Henry Tarbox and Mary Tarbox v. Zoning Board of Review for the Town of Jamestown
Download as PDF
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
(FILED: March 8, 2013)
HENRY TARBOX and MARY TARBOX
ZONING BOARD OF REVIEW FOR THE :
TOWN OF JAMESTOWN
C.A. No. NC-10-667
VAN COUYGHEN, J. This matter is before the Court as a result of an appeal taken by Henry
and Mary Tarbox (―Appellants‖) of the denial of their application for a dimensional variance by
the Zoning Board of Review for the Town of Jamestown (―Appellee‖ or ―Zoning Board‖).
Jurisdiction is pursuant to R.I Gen. Laws § 45-24-69.
Facts and Travel
Mr. and Ms. Tarbox own a single-family home located at 28 Clarke Street in Jamestown,
Rhode Island, which is identified as Tax Assessor‘s Plat 9, Lot 798. (Zoning Board Decision
(―Decision‖) 1.) The Tarboxes‘ lot (―the Property‖) contains 11,427 square feet and is located in
an R-8 zone according to the Jamestown Zoning Ordinance (―Zoning Ordinance‖). Id. at 1-2.
The Property, in its current form, conforms to the dimensional requirements of the Zoning
Ordinance; that is, an R-8 zone permits single-family homes on lots of at least 8000 square feet.
Zoning Ordinance § 82-302 Table 3-2.
Mr. and Ms. Tarbox requested dimensional relief to build an apartment attached to their
home. (Appl. for Exception or Variance 1.) Appellants‘ proposed addition consisted of a one-
bedroom, one-and-one-half-bathroom apartment.
See Decision 1; Appl. for Exception or
Variance 2. The addition of the 624 square-foot apartment would create a duplex.1 (Appl. for
Exception or Variance 1.) An R-8 zone permits duplexes but requires a minimum lot size of
15,000 square feet. See Zoning Ordinance § 82-302 Table 3-2; Decision 1.
The Zoning Board held a hearing on October 26, 2010. (Decision 1.) Mr. Tarbox, who
was the only witness who testified, explained that his purpose for building the apartment was to
provide his mother with a place to live. (Tr. 10/26/10, 6:15-7:1.) Eventually, he and his wife
would move into the apartment and his children would occupy the existing house. Id. Mr.
Tarbox also testified that he wanted to construct a duplex rather than add additional bedrooms to
his residence because it provided more privacy for his mother and subsequently for him and his
wife. Id. at 7:2-18. Additionally, Mr. Tarbox testified that there are other duplexes in his
neighborhood, including the property next to his house. Id. at 7:19-8:4. There was a brief
conversation about how long the Zoning Ordinance had required 15,000 square-feet for a
duplex,2 and no other witnesses spoke in support of or opposition to the Tarboxes‘ request. Id. at
After some discussion, a member of the Zoning Board made a motion to grant the
Tarboxes‘ application for a variance based on seven findings of fact.
Id. at 12:24-14:9.
Following additional discussion, three members of the five-member Zoning Board voted in favor
of granting the motion to approve the application. However, because four votes were required to
The Zoning Ordinance‘s definition of ―Duplex‖ refers to ―Dwelling – Two Household,‖ which
is defined as ―[a] structure containing two households where each dwelling unit provides
complete, independent living facilities for one or more persons, including permanent provisions
for living, sleeping, eating, cooking, and sanitation, and containing a separate means of ingress
and egress.‖ Zoning Ordinance § 82-103(52), (53).
The Zoning Ordinance available to the public apparently mistakenly showed no dimensional
requirements for a duplex in an R-8 zone. Id. at 9:25-11:5. This was amended in March of
2010, when the 15,000-square-feet requirement was properly included. Id.
approve the Tarboxes‘ request, the two dissenting votes prevailed, and the application was
denied. See Tr. 14:16-17:23. The Zoning Board formally denied the Tarboxes‘ application for a
variance in a written Decision issued on October 27, 2010, and filed on November 17, 2010.
The Decision reflected that the motion for approval, with findings of fact, was made but did not
pass because of the two negative votes. The Zoning Board‘s Decision did not contain findings of
fact to support the Zoning Board‘s denial of the application. Mr. and Ms. Tarbox filed this
appeal on December 3, 2010.
Standard of Review
Pursuant to § 45-24-69(d), the Superior 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.‖ A reviewing
―affirm the decision . . . 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
(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. A reviewing court‘s role is not ―‗to weigh the evidence, to pass upon the credibility of
witnesses, or to substitute his or her findings of fact for those made at the administrative level.‘‖
Restivo v. Lynch, 707 A.2d 663, 665-66 (R.I. 1998) (quoting Lett v. Caromile, 510 A.2d 958,
960 (R.I. 1986)). Instead, 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, 122 R.I. 241, 245, 405
A.2d 1167, 1170 (1979)) (internal quotation marks omitted). ―‗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.‘‖ Lischio v. Zoning
Bd. of Review, 818 A.2d 685, 690 n.5 (R.I. 2003) (alteration in original) (quoting Caswell v.
George Sherman Sand & Gravel Co., 424 A.2d 646, 647 (R.I. 1981)). If the court cannot find
sufficient evidence to support a zoning board‘s decision, then the decision cannot stand. See
Mill Realty Assocs., 841 A.2d at 672.
Mr. and Ms. Tarbox argue that the Zoning Board failed to sufficiently explain its reasons
for denying their application for dimensional relief, as the Zoning Board‘s Decision did not
explain which, if any, of the requirements for a dimensional variance the Appellants failed to
satisfy. In other words, the Tarboxes argue that the minority voting bloc of the Zoning Board did
not provide findings of fact, which is required pursuant to § 45-24-61(a).
The Board’s Decision
Section 45-24-61(a) requires that a zoning board‘s written decision must ―include . . . all
findings of fact and conditions, showing the vote of each participating member, and the absence
of a member or his or her failure to vote.‖ Findings of fact are necessary to determine ―‗whether
the board members resolved the evidentiary conflicts, made the prerequisite factual
determinations, and applied the proper legal principles.‘‖ Bernuth v. Zoning Bd. of Review, 770
A.2d 396, 401 (R.I. 2001) (quoting Irish P‘ship v. Rommel, 518 A.2d 356, 358-59 (R.I. 1986)).
The Court in Sciacca v. Caruso, 769 A.2d 578, 585 (R.I. 2001), noted that a zoning board‘s
failure to include findings of fact and conclusions of law ―completely disregarded [the zoning
board‘s] obligation to spell out its conclusions and reasoning,‖ an obligation that was ―clearly set
forth . . . [in the zoning ordinance].‖ That Court ―caution[ed] zoning boards . . . to make certain
that zoning board decisions . . . address the evidence in the record before the board that either
meets or fails to satisfy each of the legal preconditions for granting [or denying] such relief.‖ Id.
A zoning board‘s ―‗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.‘‖ Bernuth,
770 A.2d at 401 (quoting Irish P‘ship, 518 A.2d at 358-59).
Unless ―‗[t]hese minimal
requirements . . . are satisfied, a judicial review of a board‘s work is impossible.‘‖ Id. (quoting
Irish P‘ship, 518 A.2d at 358-59).
In Bernuth, 770 A.2d at 402, a zoning board granted a dimensional variance upon
findings of fact regarding some but not all of the statutory prerequisites. The Supreme Court
reversed, holding that the Superior Court erred by affirming the decision that contained ―no
discussion‖ of the additional requirement, which the zoning board had not even acknowledged in
its decision. See id. Because the zoning board‘s decision failed to comply with the statutory
provision requiring findings of fact and conclusions of law, the Bernuth Court remanded the case
to the Superior Court for an order denying the variance. Id. The Court ―caution[ed] zoning
boards and their attorneys to make certain that zoning-board decisions on variance applications
. . . address the evidence in the record before the board that either meets or fails to satisfy each of
the legal preconditions for granting such relief.‖ Id.
Here, the Decision of the Zoning Board reflects a motion to grant the application, which
included findings of fact in support of granting the application. That motion failed to pass
because only three of the five members voted in favor of it. See Zoning Ordinance § 82501(B)(3) (requiring a four-fifths majority to grant variances); see also § 45-24-57 (explaining
that four votes ―are required to decide in favor of an applicant on any matter within the discretion
of the board upon which it is required to pass under the ordinance, including variances and
special-use permits‖). The motion provided that the Zoning Board had ―determined that th[e]
application d[id] satisfy the requirements of Article 6, Section 600, Section 606, and Section
607,‖ which substantially mirror the Rhode Island General Laws‘ requirements for dimensional
relief. See Decision at 1. The Zoning Board‘s motion, labeled as its Decision, set forth only
seven findings of fact, all of which supported the majority position to grant the relief sought:
―1. Said property is located in a[n] R8 zone and contains 11,427
2. A duplex is a permitted use in the zone. There are other
duplexes in the area.
3. No dimensional variance is required.3
4. The total building area, as expanded, will be less than 17% of
the land area.
5. Granting of the variance will enable the applicant‘s family to
remain on the island, which is consistent with the tenor of
affordable housing principles recently incorporated into the
6. A duplex is consistent with the Comprehensive Plan.
7. There were no objections to the application.‖
(Decision 2.) The minority voting bloc added no findings of fact indicating why it voted against
The Decision of the Zoning Board failed to adequately set forth the required findings of
fact. The Decision contains no findings of fact whatsoever regarding the minority voters‘
The record reveals that this finding refers to a variance, such as from setback requirements,
other than the relief from the lot-size requirement that the Tarboxes requested in their
application. See Tr. 8:19-22.
reasoning for denying the application. Consequently, the Court is unable to review the propriety
of the Decision. This Court requires findings of fact to determine ―‗whether the board members
. . . made the prerequisite factual determinations and applied the proper legal principles.‘‖ See
Bernuth, 770 A.2d at 401 (quoting Irish P‘ship, 518 A.2d at 358-59). Such findings are required
to enable appellate review. See id. (citing Irish P‘ship, 518 A.2d at 358-59).
The minority members should have included the findings of fact and conclusions of law
on which they based their votes. See Schofield v. Zoning Bd. of Review, 99 R.I. 204, 205-06,
206 A.2d 524, 525 (1965); Noyes v. Zoning Bd. of Review, 95 R.I. 201, 203-06, 186 A.2d 70,
71-73 (1962). In Schofield, the Supreme Court reviewed an application for an exception that
was denied because it garnered only three affirmative votes and explained that ―[n]either is it
disputed that a minority may make findings other than those of the majority and that such
findings will not be disturbed by [the Supreme Court] on review when supported by legally
competent evidence disclosed in the record.‖ 99 R.I. at 205-06, 206 A.2d at 525. The Schofield
Court held that the minority‘s position was supported by legally competent evidence and
therefore affirmed the zoning board‘s action. Id. at 208, 206 A.2d at 527.
In most situations, insufficient findings of fact would cause this case to be remanded to
the Zoning Board for factual findings. The Supreme Court in Hopf v. Board of Review of the
City of Newport, 102 R.I. 275, 289, 230 A.2d 420, 428 (1967), adopted this approach for that
case ―and, in the future, to all cases where the evidence is in conflict.‖ The Hopf Court
distinguished earlier cases in which it ―searched the record itself to determine whether there was
evidence therein to support the board‘s decision‖ by noting that in those cases ―the evidence was
undisputed and the facts uncontradicted.‖ Id. at 289, 230 A.2d at 428 (1967) (citations omitted);
see also Travers v. Zoning Bd. of Review of Town of Bristol, 101 R.I. 510, 514, 225 A.2d 222,
224 (1967) (examining the record in a case in which the board failed to state its reasons and
determining that a variance was warranted); Roland F. Chase, Rhode Island Zoning Handbook
§ 210 at 299 (2d ed. 2006) (―Unless the evidence is not in conflict, a decision granting or
denying relief‖ that fails to give the reasons and evidence on which it is based ―will be returned
to the zoning board for completion and clarification.‖).
Justices of this Court have acknowledged this approach when distinguishing cases that
contain uncontradicted evidence. See, e.g., Bailey v. Warwick Zoning Bd. of Review, C.A. No.
KC 96-229, 1997 WL 839934 *3-4 (R.I. Super. June 16, 1997) (Silverstein, J.); Castelli v.
Zoning Bd. of Review, C.A. PC 91-6209, 1993 WL 853829 *4 (R.I. Super. June 30, 1993)
(Goldberg, J.). In Bailey, 1997 WL 839934 *3, a zoning board‘s decision denying an application
for a dimensional variance ―lack[ed] specific findings of fact.‖ The Superior Court examined the
record, explaining that ―[t]he Hopf case expressly limits the above-mentioned rule [requiring
remand because of insufficient findings of fact] to cases where evidence is in conflict.‖ Id.
Upon its examination of the record, that Court reversed the zoning board‘s decision because it
found that the applicants there had satisfied their burden. Id. Similarly, in Castelli, 1993 WL
853829 *3-4, the evidence was also uncontradicted. The Court reviewed the record, reversing
the zoning board‘s decision because the applicants had met their burden. Id. Because the
evidence was not in conflict, the Castelli Court rejected an argument that the lack of findings of
fact precluded a review of the decision, explaining that although it was ―a well-settled rule that
zoning boards should set forth the reasons and grounds for their decisions,‖ the ―Supreme Court
has stated that courts should not subject the parties to such delay and inconvenience where they
were able to satisfy themselves from the record that the [b]oard‘s decision was either correct or
erroneous regardless of the failure to give reasons for their decision.‖ See id. at *3 (citing
Richards v. Zoning Bd. of Review, 100 R.I. 212, 219-20, 213 A.2d 814, 818 (1965); Winters v.
Zoning Bd. of Review, 80 R.I. 275, 277, 96 A.2d 337, 339 (1953)).
Here, the only evidence presented at the hearing was the testimony of Mr. Tarbox. There
was no conflicting evidence, no objectors, nor did the Zoning Board indicate on the record that it
relied on its own special knowledge of the area. See Sciacca, 769 A.2d at 585 (addressing the
inadequacy of a decision and explaining that reliance on a zoning board‘s ―special knowledge‖ is
permitted only if ―the record reveals the underlying facts and circumstances‖). Because the
evidence was not in conflict, this Court will examine the record to determine whether there was
evidence to support the Tarboxes‘ application. See Hopf, 102 R.I. at 289, 230 A.2d at 428.
To obtain a dimensional variance, the Zoning Ordinance provides, as § 45-24-41(c)
similarly provides, that the Zoning Board
―shall require that evidence to the satisfaction of the following
standards be entered into the record of the proceedings:
1. That the hardship from which the applicant seeks relief is due to
the unique characteristics of the subject land or structure and not to
the general characteristics of the surrounding area; and is not due
to a physical or economic disability of the applicant;
2. That the hardship is not the result of any prior action of the
applicant and does not result primarily from the desire of the
applicant to realize greater financial gain;
3. That the granting of the requested variance will not alter the
general character of the surrounding area or impair the intent or
purpose of the ordinance [this chapter] or the comprehensive plan
upon which the ordinance [this chapter] is based; and
4. That the relief to be granted is the least relief necessary.‖
Zoning Ordinance § 82-606. Additionally, ―[i]n granting a dimensional variance,‖ there must be
evidence on the record that ―the hardship that will be suffered by the owner of the subject
property if the dimensional variance is not granted shall amount to more than a mere
inconvenience.‖ Id. § 82-607(2).
Here, a review of the record demonstrates that Mr. and Ms. Tarbox have satisfied their
burden to obtain a dimensional variance. They wish to create a duplex, which is a permitted use
in an R-8 zone, by adding a 624 square-foot apartment to their home. See § 82-302 Table 3-1;
Appl. for Exception or Variance 1-2. The record shows that the relief sought by Mr. and Ms.
Tarbox in pursuing a permitted use with a substandard lot was due to the unique characteristics
of their lot—its square footage is below the required square footage for a duplex—and not due to
their personal physical or economic disability. See Zoning Ordinance § 82-606; Tr. 6:1-11.
There was no evidence that the relief sought was due to any prior action of the Tarboxes
or primarily from their desire for financial gain. The only evidence presented was that Mr. and
Ms. Tarbox intend that his mother live in the apartment, followed by their own use of the
apartment. See Zoning Ordinance § 82-606; Sciacca, 769 A.2d at 584; Tr. 6:15-7:18. There was
no indication that any Zoning Board members questioned Mr. Tarbox‘s credibility. The only
motivation supported by the record for a duplex as opposed to a larger single-family home is the
desire for privacy for the occupants of the respective apartments. Tr. 7:2-7:18.
The record shows that there are other duplexes in the area, so permitting the relief sought
would ―not alter the general character of the surrounding area.‖ See Zoning Ordinance § 82-606;
Tr. 7:19-8:1, 15:22-16:3. In fact, Mr. Tarbox testified that his next-door neighbor‘s home is a
duplex. Tr. 7:19-8:4. Additionally, the record shows and the Zoning Board found that the
presence of duplexes in that area indicates that granting the requested relief would be consistent
with the Comprehensive Plan.
Based on the size of the lot and the allowable usage of the land area of the lot, the relief
sought was the least relief necessary. An R-8 zone requires 15,000 square feet for a duplex, and
while the Property is 11,427 square feet, the record shows and the Zoning Board found that the
proposed total building area would be seventeen percent of the land area, which is well below the
thirty percent maximum allowed in an R-8 zone. See § 82-302 Table 3-2.
Finally, the record discloses that the relief would allow Mr. and Ms. Tarbox and their
family to ―remain viable‖ in Jamestown. Tr. 6:23-7:1. Indeed, the Zoning Board found that the
addition would permit the Tarboxes and their family to remain in Jamestown. The hardship
suffered by the Tarboxes if the relief were denied would be more than a mere inconvenience.
The Zoning Board‘s Decision did not include the necessary findings of fact. However,
because the evidence was not in conflict, this Court has reviewed the record to determine
whether it supported the Zoning Board‘s action. After reviewing the record, this Court finds that
the Zoning Board‘s action was clearly erroneous in view of the reliable, probative, and
substantial evidence. Substantial rights of the Tarboxes have been prejudiced. Accordingly, the
Zoning Board‘s Decision is reversed, and the Tarboxes‘ application for a dimensional variance is
granted. Counsel for the prevailing party shall submit an appropriate order for entry.
RHODE ISLAND SUPERIOR COURT
Decision Cover Sheet
TITLE OF CASE:
TARBOX v. ZONING BOARD OF REVIEW FOR THE
TOWN OF JAMESTOWN
Newport County Superior Court
DATE DECISION FILED:
March 8, 2013
Van Couyghen, J.
Peter Brockmann, Esq.
Wyatt Brochu, Esq.