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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE, SC
SUPERIOR COURT
(FILED – JULY 10, 2009)
JOHN BLISS, JEANNETTE BLISS,
:
DENNIS PIEDMONTE, RITA
:
PIEDMONTE, ANNETTE WELSH,
:
LEE BLAISE, ET ALS
:
:
:
VS.
:
:
WAL-MART REAL ESTATE BUSINESS :
TRUST, CITY OF WOONSOCKET,
:
WOONSOCKET PLANNING BOARD,
:
WOONSOCKET ZONING BOARD OF
:
REVIEW, AS THE WOONSOCKET
:
PLANNING BOARD, JOHN D.
:
HOYCEANYLS, KAREN BOUCHARD,
:
ALAN R. BRODD, ALBERT VALLIERE, :
GEORGE SARGENT, AS MEMBERS OF :
THE WOONSOCKET PLANNING
:
BOARD, WALTER PRISTAWA,
:
MICHAEL CAYER, NORMAN
:
FRECHETTE, DANIEL M. GENDRON,
:
ROBERT R. MOREAU, PETER
:
VOSDAGALIS AND RICHARD MASSE
:
AND ROBERT ERICSON, AS MEMBERS :
OF THE WOONSOCKET ZONING
:
BOARD OF REVIEW
:
C.A. No. 08-1132
DECISION
MCGUIRL, J. John and Jeannette Bliss, Dennis and Rita Piedmonte, Annette Welsh,
Lee Blaise, et al. (collectively, “Appellants”) appeal from a decision of the Woonsocket
Zoning Board of Review (“Zoning Board”), sitting as the Board of Appeal (“Board of
Appeal”), upholding a decision of the Woonsocket Planning Board (“Planning Board”)
that granted preliminary plan approval to Wal-Mart Real Estate Business Trust (“WalMart”) for a proposed expansion of its existing Woonsocket facility. Jurisdiction is
pursuant to G.L. 1956 § 45-23-71.
1
I
Facts and Travel
In 1993, Wal-Mart commenced operation of a store located at 1919 Diamond Hill
Road in the City of Woonsocket, Rhode Island. The store is situated on a parcel of land
known as Tax Assessor’s Plat 52, Lot 6. The lot is located in a C-2 Major Commercial
District. (Zoning Ordinance for the City of Woonsocket, § 8.2.)
Nearly eight years after the Woonsocket store opened, Wal-Mart sought to
construct a fueling station on the same lot. Pursuant to the Zoning Ordinance for the City
of Woonsocket (“the Ordinance”), fuel stations are authorized in C-2 districts only by
way of a special-use permit issued by the Zoning Board of Review. Id. at § 4.6-1.
Accordingly, Wal-Mart submitted an application to the Zoning Board of Review seeking
the requisite special-use permit. In addition to the application itself, Wal-Mart submitted
a number of other documents for the Zoning Board to consider during its deliberations.
Among those documents were copies of the “immediate site plan” of the proposed fuel
station, as well as “contextual site plans” for the larger Wal-Mart retail area. (Ex. 22.)
During the application process, no effort was ever undertaken to subdivide the site of the
proposed fueling station from the rest of the lot.
A hearing on the special-use permit application was held before the Zoning Board
of Review on June 5, 2001 (“the 2001 hearing”). At the hearing, the Zoning Board
approved a special-use permit for the construction of a fuel station on the subject lot;
however, the Zoning Board conditioned its approval on “[s]trict compliance with plans
and testimony as presented to the Board” at the 2001 hearing. Subsequently, a fuel
2
station was constructed on the subject lot in accordance with the conditional approval
granted by the Zoning Board.
Several years later, Wal-Mart commenced an effort to purchase a number of
additional parcels located in close proximity to the site of the Wal-Mart building and fuel
station. Specifically, Wal-Mart contemplated acquisition of Plat 52, Lot 7, the site of an
erstwhile roller skating rink (“the roller rink lot”), as well as portions of Plat 53, Lot 5;
Plat 53, Lot 30; and Plat 57, Lot 88, all owned by the City of Woonsocket (“the City
land”). (See Ex. 25.) Eventually, Wal-Mart entered into purchase agreements with both
the owner of the roller rink lot and the City of Woonsocket.
Id.
The purchase
agreements for those properties contained provisions stating that Wal-Mart’s obligation
to close the contemplated sales was contingent upon, inter alia, Wal-Mart’s ability to
obtain “all municipal, state and federal approvals required to enable Wal-Mart to
construct an . . . expansion of the existing Wal-Mart store . . . .” Id.
In July of 2007, Wal-Mart filed a Major Subdivision/Major Land Development
Application with the Woonsocket Planning Board, wherein it formally proposed
expanding the size of the Wal-Mart building. (Ex. 1.) Specifically, the application
proposed merging the existing Wal-Mart lot with the adjacent roller rink lot and the City
land. Id. As contemplated on the post-merger lot, the expansion plan complied in all
respects with the applicable provisions of the Woonsocket Subdivision and Land
Development Regulations and the Woonsocket Zoning Ordinance, save the instant
dispute over interpretation of the condition attached to the underlying special-use permit.
(See Ex. 15; Ex. 16.)
3
Pursuant to G.L. § 45-23-39(b), 1 Wal-Mart submitted a copy of a master plan to
the Woonsocket Planning Board for its consideration. The Planning Board held properly
noticed hearings for public comment regarding the master plan on August 7 and August
28, 2007.
(Ex. 6.)
At the August 28th meeting, the Planning Board unanimously
approved the master plan for Wal-Mart’s expansion. Id.
On November 8, 2007, Woonsocket’s City Planner, Catherine Ady (“Ady”),
received copies of the preliminary plan for the proposed lot consolidation and building
expansion. (Ex. 2.) The following day, Ady distributed copies of the preliminary plan to
a number of local officials, requesting written comments on the proposal. (Ex. 21.)
Woonsocket Zoning Officer Robert Ericson (“Ericson”) was among the officials on the
preliminary plan distribution list. Id. After reviewing the proposal, Ericson sent to the
City Planner a memorandum which stated that “[t]he plan meets all applicable zoning
requirements.” (Ex. 16.) On receipt of Ericson’s memo, Ady mailed official notices to
various state agencies and adjacent municipalities informing them that a hearing before
the Woonsocket Planning Board had been scheduled for December 4, 2007, in order to
allow for oral and written comments from the public concerning the preliminary plan for
Wal-Mart’s proposed expansion. (Ex. 24.)
The day of the public hearing, Ady received a letter from Appellants’ attorney,
Kevin M. Hayes (“Hayes”), objecting to the scheduled Planning Board meeting. Hayes’s
letter asserted that Wal-Mart’s preliminary plan was improperly before the Planning
1
Section 45-23-39(b) provides, in pertinent part, “[m]ajor plan review consists of three stages of review,
master plan, preliminary plan and final plan . . . .”
4
Board because of a deviation from the procedure prescribed by § 45-23-61. 2 Hayes’s
assertion was predicated on his contention that Wal-Mart was required to obtain a new
special-use permit for the fuel station because the proposed expansion to the Wal-Mart
building was not in “strict compliance” with the plans and testimony presented to the
Zoning Board at the 2001 hearing.
At the public hearing that evening, the letter from Attorney Hayes was read into
the record. (Ex. 6.) Consequently, the Planning Board postponed its scheduled vote on
the Wal-Mart application. Id. The following day, after reviewing Attorney Hayes’s
contentions, Zoning Officer Ericson sent to the City Planner a memo wherein Ericson set
forth his opinion that Wal-Mart’s proposed expansion of its building amounted to
“subsequent changes in [the] larger contextual site plan” that “do not establish a basis for
requiring a new or amended special use permit.” (Ex. 22.)
Subsequently, a special meeting of the Planning Board was held on December 18,
2007.
At the conclusion of the special meeting, the Woonsocket Planning Board
unanimously approved the preliminary plan. (Ex. 6.) One day later, the Planning Board
issued its written decision in the instant matter. 3 (Ex. 26.) In response, Appellants sent a
letter to Zoning Officer Ericson, informing him of their intent to appeal the decision of
the Planning Board. (Ex. 9.)
2
Section 45-23-61(a)(2) provides:
Where an applicant requires both a special-use permit under the local
zoning ordinance and planning board approval, the applicant shall first
obtain an advisory recommendation from the planning board, as well as
conditional planning board approval for the first approval stage for the
proposed project, which may be simultaneous, then obtain a conditional
special-use permit from the zoning board, and then return to the
planning board for subsequent required approval(s).
3
Thereafter, the Planning Board granted final plan approval to the Wal-Mart expansion plan on December
28, 2008.
5
On February 11, 2008, the Board of Appeal convened a hearing on the
Appellants’ appeal. At the hearing, Attorney Hayes asserted that the Planning Board
improperly approved Wal-Mart’s preliminary plan because Wal-Mart failed to obtain a
new special-use permit for the fuel station from the Zoning Board before presenting the
preliminary plan to the Planning Board for its approval. (Ex. 27.) Despite the continued
concerns of Attorney Hayes, the Board of Appeal unanimously voted to uphold the
Planning Board’s approval of Wal-Mart’s preliminary plan. Id. The following day, the
Woonsocket City Clerk received and recorded a copy of the Board of Appeal’s written
decision in the instant matter. Id.
On February 27, 2008, Appellants filed a timely appeal of the Board of Appeal’s
decision pursuant to § 42-23-71. Before this Court, Appellants seek reversal of the Board
of Appeal’s decision, asserting that it was made upon unlawful procedure and affected by
error of law. Conversely, Wal-Mart and the Board of Appeal contend that this Court
should affirm the Board’s decision because it rests on competent evidence in the record.
II
Standard of Review
Under the Development Review Act (“the Act”), § 45-23-25 et seq., review of a
planning board’s decision is limited.
Section 45-23-70 governs the standard of
administrative appellate review and provides that a zoning board reviewing the decision
of a planning board may reverse the lower body only if the zoning board finds that there
was “prejudicial procedural error, clear error, or a lack of support by the weight of the
evidence in the record.” Section 45-23-70(a). Section 45-23-71 of the Act governs
6
appeals thereafter to Superior Court from decisions of a board of appeal. Subsection (c)
of § 45-23-71 provides:
The court shall not substitute its judgment for that of the
planning board as to the weight of the evidence on
questions of fact. The court may affirm the decision of the
board of appeal 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, ordinance or
planning board regulations provisions;
(2) In excess of the authority granted to the planning board
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.
Hence, judicial review of planning board decisions is not de novo. Munroe v.
Town of E. Greenwich, 733 A.2d 703, 705 (R.I. 1999) (citing Kirby v. Planning Bd. of
Review of Middletown, 634 A.2d 285, 290 (R.I. 1993)).
Rather, § 45-23-71(c)
authorizes the Superior Court to review such decisions utilizing the “‘traditional judicial
review’ standard that is applied in administrative agency actions.” Id. Accordingly, the
Superior Court’s “review is confined to a search of the record to ascertain whether the
board’s decision rests upon ‘competent evidence’ or is affected by an error of law.” Id.
(quoting Kirby, 634 A.2d at 290).
7
III
Analysis
A
Conditionally Granted Special-Use Permits
Under the Rhode Island Zoning Enabling Act, G.L. 1956 § 45-24-27 et seq., a
zoning board of review is empowered to issue a special-use permit, formerly known as a
special exception, pursuant to the provisions of a local zoning ordinance. See Section 4524-42. The Rhode Island Supreme Court has recognized that the function of special-use
permits is “‘to alleviate the burden of use restrictions on land that cannot be related
reasonably to the public interest . . . .’” Warner v. Board of Review of City of Newport,
104 R.I. 207, 212-13, 243 A.2d 92, 95 (1968) (quoting Center Realty Corp. v. Zoning
Board of Review, 96 R.I. 76, 80, 189 A.2d 347, 350 (1963)). Put another way, a zoning
board’s ability to issue a special-use permit “‘is in the nature of a safety valve which the
legislature wisely provided in order that, in a proper case, the public interests and those of
an owner of land might be fairly adjusted without undue disturbance to the general
welfare.’” Id. (quoting Buckminster v. Zoning Board of Review, 69 R.I. 396, 401, 33
A.2d 199, 202 (1943)).
Section 15 of the Woonsocket Zoning Ordinance sets forth the standards for
obtaining a special-use permit in the City of Woonsocket. Specifically, § 15.8-2 states, in
relevant part, that the Zoning Board may grant a special-use permit if the Board
concludes:
(1) That the special use shall be in harmony with the
general purpose and intent of this ordinance;
8
(2) That the special use is reasonably necessary for the
convenience or welfare of the public;
(3) That all appropriate conditions and safeguards are
included in the special use permit in the form of
stipulations . . . .
If a zoning board finds compliance with the standards or requisites set forth in the
applicable ordinance, then the right to a special-use permit exists, “subject to such
safeguarding conditions which [a board] may impose by reason of the nature, location,
and incidents of the particular use.” 3 Rathkopf, The Law of Zoning and Planning § 61.6.
In accordance with this maxim, § 15.9 of the Ordinance, which substantially
mirrors the language of § 45-24-43, states that:
The zoning board of review may apply such special
conditions that may, in the opinion of the board, be
required to promote the intent and purposes of the
comprehensive plan and the zoning ordinance. Failure to
abide by any special conditions attached to a grant shall
constitute a zoning violation. Such special conditions shall
be based on competent credible evidence on the record,
shall be incorporated into the decision, and may include,
without limitation, provisions for:
(1) Minimizing adverse impact of the development upon
other land, including the type, intensity, design, and
performance or activities;
(2) Controlling the sequence of development, including
when it must be commenced and completed;
(3) Controlling the duration of use or development and the
time within which any temporary structure must be
removed;
(4) Assuring satisfactory installation and maintenance or
required public improvements;
(5)
Designating the exact location and nature of
development; and
9
(6)
Establishing detailed records by submission of
drawings, maps, plats, or specifications.
Moreover, our Supreme Court has consistently held that the zoning enabling statute
“confers upon a board of review authority to impose reasonable conditions upon the grant
of a variance [or exception].” Town of Warren v. Frost, 111 R.I. 217, 220, 301 A.2d 572,
573-74 (R.I. 1973) (citing Guenther v. Zoning Board of Review, 85 R.I. 37, 125 A.2d
214 (1956); Woodbury v. Zoning Board of Review, 78 R.I. 319, 82 A.2d 164 (1951)).
Pursuant to § 4.6-1 of the Ordinance, fuel stations are authorized in C-2 Major
Commercial Districts only by way of a special-use permit issued by the Zoning Board of
Review. Courts have long sustained the classification of fuel stations as special uses
because they “are necessary to our present-day life, yet involve risks to the safety of
persons and property.” Socony Mobil Oil Co. v. Ocean Tp., 56 N.J.Super. 310, 320, 153
A.2d 67, 72 (1959) (citing Schmidt v. Board of Adjustment of City of Newark, 9 N.J.
405, 422, 88 A.2d 607, 615 (1952)).
Because of these concomitant risks, “lawful
conditions may be prescribed for the construction and operation of [a fuel station.]” 6
Yokely, Zoning Law and Practice § 38-7; see also Socony Mobil Oil Co. v. Zoning Board
of Appeals of Enfield, 153 Conn. 257, 216 A.2d 201 (1965); Rasmussen v. Village of
Bensenville, 56 Ill. App. 2d 119, 205 N.E.2d 631 (1965) (conditions requiring
construction of fuel stations a certain distance from schools and churches were
appropriate).
Nevertheless, though a zoning board acts well within the scope of its authority in
attaching conditions to the grant of a special-use permit, the conditions imposed must be
sufficiently specific. Zoning authorities have noted that “conditions imposed by a zoning
board must be expressed with sufficient clarity to give notice of the limitations on the use
10
of land, and cannot incorporate by reference statements made by an applicant at a
hearing.” 8 Rohan, Zoning and Land Use Controls § 44.05[1]. Rhode Island case law
accords with this understanding of conditionally granted special-use permits.
Our
Supreme Court, in evaluating whether a board of review disclosed an intention to
condition its grant of a special-use permit, has stated that “conditions on a grant
permitting a use of the land would be effective only when specifically and clearly stated
in the record. . . . Unless [conditions] are specifically and separately enumerated by the
[zoning] board, the material grounds of the decision would be left to speculation.” Frost,
301 A.2d at 574 (citing Strauss v. Zoning Board of Review, 72 R.I. 107, 48 A.2d 349
(1946)).
B
Issuance of the 2001 Conditionally Granted Special-Use Permit
In the instant matter, the Woonsocket Zoning Board granted Wal-Mart’s 2001
request for a special-use permit to construct a fuel station on Tax Assessor’s Plat 52, Lot
6. However, according to the minutes from the 2001 Zoning Board hearing, the Board
conditioned its approval on “[s]trict compliance with plans and testimony as presented to
the Board.” Notably, the minutes from that hearing provide no other details with respect
to the plans and testimony presented to the Board that evening or on any other occasion.
Section 45-24-61(a) of the Zoning Enabling Act provides that “[f]or any
proceeding in which the right of appeal lies to the superior or supreme court, the zoning
board of review shall have the minutes taken either by a competent stenographer or
recorded by a sound-recording device.” This language does not compel a board to keep a
formal transcript of a proceeding. Rather, the plain meaning of this provision requires a
11
board only to keep minutes. Nevertheless, our Supreme Court has repeatedly emphasized
that “zoning boards of review must record their proceedings in sufficient detail to allow a
reviewing court to ascertain the grounds of decision.” Holmes v. Dowling, 413 A.2d 95,
98 (R.I. 1980); see also Travers v. Zoning Board of Review of Bristol, 101 R.I. 510, 514,
225 A.2d 222, 224 (1967); Robinson v. Town Council of Narragansett, 60 R.I. 422, 437,
199 A. 308, 314 (1938).
In addition, with respect to decisions arising out of such proceedings, the Court
has stated that “a municipal board, when acting in a quasi-judicial capacity, must set forth
in its decision findings of facts and reasons for the action taken.” Sciacca v. Caruso, 769
A.2d 578, 585 (R.I. 2001) (quoting Irish Partnership v. Rommel, 518 A.2d 356, 358 (R.I.
1986)). Such findings must be “factual rather than conclusional, and the application of
legal principles must be something more than the recital of a litany.” Bernuth v. Zoning
Bd. of Review of the Town of New Shoreham, 770 A.2d 396, 401 (R.I. 2001) (quoting
Irish P’ship, 518 A.2d at 358-59). When a board fails to state its findings of fact, “the
[C]ourt will not search the record for supporting evidence or decide for itself what is
proper in the circumstances.” Id. (quoting Irish P’ship, 518 A.2d at 359).
Our Supreme Court recently reinforced the import of this obligation in State v.
Germane, No. 2006-169-C.A., slip op. (R.I. filed June 2, 2009). Therein, the Court stated
that “administrative bodies should be meticulous about documenting the fact-finding
process that underlies their decision.” Id. at 49 (emphasis added). The Court also
elaborated on the rationales underlying this obligation, noting that
[t]he reasons [for documenting the fact finding process]
have to do with facilitating judicial review, avoiding
judicial usurpation of administrative functions, assuring
more careful administrative consideration, helping parties
12
plan their cases for rehearings and judicial review, and
keeping agencies within their jurisdiction. Id. (citations
omitted).
Our Supreme Court continued:
It is insufficient for an administrative agency to state only
an ultimate fact or conclusion, but each ultimate fact or
conclusion must be thoroughly explained in order for a
court to determine upon what basis each ultimate fact or
conclusion was reached. The court must know why. Id. at
n.44 (quoting Geraud v. Schrader, 531 P.2d 872, 879 (Wyo.
1975)) (emphasis in original).
The minutes from the 2001 Zoning Board hearing specify that the Board’s reason
for granting Wal-Mart’s application for a special-use permit was that the permit “will
serve the convenience and welfare of the general public [and] will give the owner the full
beneficial use of the property.” While this declaration tracks language from § 15.8-2 of
the Ordinance, the statement is wholly conclusional and “failed to apply the proper legal
principles, thereby making judicial review of the board’s work impossible.” Irish P’ship,
518 A.2d at 358. Moreover, the minutes from the 2001 hearing fail to recount any
testimony or discussion that transpired at the hearing, thereby failing to preserve any
substantive information relating to the grant of the special-use permit. 4 Consequently,
this Court is unable to determine what constitutes “[s]trict compliance” with the “plans
and testimony as presented to the Board.”
4
Appellants aver that the special-use permit was granted predicated on specifications included in the
contextual site plan presented to the Zoning Board in 2001. Appellants assert that according to the
contextual site plan, upon construction of the fueling station, the development was to have 651 parking
spaces. The Court is unable to confirm this assertion because the 2001 contextual site plan, showing the
subject lot in its entirety, and the 2001 immediate site plan, detailing only the proposed fuel station, were
not included in the administrative record submitted to the Court. Moreover, even if Appellants’ assertions
regarding the specifications included in the contextual site plan are accurate, the Court remains unable to
determine whether the Zoning Board approved the 2001 special-use permit based on the specifications
included in the contextual site plan or the specifications of the immediate site plan because of the brusque
and conclusory nature of the Zoning Board’s written decision. See Bernuth, 770 A.2d at 401 (R.I. 2001).
13
The filing of a formal written decision might have fleshed out the Board’s
“findings of facts and reasons for the action taken,” Sciacca, 769 A.2d at 585; however,
based on the administrative record provided, no separate written decision relating to the
grant of the special-use permit was ever drafted. Instead, the minutes from the Zoning
Board hearing were filed with the Woonsocket City Clerk’s office on June 5, 2001,
serving as the official municipal decision. Though the minutes from the 2001 Zoning
Board meeting arguably comply with the statutory mandate set forth in § 45-24-61(a), the
minutes surely fail to facilitate any meaningful review of the proceedings as required by
our Supreme Court. See Bernuth, 770 A.2d at 401.
These principles notwithstanding, the appropriate time for a challenge to the
validity of the 2001 Zoning Board decision has passed. Pursuant to § 45-24-69, “[a]n
aggrieved party may appeal a decision of the zoning board of review to the superior court
. . . by filing a complaint stating the reasons of appeal within twenty (20) days after the
decision has been recorded and posted in the office of the city or town clerk.” Moreover,
the appropriate vehicle to challenge an alleged violation of a conditionally granted
special-use permit is an enforcement action. See 101A C.J.S., Zoning and Land Planning
§ 307 (“The proper way to raise the question whether [a] condition has been violated is to
petition for an order forbidding any improper use of the premises.”). Accordingly, this
Court lacks jurisdiction to evaluate the validity of the 2001 conditionally granted specialuse permit.
14
C
Planning Board Approval of the 2007 Preliminary Plan
Presently before this Court is Appellants’ challenge to the validity of the Planning
Board’s 2007 decision granting preliminary plan approval to Wal-Mart’s proposed lot
mergers and expansion plan, a decision which rested in large part on the Planning
Board’s interpretation of the generic condition attached to the 2001 special-use permit. 5
Appellants’ sole argument on appeal is that the 2007 Planning Board decision was made
upon unlawful procedure and affected by error of law because the Planning Board
approved the preliminary plan without first requiring Wal-Mart to petition the Zoning
Board for a new special-use permit. However, because this Court has determined that the
procedural prescriptions of § 45-23-61(a)(2)–requiring certain subdivision applicants to
obtain a conditional special-use permit from the zoning board and then return to the
planning board for subsequent required approvals–are inapplicable to the applicants in
the instant matter, it cannot be said that the Planning Board’s decision to approve WalMart’s preliminary plan rests upon unlawful procedure.
Judicial review of planning board decisions is not de novo. Munroe, 733 A.2d at
705 (citing Kirby 634 A.2d at 290). Rather, § 45-23-71(c) authorizes the Superior Court
to review such decisions utilizing the “‘traditional judicial review’ standard that is
applied in administrative agency actions.” Id. Therefore, this Court is “confined to a
search of the record to ascertain whether the board’s decision rests upon ‘competent
evidence’ or is affected by an error of law.” Id. (quoting Kirby, 634 A.2d at 290). It
follows that this Court may not substitute its judgment for that of the agency as to the
5
To reiterate, according to the minutes from the 2001 Zoning Board hearing, the Zoning Board granted
Wal-Mart a special-use permit allowing construction of a fuel station on the subject lot, but conditioned its
approval on “[s]trict compliance with plans and testimony as presented to the Board” at the 2001 hearing.
15
weight of the evidence on questions of fact. Interstate Navigation Co. v. Div. of Pub.
Utils. & Carriers of R.I., 824 A.2d 1282, 1286 (R.I. 2003) (citations omitted). This Court
will “reverse factual conclusions of administrative agencies only when they are totally
devoid of competent evidentiary support in the record.” Baker v. Dept. of Employment
& Training Bd. of Review, 637 A.2d 360, 363 (R.I. 1994) (quoting Milardo v. Coastal
Res. Mgmt. Council, 434 A.2d 266, 272 (R.I. 1981)).
The municipal agencies in this case utilize a two-tier review process, in which
applications seeking approval for major land developments or subdivisions are heard first
by the Planning Board, which issues a written decision that is filed with the city clerk.
Parties adversely affected by the Planning Board’s decision may file an appeal with the
Zoning Board of Review sitting as the Board of Appeal.
(City of Woonsocket
Subdivision & Land Development Regulations, § 13.2.) The Board of Appeal considers
the decision, along with any further briefs or arguments, and then renders its own
decision. Id. at § 13.3. In the context of administrative appeals, this two-step procedure
has been likened to a funnel. Environmental Scientific Corp. v. Durfee, 621 A.2d 200,
207-08 (R.I. 1993). Similar to a hearing officer in the administrative forum, the Planning
Board, at the first level of review, sits “as if at the mouth of the funnel” and analyzes all
of the evidence, opinions, and issues. Id. at 207. The Board of Appeal, stationed at the
“discharge end” of the funnel, the second level of review, does not receive the
information considered by the Planning Board firsthand. Id. at 207-08. Our Supreme
Court has held, therefore, that the “further away from the mouth of the funnel that an
administrative official is . . . the more deference should be owed to the fact finder.” Id. at
208.
16
In the instant matter, after conducting a review of Wal-Mart’s preliminary plan
proposal, Zoning Officer Ericson sent to the City Planner a memorandum which stated
that “[t]he [preliminary] plan meets all applicable zoning requirements.” (Ex. 16.) In
addition, upon reconsideration of the preliminary plan proposal following the December
4, 2007 Planning Board hearing, Zoning Officer Ericson sent to the City Planner a second
memo wherein Ericson set forth his position that Wal-Mart’s proposed expansion
amounted to “subsequent changes in [the] larger contextual site plan” that “do not
establish a basis for requiring a new or amended special use permit.”
(Ex. 22.)
Accordingly, Ericson determined that the preliminary plan presented to the Planning
Board was in harmony with the Woonsocket Zoning Ordinance. (See Ex. 16; Ex. 22.)
In the administrative context, our Supreme Court has cautioned that some
deference should be paid “to a determination by [a municipal official], [but] not blind
deference.” New England Expedition-Providence, LLC v. City of Providence, 773 A.2d
259, 263 (R.I. 2001).
Nevertheless, courts must “give deference to an agency’s
interpretation of an ambiguous statute [or ordinance] that it has been charged with
administering and enforcing, provided that the agency’s construction is neither clearly
erroneous nor unauthorized.” Arnold v. Rhode Island Dep’t of Labor and Training Bd. of
Review, 822 A.2d 164, 169 (R.I. 2003) (citing In re Lallo, 768 A.2d 921, 926 (R.I.
2001)); see also Lyman v. Employees’ Retirement System of the State of Rhode Island,
693 A.2d 1030, 1031 (R.I. 1997). As such, the Court reviews questions of statutory
interpretation in a de novo manner. Germane, slip op. at 25 (citing Rison v. Air Filter
Systems, Inc., 707 A.2d 675, 678 (R.I. 1998)).
17
In the case at bar, the Planning Board’s formal approval of Wal-Mart’s
preliminary plan was issued in the form of a six-page document titled “Findings of Fact
& Decision” dated December 19, 2007. (Ex. 26.) Therein, the Planning Board stated the
following as one of its twenty-three enumerated findings of fact:
The Zoning Officer has had the opportunity to review the
complete record and plans of this application and of the
special use permit from 2001 and has provided comment to
the Planning Board, addressing the [special-use permit]
issue raised by [the Appellants]. The Zoning Officer has
stated that the plans are in compliance with the Zoning
Ordinance and that no new or amended special use permit
would be required. The Planning Board accepts and elects
to follow the Zoning Officer’s interpretation and opinion on
this matter inasmuch as the Zoning Officer has had access
to and has been able to review both the zoning special use
permit application file and the major land development
application file and plans. Id. at 4-5.
Pursuant to this finding of fact, the Planning Board arrived at the following conclusion of
law:
The proposed development is in compliance with the
standards and provisions of the City of Woonsocket, RI
Zoning Ordinance of December 31, 1994, as amended
through January 23, 2002. The Zoning Officer of the City
of Woonsocket reviewed the preliminary plan submission
and provided comment to the Board in a memorandum; the
Zoning Officer reported that the “plan meets all applicable
zoning requirements,” including parking, loading, setbacks,
truck traffic, and screening. The Zoning Officer also
provided comment that the proposed project does not
require a new or amended special use permit for the
existing fuel station on the project site. Id. at 5.
Consequently, the Planning Board voted 5-0 to approve Wal-Mart’s petition for
preliminary plan approval for its Major Subdivision/Major Land Development
Application. Id. at 6.
18
Appellants’ appeal of the Planning Board’s decision to the Board of Appeal
culminated in the issuance of a second written decision, filed with the Woonsocket City
Clerk on February 12, 2007, wherein the Board of Appeal upheld the decision of the
Planning Board. (Ex. 27.) In evaluating the Planning Board’s conclusion that Wal-Mart
was not required to obtain a new or amended conditional special-use permit from the
Zoning Board, the three-page Board of Appeal decision states:
The record shows that neither the Zoning Officer nor the
Planning Board recommended that Wal-Mart seek a new
special use permit as a condition of the Wal-Mart
expansion Preliminary Plan approval. In fact, the Zoning
Officer wrote a memo to the City Planner [stating] that
“changes in the larger contextual site plan do not establish a
basis for requiring a new or amended special use permit.”
Id. at 3.
Further, in addressing the Appellants’ contention that the Planning Board committed
procedural error by issuing a decision in contravention of state law regarding the proper
sequence of approvals, the Board of Appeal concluded that “the Planning Board did not
require a new special use permit, and the zoning officer advised that it was not needed.
Absent the need for a new special use permit, the Appellants’ contention has no merit.”
Id. at 4.
On the record before it, this Court cannot determine whether Wal-Mart’s present
expansion plans violate the terms of the conditional special-use permit issued by the
Zoning Board in 2001 because the terseness of the minutes and decision underlying its
issuance, which failed to provide any detail with respect to the “plans and testimony”
presented to the Board in 2001, renders judicial review of the condition imposed
impossible. See Section III B, supra; Irish P’ship, 518 A.2d at 358; see also Frost, 301
A.2d at 574 (“conditions on a grant permitting a use of the land would be effective only
19
when specifically and clearly stated in the record. . . .”). If the Appellants believe that
expansion of the existing Wal-Mart building constitutes non-compliance with the terms
of the 2001 conditional special-use permit, they may consider an enforcement action
upon the commencement of acts believed to amount to such a violation.
See 101A
C.J.S., Zoning and Land Planning § 307 (“The proper way to raise the question [of]
whether [a] condition has been violated is to petition for an order forbidding any
improper use of the premises.”).
Because this Court is unable to find that Wal-Mart’s expansion plans constitute a
violation of the terms of the underlying conditional special-use permit, this Court cannot
deem Wal-Mart a subdivision applicant that “requires both a special-use permit under the
local zoning ordinance and planning board approval . . . .” Section 45-23-61(a)(2). The
Planning Board’s determination that § 45-23-61(a)(2) was inapplicable to the instant
matter was “neither clearly erroneous nor unauthorized.” Arnold, 822 A.2d at 169
(citations omitted). Consequently, this Court must “give deference to [the Planning
Board’s] interpretation of . . . [a] statute that it has been charged with administering and
enforcing . . . .” Id. Accordingly, the procedural prescriptions of § 45-23-61(a)(2),
mandating that certain applicants “obtain a conditional special-use permit from the
zoning board and then return to the planning board for subsequent required approval(s),”
are inapplicable to the instant matter. That being the case, it cannot be said that the
Planning Board’s decision to approve Wal-Mart’s preliminary plan arose out of unlawful
procedure.
Furthermore, since the Major Subdivision/Major Land Development Application
proposing lot consolidation and expansion of the existing Wal-Mart building comports
20
with all other relevant provisions of the Woonsocket Subdivision and Land Development
Regulations and the Woonsocket Zoning Ordinance, the Planning Board’s decision to
approve Wal-Mart’s preliminary plan was not affected by error of law. Therefore, the
decision of the Board of Appeal is not clearly erroneous and must be affirmed.
IV
Conclusion
After review of the entire record, this Court concludes that the decision of the
Board of Appeal, affirming the Planning Board’s approval of Wal-Mart’s preliminary
plan, was not made upon unlawful procedure, affected by error of law, or clearly
erroneous.
Substantial rights of the parties were not prejudiced by the decision.
Accordingly, the Appellants’ appeal is denied, and the decision of the Board of Appeal,
upholding the Planning Board’s decision, is affirmed.
appropriate judgment for entry.
21
Counsel shall submit the
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