Plaintiff: Kelly M. Fracassa, Esq.
Defendant: Robert E. Craven, Esq.; Wyatt A. Brochu, Esq.
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
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.)
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, 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.
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.)
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. (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.)
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.)
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.)
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.)
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. (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.
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.)
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.)
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.
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.)
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.
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.
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
"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
"(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
discretion." Sec. 45-24-69(d).
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).
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.
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 ...