GEORGE G. JACKSON
CITY OF WOONSOCKET ZONING BOARD OF REVIEW
County Superior Court
Plaintiff: George G. Jackson, Pro Se
Defendant: Michael J. Marcello, Esq.
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.
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.
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,  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.
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.
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). 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.
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.
on photographs 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.
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.
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).
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.
§ 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
"(1) In violation of constitutional, statutory, or
"(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
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)).
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 ...