Kenlin Properties, LLC and TLA–Providence, LLC, as the owner and operator of Pond View Recycling, a construction and demolition debris processing facility brought an action, sought judicial review of zoning board’s decision to uphold notice of violation issued by city zoning officer finding several violations of use variance that had been granted to owner and operator. The zoning officer cited Pond View for: exceeding the approved open storage area; expanding beyond the 150–ton limit approved in the 1998 use variance; accepting products other than wood; operating beyond the permitted hours of operation; failing to maintain an earthen berm; and adding additional equipment to the site. In or about June 2011, Kenlin and TLA appealed the notice of violation to the zoning board. The Superior Court reversed the zoning board, concluding that the zoning board’s decision was clearly erroneous and made upon unlawful procedure.
On appeal, the city argued that the trial justice “erred in applying collateral estoppel principles to preclude the zoning officer from raising the ‘tonnage’ and ‘concrete’ issues regarding Pond View’s use of the facility.” Here, because the city was again a party, Kenlin was in privity with Pond View, and a final judgment on the merits was entered by the 2006 declaratory judgment, the first two requirements of collateral estoppel were met. However, neither the declaratory judgment itself nor the hearing justice’s decision resolved the issues of how much tonnage Pond View was permitted to process per day and the types of materials it was permitted to process. Accordingly, the city was not barred from pursuing violations based on the amount or type of material accepted at Pond View.
The city next argued that the trial justice erred in holding that the zoning official and zoning board could not consider the application, site map, and testimony at the public hearing in determining the scope of the variance. The court reasoned that the scope of a use variance ever exceed the relief originally requested by the property owner in his or her original application and testimony before the zoning board, and to hold otherwise would allow a prohibited use to expand through an inartfully worded motion by a member of a zoning board or simply through the passage of time. The court therefore found that the determination of the scope of a use variance was a question of fact entrusted in the first instance to the local zoning officer and then to the zoning board, subject to appellate review by the Superior Court.
Here, it was agreed that the scope of use would be limited “to a 150–ton limit of the operation per day,” that the “grinding hours” would be 8 a.m. to 4 p.m. Monday through Friday and 8 a.m. to noon on Saturday, that a berm would be installed “around the machine,” that the facility would recycle wood only, and that there would be no outside storage other than what was allowed under the existing zoning ordinance. A zoning board member then proposed the following findings of fact: “that the use is compatible with the neighboring land use, that the use does not create a nuisance in the neighborhood, that the use does not hinder the future development of the city, that the use conforms with all applicable sections to the use requested, and that the applicant would be deprived of any beneficial use of the property if the applicant is required to conform to the provisions of the zoning ordinance.” A motion was made to grant “this use variance,” which passed unanimously.
Accordingly, the court found that the zoning officer and zoning board properly reviewed the record to determine the scope of the use permitted by the 1998 use variance and that the findings of fact by the zoning board were not “clearly erroneous in view of the reliable, probative, and substantial evidence of the whole record.” The court therefore held that the trial justice erred by reversing the decision of the zoning board.
Kenlin Properties, LLC v City of East Providence, 2016 WL 3449976 (RI 6/23/2016)
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