CODDER 02806, INC., DEBORAH FRANCIS, FRANCES DELLASANDRO, TIMOTHY DELLASANDRO, DEBORAH CAPOVERDE, SIDNEY MANCHESTER, and CARRIE RUGGIERI
EAST BAY COMMUNITY DEVELOPMENT CORPORATION and TOWN OF BARRINGTON PLANNING BOARD, by and through its members, MICHAEL McCORMICK, EDGAR ADAMS, MICHAEL CARROLL, ANNE GALBRAITH, SETH MILMAN, JEAN ROBERSTON, and LAWRENCE TRIM
Providence County Superior Court
For Plaintiff: J. William Harsch, Esq. Maurene Souza, Esq.
For Defendant: Stephanie L. Federico, Esq. Anthony DeSisto, Esq. Nancy Letendre, Esq.
Maya Angelou aptly stated that: "The ache for home lives in all of us, the safe place where we can go as we are and not be questioned." As this Court considers the case before it, it keeps Maya Angelou's wise words in mind.
The Court is presented with the Town of Barrington's attempt to comply with a longstanding legislative mandate that every Rhode Island city and town provide homes for low and moderate income families. The Legislature's intent could not be clearer: "it is imperative that action is taken immediately to assure the availability of affordable, accessible, safe, and sanitary housing for these persons [and] it is necessary that each city and town provide opportunities for the establishment of low and moderate income housing." G.L. 1956 § 45-53-2. Twenty-three years later, the Town of Barrington has yet to meet this legislative directive. This appeal is brought by a group of town residents staunchly opposed to the location of low and moderate income homes in their neighborhood.
The instant case comes before the Court on appeal from a decision of the Town of Barrington Planning Board (the Board) granting a comprehensive permit to East Bay Community Development Corporation (East Bay) to develop affordable housing on Sowams Road, located in the Town of Barrington (the Town). CODDER 02806, Inc.,  a non-profit corporation, and landowners abutting the proposed affordable housing project(collectively, the Appellants) contend that the application submitted by East Bay to the Board was "not consistent with local needs" because it did not conform to the Town of Barrington Comprehensive Community Plan (the Plan), did not provide for proper integration between the proposed development and the surrounding community, and had not adequately addressed "concerns for the environment and the health and safety of the current and future residents of Barrington." This Court's jurisdiction is pursuant to § 45-53-4(a)(4)(x).
Facts and Travel
In March of 2013, East Bay filed an application for a comprehensive permit with the Town, pursuant to § 45-53-4(a). The application proposed building affordable housing at 91 and 97 Sowams Road, Assessor's Plat 28, Lots 72, 73, 246, 248, 249 and 263 (the Sowams Road site), a former nursery. The Sowams Road site borders the Palmer River and a portion of the property is wetlands. The application submitted by East Bay provided for the renovation of two single-family dwellings already located on the property, which were to be sold at market price. It also provided for the construction of an affordable housing neighborhood called Palmer Pointe which included sixteen new buildings encompassing forty-eight attached single-family dwellings, a maintenance garage, an office, and laundry facilities. The application reflected plans to implement site improvements including landscaping, a roadway, parking, sidewalks, common greens, site drainage and grading. East Bay's application was certified as complete on April 24, 2013. East Bay then presented the proposal contained in its application, including providing the testimony of experts, at several public meetings before the Board ruled on its application.
The Decision of the Town of Barrington Planning Board
On August 13, 2013, in a written decision (the Decision), the Board approved the application and granted East Bay a comprehensive permit with eighteen enumerated conditions. (Board's Decision at 1.) The Decision discussed each of the seven requirements for the grant of a comprehensive permit enumerated in § 45-53-4(a)(4)(v) separately before reaching its conclusion. Id. at 1-11. This Court will confine its discussion of the Board's Decision to only those requirements which the Appellants challenge in this appeal.
The Board began by finding that the proposed affordable housing development was "consistent with local needs as identified in the local comprehensive community plan" and it provided a detailed discussion in support of that conclusion. Id. at 1-6. Specifically, the Board addressed the "Developer Guidance" portion of the Plan which deals with areas, like the Sowams Road site, that are identified in the Plan as being eligible for village zoning. Id. at 2; the Plan, Appendix III at III-1 to III-3. The Developer Guidance requires that thirty-five percent of units in a development be low and moderate income housing to be eligible for village zoning—in the instant case, other than the two existing houses to be renovated, the development is one hundred percent low and moderate income housing. (Board's Decision at 2-4.) Therefore, the Board found that the site of the planned development could be converted to a village zone. Id. at 2.
According to the Board, village zoning would allow "higher density development" (up to five units per acre), than the property's existing zoning designation of Residence 25. Id. at 2. However, the Board noted that the development, as proposed, exceeded the five units per acre permissible in a village zone—the density was projected by the Board to be 8.87 units per acre. Id. at 4. Looking to the Plan's Housing & Neighborhoods Directives, the Board found that a "50 percent maximum one-step percentage" increase in density is allowed when the proposed development is comprised of over fifty percent low and moderate income housing. Id. at 5. Accordingly, the Board stated that if the total number of units in the proposed development was reduced from fifty to forty-two then the density would be 7.45 units per acre, which represented a forty- nine percent increase over the maximum allowed five units per acre. Id. Since the increase was within the allowed fifty percent one-step percentage increase, at forty-two units the development would be in line with local needs and the Plan. Id. The Board also found that the mix of unit types was consistent with the Developer Guidance and "should be maintained." Id. at 6.
The Board next found that the low and moderate income housing units were integrated throughout the proposed development and were "compatible in scale and architectural style to the market rate units in the [proposed development] and the surrounding neighborhood." Id. at 9. Additionally, the Board found that there were no "known negative environmental impacts from the proposed development"; the Board took into account the concerns about environmental impacts presented by the Appellants' expert, Thomas B. Nicholson, but found that consideration of the issue of environmental impact was "premature" prior to submission of "full detailed engineering plans." Id. at 9-10.
Similarly, the Board found "no known negative impacts on the health and safety of current or future residents of the community, " again referencing Mr. Nicholson's concerns, in addition to the concerns raised by another of the Appellants' experts, Ashley Hahn. Id. at 10. According to the Board, any issues with density, roadway width, traffic impacts, etc. would be addressed by the required revisions to the proposed development that the Board made conditions of its granting East Bay a comprehensive permit, such as requiring the number of units be reduced to forty-two. Id.
Among the eighteen conditions to the Board's grant of the comprehensive permit were the following: 1) "[t]he maximum number of units within the development shall be reduced from 50 to 42"; 2) "[s]treet pavement width shall be widened to a minimum of 22 feet"; 3) "[s]ubmit one full copy plus the executive summaries of environmental site assessments completed at the site as part of the preliminary plan submission, to include an assessment of chemicals used at the nursery and potential risks to human health and the environment"; and 4) "[s]ubmit the required traffic impact analysis" which "shall evaluate conditions for pedestrian access on Sowams Road in the study area . . . ." Id. at 11-13.
The Appellants have timely appealed the Board's Decision to this Court.
Standard of Review
The Rhode Island Low and Moderate Income Housing Act (the Act) provides in § 45-53-4(a)(4)(x) that "[a]ny person aggrieved by the issuance of an approval may appeal to the superior court within twenty (20) days of the issuance of approval." However, the statute fails to provide any instruction with regard to what standard of review should be applied by this Court when reviewing the approval of an application for a comprehensive permit.
The Rhode Island Supreme Court, when reviewing a zoning board's grant of an application to build low and moderate income housing for the elderly, recognized the lack of a standard of review in chapter 53 of title 45 and elected to apply the standard this Court typically applies to appeals from local zoning boards of review—the standard articulated in § 45-24-69(d). See Curran v. Church Cmty. Hous. Corp., 672 A.2d 453, 454 (R.I. 1996). We will likewise apply the standard of review enumerated in § 45-24-69(d) to the appeal in the instant case.
Section 45-24-69(d) provides that:
"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."
When reviewing a zoning board appeal, this Court uses the "'traditional judicial review' standard applicable to administrative agency actions" and, thus, lacks the authority to "weigh the evidence, to pass upon the credibility of witnesses, or to substitute [its] findings of fact for those made at the administrative level." Restivo v. Lynch, 707 A.2d 663, 665-66 (R.I. 1998) (quoting E. Grossman & Sons, Inc. v. Rocha, 118 R.I. 276, 284-85, 373 A.2d 496, 501 (1977)); Lett v. Caromile, 510 A.2d 958, 960 (R.I. 1986). A zoning board is presumed to be knowledgeable about matters pertaining to an effective administration of the zoning ordinances and, consequently, this Court affords a high level of deference to the decision of a zoning board. Cohen v. Duncan, 970 A.2d 550, 561 (R.I. 2009). Accordingly, this Court's review is limited to examining the "'certified record to determine if there is any legally competent evidence therein to support the agency's decision.'" Johnston Ambulatory Surgical Assocs., Ltd. v. Nolan, 755 A.2d 799, 804-05 (R.I. 2000) (quoting Barrington Sch. Comm. v. R.I. State Labor Relations Bd., 608 A.2d 1126, 1138 (R.I. 1992)). Legally competent or substantial evidence has been defined by our Supreme Court as "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." Caswell v. George Sherman Sand & Gravel Co., 424 A.2d 646, 647 (R.I. 1981). If the Court can "'conscientiously find that the board's decision was supported by substantial evidence in the whole record, '" it must uphold the decision. Mill Realty Assocs. v. Crowe, 841 A.2d 668, 672 (R.I. 2004) (quoting Apostolou v. Genovesi, 120 R.I. 501, 509, 388 A.2d 821, 825 (1978)). However, if this Court finds that the Board's decision was "[c]learly erroneous in view of the reliable, probative, and substantial evidence of the whole record, " "[a]rbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion, " in violation of statutory provisions, or "affected by [an]other error of law" then the Court may remand the case for further proceedings or vacate the Board's decision. Sec. 45-24-69(d); see Bernuth v. Zoning Bd. of Review of New Shoreham, 770 A.2d 396, 399 (R.I. 2001).
The Appellants contend, in their memorandum before this Court, that the Board's grant of East Bay's application for a comprehensive permit must be reversed due to the fact that the Decision: "(1) was not consistent with the local needs as defined by R.I. Gen. Laws § 45-53-3" because the Sowams Road site is unsuitable for the proposed development and the proposed development is not in line with the Plan; (2) did not find that the proposed development was properly integrated as required in § 45-53-4(a)(4)(v)(C); and (3) did not "address concerns for the environment and the health and safety of current and future residents."
In response, East Bay argues that the proposed development is consistent with local needs and the Plan; moreover, it contends that any inconsistencies between the Plan and the proposed development have been satisfactorily addressed by the Board in the Decision. Additionally, East Bay posits that there will be no significant negative impacts on the environment or the health and safety of the current residents and that the conditions imposed by the Board are sufficient to deal with any concerns presented by the Appellants' experts. The Town filed its own memorandum, which largely echoes the arguments presented by East Bay.