoning board of review or remand the case for further proceedings, or may reverse or modify the decision if substantial rights of the appellant have been prejudiced because of findings, inferences, conclusions or decisions which are:(1) In violation of constitutional, statutory or ordinance provisions; (2) In excess of the authority granted to the zoning board of review by statute or ordinance; (3) Made upon unlawful procedure; (4) Affected by other error of law; (5) Clearly erroneous in view of the reliable, probative, and substantial evidence of the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."
In reviewing the action of a zoning board of review, the Court "must examine the entire record to determine whether ``substantial' evidence exists to support the board's findings." Toohey v. Kilday,
"(c) 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, . . .;
(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. (Emphasis added.)
As this Court may not substitute its judgment for that of the Board's, it will confine its search of the record for substantial evidence in support of the Board's findings that the granting of the variances would 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. Additionally, with regard to "Lot 129," this Court will search the record for substantial evidence in support of the Board's finding that the Appellants failed to show that there would be no other beneficial use to "Lot 129" if the use variance was denied.
In the present action, testimony was heard at the hearings that it is preferable in town planning to access a commercial business through commercial and not residential streets for safety reasons. Additionally, the Board heard testimony that truck trips to the proposed self storage facility would account for 2-15% of the weekday traffic to the site. This traffic would travel through the relatively enclosed MLE community. The Board, therefore, did not abuse its discretion in finding that a proposed dimensional variance for a "permitted" use was incompatible with the surrounding area. Likewise, testimony was adduced at the hearings indicating that the land use map of the comprehensive plan designates the lots as residential and not business. Therefore, there was no error or abuse of discretion in the Board's finding that if the variance were granted on "Lot 20," the intent of the zoning ordinance and/or comprehensive plan would be impaired. While the zoning ordinance indicates that "Lot 20" is zoned "general business," the land use plan map describes the lot as "low density residential." The statute provides that where a proposed variance impairs the intent of the zoning ordinance or the comprehensive plan upon which it is based, the variance may be denied. Therefore, even if the proposed variance did not alter the community or impair the intent of the zoning ordinance on its face, the statute still allows for denial of the proposed variance if the overall intent of the comprehensive plan is impaired. Again, this is broad language indicating a wide latitude given the Board in determining the proposed variance's impact on a given area. The evidence in the record reveals that the intent of the comprehensive plan is for the area in question to be used in a "low density residential" capacity. Based on the foregoing, the Board's denial of the Appellants' application for a dimensional variance on "Lot 20" is substantially supported by the record and affirmed by this Court.
This Court first rejects, as lacking substantial evidence of the record, the Board's finding that the proposed use variance would alter the character of the surrounding area or impair the intent of the zoning ordinance or comprehensive plan. First, the intent of the Town is amply demonstrated by the record; the only purpose for which "Lot 129" was designed was as access to "Lot 20." This is evidenced both by the express plat notation that "Lot 129" be used for roadway purposes only, as well as the December 6, 1998 minutes of the hearing by the North Kingstown Plan Commission with regard to MLE. Contained therein is the statement: "Highbush Terrace has been extended to Mr. Lischio's property to provide access so that it would not become landlocked by the construction and land-taking of Route 4 which is currently being built and abuts this site." At that time, "Lot 20" had already been zoned "general business."
Additionally, use of the lot as a roadway does not alter the character of the community. Clearly, a roadway, in and of itself, is not detrimental to the community. The record reflects that the detriment to the community arises out of the use of "Lot 20," not "Lot 129." While the Town has expressed the opinion that the only compatible use for "Lot 20" is "low density residential," the possibility also exists that the Appellants may find an adequate "general business" use for the property that does not alter the character of the surrounding area or impair the intent of the zoning ordinance or comprehensive plan. Either way, this Court finds, after a careful review of the record, that the Board's denial of the use variance for "Lot 129" (on the grounds it would alter the character of the surrounding area or impair the intent of the zoning ordinance or comprehensive plan,) was based upon insufficient evidence and is therefore arbitrary, capricious, and clearly erroneous.
This Court must next consider whether the Board's denial of the use variance for "Lot 129" was warranted under the corollary requirements of G.L. §
"(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, . . . ; (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; . . . ."
The record establishes that the size of "Lot 129" is insufficient for any "low density residential" use. This fact is uncontroverted by the parties. The hardship inherent in "Lot 129" exists regardless of the area in which the small lot is situated. The dimensional defect is also not attributable to any disability or prior acts of the applicants or from their desire to realize financial gain, but due merely to its size and the express plat notation that it be used for roadway purposes only. Additionally, §
Lastly, §
"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 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 . . . ."
This Court holds the Board's finding that the Appellants failed to show that there would be no other beneficial use to the property, which, unlike its other findings, was left unexplained, is conclusory and unsupported by the record. A search of the record reveals that the testimony of all parties is to the contrary. The evidence of record is uncontroverted that the only use for "Lot 129" is as access to "Lot 20." Both parties testified that there existed no other use for "Lot 129" other than as access to "Lot 20." Therefore, this Court reverses the Zoning Board's denial of the Appellants' application for a use variance on "Lot 129," as clearly erroneous in view of the reliable, probative, and substantial evidence of the whole record.
Section 21-311(a) defines a "nonconforming lot." It states in pertinent part:
"[A] nonconforming lot is a lot which does not meet one (1) or more of the minimum dimensional requirements for size, frontage or depth required by this chapter and which is a lot of record the dimensions of which have not been altered since its creation by a voluntary conveyance which rendered such lot more nonconforming and which was: (1) created by a deed or plat recorded on or after July 18, 1947, and was in full compliance with the minimum dimensional requirements for size, frontage and depth of the zoning ordinance in effect at the time of such recording, or 2) created by a deed or plat recorded prior to July 28, 1947." (Emphasis added.)
The Town is correct in its opposition papers that "Lot 129" is not a non-conforming lot as that term is defined in the North Kingstown zoning ordinance; "Lot 129" lacked full compliance with the dimensional requirements of the ordinance when it was created. The Board committed no error in failing to merge the two lots prior to its consideration of the proposed variances.
Counsel shall submit the appropriate order for entry after notice.