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Folco v. Zoning Board of Review of Town of Smithfield

Superior Court of Rhode Island

June 16, 2015

ZONING BOARD OF REVIEW OF THE TOWN OF SMITHFIELD, and GEORGE D. McKINNON, ANTONIO S. FONSECA, DAVID GREENE, S. JAMES BUSAM, and PETER FOGARTY, in their capacities as Members of the Zoning Board of Review of the Town of Smithfield

Providence County Superior Court PC 2013-3267

For Plaintiff: Mary B. Shekarchi, Esq.

For Defendant: Susan A. Chiariello, Esq., Edmund L. Alves, Jr., Esq.



Before the Court is an appeal from a decision of the Zoning Board of Review of the Town of Smithfield (Zoning Board). Danny D. Folco (Applicant) seeks reversal of the Zoning Board's June 13, 2013 decision (Decision) denying his request for dimensional relief from the Town of Smithfield Zoning Ordinance (Ordinance) Section 5.3.4, Buffers, as well as Section 5.4.1, Minimum Front Yard. Jurisdiction is pursuant to G.L. 1956 § 45-24-69. For the reasons set forth in this Decision, this Court upholds the Zoning Board's Decision.


Facts and Travel

The subject premises are designated as Lot 23 on Assessor's Plat 23 in Smithfield, Rhode Island and are owned by Applicant. The premises are located at 8 Cross Street in the Town of Smithfield in a Residential R-20 District and total 22, 090 square feet.

The Applicant filed a petition with the Zoning Board seeking dimensional variances to construct a single-family dwelling with an attached garage and deck on the premises. In order to construct a 32' x 24' dwelling, a 24' x 18' garage, and a 10' x 10' deck, the Applicant requires: (1) a 21.66' variance from the required 30' front yard setback, resulting in an 8.34' front yard setback; and (2) a 77.48' variance from the required 100' wetland setback requirement, resulting in a 22.52' wetland setback. The Department of Environmental Management (DEM) issued a Permit to Alter Freshwater Wetlands to Applicant in 2009 upon determining that the proposed location for the dwelling was the best location to provide protection to the freshwater wetlands on the premises. (Bd. R., Ex. 4, DEM Permit.)

A properly advertised public hearing on the application for dimensional relief was heard by the Zoning Board on April 24, 2013. All members of the Zoning Board viewed the premises. The Zoning Board's view of the location revealed that development of the premises would "be an enormous challenge." (Bd. Decision at 2.) The Zoning Board observed that the

Woonasquatucket River (River) bisects the premises and some of the lot is submerged beneath it. Id. Furthermore, the lot slopes steeply down toward the River, and much of the premises are undevelopable due to its location in the floodplain. Id.

At the hearing, Applicant himself did not appear or testify, but his attorney presented three witnesses to testify in favor of the proposal: Joseph A. Casali (Mr. Casali), a Rhode Island registered civil engineer; Scott Rabideau (Mr. Rabideau), a wetlands biologist; and Donald Morash (Mr. Morash), a real estate broker. While Mr. Morash was allowed to proceed with his planned testimony, the Zoning Board declined to formally accept his testimony because Mr. Morash is not a licensed appraiser. In 2010, The Rhode Island Department of Business Regulation (DBR) sent the Zoning Board a letter requesting that individuals without an appraiser's license not be permitted to provide either sworn testimony or written opinions "regarding the value, nature, or utility of real property located in your municipality." (Bd. R., Ex. 9, May 25, 2010 Letter from DBR.)

Mr. Casali was accepted by the Zoning Board as an expert witness in the field of civil engineering. (Hr'g Tr. at 5:7-8.) He explained that the premises are a triangular piece of land located at the intersection of Cross Street and Whipple Avenue. Id. at 6:1-8. Mr. Casali testified that the DEM has a 200 foot jurisdictional buffer for the wetlands that encompasses all of Cross Street and Whipple Avenue. Id. 6:22-7:5. Thus, any house to be built on the premises would require relief in the form of a dimensional variance, as well as a permit from the DEM. Id. 7:10-15. Because of the slope on the premises, Mr. Casali testified that the dwelling would have to be designed as a walkout, which is what Applicant is proposing. Id. 9:16-20. Mr. Casali described the proposed dwelling as "relatively modest, " and that a lot designated as R-20 is meant to be used for a residential single-family dwelling. Id. at 10:2, 12:7-11. The first floor elevation of the proposed dwelling would be 134.67 feet, which would be approximately 4.5 feet about the base flood plain elevation. Id. at 14:3-4. Mr. Casali testified that the garage factored into the DEM issuing a permit because it is "an important feature when you talk about environmental sensitivity." Id. at 18:18-22.

Mr. Rabideau was accepted as an expert witness in the field of wetlands biology. Id. 23:21-22. He emphasized that Applicant seeks to alter only 6170 square feet of the property, which is a 22, 000 square foot lot. Id. at 26:7-12. Mr. Rabideau testified that the DEM permit was conditioned on Applicant's taking precautions both during and after construction to prevent and control erosion on the premises. Id. at 27:5-22. He explained that, in his opinion, dimensional relief was necessary because of the premises' configuration. Id. at 29:1-7. Mr. Rabideau testified that the proposed dwelling is "a standard house" at twenty-four feet wide. Id. at 29:10-11. He also stated that building close to the River was in keeping with the surrounding area because the other houses in the area have "developed very close to the river throughout this portion of Smithfield." Id. at 29:20-25, 30:1-6.

In opposition to the application, Donald Brown (Mr. Brown), vice-chairman of the Smithfield Conservation Commission (Commission), and Linda Steere (Ms. Steere), a wetlands biologist, both offered testimony. Mr. Brown testified about his concerns over erosion, specifically the "sharp dropoff of the land. If you look at the house, it is 20-foot wide and in that 24 feet it drops off 8 feet. So that's pretty steep as far as controlling erosion and so on." Id. at 42:8-11. He offered testimony regarding his personal knowledge that the land in the area had been filled over the years, and he has observed "various types of soil, including even sand." Id. at 42:14-18. Mr. Brown also testified about Applicant's first proposed dwelling, which was 36' x 24' with a 24' x 24' garage. Id. at 46:13-15. The application for this dwelling came before the Commission a few years prior, and the Commission made its recommendation to the Smithfield Town Council that the application should be denied. Id. at 41:4-13. Mr. Brown pointed out that the new dimensions proposed by Applicant do nothing to mitigate the dwelling's proximity toward the wetland. Id. at 46:18-22. Mr. Brown testified that approval of the application would result in a 77% reduction in the wetland setback and a 67% reduction in the front yard setback requirement, and these reductions were major variances. Id. at 49:1-6.

Ms. Steere was accepted as an expert witness in wetland biology. Id. at 53:22-24. She testified about her concern over "the erosion sediment controls, " and how construction will disturb and destabilize the premises. Id. at 55:9-24. Ms. Steere commented that borings should be performed along with additional work to determine if the proposed construction is feasible. Id. at 56:7-12. She also raised her concerns about flooding and the potential for FEMA to increase the base flood plain. Id. at 57:1-6. Ultimately, Ms. Steere testified that her main concern was the size of these variances, which she felt would set precedent for the Town of Smithfield allowing unusually large variances. Id. at 60:15-16.

On June 13, 2013, the Zoning Board issued its Decision denying Applicant's requested variances because (1) the hardship is due to the general character of the surrounding area based on the Smithfield Comprehensive Community Plan (Plan); (2) the hardship is caused by Applicant's desire to construct too large a home too close to the River; (3) to grant the request would alter the general character of the surrounding area and impair the intent or purpose of the Ordinance or the Plan; (4) the relief sought was not the least relief necessary due to the inclusion of the garage; and (5) no evidence was submitted to show that the hardship suffered would be more than a mere inconvenience.

The Zoning Board in its Decision properly considered all testimony and evidence presented at the hearing, along with its own examination of the Plan, specifically Objectives NR-1.2, NR-1.5, and NR-1.7. These Objectives focus on preserving water quality and wetlands, as well as protecting flood zones.

The Applicant timely appealed the Zoning Board's Decision on July 2, 2013. On appeal, Applicant raises various issues: (1) the hardship is due to the unique characteristics of the land itself, not the general characteristics of the surrounding area; (2) the hardship is not a result of any prior action taken by Applicant or by his desire to realize financial gain; (3) granting the request would not alter the general character of the surrounding area or impair the intent or purpose of the Ordinance or Plan; and (4) the relief sought is the least relief necessary. Thus, Applicant argues that the Decision was arbitrary and capricious, made in error of law, unsupported by substantial evidence, and that Applicant's rights have been prejudiced. The Applicant also requests reasonable litigation expenses under the Equal Access to Justice for Small Businesses and Individuals Act.


Standard of Review

Pursuant to § 45-24-69, "[a]n aggrieved party may appeal a decision of the zoning board of review to the superior court . . . ." In reviewing the zoning board's decision, the

"court shall not substitute its judgment for that of the zoning board . . . as to the weight of the evidence on questions of fact. The court may affirm the decision . . . 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 ...

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