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Jackson v. City of Woonsocket Zoning Board of Review

Superior Court of Rhode Island

November 15, 2016

GEORGE G. JACKSON
v.
CITY OF WOONSOCKET ZONING BOARD OF REVIEW

         Providence County Superior Court

          For Plaintiff: George G. Jackson, Pro Se

          For Defendant: Michael J. Marcello, Esq.

          DECISION

          VOGEL, J.

         The Appellant, George G. Jackson (Appellant or Jackson), appearing pro se, appeals for the second time from a decision of the Woonsocket Zoning Board of Review (Board), denying his application for a dimensional variance. This Court remanded the earlier case after reviewing the initial decision and determining that the Board failed to provide adequate findings of fact and to apply the correct legal standard. On remand, the Board issued a new decision again denying the dimensional relief sought. (Decision of Woonsocket Zoning Board of Review upon Remand from Providence [County] Superior Court - Jackson v. City of Woonsocket Zoning Bd. of Review - C.A. No. PC 12-6196 (Decision)). Appellant takes the instant appeal from that Decision. This Court exercises jurisdiction over this matter pursuant to G.L. 1956 § 45-24-69. For the reasons set forth herein, this Court affirms the Board's denial of Appellant's application for a dimensional variance.

         I

         Facts and Travel

         The Appellant resides in a single-family home on a 37, 313 sq. ft. lot located at 170 Spring Street in Woonsocket, Rhode Island. (Zoning Bd. Hr'g Tr. (Tr.) 4, Oct. 9, 2012.) The subject lot is identified as Tax Assessor's Plat 13, Lot 4 and is situated in an R-3 Medium Density Single- and Two-Family Residential District. Id.

         The Appellant applied for a dimensional variance to construct a six-foot fence around his property. (Appellant's Appl., Ex. A.) Specifically, Appellant sought relief from municipal Ordinance 6.2-1, [1] limiting the height of fencing along two sections of his property, the front yard and also along the sides of his house. Id. He sought a three-foot variance to erect the fence in the front of his property and a two-foot variance to erect the fence along the sides of his residence. Id. The Zoning Board conducted a hearing on his application on October 9, 2012. At the hearing, Jackson testified that a six-foot fence with vegetation growing on it would give him privacy from intruders who would not be deterred from entering upon his property by a three-foot fence. (Tr. at 13); see also Appellant's Appl., Ex. A. Additionally, he claims he requires a six-foot fence to protect his yard from noise and pollution emitted by street traffic such as fire engines, police cars, and trash trucks. (Tr. at 11-12); see also Appellant's Appl., Ex. A.

         Although she did not appear at the hearing, one of Jackson's neighbors submitted a letter to the Board objecting to the proposed relief. (Tr. at 19-20). In her letter, which was entered into the record, the objecting neighbor complained that Appellant had initiated construction of the fence prior to requesting the dimensional relief, specifically by putting six-foot fence posts in the ground. (Zoning Bd. R. Ex. A: Letter from Abutter.) The neighbor also noted that those fence posts sit on top of a two-foot retaining wall, elevating the posts and proposed structure to eight feet above street level. Id. She expressed concern about the height and the possible impact the fence would have on traffic safety since the property sits on a corner lot. Id. The neighbor further questioned Jackson's claim that such a fence would serve to solve neighboring noise problems. Id.

         At the hearing, Board member Kathryn Dumais noted that she lives in the same neighborhood as Appellant and questioned Jackson's assertion that he suffered hardships regarding fire engines, police cars, and garbage trucks. (Tr. at 10-11).[2] Specifically, Dumais suggested that emergency vehicles rarely go into Appellant's neighborhood and proceed mostly along the main road. Id. at 11. Additionally, Dumais noted that new equipment on trucks has reduced the harshness of fumes. Id. She further questioned how a fence could stop fumes in any event. Id. Dumais dismissed Jackson's concerns over odors emanating from garbage trucks by saying she lives nearby and does not smell the trucks. Id. at 12.

         The Appellant insisted that fire trucks, ambulances and police vehicles drove upon the left-hand lane of his road although he acknowledged that they did not drive on his street as often as they traveled on other roads. Id. at 11-12. He responded to Dumais' contention that she lives nearby and does not notice any odor from garbage trucks, noting that he is sensitive to such smells and is troubled by them. (Tr. at 12).

         Relying on photographs[3] that were included in the record, two other Board members, Allen Rivers and Richard Masse, raised concerns over the height of the proposed fence, which would sit on the two-foot retaining wall. Id. at 13-16. Masse further questioned how the proposed open fence would remedy Appellant's privacy concerns. Id. at 15.

         In its initial decision, the Board unanimously voted to deny Appellant's request for a variance. Id. at 50. At that time, the Board gave the reasoning for its denial in two sentences: "The Board did not believe testimony by the applicant rises to the level of reasonable or relevant enough hardship to constitute a hardship"; "Applicant receives full and beneficial use of his property." Id. at 51. The Appellant took an appeal from the denial of his application. Without addressing the merits of his arguments, the Court remanded the case to the Zoning Board after determining the Board's findings of fact were inadequate and conclusory. Jackson v. City of Woonsocket Zoning Bd. of Review, No. PC 12-6196, 2014 WL 4101445 (R.I. Super. Aug. 14, 2014), 6. Additionally, this Court found that the Board's Decision was affected by error because the Board applied the incorrect legal standard when rendering its decision. Id. The Court concluded that these errors substantially prejudiced the rights of Appellant, and this Court remanded the matter to the Board to make sufficient findings of fact and to apply the correct legal standard. Id.

         On remand, the Board issued a written Decision on November 13, 2014, again denying the relief sought by Appellant. (Decision). In its written Decision, the Board applied the correct legal standard governing consideration of applications for dimensional variances. (Decision 2-3.); see §§ 45-24-41(d) and (e)(2). Further, the Board specifically addressed the statutory requirements and then applied the evidence on the record to the applicable law to support its findings. (Decision 2-3.) The Board determined that based on photographs and the testimony on the record, Appellant's asserted hardships were not unique and therefore Appellant did not meet the standard set out in § 45-24-41(d)(1). Id. at 2. Additionally, the Board found that Appellant created his own hardship by erecting the fence posts first and then seeking dimensional relief that would entitle him to do so. Id. Section 45-24-41(d)(2) precludes relief to an applicant if the hardship claimed is the result of his or her own prior action, and thus the Board concluded that Appellant did not meet this standard. Id. Further, the Board found that granting the variance would alter the general character of the surrounding area due to the height of the proposed fence. (Decision 3.) As such, the Board determined his proposal failed to comply with § 45-24-41(d)(3). Id. The Board concluded that Appellant failed to provide sufficient evidence showing that the relief sought would remedy his asserted hardships. Id. As such, the Board determined that Jackson failed to demonstrate that his requested variance constituted the least relief necessary. (Decision 3); see § 45-24-41(d)(4). Finally, the Board found that Appellant failed to demonstrate that he would suffer more than a mere inconvenience if his application for a variance was denied. (Decision 3); see § 45-24-41(e)(2).

         The Appellant again took a timely appeal from the denial of his application. In the instant appeal, Jackson challenges the findings of fact set forth in the Board's Decision on remand. (Appellant's Mem. 6-9). Additionally, Appellant argues that the Board's Decision fails to comply with the statutory purposes of zoning ordinances. Id. at 3. Finally, Appellant argues that the Board discriminated against him in denying his application while granting other applications. Id. at 3-4.

         II

         Standard of Review

         Under § 45-24-69, the Rhode Island Superior Court possesses appellate jurisdiction of appeals from zoning board decisions. The Superior Court, sitting in review of a zoning board decision, can affirm the decision, remand the case for further proceedings, or 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."

Sec. 45-24-69(d).

         When the Superior Court reviews a zoning board decision, it "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, 666 (R.I. 1998) (quoting Lett v. Caromile, 510 A.2d 958, 960 (R.I. 1986)). Therefore, "when reviewing the action of a zoning board of review, [the court] 'must examine the entire record to determine whether 'substantial' evidence exists to support the board's findings.'" Salve Regina College v. Zoning Bd. of Review of the City of Newport, 594 A.2d 878, 880 (R.I. 1991) (quoting DeStefano v. Zoning Bd. of Review of the City of Warwick, 122 R.I. 241, 245, 405 A.2d 1167, 1170 (1979)). '"Substantial evidence *** means 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.'" Lischio v. Zoning Bd. of Review of the Town of No. Kingstown, 818 A.2d 685, 690 n.5 (R.I. 2003) (quoting Caswell v. George Sherman Sand & Gravel Co., Inc., 424 A.2d 646, 647 (R.I. 1981)).

         Furthermore, with respect to zoning board decisions, our Supreme Court has emphasized that "a zoning board of review is required to make findings of fact and conclusions of law in support of its decisions in order that such decisions may be susceptible of judicial review." Bernuth v. Zoning Bd. of Review of Town of New Shoreham, 770 A.2d 396, 401 (R.I. 2001) (quoting Thorpe v. Zoning Bd. of Review of Town of No. Kingstown, 492 A.2d 1236, 1237 (R.I. 1985)); see also Sciacca v. Caruso, 769 A.2d 578, 585 (R.I. 2001) (cautioning zoning boards to make certain their decisions on use or dimensional variances address evidence in the record before the ...


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