The New Castle Realty Company v. Raymond Dreczko, Jr., in his capacity as member of the Town of Charlestown Zoning Board of Review ( 2021 )

Issued April 13, 2021
Corrected April 15, 2021
Supreme Court
No. 2018-65-M.P.
(WC 15-161)
The New Castle Realty Company :
v. :
Raymond Dreczko, Jr., in his capacity :
as member of the Town of Charlestown
Zoning Board of Review, 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 (401) 222-3258 or
Email opinionanalyst@courts.ri.gov, of any typographical
or other formal errors in order that corrections may be
made before the opinion is published.
Supreme Court
No. 2018-65-M.P.
(WC 15-161)
The New Castle Realty Company :
v. :
Raymond Dreczko, Jr., in his capacity :
as member of the Town of Charlestown
Zoning Board of Review, et al. :
Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
OPINION
Chief Justice Suttell, for the Court. This Court issued a writ of certiorari to
review a Superior Court judgment affirming a decision by the Town of Charlestown
Zoning Board of Review (the zoning board).1 The plaintiff, New Castle Realty
Company (New Castle), had applied to the zoning board for a special-use permit and
a dimensional variance to build a house and install a septic system on a preexisting
nonconforming lot located on Timber Ridge Road in Charlestown, Rhode Island (the
parcel). The zoning board denied both the special-use permit and dimensional
variance, and the Superior Court affirmed. For the reasons stated herein, we affirm
in part and quash in part the judgment of the Superior Court.
1
The named defendants in this case are the members of the Town of Charlestown
Zoning Board of Review, in their official capacities.
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I
Facts and Travel
The essential facts of this case are not in dispute. New Castle is the owner of
the 1.9 acre parcel that was part of a larger subdivision created in 1974, when the
minimum lot size was one acre. The Town of Charlestown (the town) subsequently
opted to require that lots in that zone be at least three acres, rendering the parcel
nonconforming.
On January 14, 2015, New Castle filed an application with the zoning board
for a special-use permit to install a septic system within one hundred feet of wetlands
and a dimensional variance from front- and side-yard requirements for placement of
a house on the parcel. On July 29, 2014, prior to filing the application, New Castle
had acquired a permit from the Rhode Island Department of Environmental
Management (DEM) to alter freshwater wetlands.
Richard Greene, a land surveyor, and William Lampe, the president of New
Castle, appeared before the zoning board on March 17, 2015. Greene indicated that
most of the parcel consisted of “wooded swamp” except for a small area near the
street, where the proposed house and septic system would be located.2 Greene
2One of the zoning board members indicated that the size of the buildable area
outside of the wetlands was “60x60” with the back of the proposed house ten feet
from the wetlands and the left side of the house ten feet from the wetlands. Greene
did not dispute this characterization.
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informed the zoning board that DEM had already approved New Castle’s application
to allow the house and septic system to be placed in the area near the wetlands, and
that the plan presented to the zoning board was the same plan that went to the “Inland
Wetlands Section of the State of Rhode Island.”
Greene testified that, after receiving approval of the wetlands application,
New Castle acquired a permit from DEM for the construction of a septic system,
referred to as an onsite water treatment system (OWTS). He indicated that the
OWTS would be placed as far as possible from the wetlands edge and that it was a
“denitrification system ADVANTAX AX20 with a bottomless sand filter which cuts
down on the amount of nitrates that are put into the bottomless sand filter to help
meet the environmental aspects of the lawn.” Greene testified that with the two
approvals from DEM and the size of the structure, the proposed plan met the criteria
needed for a special-use permit and dimensional variance for the house.
After questioning Greene and Lampe about the OWTS and the placement of
the house, the zoning board discussed the application before voting 4 to 1 to deny
both the special-use permit and the application for a dimensional variance. The
zoning board notified New Castle of its decision by letter. The letter contained a list
of each member’s vote along with the individual reasoning for each member’s vote.
On April 2, 2015, New Castle filed a complaint in Washington County
Superior Court appealing the zoning board’s denial of both the special-use permit
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and the dimensional variance. New Castle asserted, in support of its complaint, that
the zoning board’s denial of the special-use permit was arbitrary because of its
“baseless second-guessing of DEM’s approval of the septic system[.]” New Castle
argued that the zoning ordinance applies “no greater standards to approve a septic
system than does DEM[,]” and that, therefore, DEM’s approval meant that the
standard to approve the special-use permit was ipso facto also satisfied. New Castle
reasoned that the zoning board could not reject DEM’s approval unless there was
credible evidence from qualified experts that the system under review would not
serve the public interest.
As to the dimensional variance, New Castle contended that the zoning board
misapplied the law when it found that New Castle’s hardship was self-created and
that New Castle did not seek the least relief necessary. New Castle argued that,
because the lot satisfied all pertinent zoning ordinances when the subdivision was
created in 1974, the hardship was not self-created. New Castle additionally argued
that it sought the least relief necessary because of the small size of the proposed
house.
In response, the zoning board argued that DEM’s approval of the OWTS did
not require the zoning board to approve a special-use permit. The zoning board
asserted that its decision to deny the special-use permit was supported by substantial
evidence. With regard to the dimensional variance, the zoning board argued that,
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because New Castle failed to consider alternatives, such as moving the house farther
back or proposing a smaller house, substantial evidence supported the zoning
board’s decision.
The trial justice issued a written decision on January 3, 2018. At the outset,
the trial justice addressed New Castle’s argument that the zoning board’s decision
lacked sufficient findings of fact and conclusions of law in violation of G.L. 1956
§ 45-24-61. Although the trial justice found that the zoning board had “fail[ed] to
enumerate specific findings of fact as required by § 45-24-61(a)[,]” he decided to
“cull[] those findings from the record[,]” and he ultimately found that the zoning
board had made “sufficient findings addressing each element required under Sec.
218-23 of the Charlestown Zoning Ordinance.”
The trial justice next addressed the issue of the special-use permit. With
regard to New Castle’s argument that the zoning board’s decision was contrary to
DEM’s expertise, the trial justice determined that zoning board members are entitled
to rely on their own knowledge in zoning matters. He further determined that a
zoning board’s responsibility is distinct from that of DEM and that in this case “there
were various other factors considered by the [zoning b]oard in the approval of a
special-use permit which were not considered by DEM in issuing their approval.”
The trial justice then addressed the issue of the dimensional variance. The
trial justice determined, in contravention of the zoning board’s decision, that the
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hardship was not self-created because the parcel conformed to zoning regulations at
the time it was formed. He agreed with the zoning board, however, that the requested
relief was not the least relief necessary under the circumstances and noted that New
Castle was unwilling to consider suggestions from the zoning board regarding
moving the house farther from the wetlands or reducing its size.
Accordingly, a judgment affirming the decision of the zoning board was
entered on February 19, 2018. New Castle filed a petition for writ of certiorari on
March 2, 2018, and the Court granted the petition on March 18, 2019.
II
Standard of Review
“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)).
Section 45-24-69(d) provides:
“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:
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“(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.”
“When reviewing a trial court’s zoning decision, this Court ‘does not weigh
the evidence; instead we review the record to determine whether substantial
evidence existed to support the Superior Court justice’s decision.’” Iadevaia, 80
A.3d at 870 (brackets omitted) (quoting Pawtucket Transfer Operations, LLC v. City
of Pawtucket, 944 A.2d 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. (brackets omitted) (quoting Pawtucket Transfer Operations,
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, 944 A.2d at 859).
-7-
III
Discussion
We begin our discussion by addressing New Castle’s assertion that the trial
justice erred in searching the record for factual findings after determining that the
zoning board “fail[ed] to enumerate specific findings of fact as required by
§ 45-24-61(a).”
Section 45-24-61(a) requires that “[t]he zoning board * * * include in its
decision all findings of fact and conditions[.]” Accordingly, this Court has directed
that zoning boards “render a decision containing findings of fact and conclusions of
law.” Bellevue Shopping Center Associates v. Chase, 556 A.2d 45, 46 (R.I. 1989).
Furthermore, we have required that a zoning board submit a uniform decision from
the board itself. See id. (remanding case for decision of board of review where the
record showed “varying expressions of opinion” and no agreement by majority as to
reason for denying application).
As to the issue of factual findings, this Court has held that “municipal councils
and boards acting in a quasi-judicial capacity must make findings of fact and
conclusions of law to support their decisions.” Preservation Society of Newport
County v. City Council of City of Newport, 155 A.3d 688, 692 (R.I. 2017) (quoting
Cullen v. Town Council of Town of Lincoln, 850 A.2d 900, 904 (R.I. 2004)). “The
absence of such findings and conclusions precludes judicial review of a council’s
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decision.” Cullen, 850 A.2d at 904. In Bernuth v. Zoning Board of Review of Town
of New Shoreham, 770 A.2d 396 (R.I. 2001), the Court stated:
“We must decide whether the board members resolved the
evidentiary conflicts, made the prerequisite factual
determinations, and applied the proper legal principles.
Those findings must, of course, be factual rather than
conclusional, and the application of the legal principles
must be something more than the recital of a litany. These
are minimal requirements. Unless they are satisfied, a
judicial review of a board’s work is impossible.” Bernuth,
770 A.2d at 401 (brackets omitted) (quoting Irish
Partnership v. Rommel, 518 A.2d 356, 358-59 (R.I.
1986)).
We disapprove of the procedure employed by the zoning board in the present case;
nevertheless, we, similar to the trial justice, are satisfied that the record in this case
contains minimally sufficient findings to enable judicial review.
A
Special-Use Permit
In applying the principles set forth above, we turn first to the issue of New
Castle’s application for a special-use permit. On appeal, New Castle asserts that the
trial justice misapplied the law and abused his discretion by accepting the zoning
board’s unsupported conclusions and affirming the denial of the special-use permit.
We agree with New Castle that the facts “culled” from the record by the trial justice
were insufficient to support the denial of the application for a special-use permit.
-9-
We first address New Castle’s assertion that the standards utilized by the
zoning board to review a special-use permit application “mirror the goals DEM seeks
to achieve through its OWTS and wetlands regulations.” In reviewing a permit to
alter freshwater wetlands, DEM will deny approval of such permit “if, in the opinion
of the director, granting of approval would not be in the best public interest.” General
Laws 1956 § 2-1-21(a)(2). Additionally, DEM enforces its OWTS regulations “to
protect public health and the environment[.]” 250 RICR 150-10-6.1. Alternatively,
§ 218-23(A) of Charlestown’s zoning ordinance provides that:
“A special use permit may be approved by the Board
following a public hearing if, in the opinion of the Board,
that evidence to the satisfaction of the following standards
has been entered into the record of the proceedings:
“(1) The public convenience and welfare will be
substantially served;
“(2) It will not result in adverse impacts or create
conditions that will be inimical to the public health, safety,
morals and general welfare of the community.
“(3) The requested special use permit will not alter the
general character of the surrounding area or impair the
intent or purpose of this Zoning Ordinance or the
Comprehensive Plan upon which this Ordinance is based;
“(4) That the granting of a special use permit will not pose
a threat to drinking water supplies;
“(5) That the use will not disrupt the neighborhood or the
privacy of abutting landowners by excessive noise, light,
glare, or air pollutants;
“(6) That the sewage and waste disposal into the ground
and the surface water drainage from the proposed use will
be adequately handled on site;
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“(7) That the traffic generated by the proposed use will not
cause undue congestion or introduce a traffic hazard to the
circulation pattern of the area.”
New Castle asserts that these standards serve the same public interest goals as
the OWTS and wetlands regulations utilized by DEM. While both DEM and zoning
boards address public interest considerations, not every standard set forth in the
zoning ordinance is pertinent to what must be considered by DEM in granting or
denying a permit—DEM and zoning boards each serve separate functions.3 See
Milardo v. Coastal Resources Management Council of Rhode Island, 434 A.2d 266,
273 (R.I. 1981) (“We have no doubt that the Legislature could have assigned both
functions to the same agency. In choosing not to do so, the Legislature doubtless
considered the need for special types of expertise in the discharge of the separate but
similar functions of both agencies.”). We do not fault the zoning board, therefore,
for conducting its own independent review.
3
We note, however, that G.L. 1956 § 45-24-30(c) provides:
“Upon promulgation of state regulations to designate
wetland buffers and setbacks pursuant to [G.L. 1956]
§§ 2-1-18 through 2-1-28, cities and towns shall be
prohibited from applying the requirements in existing
zoning ordinances pertaining to both wetland buffers and
onsite wastewater treatment system setbacks to
development applications submitted to a municipality
after the effective date of said state regulations.”
(Emphasis added.)
Significantly, however, such state regulations have not yet been adopted.
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This Court has said that, “[w]hile it is generally true that ‘there is no talismanic
significance to expert testimony and it may be accepted or rejected by the trier of
fact,’ * * * it is also true that, if expert testimony before a zoning board is competent,
uncontradicted, and unimpeached, it would be an abuse of discretion for a zoning
board to reject such testimony.” Murphy v. Zoning Board of Review of Town of South
Kingstown, 959 A.2d 535, 542 (R.I. 2008) (brackets omitted) (quoting Restivo v.
Lynch, 707 A.2d 663, 671 (R.I. 1998)).
There are, of course, situations in which the zoning board members may rely
on their own knowledge regarding zoning matters; however, the zoning board must
include in its decision the basis on which it rests such knowledge. See Smith v.
Zoning Board of Review of City of Warwick, 103 R.I. 328, 335, 237 A.2d 551, 555
(1968) (holding that the zoning board gave sufficient reasons for expressly rejecting
testimony of experts and acted properly in basing its decision on its own knowledge
of premises); Del Toro v. Zoning Board of Review of Town of Bristol, 82 R.I. 317,
321, 107 A.2d 460, 462 (1954) (noting that “if [a zoning board] substitutes evidence
within its own knowledge or from a view, we have held that there should be
something in the decision to inform us of the grounds and basis thereof sufficiently
for [the court] to perform our duty without speculation”).
In the case before us, however, the zoning board lacked the specialized
knowledge necessary to refute DEM’s decisions itself—as one member stated at the
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hearing, “I’m not a wetlands biologist. I’m not an expert.” In affirming the zoning
board’s denial of a special-use permit, the trial justice referenced statements made
by zoning board members and concluded that there was substantial evidence in the
record to support the zoning board’s decision. Specifically, he pointed to the vote
by Board Member Chambers to deny the special-use permit based upon his own
measurement of the water table and his observation that it was likely to increase in
height due to the drainage from the lot across the street from the parcel.4
During the proceedings before the zoning board, Chambers asked Greene
whether a perc test had been done. Greene responded that perc tests are no longer
required but that a soil evaluation had been performed by a certified soil scientist.
According to Greene, it is a “gravel-based soil” that drains quite well. Chambers
indicated that he had measured the water table himself the previous week and “[i]t
came to five-and-a-half feet.” We note, however, that there is no evidence in the
record suggesting the source of Chambers’s expertise, if any, or the methodology he
employed.
The trial justice also referenced Chambers’s belief that “the requested relief
was insufficient to keep the wetlands safe.” Again, Chambers had taken his own
4
The trial justice attributed these comments to Board Member Quadrato, but it is
clear from the transcript that it was Board Member Chambers who made his own
measurement of the water table.
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measurements and opined that a fifteen-foot relief was necessary, rather than the
ten-foot relief approved by DEM.
With respect to Board Member Quadrato’s vote to deny the special-use
permit, the trial justice referred to his opinion that he “‘cannot see how there couldn’t
be a negative impact on the wetland[s]’ and that the requested special-use permit
relief ‘could pose a threat to drinking water.’” It is our opinion, however, that the
impact on the wetlands was the very issue addressed by DEM in granting a permit
to alter wetlands and that there is no scientific or expert testimony in the record to
suggest that New Castle’s proposal would have a negative impact on the wetlands.
Moreover, there is no evidence establishing any potential threat to drinking water.
The trial justice also addressed the concerns of Board Member Vanover,
particularly noting the latter’s comment that the “O.W.T.S. does not reduce all the
nitrates—the nitrogen. It has no impact on the phosphates. It doesn’t reduce the
phosphates, which has more impact on the wetlands than the nitrogen from what I
understand.” Vanover also expressed his belief that the applicant had not done
enough to “mitigate the potential impacts.” He thought that composting toilets or a
“gray water system * * * would be much better for the wetlands and an extension
for the community.” He was critical of DEM, characterizing its failure to consider
lawns as a “glaring omission[.]” He also stated his concern that the septic system
might “create conditions that are inimical to the public health, safety and general
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welfare of the community because of the impact the effluent would have on the
wetlands.”
Although the comments and observations of the board members may all be
valid and their diligence in visiting the property and making their own measurements
commendable, we believe that an applicant for zoning relief ought to be able to rely
on permits granted by DEM with respect to those matters uniquely within DEM’s
expertise. That is not to say that a zoning board must act as a rubber stamp; clearly
it has its own distinct responsibilities. But where, as here, a landowner has secured
a permit to alter freshwater wetlands—which is often a long and arduous process—
a zoning board may not deny zoning relief based upon a board member’s conception
of what might have a negative impact on wetlands, absent expert testimony in the
record. Similarly, relief should not be denied based upon a board member’s belief
that a particular septic system would be more beneficial than one approved by DEM,
unless that member’s belief is firmly grounded upon competent scientific evidence.
Thus, we are of the opinion that the permit granted to New Castle by DEM to
alter freshwater wetlands and to construct an OWTS constitutes evidence that New
Castle had satisfied all applicable DEM regulations with respect thereto. It is not
conclusive evidence, but here there is no contrary competent evidence in the record.
The DEM permit approval is, therefore, entitled to deference.
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Based upon our review of the trial justice’s decision and the record before us,
we are satisfied that the reasons espoused by the board members for denying the
special-use permit virtually all concern the potential impact of the proposal on the
wetlands—concerns that are clearly within the realm of DEM’s expertise. We are
further of the opinion that substantial evidence does not exist in the record to support
either the zoning board’s decision to deny the special-use permit or the trial justice’s
ruling to affirm the same.
B
Dimensional Variances
The same infirmity does not obtain with respect to the denial of New Castle’s
application for a dimensional variance. The grant or denial of a dimensional
variance is clearly within the purview of a zoning board, and the burden is squarely
on the applicant to establish its entitlement to such relief.
A dimensional variance is defined by statute as:
“Permission to depart from the dimensional requirements
of a zoning ordinance, where the applicant for the
requested relief has shown, by evidence upon the record,
that there is no other reasonable alternative way to enjoy a
legally permitted beneficial use of the subject property
unless granted the requested relief from the dimensional
regulations. However, the fact that a use may be more
profitable or that a structure may be more valuable after
the relief is granted are not grounds for relief.” Section
45-24-31(66)(ii).
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In deciding whether to approve or deny a dimensional variance, zoning boards
of review
“shall require 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(a)(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.” Section 45-24-41(d).
These requirements also appear in § 218-24 of the Charlestown Zoning
Ordinance. This Court has held that “an applicant seeking a dimensional variance
has the burden before the zoning board of showing that a factual basis appears in the
record to support the proposition that there is ‘no other reasonable alternative’ that
would allow the applicant to enjoy a legally permitted beneficial use of the
property.” Bernuth, 770 A.2d at 401.5 Furthermore, the hardship must not be “the
5
Although our holding in Bernuth v. Zoning Board of Review of Town of New
Shoreham, 770 A.2d 396 (R.I. 2001), seems to quote a since-revised version of
- 17 -
result of any prior action of the applicant and [must] not result primarily from the
desire of the applicant to realize greater financial gain[.]” Section 45-24-41(d)(2).
We first address the question of whether New Castle’s hardship was
self-created. The trial justice discounted statements made by at least two zoning
board members that the hardship from which New Castle was seeking relief was
created by New Castle when it originally subdivided the property in 1974. He
reasoned that the subdivision occurred before the zoning ordinance was amended to
require a minimum three acre lot size. Thus, the parcel was conforming when the
subdivision was originally created by the applicant in 1974.
It is not clear to us, however, upon what basis the zoning board members
found that the hardship was self-created by New Castle. One member remarked that
“this was a lot that should have never been subdivided as a buildable lot.” Another
agreed that he did not “see it as being buildable because again the wetlands
characteristics of the piece of property[.]” A third member stated that the hardship
was self-created by the applicant: “They’ve been the owner of this property since
the very beginning. It was their design. It was their plan. I don’t agree that they
can blame the town[.]”
§ 45-24-41, we quote it here because the requirement for an applicant requesting a
dimensional variance to prove “that there is no other reasonable alternative way to
enjoy a legally permitted beneficial use of the subject property” remains codified in
§ 45-24-31(66)(ii).
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In light of these comments, it is not clear to us whether the hardship to which
the zoning board members referred was created when the zoning ordinance was
amended to require a three acre minimum, or when the subdivision was approved in
1974, thereby creating the subject parcel which, albeit conforming at the time,
consisted predominantly of wooded swamp with only a relatively small corner
suitable for building. We are satisfied, therefore, that proper resolution of this issue
would require further factfinding by the zoning board.
The trial justice ultimately affirmed the zoning board’s denial of New Castle’s
application for a dimensional variance, ruling that New Castle had failed to establish
that the requested relief was the least relief necessary. In his decision, he adverted
to a board member’s statement that New Castle was unwilling “to consider
suggestions of trying to move the house further back, further away from the wetlands
by making it smaller or by just making it a two-bedroom house.” The trial justice
then referenced part of the transcript of the zoning board hearing to illustrate New
Castle’s recalcitrance.
Our task is to review the record to determine whether substantial evidence
exists to support the trial justice’s decision. See Iadevaia, 80 A.3d at 870. As did
the trial justice, we resort to the transcript of the public hearings. We note that
Greene was asked whether a smaller house had been considered, to which he
responded, “We felt that the 22x32 was actually quite conservative.” When pressed
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as to whether they had considered a two-bedroom house, he answered, “No because
a two-bedroom house has to have deed restrictions on it. It does affect the value of
the real estate.” Lampe elaborated, “A two-bedroom house is not a feasible house
in this day and age” because they are not popular.
The trial justice concluded that this testimony was in essence fatal to New
Castle’s request for a dimensional variance because “[t]he marketability and value
to a potential buyer of this dwelling are simply not grounds for relief in the granting
of a dimensional variance.” Section 45-24-41(d)(2) requires evidence 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
burden is upon the applicant to show “that there is no other reasonable alternative
way to enjoy a legally permitted beneficial use of the subject property[.]” Section
45-24-31(66)(ii). Here, we are satisfied that the trial justice’s ruling that New
Castle’s requested relief does not reflect the least relief necessary is supported by
substantial evidence.6
6
We also note that several members of the zoning board alluded to their belief that
the proposed placement of the house on the lot would “alter the general character of
the surrounding area[,]” a factor that is clearly within the discretionary authority of
a zoning board. See § 45-24-41(d)(3).
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IV
Conclusion
For the reasons stated herein, we affirm in part and quash in part the judgment
of the Superior Court. The record shall be returned to the Superior Court with our
decision endorsed thereon.
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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903
OPINION COVER SHEET
The New Castle Realty Company v. Raymond
Title of Case Dreczko, Jr., in his capacity as member of the Town
of Charlestown Zoning Board of Review, et al.
No. 2018-65-M.P.
Case Number
(WC 15-161)
Date Opinion Filed April 13, 2021
Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.
Written By Chief Justice Paul A. Suttell
Source of Appeal Washington County Superior Court
Judicial Officer from Lower Court Associate Justice Jeffrey A. Lanphear
For Plaintiff:
Kelly M. Fracassa, Esq.
Attorney(s) on Appeal
For Defendants:
Wyatt A. Brochu, Esq.
SU‐CMS‐02A (revised June 2020)