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Mollicone v. Aurecchia

Superior Court of Rhode Island, Providence

December 11, 2018


          For Plaintiff: Alfred A. Russo, Jr., Esq.

          For Defendant: Joseph R. Ballirano, Esq.


          MCGUIRL, J.

         Before this Court is an appeal from a decision of the Johnston Zoning Board of Review (Board), denying Linda Mollicone's (Plaintiff) application for a dimensional variance. At its October 28, 2010 public hearing, the Board voted five to zero in favor of denying the application after finding that the application did not propose a measure of relief which is the least necessary, and that the requested variance was not in compliance with the Comprehensive Plan of the Town. Plaintiff now asks this Court to reverse the Board's decision, arguing the decision was not supported by competent evidence and was clearly erroneous in view of the reliable, probative, and substantial evidence on the record. Jurisdiction is pursuant to G.L. 1956 § 45-24-69.


         Facts and Travel

         The Plaintiff is the owner of AP 48/1, Lot 28-a vacant, undeveloped lot-located at 8 Truman Street in the Town of Johnston (subject property). On September 24, 2010, Plaintiff submitted an application seeking a dimensional variance in order to construct a 28 feet by 48 feet single-family dwelling on the subject property. The subject property is located in an R-20 zoning district which allows single family dwellings. However, the subject property is approximately 13, 000 square feet, and it is considered substandard in size as it does not contain the required 20, 000 square feet minimum which is necessary to build in an R-20 zoning district without seeking a variance from the Board.

         A public hearing was held on October 28, 2010, at which the Board heard testimony from the Plaintiff, her attorney Alfred Russo (Attorney Russo), David Marsocci[1] (Mr. Marsocci), and abutter Monica Spicer (Ms. Spicer). During the hearing, Attorney Russo noted that that Plaintiff previously had appeared before the Board with a proposal to build a 60 feet by 26 feet home, which was "considerably larger" than the proposal before the Board on October 28, 2010.[2] (Hr'g Tr. 4, Oct. 28, 2010.) The Board denied that requested variance, finding that the proposed home was too large for the area, thus necessitating the scaled down proposal which the Plaintiff submitted at the October 28, 2010 hearing. Id. at 4-5. In furtherance of the revised proposal, Mr. Marsocci testified, "[the Board] said downsize the house; [Plaintiff] downsized the house 12 feet." Id. at 20. In addition, Plaintiff's revised proposal did not require frontage or rear yard relief as the previous application had; rather, the only relief the new proposal required was 7000 square feet from the 20, 000 square feet required in an R-20 zone. Id. at 5-6.

         After hearing the specifics of Plaintiff's request, the Board expressed hesitation in granting 7000 feet of relief because it may "open the door for everybody in R-20 to come in with the same size homes." Id. at 9. Furthermore, the Board indicated that it had "no way of knowing" if a proposed home is too large prior to the application being submitted; thus, it would be unable to "sit here and tell developers what to put there that we're going to approve." Id. at 12-13. Additionally, the Board did not believe that the proposed home would complement the existing aesthetics of the neighborhood and would "stick out like a sore thumb[;]" nevertheless, it believed that there were "other avenues to pursue" which would make the variance more acceptable to the Board. Id. at 9-10.

         The Board heard testimony regarding flooding and water runoff issues in the neighborhood where the subject property is located. (Hr'g Tr. 25, Oct. 28, 2010.) The Board admitted and reviewed a memo prepared by Town Planner Pamela Sherrill (Town Planner), which indicated the proposed home would "increase stormwater runoff" and "aggravate existing drainage problems." (Zoning Board of Review Decision Ex. 1). In addition, the memo indicated that as a result of the March 30-31, 2010 storms, the "neighborhood was subject[ed] to unprecedented stormwater flow with damage to public and private property." Id. Accordingly, it was the Town Planner's professional opinion that any new development with impervious surfaces on the subject property would be inconsistent with goals and policies of the Town's Comprehensive Plan. Id. Similarly, the subject property's abutter, Ms. Spicer, testified that there are water problems in the neighborhood which "[were] definitely worse with the flood." (Hr'g Tr. 25, Oct. 28, 2010.) However, Ms. Spicer indicated that the "size of the house on that piece of property, it would impede my - I guess privacy" and when asked if she was concerned that the proposed home would cause more water problems, she responded "[i]s that what happens? I don't know . . . ." Id. at 26.

         At the conclusion of the hearing, the Board voted five to zero to deny the application. Id. at 27. Immediately prior to the vote, the Board indicated that the application was deficient as Plaintiff did not meet "their burden of proof that they're seeking the least amount of relief necessary" and "secondly, considering the Town Planner's opinion, I think we need to take that into consideration . . . ." Id. Thereafter, the Board issued a written decision on November 8, 2010, which articulated similar reasons for denial which the Board found during the hearing. (Zoning Board of Review Decision at 2.) Specifically, the decision indicated that denial was necessary as Plaintiff's petition did not propose the least necessary measure of relief and that the relief sought was not in compliance with Goal LU-4 and LU-6 of the Comprehensive Plan. Id. at 2; Zoning Board of Review Decision Ex. 1. Plaintiff filed a timely appeal, and the matter was assigned to this Court on November 25, 2015. (Compl. 1.). The record was supplemented in March 2016, and decision is herein rendered.


         Standard of Review

         In reviewing the decision of a zoning board of review, the Superior Court is bound by § 45-24-69 and "shall not substitute its judgment for that of the zoning board of review as to the weight of the evidence on questions of fact." Sec. 45-24-69(d). "The court may affirm the decision . . . or remand the case for further proceedings, or may reverse or modify the decision if substantial rights of the appellant have been prejudiced" by "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." Id.

         When reviewing questions of fact, the court must "'examine the entire record to determine whether 'substantial' evidence exists to support the board's findings.'" Mill Realty Assocs. v. Crowe, 841 A.2d 668, 672 (R.I. 2004) (quoting DeStefano v. Zoning Bd. of Review of City of Warwick, 122 R.I. 241, 245-46, 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.'" Pawtucket Transfer Operations, LLC v. City of Pawtucket, 944 A.2d 855, 859 (R.I. 2008) (quoting Caswell v. George Sherman Sand & Gravel Co., Inc., 424 A.2d 646, 647 (R.I. 1981)). The court must sustain a zoning board's decision if it '"can conscientiously find that the board's decision was supported by substantial evidence in the whole record."' Lloyd v. Zoning Bd. of Review for City of Newport, 62 A.3d 1078, 1083 (R.I. 2013) (quoting Apostolou v. Genovesi, 120 R.I. 501, 508, 388 A.2d 821, 825 (1978)).

         Additionally, 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 N. Kingstown, 492 A.2d 1236, 1237 (R.I. 1985)); see also Hooper v. Goldstein, 104 R.I. 32, 44, 241 A.2d 809, 815 (1968). Absent adequate findings, it is appropriate for this Court to remand the case to the zoning board for additional proceedings. See Bernuth, 770 A.2d at 399.




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