Kenlin Properties, LLC et al.
v.
City of East Providence et al.
Providence
County Superior Court (PC 11-7249) Associate Justice Sarah
Taft-Carter
For
Petitioners: Lauren E. Jones, Esq., Robert S. Thurston, Esq.,
Timothy J. Chapman, Esq.
For
Respondents: Thomas M. Dickinson, Esq. James P. Howe, Esq.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
Indeglia, JJ.
OPINION
PAUL
A. SUTTELL, CHIEF JUSTICE
This
Court granted a petition for writ of certiorari filed by the
City of East Providence and the East Providence Zoning Board
of Review (zoning board) (collectively, the city) seeking
review of a judgment of the Superior Court. The zoning board
had affirmed a notice of violation issued by the East
Providence zoning officer finding several violations of a use
variance that had been granted in 1998 to the owner and
operator of a facility known as Pond View Recycling (Pond
View). Kenlin Properties, LLC (Kenlin) and TLA-Providence,
LLC (TLA), as the owner and operator of Pond View, appealed
to the Superior Court from the zoning board's decision
upholding the notice of violation.[1] A trial justice of the Superior Court
reversed the zoning board, concluding that the zoning
board's decision was clearly erroneous and made upon
unlawful procedure. For the reasons set forth in this
opinion, we quash the judgment of the Superior Court.
I.
Facts and Procedural History
The
property at issue in this appeal is located at One Dexter
Road in East Providence (the property) and at present is
owned by Kenlin. At the time of the notice of violation, the
property was operated as a construction and demolition
(C&D) debris processing facility known as Pond View.
When
the application for a use variance was originally filed in
January 1998, Pond View was registered with the Rhode Island
Department of Environmental Management (DEM) as a processing
facility. The then owner and the proposed lessee of the
property applied to the zoning board for a use variance to
operate Pond View as a facility for "primarily the
recycling of natural and processed wood materials into mulch
products." The application described the property as
covering 15.614 acres containing three buildings: a 67,
578-square-foot brick and block industrial warehouse, a 24,
583-square-foot metal warehouse, and a 24, 990-square-foot
metal warehouse. The list of "proposed construction and
uses" requested permission to "allow incidental
metal separation as an accessory use." The application
sought a variance under which "[l]imited metal
reclamation [would be] permitted, if it [was] carried on in
an enclosed building, " and other special conditions
"which would permit immediate [outside] operation of the
wood recycling operation" for eighteen months, at which
time "an enclosure designed specifically for the C&D
and wood processing or recycling machine" would have
been built.
Prior
to voting on the application, members of the zoning board
questioned Kenneth Foley, the proposed lessee of the
property, regarding the storage of product, an enclosure for
the grinder, and a sound-absorbing berm. Foley responded that
there would be an open-ended building that "looks like a
greenhouse, " and an earth berm to absorb the sound,
plus a tree buffer zone at the property line. The zoning
board unanimously granted the application but imposed four
conditions on the use variance: (1) limiting the grinding of
materials to 150 tons per day; (2) restricting the grinding
hours from 8 a.m. to 4 p.m. daily Monday through Friday and 8
a.m. to noon on Saturday; (3) constructing a berm before
grinding operations commence; and (4) completing the grinder
enclosure within eighteen months.
In
February 2003, DEM granted Pond View a license, pursuant to
G.L. 1956 § 23-18.9-8(a)(1), [2] to increase the processing capacity to
500[3] tons per day. In 2005, the city
sought both a declaratory judgment declaring that Pond View
was violating its use variance by receiving more than 150
tons per day of C&D debris and an injunction precluding
Pond View from operating its facility. A justice of the
Superior Court issued a declaratory ruling holding that: the
original use variance remained "valid and intact, "
that the "principal regulatory authority" was the
state, that "only those zoning regulations that [did]
not inhibit the state regulatory scheme [could] be utilized,
" and that the city was not prohibited from pursuing
"any putative violation of a local zoning
ordinance" through normal administrative procedures.
Subsequently,
on May 27, 2011 the city zoning officer issued a notice of
violation to Pond View alleging violations of the use
variance granted in 1998. The zoning officer reviewed Pond
View's 1998 variance application and site plan, the
transcripts from the 1998 hearings, and the 2011 DEM-approved
site plan. After reviewing the documents, the zoning officer
found that it was "abundantly clear that the approved
'open storage' area was constrained to the pad
illustrated on the site plan submitted in conjunction with
the '[a]pproved [v]ariance, '" and that
"[t]he present/proposed operation [had] well exceeded
the 'approved' pad-site." The zoning officer
further found that it was "abundantly clear that the
'[a]pproved [v]ariance' was limited to 150-tons, and
not simply the grinding of 150-tons [because] 'Pond
[V]iew' repeatedly testified as to the exact quantity * *
*." After further review of the hearing transcripts, the
zoning officer also found that it was "abundantly clear
that wood products would be the predominant material handled,
and for which a variance [had been] granted." However,
the zoning officer found, wood products comprised less than
half of the incoming C&D materials at Pond View.
Additionally, the zoning officer stated that "Pond View
has continuously argued that there is a unique distinction
between the hours of operation and hours allocated to the
'grinding' component of the operation. However, no
such distinction was offered during testimony." The
zoning officer also found that there was no longer an
"earthen berm with natural vegetation atop, " which
had been "a specified condition of approval [of the
variance]." The zoning officer further noted that Pond
View testified to having "one grinder" on the
property but, in its 2011 DEM submission, it added a second
machine, which the zoning officer concluded was "outside
the scope of the '[a]pproved [v]ariance.'"
The
zoning officer ultimately cited Pond View for: exceeding the
approved open storage area; expanding beyond the 150-ton
limit approved in the 1998 use variance; accepting products
other than wood; operating beyond the permitted hours of
operation; failing to maintain an earthen berm; and adding
additional equipment to the site. In or about June 2011,
Kenlin and TLA appealed the notice of violation to the zoning
board.
The
zoning board held hearings in the fall of 2011 and issued a
unanimous decision on October 19, 2011, denying Kenlin and
TLA's appeal. In affirming the decision of the zoning
officer, the zoning board made the following findings of
fact:
"1. The [b]oard has considered the findings of the
[z]oning [o]fficer;
"2. The [b]oard has considered the recommendation of the
[p]lanning [b]oard;
"3. The use for which the variance was granted was
primarily the recycling of natural and processed wood into
mulch products;
"4. That the operation today is not primarily the
recycling of natural and processed wood into mulch products;
"5. The types of materials being taken in and processed
exceed what was applied for and granted in the variance;
"6. There are presently two grinding machines at the
operation;
"7. The permitted use allows for one grinding machine;
"8. That material currently processed such as tires,
concrete, vinyl siding exceed the use permitted by the
variance;
"9. That * * * based upon testimony presented and the
photos entered into evidence, the record shows that the
petitioner has open storage on the premises that exceeds the
limits of the permitted use;
"10. Based upon the testimony and the findings from the
records, the petitioner is processing in excess of the
tonnage that's allowed to be
processed[.]"
Kenlin
and TLA, on behalf of Pond View, appealed the zoning
board's decision to the Superior Court on December 23,
2011. Before the Superior Court, Kenlin and TLA argued that
the zoning officer and zoning board erred in considering
documents and testimony outside of the recorded variance.
Kenlin and TLA also argued that "the 2006 [d]eclaratory
[j]udgment preclude[d] re-litigation of the issues of daily
tonnage limits and the acceptance and processing of concrete
because the [2006 declaratory judgment] considered the scope
of the 1998 [use variance] as well as the actual use of the
[p]roperty." Conversely, the city maintained that the
zoning officer and zoning board "properly looked beyond
the four corners of the [variance] to determine what was
permitted, " and that the zoning board properly affirmed
the zoning officer's decision.[4]
On
August 2, 2013, the trial justice issued a written decision
reversing the decision of the zoning board. The trial justice
noted that the zoning officer and zoning board "relied
on sources outside the [variance] to construe the conditions
to include items not approved in 1998." Specifically,
the trial justice determined that the variance "[did]
not impose: site plan restrictions[, ]
open storage restrictions[, ] limits on
daily tonnage receipt or processing[, ]
limits on the types of materials that may be accepted or
processed[, ] limits on the
[f]acility's hours of operation[, ]
a requirement for an earthen berm with trees
atop[, ] or a limit to one machine on
the [p]roperty." The trial justice held that the zoning
officer and zoning board "were without authority to
revisit the prior[] [zoning] [b]oard's work to
create a violation." The trial justice concluded that
"conditions must be clearly expressed to be effective,
" thus, the zoning board "erred in upholding the
[notice of violation] and in finding violations with respect
to the scope of the use, materials, and the [s]ite
[p]lan."
On the
issue of collateral estoppel, the trial justice was
"satisfied that the requirements for collateral estoppel
[were] met" in this case because, identical to the 2006
declaratory judgment action, the city was again a party,
Kenlin and TLA were in privity with Pond View, "the
tonnage and material receipt issues [were]
'identical' * * *[, ] and the
prior proceeding resulted in a final judgment." Thus,
the trial justice held that "[t]he 2006 [d]eclaratory
[j]udgment bar[red] re[-]litigation of the grinding and
concrete processing issues." Ultimately, the trial
justice held that Kenlin and TLA's "substantial
rights were prejudiced because the [d]ecision of the [z]oning
[b]oard, affirming the [z]oning [o]fficer's [n]otice of
[v]iolation, was clearly erroneous and made upon unlawful
procedure." Thus, the trial justice granted Kenlin and
TLA's appeal, and final judgment entered on September 6,
2013.
Subsequently,
the city filed a petition for writ of certiorari with this
Court, seeking review of the Superior Court's decision.
We granted the city's petition and issued a writ on May
5, 2014. Before us, the city argues that the trial justice
erred by: (1) "substituting her judgment for that of the
* * * zoning officer and zoning board in determining the
scope of the [1998 use variance]; (2) "holding that the
[c]ity could not consider the application, site map, and
testimony at the 1998 public hearing[s] in determining the
scope of the use that was granted to Pond View in the 1998
[use] variance; (3) by analyzing the conditions of the 1998
use variance instead of the scope of the 1998 use variance;
and (4) "in applying collateral estoppel to preclude the
zoning officer from raising the 'tonnage' and
'concrete' issues regarding Pond View's use of
the facility."
II.
Collateral Estoppel
A
threshold issue in this case is whether the zoning officer
and zoning board were precluded by the doctrine of collateral
estoppel from raising the "tonnage" and
"concrete" issues when considering ...