DocketNumber: PC No. 02-2259
Judges: CLIFTON, J.
Filed Date: 12/17/2002
Status: Precedential
Modified Date: 7/6/2016
In August 2000 and May 2001, the Zoning Board provided notice to Plaintiff of Defendants' applications by mailing letters by certified mail which described Defendants' applications for a special-use permit and a dimensional variance and informed Plaintiff of upcoming hearing dates pertaining to the applications. See Defendants', Town ofGlocester, Glocester Town Council and Glocester Zoning Board of ReviewExhibits 3, 4 (copies of letters and certified mail receipts providing notice to Plaintiff of public hearings regarding ABComm's and Comellas' applications). The Zoning Board conducted public hearings on the applications on May 24, 2001, July 26, 2001, August 7, 2001 and February 28, 2002. See Decision of Zoning Board at 1 (outlining hearing dates).
During the hearings, the Zoning Board received testimony relating to the tower by experts and engineers, as well as objections to and support of the tower by citizens of Glocester. See February 28, 2002 Transcript at 28-41, 46-80 (testimony of expert witnesses and statements made by the public); May 24, 2001 Transcript at 16-104 (testimony of experts and citizens). Plaintiff's husband, David Wasserman, read into the record a letter composed by Plaintiff. See May 24, 2001 Transcript at 86-96. Additionally, David Wasserman presented a model demonstrating the height differences between the tower, the trees and other surrounding structures, asking the Zoning Board to consider the scale of the tower in relation to other structures. See id. at 87 (discussing model presented by David Wasserman). Other citizens voiced concerns regarding the disruption of Glocester's rural character and the tower's proximity to historical districts. See February 28, 2002 Transcript at 62-74 (citizens voicing concerns about tower's potentially detrimental impact on nearby property values and asking Zoning Board to consider alternative sites);May 24, 2001 Transcript at 101-104 (citizens stating concern over tower's impact on historic character of Glocester).1 On February 28, 2002, the Zoning Board voted unanimously to grant Defendants' special-use permit. See February 28, 2002 Transcript at 93.
With respect to the proposed zoning amendment, the Zoning Board also notified citizens about public hearings on the matter by consecutive newspaper advertisements pursuant to Rhode Island General Laws §
On February 7, 2002, the Zoning Board passed the amendment to the Zoning Ordinance, effective February 18, 2002. See Town of Glocester:Notice (stating that "[t]he Town Council and the Town of Glocester, County of Providence, State of Rhode Island hereby ORDAINS that the following AMENDMENTS to the Glocester Zoning Ordinance were ADOPTED by the Town Council February 7, 2002, EFFECTIVE February 18, 2002"). With the passage of this amendment, Defendants no longer needed a dimensional variance in order to construct the proposed tower. See Decision of ZoningBoard at 1, n. 1. Subsequently, as noted above, the Zoning Board granted Defendants' application for a special-use permit on February 28, 2002 and issued its written decision on April 11, 2002. See February 28, 2002Transcript at 93; Decision of Zoning Board at 7. The instant timely appeal followed on April 30, 2002.
"(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." R.I.G.L. §
45-24-44 (d).
Pursuant to this directive, "the reviewing court is not empowered to substitute its judgment for that of the zoning board if it can conscientiously find that the board's decision was supported by substantial evidence in the whole record." Mendonsa v. Corey,
Additionally, it is the essential function of a zoning board to weigh the evidence presented at the hearing. See Bellevue Shopping Ctr. Assoc.v. Chase,
Defendants ABComm and Comella argue that the Zoning Board's action with respect to the amendment does not warrant declaratory relief as Plaintiff was not entitled to individual written notice of the amendment. Defendants Town of Glocester, Glocester Town Council, and Glocester Zoning Board of Review urge that Plaintiff's claim regarding lack of notice of the amendment is time-barred pursuant to Rhode Island General Laws §
Section
R.I.G.L. §
Additionally, when a party seeks to challenge a zoning ordinance on constitutional grounds or on the basis that the zoning board lacks jurisdiction over the matter, declaratory judgment may be proper despite the fact that the party has not exhausted all administrative remedies.See Kingsley v. Miller,
Section
"(a) No zoning ordinance shall be adopted, repealed, or amended until after a public hearing has been held upon the question before the city or town council. The city or town council shall first give notice of the public hearing by publication of notice in a newspaper of general circulation within the city or town at least once each week for three (3) successive weeks prior to the date of the hearing, which may include the week in which the hearing is to be held, at which hearing opportunity shall be given to all persons interested to be heard upon the matter of the proposed ordinance. Written notice, which may be a copy of the newspaper notice, shall be mailed to . . ., where applicable, to the parties specified in subsections (b), (c), (d), and (e) of this section, at least two (2) weeks prior to the hearing. The newspaper notice shall be published as a display advertisement, using a type size at least as large as the normal type size used by the newspaper in its news articles, and shall:
(1) Specify the place of the hearing and the date and time of its commencement; (2) Indicate that adoption, amendment, or repeal of a zoning ordinance is under consideration; (3) Contain a statement of the proposed amendments to the ordinance that may be printed once in its entirety, or summarize and describe the matter under consideration; (4) Advise those interested where and when a copy of the matter under consideration may be obtained or examined and copied; and (5) State that the proposals shown on the ordinance may be altered or amended prior to the close of the public hearing without further advertising, as a result of further study or because of the views expressed at the public hearing. Any alteration or amendment must be presented for comment in the course of the hearing.
(b) Where a proposed general amendment to an existing zoning ordinance includes changes in an existing zoning map, public notice shall be given as required by subsection (a) of this section." R.I.G.L. §
45-24-53 (a), (b).
Additionally, with respect to individualized notice, subsection (c) of §
"(c) Where a proposed amendment to an existing ordinance includes a specific change in a zoning district map, but does not affect districts generally, public notice shall be given as required by subsection (c) of this section, with the additional requirements that:
(1) Notice shall include a map showing the existing and proposed boundaries, zoning district boundaries, and existing streets and roads and their names, and city and town boundaries where appropriate; and
(2) Written notice of the date, time, and place of the public hearing and the nature and purpose of the hearing shall be sent to all owners of real property whose property is located in or within not less than two hundred feet (200') of the perimeter of the area proposed for change, whether within the city or town or within an adjacent city or town. The notice shall be sent by registered or certified mail to the last known address of the owners, as shown on the current real estate tax assessment records of the city or town in which the property is located." R.I.G.L. §
45-24-53 (c).
Because a town council's actions are legislative in nature, an amendment to a zoning ordinance enjoys the presumption of validity. See Mesolellav. City of Providence,
In the present case, Plaintiff was not entitled to individual written notice of the proposed zoning amendment under §
a. Vested Rights and R.I.G.L. §
Plaintiff contends that because Defendants' applications for a special-use permit and a dimensional variance were "substantially complete" as of April 2000, the law existing at that time should control, not the February 2002 Amendment. While recognizing that Rhode Island General Laws §
Rhode Island General Laws §
Principles of statutory construction direct that courts "establish and effectuate the intent of the Legislature." Ferreira v. Integon Nat'lIns. Co., 2002 R.I. LEXIS 200, *5 (R.I. 2002) (quoting R RAssociates v. City of Providence Water Supply Board,
The dictionary defines "protection" as "preservation from injury or harm." Random House Dictionary of the English Language 1553 (2nd ed. 1987). Accordingly, the use of the word "protection" in §
Both Rhode Island General Laws §
"affirmatively determine and enter into the record of the public hearing that the proposed use shall: (a) Be compatible with surrounding land uses; (b) Conform with the applicable elements of the Glocester comprehensive community plan; (c) Be in harmony with the general purposes and intent of this ordinance; (d) That the public convenience and welfare will be substantially served; and (e) Not result in or create conditions that will be inimical to the public health, safety, morals and general welfare of the community." Town of Glocester Zoning Ordinance, Art. 1, § 1-8(6)(5).
Further, the Rhode Island Supreme Court has held that an applicant for a special use permit must demonstrate that the "proposed use will not be inimical to the public health, safety, morals, and welfare." Salve ReginaCollege, 594 A.2d at 880.
In granting Defendants' application for the special-use permit, the Zoning Board expressly found that "the proposed tower site best serves the needs of connectivity and services for the public convenience and welfare of the Town's citizens." Decision of Zoning Board at 6. Additionally, the Zoning Board noted that granting the permit for the site complied with the Glocester Comprehensive Community Plan and concluded that granting the permit was "in harmony with the general purpose and intent of the Zoning Ordinance by minimizing the visual impact on the community." Id. Further, the Zoning Board found that "this site enhances the ability of EMS, fire and police services . . . [and] . . . will not result in or create conditions that would be inimical to the public health, safety, morals or general welfare of the community." Id.
Numerous experts testified during the hearings about the effects of the tower's construction on the community and its citizens. See February 28,2002 Transcript at 41-45 (testimony of Nathan Godfrey, expert in assessing property values); May 24, 2001 Transcript at 10-86 (testimony of expert witnesses). Witnesses also discussed alternative sites and different methods of construction and explained why the proposed site best served the needs of the community. See February 28, 2002 Transcript at 36-37; May 24, 2001 Transcript at 17-20, 28-29. One witness explained why construction of a flagpole instead of lattice tower to disguise antennas did not exist as a viable option. See February 28, 2002Transcript at 36-37. Additionally, a witness characterized the Comella property as "the best viable place" to build tower. See May 24, 2001Transcript at 17-20, 28-29.
Jeffrey Gold, a partner in ABComm, LLC who had previously been involved in the construction of hundreds of towers, testified that he selected the Comella property to house the tower because it would fill the gap in service in the western part of the region and coordinate well with existing towers in Glocester. See May 24, 2001 Transcript at 19-20, 23-24, 27. Additionally, Gold testified that the setback of the property, more than 1200 feet back from Putnam Pike, and the heavy forestation of the location made this site desirable because it minimized the tower's visual impact on the community as a whole. Id. at 28. He asserted that "after the extensive research . . . this was the most out-of-sight place that it could possibly go in that area." Id. Further, Gold asserted that the lattice style of the tower would help to camouflage the tower and testified that the hilly terrain in Glocester necessitated the 190-foot height of the tower. See February 28, 2002Transcript at 32-37.
J. Nathan Godfrey and George F. Valentine, accepted as experts on real estate appraisal, both testified in support of the tower and submitted a joint report outlining that the tower would not have a negative impact on the general character of the surrounding area. See February 28, 2002Transcript at 42, 44; May 24, 2001 Transcript at 68-69. The two concluded that the tower would not adversely impact or diminish surrounding residential property values. See February 28, 2002 Transcript at 44; May24, 2001 Transcript at 71, 77, 81. As Godfrey asserted, "[h]aving . . . visited the site, I can find no reason why this would have an inappropriate or adverse impact on surrounding properties or any property." February 28, 2002 Transcript at 44. Similarly, Valentine noted that "there would be no diminution in property values." May 24, 2001Transcript at 71, 77, 81. Additionally, the joint consulting report of Godfrey and Valentine indicated that the proposed site met all requirements set forth by Glocester's Zoning Ordinance. See ConsultingReport for Property Located at 1380 Putnam Pike, Chepachet, RI 02814 (Exhibit B) at 10-12.
Valentine also noted that the 1250-foot setback and the 80-foot canopy of trees rendered the Comella property site more desirable than other sites and concluded that "from a land-use perspective, it appears to be a well-suited site." May 24, 2001 Transcript at 70-71. Additionally, Valentine testified that the tower would have no impact on Glocester's historic district and that the color, style and design of the tower would minimize the tower's visual impact. See id. at 73.
With respect to the safety of the tower, Donald H. Haes, a radiation and radio frequency generation expert, testified that the tower would not pose a health hazard to Glocester citizens. See id. at 55, 57. Haes stated that any radiation emitted from the tower operating at full force would fall well below the permitted federal standard for human exposure to radiation. See id. at 57. As he asserted, "if this facility were to be built and operated at its maximum capacity, nobody would be exposed to any energy greater than 1/300th of the [federal] standard." Id. Further, George Geisser, a civil engineer and expert in the field, noted that the tower's design ensured that it would withstand 90-mile per hour winds, and that if the tower collapsed, it would fall safely within a 50-foot radius. May 24, 2001 Transcript at 61, 62, 64-65 (describing how tower would collapse). Finally, George F. Valentine offered his opinion that granting the special-use permit would not result in conditions that are inimical to public health, safety and welfare. See id. at 75.
After a full review of the entire record, this Court finds that substantial evidence exists to support the Zoning Board's findings and decision to grant Defendants' application for a special-use permit for construction of the tower. The Zoning Board had before it substantial evidence that the proposed tower is compatible with the surrounding land uses and conforms to the Glocester Comprehensive Community Plan. Additionally, the evidence of record indicates that tower is in harmony with the general purposes and intent of the Zoning Ordinance, substantially serves the public convenience and is not inimical to the public health, safety or welfare.
Counsel shall prepare appropriate order for entry.
Carpionato v. Town Council of North Providence , 104 R.I. 490 ( 1968 )
DeStefano v. ZONING BD. OF REVIEW, ETC. , 405 A.2d 1167 ( 1979 )
Apostolou v. Genovesi , 120 R.I. 501 ( 1978 )
Bellevue Shopping Center Associates v. Chase , 1990 R.I. LEXIS 100 ( 1990 )
Mendonsa v. Corey , 1985 R.I. LEXIS 550 ( 1985 )
Kingsley v. Miller , 120 R.I. 372 ( 1978 )
M.B.T. Construction Corp. v. Edwards , 1987 R.I. LEXIS 533 ( 1987 )
Mesolella v. City of Providence , 1982 R.I. LEXIS 797 ( 1982 )
Caswell v. George Sherman Sand & Gravel Co. , 1981 R.I. LEXIS 1021 ( 1981 )
Mongony v. Bevilacqua , 1981 R.I. LEXIS 1224 ( 1981 )
Curran v. Church Community Housing Corp. , 1996 R.I. LEXIS 50 ( 1996 )
R & R Associates v. City of Providence Water Supply Board , 2001 R.I. LEXIS 24 ( 2001 )
Frank Ansuini, Inc. v. City of Cranston , 107 R.I. 63 ( 1970 )
Salve Regina College v. Zoning Board of Review , 1991 R.I. LEXIS 142 ( 1991 )
Accent Store Design, Inc. v. Marathon House, Inc. , 1996 R.I. LEXIS 130 ( 1996 )