Plaintiff: Alfred A. Russo, Jr., Esq.
Defendant: Joseph R. Ballirano, Esq.
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.
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.
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 (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. (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.
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.
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.
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.
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
"(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
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)).
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.