STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS. (FILED: March 8, 2016)

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1 STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS KENT, SC. SUPERIOR COURT (FILED: March 8, 2016) MIKE S PROFESSIONAL : TREE SERVICE, INC. : : v. : C.A. No. KC : THE ZONING BOARD OF REVIEW : OF THE TOWN OF COVENTRY, : RUSSELL LACAILLADE, VIRGINIA : SOUCY, JEANNE KOSTYLA, JOHN : D ONOFRIO, AND DENISE : DEGRAIDE, in their capacities as : MEMBERS OF THE ZONING BOARD : OF REVIEW OF THE TOWN OF : COVENTRY, RHODE ISLAND : DECISION GALLO, J. The matter before the Court is Plaintiff Mike s Professional Tree Service, Inc. s (Plaintiff) appeal of the denial by the Zoning Board of Review of the Town of Coventry, Rhode Island (Defendant or Zoning Board) of its application for a special use permit. Westwood I & II, Inc. (Westwood), an adjacent property owner, has intervened in opposition to Plaintiff s appeal. Jurisdiction in this Court is pursuant to G.L I Facts and Travel The controversy in question concerns an industrial condominium located at 75 Airport Road in the Town of Coventry, Rhode Island specifically, Unit 3 of that condominium, owned by Plaintiff. The unit of the condominium is a large lot, consisting of roughly sixteen acres of land, designated as Lot 1 on Plat 44 of the Coventry Tax

2 Assessor s Map. The lot is zoned as an Industrial-I zone. Plaintiff currently operates a mulch-making business on the property and seeks a special use permit for the purpose of adding firewood production and sales to its operations at the location. The Zoning Board conducted two public hearings on the matter, the first on July 10, 2013 and the second on August 7, At the July 10 hearing, Michael Baird, the principal of Plaintiff, testified in favor of the application; Plaintiff also presented an expert witness, Timothy Behan, an engineer. Donald Morash, a real estate broker and appraiser, further testified to his opinion on the prospective impact to abutters of the proposed use. Present and objecting to the application was John Assalone, a principal of Westwood and acting on its behalf, who testified himself, as well as proffering the testimony of Gerald Roch, an appraiser. Westwood also put forward Thomas B. Nicholson, an engineer, who testified to his opinions regarding the application for a special use permit. At the August 7 hearing, a member of the Coventry Conservation Commission presented testimony regarding the Commission s concerns about the application. Also discussed on this date was a letter, dated July 16, 2013, from David A. Godin, the fire marshal of the Central Coventry Fire District, articulating his concerns regarding fire protection at the site of the proposed special use. Following these hearings, the Zoning Board voted unanimously to deny the application. A written decision was issued on August 30, 2013; this decision was amended and refiled on September 17, The matter was not yet closed, however. In correspondence dated December 17, 2013, Fire Marshal Godin revised his opinion to note that Plaintiff has addressed all concerns raised in his July 16 letter. Plaintiff brought a motion before this Court seeking to supplement the Zoning Board s record. The motion 2

3 was granted on April 15, 2015, and the matter was remanded to the Zoning Board. The Zoning Board did not, however, alter its denial of the application, and the matter is now before the Court on appeal from that decision. II Standard of Review The relevant standard of review for the Court is provided by statute: 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 (d). [The] [C]ourt does not weigh the evidence; instead [it] review[s] the record to determine whether substantial evidence existed to support the [Zoning Board s] decision. von Bernuth v. Zoning Bd. of Review of New Shoreham, 770 A.2d 396, 399 (R.I. 2001) (quoting OK Props. v. Zoning Bd. of Review of Warwick, 601 A.2d 953, 955 (R.I. 1992). Further, a decision will not be reversed unless it can be shown that the [Zoning Board] misapplied the law, misconceived or overlooked material evidence, or 3

4 made findings that were clearly wrong. Id. at (quoting OK Props., 601 A.2d at 955). III Analysis Although the parties advance several arguments as to why the decision of the Zoning Board should be reversed or affirmed, a review of the Zoning Board s decision makes it quite clear that proper review is impossible. It has long been established 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. Id. at 401 (quoting Cranston Print Works Co. v. City of Cranston, 684 A.2d 689, 691 (R.I. 1996)). The Court must decide whether the board members resolved the evidentiary conflicts, made the prerequisite factual determinations, and applied the proper legal principles. Those findings must, of course, be factual rather than conclusional, and the application of the legal principles must be something more than the recital of a litany. These are minimal requirements. Unless they are satisfied, a judicial review of a board s work is impossible. Id. (quoting Irish P ship v. Rommel, 518 A.2d 356, (R.I. 1986)). The Zoning Board s findings of fact and conclusions of law read as follows: III. Findings of Fact That the ingress and egress to this lot is unacceptable for the proposed use in that Airport Rd. is 28 wide at sections, and more large trucks will be generated by the proposed use, with the road standard in the Subdivision Regulations requiring 34 wide; and 5. That the Applicant has not demonstrated that there is adequate parking for this proposal; and 6. That the Applicant would keep the existing buffer from the property line adjacent to the residential development 4

5 7. That no evidence of acceptable trash collection was provided by the applicant; 8. The applicant has presented no evidence regarding the Industrial Performance Standards would be adhered to; and 9. That the proposed use is generally incompatible with the Comprehensive Plan as Section D.3 cites this area having industrial development constraints, including poor access, wetlands, and the presence of a groundwater aquifer. In addition, the Plan s future land use plan calls for this area to be MDR, or medium density residential; and 10. That the granting of this proposal will result in conditions inimical to public health, safety, morals and welfare, as the Fire Marshall has submitted evidence regarding fire service and the lack of adequate water pressure for fire suppression (See exhibit A ), with the Applicant not providing the required fire hydrant with 500 gallons per minute and 65 psi of pressure; 11. That the applicant has received an insignificant alteration permit from DEM for the proposed use and the installation of a dry hydrant, notwithstanding the Fire Marshall s opinion regarding fire suppression..... After careful consideration of all the evidence in the record, the Coventry Zoning Board of Review finds that the Applicants FAILED to meet the criteria for a Special Use Permit as set forth in Article 4 Section 430 of the Coventry Zoning Ordinance. The Zoning Board of Review hereby DENIES the Applicants request for a Special Use Permit for the operation of a commercial wood lot and firewood sales and storage. Amended Decision of the Zoning Board of the Town of Coventry at 2-3 (Sept. 17, 2013) (hereinafter Decision). This Decision does not resolve evidentiary conflicts, nor is it clear what legal principles were being applied; it appears to be the mere litany of conclusions for which the Supreme Court faulted the zoning board in von Bernuth, 770 A.2d at 401. A number of witnesses testified before the Zoning Board, several of whom purported to be experts. The Decision does not discuss their testimony in any detail, nor are credibility findings made, and it is not apparent from the Decision why the Zoning Board came to the conclusion it did. Given the multiple witnesses and exhibits presented 5

6 by each party to this litigation, extensive factual issues exist in the instant controversy that require clear findings and a sufficient explanation of the application of these facts to the law to allow the Court to properly review the Decision of the Zoning Board. Although the parties have developed an extensive record before the Zoning Board, the [C]ourt will not search the record for supporting evidence or decide for itself what is proper in the circumstances. Irish P ship, 518 A.2d at 359. The matter must therefore be remanded to the Zoning Board so that it may detail with specificity its factual findings and the application of those facts to the relevant law. See id. IV Conclusion The matter is remanded to the Zoning Board for further proceedings consistent with this opinion. 6

7 RHODE ISLAND SUPERIOR COURT Decision Addendum Sheet TITLE OF CASE: Mike s Professional Tree Service, Inc. v. The Zoning Board of Review of the Town of Coventry, et al. CASE NO: KC COURT: Kent County Superior Court DATE DECISION FILED: March 8, 2016 JUSTICE/MAGISTRATE: Gallo, J. ATTORNEYS: For Plaintiff: For Defendant: Albert E. Medici, Jr., Esq. Dianne L. Izzo, Esq. 7