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The New Castle Realty Co. v. Dreczko

Superior Court of Rhode Island, Washington

January 3, 2018

RAYMOND DRECZKO, JR., AMANDA MAGEE, CLIFFORD VANOVER, MICHAEL CHAMBERS, and JOSEPH QUADRATO, in their capacities as members of the Town of Charlestown Zoning Board of Review

          For Plaintiff: Kelly M. Fracassa, Esq.

          For Defendant: Robert E. Craven, Esq.; Wyatt A. Brochu, Esq.


          LANPHEAR, J.

         This matter is before the Court on the appeal of Plaintiff, The New Castle Realty Company (New Castle), from a decision of the Town of Charlestown Zoning Board of Review (the Board). The Board's decision denied Plaintiff's requested relief for a special use permit to install a septic system and dimensional variances on a parcel of land consisting largely of wetlands. Jurisdiction is pursuant to G.L. 1956 § 45-24-69.



         New Castle is the owner of the 1.91 acre lot (Subject Property) on Timber Ridge Road in Charlestown described as Lot 40 on Charlestown Tax Assessor's Map 25. (Hr'g Tr. (Tr.) 4, 7, Mar. 17, 2015.) The Subject Property presently lies in an R-3A Zone permitting residential cluster subdivision use and requires a minimum of three (3) acres of land; thus, the property is presently non-conforming. (Variance and/or Special Use Permit Appl. 1.) The Subject Property is an unimproved legal lot measuring approximately 12, 463 square feet. (Variance and Special Use Permit Appl. 1; Tr. 5.)

         On January 14, 2015, New Castle submitted its application to the Board requesting a special use permit to install an Onsite Wastewater Treatment System (OWTS) in accordance with Art. XIII, § 218-78[1], and dimensional variances in accordance with § 218-41 to construct a 22 x 32 foot, three-bedroom, single family dwelling. (Variance and Special Use Permit Appl. 1; Variance Dimensional Relief and Special Use Permit Suppl. Sheet; Decision of Zoning Board (Decision), Mar. 23, 2015.) New Castle's application requested 5' in frontage relief from the permitted 40' creating 35' in proposed frontage; and 15' in right side relief from the permitted 25' creating 10' in proposed right yard setback. (Tr. 44; Decision, Mar. 23, 2015.)[2]

         Prior to the March 17, 2015 Board hearing, a public hearing was held at the Rhode Island Department of Environmental Management (DEM) Wetlands Division for approval of New Castle's application requesting a wetlands permit for the Subject Property. (Tr. 7-8.) New Castle's application was subsequently approved by DEM Wetlands. (Tr. 8.) DEM also approved New Castle's application siting a three-bedroom dwelling and denitrification ADVANTAX septic system on the Subject Property. (Tr. 9.)

         A duly noticed public hearing with the Board was held on March 17, 2015. Testifying at this hearing was Richard A. Greene, local land surveyor and OWTS designer.[3] (Tr. 4.) Mr. Greene represented New Castle and William A. Lampe, President of New Castle, at this hearing. (Tr. 4.) No other person testified at this hearing. (Tr. 45.) No correspondence was received by the Board regarding New Castle's Petition. (Tr. 45.)

         At the public hearing, Mr. Greene offered a plan (the Plan) for the Subject Property reflecting the requested relief on the Subject Property. (Tr. 7.) This Plan was submitted to DEM and approved. (Tr. 8.) Specifically, the Plan depicted the placement of the proposed 22x32 three-bedroom structure; wetlands plantings required under the wetlands permit acquired by DEM; and the 15x10 ADVANTAX AX20 denitrification septic system on the Subject Property. (Tr. 7-9.) Mr. Greene testified that DEM Inland Wetlands noted in their approval that "it wasn't a negative aspect of the application. . . ." (Tr. 8.)

         Mr. Greene testified that DEM Inland Wetlands requested New Castle to site the proposed structure as far as possible towards the street. (Tr. 11.) Mr. Greene acknowledged that while part of this structure was located in the wetlands buffer zone, DEM conditioned approval of its permit upon the planting of shrubs, trees or other forms of vegetation to preserve the wetlands. (Tr. 11; RIDEM Permit to Alter Freshwater Wetlands, July 29, 2014.)

         Mr. Greene testified that the ADVANTAX denitrification system is a 1500 gallon tank with a bottomless sand filter. (Tr. 9.) William Lampe, President of New Castle, testified that the ADVANTAX septic system does the least amount of damage to the wetlands. (Tr. 39.) According to Mr. Greene's testimony, the septic system "is placed as far as possible from the wetlands edge and still remains within the limits of the DEM approval process." (Tr. 9.) Mr. Greene concluded that the proposed relief noted on the Plan "meets the criteria that we need to have for the special use permit and the dimensional variance for the dwelling itself." (Tr. 9.) Board Member Vanover opined, however, that while these advanced systems reduce nitrogen, they don't reduce phosphates which have the most negative impact on the wetlands. (Tr. 39.)

         Mr. Greene testified at the hearing that the siting of the septic system is the most critical aspect of the application in order to locate it as far away as possible from the wetlands. (Tr. 25, 28.) He noted that the septic system must be sited at least 10 feet from the easement line in order to comply with DEM regulations.[4] (Tr. 26.) Accordingly, it was noted at the hearing by Mr. Greene that DEM advised the best siting of the dwelling was 35 feet from the easement line with the septic system located 10 feet from the easement line. (Tr. 26.) Mr. Greene noted that while neither the Plan nor DEM's approval permit reflected or commented on the installation of a lawn, the presumption that a lawn would be installed on the Subject Property is purely speculative. (Tr. 17-18.) Board Member Vanover disputed DEM's approvals commenting that DEM's lack of input on the area surrounding the Subject Property is a "glaring omission on their part" as DEM mentions nothing about the area surrounding the house. (Tr. 21.)

         Mr. Greene testified that a soil evaluation was performed on the Subject Property resulting in a water table depth of 10 feet. (Tr. 13.) Board Member Chambers stated at the public hearing that his measurements taken on the Subject Property showed a depth of 5.5 feet, later noting that this figure was the "worst case" scenario considering snow and possible meltdown and rise of the wetlands. (Tr. 12-13.) Mr. Greene noted that the soil is a gravel based soil which would allow the soil to drain quickly. (Tr. 13.)

         Following further comments by the Board, New Castle's application for a special use permit was denied four to one. (Decision, Mar. 23, 2015.) In its written decision, the Board found New Castle's special use permit application "would not significantly contribute to public welfare; that the welfare of the general community will not be substantially served; that the proposal is not consistent with the current Zoning Ordinance . . . ." (Decision, Mar. 23, 2015.) In denying New Castle's application for a special use permit, Board Member Vanover commented that the granting of a special use permit "will be inimical to the public health, safety and general welfare of the community because of the impact the effluent will have on the wetland." (Decision, Mar. 23, 2015.) Board Member Chambers further opined that the granting of the Applicant's special use permit "could pose a threat to drinking water." (Decision, Mar. 23, 2015.)

         Additionally, New Castle's application for dimensional variances was denied four to one. (Decision, Mar. 23, 2015.) The Board questioned whether New Castle's hardship stemmed from its own actions taken in 1974 when the lot was subdivided by New Castle albeit conforming to existing Town Ordinance at that time. (Tr. 57-59; Decision, Mar. 23, 2015.) Mr. Lampe testified at the public hearing that at the time of the subdivision, it was an approved, conforming lot with a frontage requirement of 35 feet. (Tr. 31.) However, since that time, the zoning has changed, requiring 40 feet of frontage and a minimum of three (3) acres of land. (Tr. 31-32.)

         Board Members denying relief to New Castle were conflicted on whether the requested relief was the least relief necessary. (Decision, Mar. 23, 2015.) Board Member Vanover opined that he did not find the requested relief to be the least relief necessary noting New Castle's unwillingness to consider suggestions in trying to move the house further away from the wetlands by making it smaller, or by reducing the home from a three-bedroom house to a two-bedroom house. (Decision, Mar. 23, 2015; Tr. 59.) In response to Board Member Vanover's inquiry to alter the size of the proposed dwelling, Mr. Greene commented that reducing the dwelling to a two-bedroom house would not alter the size of the septic system unit. (Tr. 29.) Mr. Greene testified that it would, however, affect the value of the real estate. (Tr. 29.)

         Mr. Greene testified that the surrounding houses in the neighborhood are three-bedroom raised ranch homes. (Tr. 42.) Mr. Greene noted that all of the lots are relatively small ranging from approximately 80, 000 to 90, 000 square feet. (Tr. 42.) Board Member Vanover pointed out that a two-bedroom home would produce less effluent running into the wetlands. (Tr. 29.)

         Board Member Quadrato opined that the requested dimensional variances would alter the general character of the surrounding area as it would be a much smaller house and much closer to the property line in the area. (Decision, Mar. 23, 2015; Tr. 57.) Lastly, all Board Members denying relief agreed that the requested relief was contrary to the public interest and welfare of the community. (Decision, Mar. 23, 2015.) The Board issued its written decision on March 23, 2015. New Castle timely appealed.



         Section 45-24-69 grants this Court jurisdiction to review the decision of a municipal zoning board. This Court's review is governed by § 45-24-69(d), which provides, in pertinent part:

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

         The trial justice "may not substitute [his or her] judgment for that of the zoning board if [he or she] can conscientiously find that the board's decision was supported by substantial evidence in the whole record." Mill Realty Assocs. v. Crowe, 841 A.2d 668, 672 (R.I. 2004) 14 (quoting Apostolou v. Genovesi, 120 R.I. 501, 506-08, 388 A.2d 821 (1978)). Thus, when reviewing a zoning board's decision, this Court "must examine the entire record to determine whether 'substantial' evidence exists to support the board's findings." Salve Regina Coll. v. Zoning Bd. of Review of City of Newport, 594 A.2d 878, 880 (R.I. 1991) (citing DeStefano v. Zoning Bd. of Review of City of Warwick, 122 R.I. 241, 245, 405 A.2d 1167 (1979)). The Superior Court also gives deference to the zoning board's findings because the zoning board is "presumed to have knowledge concerning those matters which are related to an effective administration of the zoning ordinance." Pawtucket Transfer Operations, LLC v. City of Pawtucket, 944 A.2d 855, 859 (R.I. 2008).



         On appeal, New Castle argues that the Board's decision warrants reversal because it violated § 45-24-69(d). Preliminarily, New Castle argues that the Board's decision lacks sufficient findings of fact and conclusions of law. New Castle contends that the Board's findings, inferences, conclusions, and decision in denying New Castle a special use permit and dimensional variances were arbitrary and lacked a reasonable basis in law and fact.

         New Castle contends the Board's decision denying New Castle's application for a special use permit warrants reversal because the Board "improperly substituted its own lay opinions for the expert analysis of the Department of Environmental Management . . ." in viewing septic systems in environmentally sensitive areas. (New Castle Mem. 1.) New Castle also contends that the Board "second-guessed" DEM's approval of the permit approving the installation of the ADVANTAX septic system on the Subject Property. (New Castle Mem. 15.) More specifically, New Castle asserts that the Board's March 23, 2017 decision was made contrary to the substantial evidence on the record and that no evidence or expert testimony was presented by the Board to support the opinions of its Members. According to New Castle, "DEM approval of an OWTS application satisfies ...

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