TEM CORP. and C&H PROPERTIES, LLC
TOWN OF EXETER ZONING BOARD OF REVIEW and JAMES POND REALTY COMPANY, LLC Formerly the Helen Danforth Trust (Intervenor)
Washington County Superior Court
For Plaintiff: John A. Pagliarini, Jr., Esq.
For Defendant: James P. Marusak, Esq. J. William Harsch, Esq.
Before the Court is TEM Corp. and C&H Properties, LLC's (collectively the Appellants) appeal from a decision of the Town of Exeter Zoning Board of Review (Zoning Board), which denied the Appellants' application for a special use permit. The special use permit would have allowed Appellants to construct a two-parcel industrial park containing a bituminous concrete (asphalt) manufacturing plant on one of the lots and a contractor's office and storage facility on the other lot. The Appellants seek reversal of the Zoning Board's decision, reasonable litigation expenses, and attorney's fees. Jurisdiction is pursuant to G.L. 1956 § 45-24-69. For the reasons set forth within, this Court affirms the Zoning Board's decision.
I Facts and Travel
C&H Properties, LLC (C&H) owns property located on Assessor's Plat 46, Block 2, Lot 3 in Exeter, Rhode Island (the Property). See Zoning Certificate. On November 19, 2014, C&H requested a zoning certificate from the Town of Exeter's Zoning Inspector seeking approval of the plan to build an asphalt plant within an industrial park. See id.; see also Dec. 9, 2014 Zoning Application. The Zoning Inspector issued a certificate stating that the "proposed use, structure or sign . . . DOES NOT conform to the provisions of the Town of Exeter Zoning Ordinance." See Zoning Certificate. Accordingly, the Zoning Inspector informed Appellants that they needed to apply to the Zoning Board for a special use permit pursuant to Article II, § 220.127.116.11 of the Exeter Zoning Ordinance (Zoning Ordinance) and that the Appellants further needed to apply to the Town of Exeter's Planning Board (Planning Board) for a Development Plan Review. See Zoning Certificate.
On December 9, 2014, the Appellants applied to the Zoning Board for a special use permit to build a two-parcel industrial park on the Property, which would include an asphalt plant on lot A and a contractor's office and storage facility on lot B. (Dec. 9, 2014 Zoning Application.) The Appellants also applied to the Planning Board for a Development Plan Review and a major subdivision. See Hr'g Audio Tr. (Hr'g Tr.) 1:30-2:10. The Planning Board submitted a statement on the general consistency of the Appellants' application for an industrial park with the Town of Exeter's comprehensive plan in accordance with the Zoning Ordinance. Id.; see also Article I, § 1.1.3.E of the Zoning Ordinance.
On February 12, 2015, the Zoning Board held a public hearing on the Appellants' application for a special use permit. At the hearing, counsel represented the Appellants, and the Appellants presented testimony regarding the proposed industrial park. Michael McCormick, a professional land surveyor; Timothy Behan, a professional engineer; James Houle, a real estate professional; Thomas Miozzi; and the President/owner of TEM Corp. all testified on behalf of the Appellants at the hearing. No one testified in opposition to the Appellants' application. The testimony at the public hearing addressed the conditions for granting a special use permit in Exeter, Rhode Island. See Hr'g Tr. 126:30-1:28:00, 138:00-140:10. The Zoning Board ultimately determined that an asphalt plant was specifically prohibited and thus not eligible for a special use permit. See Zoning Board Decision (Zoning Board Decision) at 5-6; Hr'g Tr. 138:00-140:10. Therefore, the Zoning Board did not reach the question of whether the Appellants satisfied the criteria for a special use permit. See Zoning Board Decision; Hr'g Tr. 138:00-140:10.
The Zoning Board issued a written decision regarding the special use application on February 25, 2015. The Zoning Board Decision noted that Appellants' attorney argued at the hearing that Article II, § 18.104.22.168 of the Zoning Ordinance regarding industrial parks is vague and does not limit the type of industrial businesses that may operate within industrial parks, arguing that based on the current language of the Zoning Ordinance, "a landowner could operate any type of industrial business whatsoever in the Town of Exeter so long as that industrial business was located in an 'industrial park.'" (Zoning Board Decision at 4.)
The Zoning Board made nine findings of fact based on the record before it. See generally id. at 5. In relevant part, the Zoning Board found that the Appellants were seeking to obtain a special use permit in order to construct an industrial park on the Property, pursuant to Article II, § 22.214.171.124 of the Zoning Ordinance. Id. Further, the Appellants intended to subdivide the Property into two smaller lots that would share a common driveway. Id. On one side of the subdivided lot, the Appellants intended to construct an asphalt plant, and on the other lot, the Appellants intended to construct a contractor's office and storage facility. Id.
In turn, the Zoning Board made seven conclusions of law. See id. at 5-6. The Zoning Board determined that Article II, § 126.96.36.199 of the Zoning Ordinance is not vague or ambiguous. Id. at 5. It found that only uses permitted or specially permitted according to the Use Table are allowed in an industrial park in the Town of Exeter. Id. An asphalt plant, the Zoning Board found, is not a use listed in the Use Table. Therefore, it reasoned that an asphalt plant is a specifically prohibited use. Id. Furthermore, the Zoning Board concluded that an asphalt plant is specifically prohibited, according to the Zoning Ordinance, regardless of whether the asphalt plant is proposed to be located within an industrial park, even if the construction and operation of the asphalt plant would otherwise satisfy the criteria of a special use permit. Id. at 6. The Zoning Board found that it does not have authority to issue a special use permit for a use that the Town Council has not included in the Use Table. Hence, it did not have authority to issue a special use permit to the Appellants. Id. Finally, the Zoning Board reasoned that the Town Council did not intend to allow the construction of asphalt plants in the Town of Exeter because it did not include the use within the Use Table. Id. The Zoning Board made no findings regarding whether the Appellants satisfied the criteria for a special use permit. See id.
The Appellants timely appealed the Zoning Board Decision. An abutting landowner, the James Pond Realty Company, LLC, formerly The Helen Danforth Trust, filed a motion and successfully joined this action as an intervenor requesting this Court uphold the Zoning Board's Decision. See Motion to Intervene.
II Standard of Review
Pursuant to the Zoning Enabling Act, an aggrieved party may appeal to the Rhode Island Superior Court for review of a local zoning board's grant or denial of a special use permit. See § 45-24-69(a); Iadevaia v. Town of Scituate Zoning Bd. of ...