Opinion
C. A. WC-2018-0489
02-01-2021
BOON STREET PRESBY, LLC Plaintiff v. TOWN OF NARRAGANSETT ZONING AND PLATTING BOARD OF REVIEW, JAMES P. MANNING, ANTHONY M. BRUNETTI, GERALDINE DORIS CITRONE, JOSEPH V. PAGLIA, ROBERT R. FERRARO, JR., JOHN C. KENNEDY, and CHRISTOPHER J. ALMON, in their official capacities only as Members of the Narragansett Zoning and Platting Board of Review Defendants
For Plaintiff: John F. Kenyon, Esq. For Defendant: Andrew H. Berg, Esq.
For Plaintiff: John F. Kenyon, Esq.
For Defendant: Andrew H. Berg, Esq.
DECISION
TAFT-CARTER, J.
The Appellant, Boon Street Presby, LLC (Boon Street), appeals the August 31, 2018 Decision (Decision) of the Town of Narragansett Zoning and Platting Board of Review (Board of Review) upholding the Town of Narragansett Planning Board's (Planning Board) denial of Boon Street's Master Plan Application for Major Land Development Project (Application). Jurisdiction is pursuant to G.L. 1956 § 45-23-71.
I
Facts and Travel
A
Submission of the Application and Proceedings Before the Planning Board
Boon Street is the owner of the property located at 114 Boon Street in Narragansett, Rhode Island, known as Narragansett Tax Assessor's Plat D, Lot 134 (Property). (R. at 215.) On November 29, 2017, Boon Street filed an Application with respect to the development of the Property. Id. The name of the proposed subdivision/LDP was "Boon Street Presbyterian church [sic] Adaptive Reuse & Restoration[, ]" and the type of project was listed as a "Major Land Development Project" with "[four] condo units proposed." Id. The Application was made at the "Master Plan" stage of review. Id.
The Court in this Decision will be citing from the certified record provided by the Clerk of the Zoning Board of Review for the Town of Narragansett. See Certification, dated Oct. 26, 2018. The pincites used in this Decision are the numbers stamped in the lower, left-hand corner of each page in the certified record. The complete record consists of "[c]opies of all hearing transcripts dated January 16, 2018, February 20, 2018, March 20, 2018, March 28, 2018, June 21, 2018, and August 23, 2018[;] Copies of all meeting minutes dated October 17, 2017, January 16, 2018, February 20, 2018, March 20, 2018, March 28, 2018, June 21, 2018, July 19, 2018, and August 23, 2018[;] Pre-application and Application of Boon Street Presby, LLC[;] Decision of the Planning Board[; and] Memorandum and record of appeal to the Platting Board of Review and decision." Certification, dated Oct. 26, 2018.
Prior to the hearing, a Pre-Application Fact Sheet dated October 12, 2017 was prepared by Environmental Planning Specialist Jill Sabo and submitted to the Planning Board. Id. at 209-10. The Pre-Application Fact Sheet discussed the history of the Property, along with the proposed plan and the required variances from the Town of Narragansett's Zoning Ordinance (Zoning Ordinance). Id. The fact sheet indicated that the existing structure on the Property was constructed in 1889 as a Presbyterian Church and was situated at the northeastern quadrant of the intersection of Boon Street and Rodman Street in the Pier area of Narragansett. Id. at 209. A hurricane in 1938 damaged the church, and the church was further destroyed by a fire. Id. The foundation survived the fire and was most recently used as a car storage location. Id. The Property, as described in the fact sheet, is approximately 0.4 acres (17, 736 square feet). Id. There is an existing stone structure on the site, which would be used as the basis for the four-unit structure. Id.
The Property is zoned R10, meaning it is eligible for one single-family dwelling in an R10 zoning district. Id. The proposed land development would create one buildable lot with four dwelling units. Id. The additional three dwelling units would be considered an increase in the intensity of the use of the site and would require relief through the Board of Review. Id. The project, as proposed, required a number of variances from the Board of Review, including the density of the project, lot coverage, dwelling units allowed, and parking. Id. at 210.
Pre-application drawings were submitted showing the conceptual floor plans, the adaptive reconstruction comparison, and the proposed site plan. Id. at 211-14, 272-78, 296-97. Michael DeLuca, the Town of Narragansett Director of Community Development (Director), acting as Administrative Officer, in a letter dated December 22, 2017, deemed the Application complete for the Planning Board's review under Section V of the Narragansett Subdivision and Land Development Regulations, 1995. Id. at 230. Craig Miller, a member of Boon Street, was the spokesperson for Boon Street, together with Boon Street's attorney, at the Planning Board's informational meetings regarding the Application. Id. at 076, 215.
After submission of the Application, the Director prepared a memorandum dated January 11, 2018, which was sent to the Chairman of the Planning Board, Terence Fleming (Chairman). Id. at 232-39. The memorandum highlighted the overall concerns of the zoning relief required and the project's inconsistency with the Town's Comprehensive Plan. Id. at 234-35. Specifically, the Director stated that the Planning Board was required to make positive findings on all five standards listed in § 45-23-60 and the two standards listed in the Narragansett Subdivision and Land Development Regulations. Id.
Regarding the five standards listed in § 45-23-60, the Director noted concerns with two of the standards. Id. The first standard requires that "[e]ach subdivision or land development project shall be consistent with the requirements of the Narragansett Comprehensive Plan and/or shall satisfactorily address the issues where there may be inconsistencies[.]" Id. at 234. The Director stated in his memorandum that
"[t]he staff finds . . . the proposed development to be INCONSISTENT with the Comprehensive Plan. On its face, the Comprehensive Plan / Future Land Use Map designates this site as 'High to Moderate Density Residential.' The proposal calls for 4 residential units on a 0.4 acre site which would result in a gross density of 10 units per acre. At 4, 340 square feet of land per dwelling unit, this request DOES NOT comply with the Land Use maximum density allowance for high density residential development." Id.
The Director also noted in his memorandum that the proposal is in a high-density designated area within walking distance to public facilities and services and would be eligible for density relief if the project helped to meet the Town's 10 percent low and moderate income (LMI) housing goal. Id. However, the proposal did not address the Comprehensive Plan's affordable housing goal and therefore did not qualify for density relief on that basis. Id.
The second issue raised by the Director was that the lot did not conform to the standards and provisions of the Zoning Ordinance. Id. at 234-35. The Director stated that
"[t]he staff finds the lot in question is an existing legal conforming lot that is not proposed for subdivision. It has potential for development of a single family house with no relief needed. While the lot is therefore in compliance with the Zoning Ordinance, the proposal for 4 dwelling units does not comply with the R-10 density standards." Id. at 235.
According to Section 3.1 of the Zoning Ordinance, an R-10 residence zone "is composed of high-density residential areas served by or adjacent to a public water system, plus areas where similar residential development appears desirable." Narragansett Code of Ordinances, Appendix A-Zoning § 3.1. Per Section 6.3 of the Zoning Ordinance, a multifamily home is allowed in an R-10 zone by use permit only and is subject to the density requirements as listed in Section 17.2. Narragansett Code of Ordinances, Appendix A-Zoning § 6.3.
Boon Street submitted correspondence, dated January 15, 2018, to the Chairman of the Planning Board addressing the Director's concerns. Id. at 240-43. With respect to the LMI units, Boon Street's correspondence explained that the Zoning Ordinance requires inclusionary zoning for affordable units when an applicant is proposing six or more housing units. Id. at 241. Boon Street highlighted that here the Application proposed only four dwelling units, and therefore no affordable units were required. Id. Boon Street also explained that, if the proposal designated 25 percent of the dwelling units as affordable, Boon Street could file as a Comprehensive Permit. Id. Such a filing would essentially accelerate the process for Boon Street and reduce the number of appearances before the Zoning Board because the Planning Board was authorized to grant the necessary zoning relief. Id. Boon Street also stated that the project was located in an R-10 zoning district, which permitted the proposed multifamily dwelling use. Id.
"Where an applicant requires both a special use permit under the 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)." Narragansett Subdivision and Land Development Regulations, § V(D)(1)(b).
Boon Street noted that "[t]he high cost of completing the restoration of the historic Presbyterian Church requires the approval of a minimum of four, market-rate dwelling units. If the owner proposed a Comprehensive Permit with four dwelling units, one of them being affordable, the economics of the project is not viable." Id. Boon Street continued by stating that "[t]he required zoning relief would include Dimensional Variances from the Zoning Ordinance. The requested relief is due to the size of the existing lot as well as the fact that the Applicant is proposing the reuse of an existing building." Id. Boon Street stated that it would require a height variance because it was proposing to reconstruct the building to its previous form. Id. With respect to consistency with the Town's Comprehensive Plan, Boon Street noted that the Town's Comprehensive Plan Roadmap includes Goal ACS1, entitled "Protect the local historic and cultural resources to retain the Town's sense of place and distinctive character." Id. at 242. Boon Street argued that the Town's Comprehensive Plan "clearly promotes the reuse and restoration of historic buildings." Id. at 242-43.
Following this exchange of correspondence between the Director and Boon Street, the first public informational hearing with the Planning Board to discuss the Application was held on January 16, 2018. Id. at 245. Mr. Miller presented the project on behalf of Boon Street. Id. at 745. He stated that the plan was to "save and restore the historic stone structure and then do a historic recreation or recovery . . . of what used to be the church." Id. at 746. Mr. Miller acknowledged that "this is an adaptive reuse. I'm not proposing to put back the church. I'm proposing to put a residential use back in, with four units. And through that adaptive reuse, carry the freight, if you will, for the historic recovery of this building." Id. at 747. Several members of the public commented on the Application, including several abutters who were in favor of the architecture but expressed concerns with the density of the project and the parking. Id. at 776-98. Other individuals, including the President of the Narragansett Historical Society, noted that they were in favor of the project and were impressed by the design. Id. at 788-93.
After the public comments, Dr. O'Neill, a member of the Planning Board, noted that "[f]irst of all, the density bothers me." Id. at 798. He also expressed concern about what would happen if Boon Street were unable to finish the construction of the Property. Id. at 798-803. A motion to continue the discussion of the Application to February 20, 2018 was made, and the hearing was adjourned. Id. at 805-06.
Keith Lescarbeau, Chair of the Narragansett Historic District Commission, submitted a letter to the Planning Board in his individual capacity dated January 15, 2018, in support of the proposed design. Id. at 244. He stated that the project "would accomplish the replacement of a very significant architectural resource for our community. . . . Certainly density, parking, and space utilization have to be evaluated." Id.
At the Board of Review hearing, Boon Street's attorney stated that, "I believe this letter might have just been from him personally." (R. at 473.)
At the continued Master Plan informational hearing held on February 20, 2018, Boon Street responded to several of the Planning Board's concerns that were raised at the previous hearing. Id. at 664-738. Boon Street submitted a revised rendering of the project, which included twelve parking spaces. Id. at 670. Boon Street addressed the Planning Board's concerns about having a second means of egress for each unit, noting that Boon Street had satisfied this requirement with the new design. Id. at 673. The updated plans addressed the concerns about the rear of the building "in a more architecturally relevant manner." Id. at 673-74.
In addition to addressing the Planning Board's concerns, the attorney for Boon Street let the Planning Board members know that Mr. Miller had appeared before the Narragansett Historic District Commission and received a "very positive letter from the meeting." Id. at 667-68, 293. After that meeting, Mr. Lescarbeau, writing as Chair of the Narragansett Historic District Commission, provided a letter dated February 18, 2018, which noted that "the opinion unanimously shared was in favor of the overall design." Id. at 293. The letter added that Mr. Lescarbeau "would compare this opportunity to having a developer willing to reproduce one of the lost iconic hotels on Ocean Road. This is a golden opportunity for the town of Narragansett to create an architectural anchor for future projects in the Boon street area." Id. at 293.
However, at the meeting, the Chairman stated that
"my basic issue is still here, which is four units, twelve bedrooms, twelve cars. To me, it's just too much. I mean, the design is wonderful, and it's getting better all the time. And, I mean, I'll say that 50 times before we end these hearings. But the density issue is just a huge issue for me." Id. at 692.
Boon Street noted that "without the density, we can't do this design." Id. The Chairman went on to add, "we've never had four market-rate units approved on a lot that was zoned for one, unless there were extenuating circumstances, like grandfathered rights." Id. at 693. Boon Street's attorney argued that there was an extenuating circumstance because "it's a historic church that will be rebuilt in a way that everyone agrees will be a benefit to the town." Id. The Chairman countered this statement by stating that "[t]his isn't a historical restoration. This is an adaptive reuse." Id.
The Chairman stated that he believed another application with four units on one lot without a beautiful design would not be considered. Id. at 694. He added that architecture was not a valid reason to deny or approve an application. Id. at 697-98. Dr. O'Neill also expressed concerns about density. Id. at 699. On the other hand, Mr. Indeglia, another member of the Planning Board, stated, "I think it's a unique situation that we've never had." Id. at 720. He added, "[s]o to say we're not going to allow for this adaptive reuse or historic rebuild or whatever you want to call it, I think it's a lost opportunity. And I'd hate to let it go away . . . ." Id. at 721.
The Director noted, "I have not heard anything yet that gets you past required finding No. 1 or required finding No. 2." Id. at 725. A motion was made to continue the matter until February 26, 2018, when the Planning Board would reset the matter to a date in March when all five Planning Board members would be present. Id. at 735-36.
At the February 26, 2018 meeting, a motion was made to schedule a special meeting on March 28, 2018 regarding the Application, when the Planning Board would have a full quorum, subject to the written acceptance by the applicant or his attorney for an extension of time beyond the ninety-day period, to be obtained by the Town Planner. Id. at 419, 423. Boon Street executed a waiver of the ninety-day time limit for consideration of the Application so that there would be a quorum. Id. at 399.
Prior to the special hearing on March 28, 2018, the Director generated another Master Plan Review on March 15, 2018, which was submitted to the Chairman of the Planning Board. Id. at 298-306. The revised Master Plan Review reiterated the Narragansett Department of Community Development's (Department) opinion that the Application's proposal failed to meet the first two requirements of § 45-23-60 regarding consistency with the requirements of the Narragansett Comprehensive Plan and conformance to the standards and provisions of the Zoning Ordinance. Id. at 299-302. The Department noted that the project did not merit relief under LMI provisions because no affordable housing was proposed. Id. at 300-01. The Director again pointed out that, although Boon Street contended that the Comprehensive Plan promotes the reuse and restoration of historic buildings, the proposal is "not focused on restoration of the original use. It is (as titled) an 'adaptive reuse' of the property." Id. at 299. The memorandum also noted that the proposal will require waivers to comply with Section 17.2 of the Zoning Ordinance. Id. at 303-06.
The Director submitted another revised Master Plan Review dated March 26, 2018 to the Planning Board. Id. at 315-24. This review again reiterated that the staff could not make the required positive findings of facts under § 45-23-60. Id. at 318-20, 324. The memorandum stated that "[s]taff has reviewed all the documents submitted to date and wishes to go on record as OPPOSED TO APPROVAL, as-submitted [sic], based on the inability to make positive findings as required under state law (RIGL 45-23) for items #1 and #2 in Section D [the findings of fact] above." Id. at 324.
At the March 28, 2018 special hearing, Mr. Miller introduced the site's revisions. Id. at 528. Mr. Miller explained that he eliminated the proposed addition and pulled the building back to its original footprint on the rear side. Id. at 528-29. Mr. Miller also provided plans for a landscaped corner that would include panels describing the building's history and the history of the area. Id. at 529. Mr. Miller discussed that the parking is the same-allowing for twelve spaces, one for each bedroom. Id. at 531. The proposed parking would have six cars on the left and six cars on the right so that the presence of cars would not overwhelm the architecture or the landscaping. Id. at 554.
Comments from the public were taken. Id. at 572-73. Once again, members of the public expressed concern with the density. Id. One individual stated that she was worried about the parking, roof deck, and precedent that approval of the Application would set. Id. at 587-96. Another person was concerned with the parking and lack of affordable housing. Id. at 578-81. On the other hand, other members of the public believed that the restoration of the former church was special and that it was going to be a landmark. Id. at 583-87. Margaret and Thomas Rogers wrote a letter dated March 28, 2018 which expressed concern that the building's parking would resemble a parking lot during the summer months. Id. at 333-34.
After the public comments, the Director said that he did not hear anything at this meeting which alleviated his concerns regarding finding number one, compliance with the Comprehensive Plan, and finding number two, compliance with the Zoning Ordinance. Id. at 597-98.
The Director also mentioned that
"on the addition that was originally shown here on the rear, the new site plan shows 32 percent site coverage; whereas, the original site plan showed 30 percent site coverage. So it seems to me that there is more coverage on the lot therefore . . . [a need] for greater relief on coverage." Id. at 603-04.
Ms. Plaziak asked Mr. Miller, "who do you think would be occupying [the building]? Like, what's your ideal neighbor in that building?" Id. at 607-08. Mr. Miller replied that his "ideal neighbor is an empty-nester because the price point on the for sale units are going to be, in my mind, prohibitive from anyone other than an empty-nester type." Id. at 608.
Dr. O'Neill again expressed concerns about density and about what would happen to the project if Boon Street for some reason were unable to finish the project. Id. at 610-11. Dr. O'Neill noted that he was uneasy about Boon Street being able to complete the project as shown by the designs. Id.
Ms. Plaziak, in a dialogue with the Chairman and the Director, said:
"MS. PLAZIAK: I have one more question. I'm sorry. The distance-so the shed. Is there a shed there now?
"MR. DELUCA: No.
"MS. PLAZIAK: No, there's no shed.
"THE CHAIRMAN: You need storage.
"MS. PLAZIAK: I know.
"THE CHAIRMAN: I know. That's-
"MS. PLAZIAK: But there's a requirement of 50 feet from the building or from any other building?
"THE CHAIRMAN: That's another variance that would have to be applied for.
"MS PLAZIAK: That's a lot.
"MR. DELUCA: Remember-remember that because this is three or more dwelling units, Section 17.3 of the code is in play. It's a multi-family development." Id. at 612.
A motion to close was made and passed unanimously. Id. at 614-15. The Chairman stated his thoughts first. "Folks, we've never done this. We've never, ever-unless somebody can correct me-done a 300 percent density bonus on market rate units in this town, ever. Unless there's been grandfathered rights, split lots, which we've done a number of times." Id. at 617. The Chairman reiterated that "[d]ensity bonuses are appropriate and allowable when there's affordable units introduced, as the property across the street. We've never taken a single unit, 17, 000 square feet, and given a 300 percent density bonus to market rate units, to my knowledge." Id.
The Chairman continued:
"If we're going to address density, we've got to go-we've got to go way back to the comp plan. We've got to hold public hearings. This town was very clear on what it wanted for density in the comp plan with what's allowed in an R-10 and R-20. I don't think we can just arbitrarily drop a different density in a-on a piece of property. If we're going to change our view of density, we've got to do it right. We've got to go back and have public hearings and change the ordinance and change the comp plan. And I think this is arbitrary." Id. at 618-19.
The Chairman noted that "[w]e rejected [the policy that some areas could be developed with a density of 5400 square feet per unit] and council rejected that. And our minimum standard is 10, 000." Id. at 619. He added, "I love [the design]. But it's just, as Dr. O'Neill said, too much." Id. at 620. Moreover, the Chairman questioned, "if it wasn't this design, would we even have a second meeting on a lot of 17, 000 square feet that asked for four market rate units?" Id. Dr. O'Neill answered this question: "No." Id. The Chairman concluded that "[a]nd so if we wouldn't, then what we're hanging a favorable decision on is the architecture. . . . Because if we wouldn't consider this kind of density with any other design, then it all comes down to the design." Id.
Dr. O'Neill stated, "I think it's too much. . . . I don't think [the architecture is] the issue. The question is the density. . . . the proposal is just, in my opinion and I think it's supported by all the town regulations, is too dense. Four units, too much." Id. at 621-22. Mr. Leighton, another Planning Board member, stated "I don't know the magic way to get around [findings of fact] 1 and 2. So I guess I'd have to look for some collective minds if we go positive on this to figure out [findings of fact] 1 and 2." Id. at 622.
Ms. Plaziak added that
"[the project], obviously, has some problems, and the designs are not set in stone. . . . if you are going to increase density right now in Narragansett, Boon Street is the place to do it. . . . my biggest issue is always from a family perspective. And the fact that this [project] . . . do[es not] seem to be encouraging more family in Narragansett. That concerns me because we need more families here, so." Id. at 626.
The Chairman restated, "we go to the density. . . . if we're going to address density in zones, if we're going to address things, we have to do it in a bigger way. We can't do it arbitrarily on one piece of property. . . . I don't think that that's appropriate to do. That's too capricious." Id. at 642-43. Mr. Indeglia stated: "I just think that this is a great opportunity, and I don't want to see us pass up on it." Id. at 643.
The Chairman noted that the motion would be about "the seven standards that Mr. Indeglia-as we've talked about-." Id. at 645. Then, Mr. Indeglia made a motion to "find positive findings of fact as required by Rhode Island General Law 45-23-60. And that based upon all of the elements . . . under Section 1 of the regulations-of the Statute that this applicant and his plan do, . . . comply with the Narragansett Comprehensive Plan." Id. at 645-46. He added,
"[f]or all of those reasons, I say that we have a factual finding as to No. 1. I would say that we have a factual finding as to No. 2, as it is going to take the nonconforming use to a more conforming use. I want to look at Mike's No. 4. I would accept staff that we don't have to incorporate that at this point in time because it's not applicable. No. 5, I would find that staff's recommendation of the site exists, conforms to this requirement. No. 6. As pointed out by my colleague that it-the staff finds that the elements for circulation, and we would adopt that historic, runoff, et cetera have been met. And No. 7 is not applicable at this time. . . . No. 3 is not applicable." Id. at 646-47.
Mr. Indeglia went on, "[s]o that would be my motion, those that are not applicable and staff agrees with in this particular case, but that the other elements have all been met and that we have factual findings based on the record that I laid out based on actually what was presented as evidence and facts by the applicant." Id. at 647. Mr. Leighton seconded the motion. Id. at 648. Dr. O'Neill, Ms. Plaziak, and the Chairman opposed the motion, and therefore the motion of findings of fact failed. Id. at 649.
After Mr. Indeglia's motion, the Director stated that "[i]n my mind, it would be worthwhile to take a vote that denies the application as submitted because the required findings could not be made." Id. at 651. Mr. Indeglia said that "[w]ell, I could do this, I could ask the Chair to poll the board to find out what aspect of the four factual findings of those characters that the board found I didn't meet-." Id. at 653. The Chairman replied, "No. 1 is the finding of fact relative to density issues and the underlying zoning. And, No. 2, despite the fact that other issues in the comp plan -." Id. at 653-54. Mr. Indeglia responded, "[t]hat would be your poll. We need an individual poll from everybody." Id. at 654.
The Chairman replied that:
"I'm just responding to that, from my perspective. It doesn't meet the underlying zoning, No. 2, clearly. I don't think there's any compelling reasons why that should be ignored. And the second- the first one is, we all know the comp plan is much like the Bible. You know, whatever you want to point to, there's something in there you can point to and, of course, it doesn't meet the underlying density issues that have been articulated in the comp plan. So that's how I would say it doesn't meet those two. That's my opinion." Id. at 654.
At this point, the Director again recommended that the Planning Board issue a decision to deny the Application because the Planning Board could not make the required findings. Id. at 656. Dr. O'Neill made a motion to deny the Application based on the inability of the Planning Board to make the positive findings of fact. Id. at 656-57. The motion was seconded by Ms. Plaziak. Id. at 657. The motion passed with a three-to-two vote, with Dr. O'Neill, Ms. Plaziak, and the Chairman voting in favor of the motion to deny. Id. The meeting then ended. Id. at 658.
On April 20, 2018, the Planning Board issued a written decision pertaining to its denial of the Application (the Planning Board Decision). Id. at 004-07. In its written decision, the Planning Board stated that Boon Street had failed to satisfy the first two statutory requirements, specifically, (1) conformance with the Comprehensive Plan and (2) meeting the Zoning Ordinance requirements of the R-10 density zone. Id. The Planning Board Decision was recorded in the Town's land evidence records on May 4, 2018 in Book 911 at Page 661. Id. at 001; Pl.'s Compl. ¶ 8.
The Planning Board Decision stated that "[t]he majority of the Planning Board did not agree with the proponent's rationale of a positive finding relative to conformance with the Comprehensive Plan (Finding #1) and relative to meeting the Zoning Ordinance requirements of the R10 zone (Finding #2)." (R. at 004.) "The majority cited the town's Comprehensive Plan which recently eliminated the allowance for densities greater than 1unit/10, 000 of land on the FLUM Map and the numerous forms of zoning relief being requested." Id. "In their discussion following this vote, the majority agreed by consensus that the memorandum as drafted by staff, particularly relative to Finding #1 and Finding #2 was accurate and therefore the majority was unable to make the positive findings to enable approval of the plan as submitted." Id. "Upon motion by Dr. O'Neill, seconded by Mrs. Plaziak the Planning Board voted to DENY the master plan of 'Boon Street Presbyterian Church Adaptive Reuse and Restoration' due to their inability to make positive findings of fact on all seven required elements." Id.
With regard to consistency with the requirements of the Narragansett Comprehensive Plan, the referenced Findings of Fact memorandum noted that "[t]he staff finds that the proposed development to be INCONSISTENT with the Comprehensive Plan. On its face, the Comprehensive Plan/Future Land Use Map designates this site as 'High to Moderate Density Residential.'" Id. at 005. "The proposal calls for 4 residential units on a 0.4 acre site which would result in a gross density of 10 units per acre. At 4, 340 square feet of land per dwelling unit, this request DOES NOT comply with the Land Use maximum density allowance for high density residential development." Id.
In terms of not complying with the Town's Zoning Ordinance, the Findings of Fact memorandum noted that
"[t]he staff finds the lot in question is an existing legal conforming lot that is not proposed for subdivision. It has potential for development of a single family house with no relief needed. While the lot is therefore in compliance with the Zoning Ordinance, the proposal for 4 dwelling units DOES NOT COMPLY with the R-10 density standards. As noted in Section E below there are six (6) dimensional variances and two (2) special use permits needed in order for this proposal to be approved. Under Section 17.2 of the Zoning Ordinance this site is undersized and the development exceeds the coverage allowance as well as density allowance by significant margins. Additionally, because there are both variances and special use permits required, this application will have to meet the use variance standard that it 'cannot yield any beneficial use if required to conform with the provisions of the zoning ordinance.'" Id. at 006. (underline in original).
In a letter to the Director, dated May 1, 2018, Boon Street noted that the "Planning Board had until April 17th to record the written decision. The 30-day extension would have ended on April 21st. As the Planning Board has not acted within the required time frame, we are requesting that you please accept this letter as our request that the approval be issued." Id. at 160-61.
B
Proceedings Before the Board of Review
Boon Street timely filed an appeal of the Planning Board Decision denying the Application to the Board of Review on May 14, 2018. Id. at 001-03. Boon Street argued in its appeal that the Planning Board never made any findings of fact upon which it based its denial. Id. at 001. Boon Street also alleged in the appeal that the Planning Board's findings and record clearly show that the Planning Board Decision was based on prejudicial error, clear error, and lack of support by the weight of the evidence in the record. Id. at 002.
Boon Street contended that, although the Property would not include affordable housing, "there was ample testimony and evidence provided that it did comply with the Comprehensive Plan due to the historic restoration of the property." Id. Boon Street argued that the fact that affordable housing was not proposed was not a proper basis for the denial of the Application. Id. Additionally, Boon Street argued that the Zoning Board is charged with determining whether zoning relief should be granted for the proposed development, and that therefore the fact that zoning relief was necessary is not a valid basis for denial by the Planning Board. Id. Boon Street also argued that the Planning Board Decision did not comply with necessary procedures within §§ 45-23-40 and 45-23-63. Id.
On June 21, 2018, the Board of Review held a hearing on Boon Street's appeal from the Planning Board Decision. Id. at 390-97, 468-70. At the hearing, Boon Street raised three issues: (1) untimeliness of recording of the Planning Board Decision in the land evidence records, and therefore the Application should be automatically approved; (2) error in denying the Application based on non-conformance with the Comprehensive Plan; and (3) error that the Application was non-consistent with the Zoning Ordinance. Id. at 471-72.
Boon Street asserted before the Board of Review that §§ 45-23-40 and 45-23-63 required the Application be approved because the time frames stated in the statutes were not met by the Planning Board. Id. at 482-83, 496-500. In response, the Planning Board conceded that the recording of its Decision in the land evidence records was late and that this was procedural error. Id. at 489-91. Nevertheless, the Planning Board asserted that this late recording did not prejudice Boon Street. Id. at 489-90. To that point, the Planning Board argued that the untimely recording of its Decision was not prejudicial to Boon Street because the June 21, 2018 Board of Review meeting was the first meeting held since the Planning Board denied the Application. Id. The Planning Board noted that Boon Street did not suffer any economic harm, and the appeal to the Board of Review was filed by Boon Street's attorney immediately after the Planning Board Decision was recorded. Id. at 489.
The Planning Board's attorney also argued that the findings of fact regarding non-compliance with the Comprehensive Plan and zoning requirements were well supported. Id. at 491-93. The Planning Board's attorney noted that "the planning board found that the four unit that was asked for within the structure was too dense, that, that the density was the reason for the denial, based upon the comprehensive plan." Id. at 492. The Planning Board's attorney added,
"[i]n this case-again, this is an R-10 zone. This is a 17, 000 square foot lot. . . . the planning board found that the four units that would be housed within the structure was too dense. And, therefore, the- one of the required findings of the seven is, does it comply with the comprehensive plan?" Id. at 493.
The attorney for the Planning Board went on:
"The planning board heard the evidence. They heard the testimony of the applicant. They heard all the design changes. They heard the parking changes. They heard the-they saw all the architectural changes; however, the four units remained throughout the process. And it is-and, therefore, they could not make that positive finding on Item No. 1 within the-that's required under the-under State law. They have to make positive findings on all seven criteria that Mr. DeLuca outlined in his memo to the board. If on just one-just one finding-they can't make a positive finding on just one of the criteria, then the master plan has to be denied. . . . [the Planning Board] decided, after hearing all of the matter . . . that the applicant did not comply with the comprehensive plan. And, therefore, that's one of the reasons for their denial." Id. at 493-94.
With regard to Boon Street's zoning argument, the Planning Board's attorney rested on the Town's memorandum regarding this issue and asked for time to review the DiOrio case. Id. at 495. The Chairman of the Board of Review made a motion to continue the matter to July 19, 2018. Id. at 517. The motion passed five-to-zero. Id. at 519-20.
At the Board of Review meeting on July 19, 2018, the Board of Review decided unanimously to continue the public hearing on Boon Street's appeal to August 23, 2018. Id. at 387. On August 23, 2018, the Board of Review reconvened and voted five-to-zero to deny Boon Street's appeal, thereby upholding the Planning Board Decision. Id. at 462-66.
Mr. Brunetti, a member of the Board of Review, noted that the Board of Review's role is to grant or deny the appeal based on prejudicial procedural error, clear error, or lack of support by weight of the evidence of the record. Id. at 464. He concluded "there is no evidence that supports [Boon Street's] argument on those three factors. The planning board provided a decision through the act of voting, which constitutes a decision and not the act of recording the decision. Therefore, I move to deny the appeal as presented." Id.
The Board of Review Chairman stated that
"I don't have any issue with the way the planning board acted. It's strictly on the fact that it didn't meet the time requirements. That's my only issue. . . . I guess the planning board, one of their reasons- some of their reasoning was that there was too much . . . zoning relief being requested. I don't think that's a decision for them to make. I think that's a decision for this board to make." Id. at 465.
In its written decision, the Board of Review found that the weight of the evidence in the record clearly supported the Planning Board's decision to deny the Application based on the Planning Board not making the required positive findings of fact as mandated by § 45-23-60 and Section III(A) of the Town of Narragansett Subdivision and Land Development Regulations, 1995, as amended. Id. at 208. The Board of Review's decision stated that
"[b]ased upon the evidence in the record, this Board find [sic] that is [sic] was proper, and not clear error, for the Planning Board to deny the Application due to the Planning Board not making the required positive findings of fact, based on the record, as mandated by RIGL § 45-23-60 and Section III(A) of the Town of Narragansett Subdivision and Land Development Regulations, 1995, as amended. This Platting Board thoroughly reviewed the record of the hearing and exhibits forwarded as part of this appeal. After review of the record and exhibits, this Board, based upon the reasoning set forth above, finds that the weight of the evidence in the record clearly supported the decision of the Planning Board to deny the Application based on the Planning Board not making the required positive findings of fact as mandated by RIGL § 45-23-60 and Section III(A) of the Town of Narragansett Subdivision and Land Development Regulations, 1995, as amended." Id. at 207-08.
Regarding Boon Street's argument that the Planning Board failed to comply with the requirement in § 45-23-63 that all written decisions of the Planning Board be recorded in the land evidence records twenty days after the Planning Board vote, the Board of Review found that the inadvertent failure by the Planning Board to complete the recording within twenty days after the Planning Board vote in no way prejudiced Boon Street to effectuate its appeal or increased the time period for hearing the appeal. Id. at 208. The Board of Review also found that there was no statutory authority for the reversal of the Planning Board Decision because of the failure to record the written decision within twenty days. Id. (citing New England Development, LLC v. Berg, 913 A.2d 363 (R.I. 2007)). The Board of Review's written decision upholding the Planning Board's denial of the Application was recorded on August 31, 2018 in Book 917 at Page 396. Id.; Pl.'s Compl. ¶¶ 1, 12.
The instant appeal followed with Boon Street timely filing the two-count Complaint on September 14, 2018, alleging that the Board of Review's decision affirming the Planning Board Decision was
"(a) in violation of constitutional, statutory and ordinance provisions; (b) in excess of the authority granted to the Defendant, Platting Board, by statute and/or ordinance; (c) made upon unlawful procedure; (d) affected by other errors of law; (e) clearly erroneous in view of the reliable, probative and substantial evidence of the whole record; (f) arbitrary, capricious and characterized by an abuse of discretion or clearly unwarranted exercise of discretion." (Pl.'s Compl. ¶ 15.)
Additionally, Boon Street seeks attorneys' fees pursuant to G.L. 1956 § 42-92-3, the Equal Access to Justice for Small Businesses and Individuals Act (EAJA). Id. ¶¶ 16-20. This matter is now before the Court for decision.
II
Standard of Review
The Rhode Island Land Development and Subdivision Review Enabling Act of 1992- found at title 45, chapter 23 of the General Laws-dictates that when a board of appeals reviews the decision of a planning board, it "shall not substitute its own judgment for that of the planning board or the administrative officer but must consider the issue upon the findings and record of the planning board or administrative officer." Section 45-23-70(a). "The board of appeal shall not reverse a decision of the planning board or administrative officer except on a finding of prejudicial procedural error, clear error, or lack of support by the weight of the evidence in the record." Id.
Further, a board of appeal is responsible for keeping "complete records of all proceedings including a record of all votes taken, and shall put all decisions on appeals in writing" and "shall include in the written record the reasons for each decision." Section 45-23-70(d). The Rhode Island Supreme Court stated that when a municipal board is "acting in a quasi-judicial capacity, [it] must set forth in its decision findings of fact and reasons for the action taken." Sciacca v. Caruso, 769 A.2d 578, 585 (R.I. 2001) (internal citations omitted).
Pursuant to § 45-23-71, a party aggrieved by an application for the subdivision of land may appeal the decision of the board of appeals to the Superior Court. See West v. McDonald, 18 A.3d 526, 531 (R.I. 2011). Subsection (c) of § 45-23-71 describes the standard of review that this Court uses when considering these appeals:
"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." Section 45-23-71(c).
Pursuant to § 45-23-71, a judicial review of board decisions is not de novo. Munroe v. Town of East Greenwich, 733 A.2d 703, 705 (R.I. 1999) (citing Kirby v. Planning Board of Review of Town of Middletown, 634 A.2d 285, 290 (R.I. 1993)). The statute 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 does not consider the credibility of witnesses, weigh the evidence, or make its own findings of fact. Id.; Lett v. Caromile, 510 A.2d 958, 960 (R.I. 1986). Rather, this 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." Kirby, 634, A.2d at 290 (internal quotation omitted). If there is such evidence, the decision will stand. Prete v. Parshley, 99 R.I. 172, 176, 206 A.2d 521, 523 (1965).
III
Analysis
A
The Procedural Requirements Contained in §§ 45-23-40 and 45-23-63
Boon Street argues that the Application should be approved pursuant to § 45-23-40(f) because of procedural defects resulting from the failure of the Planning Board to comply with the statutory requirements set forth in §§ 45-23-40(e) and 45-23-63(e). See Pl.'s Mem. at 14-16. The Board of Review argues that the Planning Board's failure to timely perform the ministerial act of recording the decision does not merit reversal of the denial of the Application. Def.'s Mem. at 9-12.
Boon Street asserts that the Town failed to meet its statutory mandate pursuant to §§ 45-23-63(e) and 45-23-40 when it neglected to record its decision timely. Pl.'s Mem. at 16. Therefore, the Application should be deemed approved. See § 45-23-40(f); Pl's Mem. at 16-17. New England Development, LLC v. Berg, cited supra, controls. See Pl.'s Mem. at 14-15. Boon Street distinguishes Berg from the case at bar because, at the time that Berg was decided, § 45-23-63 did not include a time period for when a decision had to be recorded after the Planning Board's vote. See id. at 15; Berg, 913 A.2d at 365-66. The Rhode Island Supreme Court in Berg held that the act of taking a vote was sufficient to cover the term "act" as required by the statute. Id. at 373. In other words, the Rhode Island Supreme Court did not require that a written decision be filed in order for a planning board "to act." Id. at 372-73.
Since Berg was decided, the Legislature amended § 45-23-63 by adding the recording mandate set forth in § 45-23-63(e). See P.L. 2008, ch. 224, § 1. The time period to record the decision has also been amended once. See P.L. 2008, ch. 224, § 1; P.L. 2017, ch. 109, § 1. The statute currently requires a planning board to record the written decision within twenty days after the planning board vote. Section 45-23-63(e); P.L. 2017, ch. 109, § 1. Therefore, Boon Street maintains that § 45-23-63 establishes "clear time frames for a Planning Board to make a written decision on an application and to record it within the Land Evidence Records." Pl.'s Mem. at 16. Prior to the amendments, a planning board could vote and hold off on recording a written decision. Id. The result would be that an aggrieved party could be held up indefinitely. Id. According to Boon Street, the amendments resolved this by mandating that the written decision be recorded in the land evidence records within a specified time frame. Id.
Boon Street further argues that § 45-23-40(e) links the Planning Board Decision to the requirements of § 45-23-63(e) because § 45-23-40(e) states that "[t]he planning board shall, within ninety (90) days of certification of completeness, or within a further amount of time that may be consented to by the applicant through the submission of a written waiver, approve of the master plan as submitted, approve with changes and/or conditions, or deny the application, according to the requirements of §§ 45-23-60 and 45-23-63." Section 45-23-40(e) (emphasis added); Pl.'s Mem. at 16. According to Boon Street, the use of the word "shall" in both §§ 45-23-40(e) and 45-23-63(e) is a statutory mandate. Pl.'s Reply Mem. at 2; see Downey v. Carcieri, 996 A.2d 1144, 1151 (R.I. 2010) ("It is an axiomatic principle of statutory construction that the use of the term 'may' denotes a permissive, rather than an imperative, condition."); see also Quality Court Condominium Association v. Quality Hill Development Corp., 641 A.2d 746, 751 (R.I. 1994) ("[T]he use of the word 'may' rather than the word 'shall' indicates a discretionary rather than a mandatory provision.").
On the other hand, the Board of Review contends that the directive to record a written decision within twenty days of a vote is contained in Section 63-not Section 40-and therefore, this requirement is merely directory. Def.'s Mem. at 11. The Board of Review asserts that, if the Legislature intended that the requirement to record written decisions within twenty days be mandatory, the Legislature could have amended § 45-23-40 rather than § 45-23-63 or inserted a penalty clause in § 45-23-63. Id.
The Rhode Island Supreme Court in Berg "h[eld] that § 45-23-40(e) does include a requirement that the planning board file a written decision within 120 days, and the absence of a sanction in that section renders this requirement directory as opposed to mandatory." Berg, 913 A.2d at 372. The Supreme Court noted the mandatory provision in § 45-23-40(f) and explained that this requirement "does not encompass the requirement that a written decision be filed." Id. at 372-73. The Supreme Court ruled that "the fact that the planning board voted to deny the application by the deadline satisfies the 'action' requirement of § 45-23-40(f)[, ]" and, "[t]hus, because the [planning board] [in that case had] fulfilled the requirements imposed on it by § 45-23-40(f)," the applicant "[did] not have a clear legal right to the issuance of the certificate of the planning board's failure to act, and mandamus cannot lie." Id. at 373.
Further, the Rhode Island Supreme Court noted that "[w]e previously have held, however, that statutes imposing apparently mandatory time restrictions on public officials are often directory in nature." Id. at 371 (citing Washington Highway Development, Inc. v. Bendick, 576 A.2d 115, 117 (R.I. 1990) (statute requiring DEM to issue decision within six weeks was directory and not mandatory); Beauchesne v. David London & Co., 118 R.I. 651, 660, 375 A.2d 920, 924-25 (1977) (requirement that Workers' Compensation Court issue a decision within ten days was directory and not mandatory); Providence Teachers Union v. McGovern, 113 R.I. 169, 177, 319 A.2d 358, 363-64 (1974) (requirement that arbitration hearing begin within ten days of the appointment of the arbitration panel was directory and not mandatory)); see 3 Norman J. Singer, Sutherland on Statutory Construction § 57:19 (7th ed. 2008) (acknowledging time within which boards or commissions must meet and take official action, or within which ordinance must be published to become effective, construed as directory). Thus, although some statutes direct public officials to perform a duty, the statutes often have no sanction for the failure to perform that duty. Berg, 913 A.2d at 371.
Courts are directed to look at a "variety of factors when analyzing whether time provisions are directory or mandatory, including (1) the presence or absence of a sanction, (2) whether the provision is the essence of the statute, and (3) whether the provision is aimed at public officers." West, 18 A.3d at 534 (citing Berg, 913 A.2d at 372; Town of Tiverton v. Fraternal Order of Police, Lodge # 23, 118 R.I. 160, 164-65, 372 A.2d 1273, 1275-76 (1977)).
In looking at the first factor-the presence or absence of a sanction-§ 45-23-63(e) does not contain any sanctions. See § 45-23-63(e). Again, Boon Street argues, however, that although § 45-23-63(e) does not contain a sanction, the sanction is found in § 45-23-40(f), which requires approval of the master plan if the planning board does not act within the prescribed period. Section 45-23-40(f); Pl.'s Mem. at 17. Additionally, § 45-23-40(e) expressly references that the planning board "shall . . . approve of the master plan as submitted, approve with changes and/or conditions, or deny the application, according to the requirements of . . . § 45-23-63." Section 45-23-40(e). The Board of Review, on the other hand, asserts that if the Legislature intended to make the statute mandatory, it could have added a sanction within § 45-23-63(e). Def.'s Mem. at 11. This Court agrees with the Board of Review that if the Legislature wanted to make the twenty-day recording requirement mandatory, it could have added a sanction within § 45-23-63(e). The sanction found in § 45-23-40(f) does not make the recording requirement found in § 45-23-63(e) mandatory.
The second factor in analyzing whether a statute is mandatory or directory is determining if the provision is the essence of the statute. West, 18 A.3d at 534. The Supreme Court has stated that "[t]he general rule is that statutory requirements comprising the essence of a statute are mandatory." Town of Tiverton, 118 R.I. at 164, 372 A.2d at 1275. On the other hand, "[p]rovisions so designed to secure order, system and dispatch are generally held directory unless accompanied by negative words." Providence Teachers Union, 113 R.I. at 177, 319 A.2d at 364. Here, § 45-23-63(e) is designed to secure order, system, and dispatch. Indeed, the section is entitled "Procedure-Meetings-Votes-Decisions and records." Section 45-23-63. The twenty-day recording requirement establishes a procedure to help ensure an orderly system to deal with planning board decisions. See id. Additionally, this section does not contain any negative words further supporting the directory nature of the statute. See id.
Lastly, the third factor deals with whether the provision is aimed at public officers. West, 18 A.3d at 534. The Supreme Court has recognized that with statutes aimed at public officers,
"it is deemed preferable not to prejudice private rights or the public interest where the fault for delay rests with a public officer. On the other hand, where a statute not only directs a private person to do things within a specified time but also conditions rights on the proper performance thereof, the statute is mandatory in nature and failure to comply is judged fatal." Town of Tiverton, 118 R.I. at 164-65, 372 A.2d at 1275-76 (citing 2A Sutherland, Statutory Construction § 57.19 at 443-45).
Here, the statute is aimed at the Planning Board, which is a group of public officers-and not private individuals. This supports the notion that the statute is directory as opposed to mandatory. In sum, when analyzing the statute using the three factors articulated in West, this Court concludes that the statute is directory and not mandatory. Thus, the requirement that the decision be recorded in the land evidence records within twenty days pursuant to § 45-23-63(e) was directory, and not mandatory.
In addition, the Berg Court articulated that it did not believe the Legislature "intended to tacitly remove the authority of municipalities to control development within their borders when they have timely voted to deny a master plan application but failed to file a written decision within the prescribed period." Berg, 913 A.2d at 373. The Court stated that, although "§ 45-23-40(e) does direct a decision to be written and filed within 120 days, imposing the sanction of approval by default for failure to meet the deadline would be overly burdensome." Id. The Court went on to add that
"[i]mposing the drastic sanction of the approval of an application for failing to meet the deadline for filing such a substantial written decision does not further this goal [of providing towns and cities with the ability to address their needs and ensure consistency in local development regulations], but instead serves to remove review from the hands of local officials by approving development projects simply because the planning board was unable to meet procedural strictures." Id.
Applying this reasoning articulated in Berg, approving an application by default because a time limit of this nature was not met, would be overly burdensome. It would be a drastic result for an application to be approved by default solely because the written decision was not recorded within the prescribed time frame. The Application's approval by default would contradict the goal of providing towns and cities with the ability to address their needs and ensure consistency in local development regulations.
Notwithstanding the technical requirements, Boon Street contends that the Board of Review committed clear error when it required Boon Street to show prejudice caused by the late recording of the Planning Board Decision in the land evidence records. See Pl.'s Reply Mem. at 2; Pl.'s Mem. at 13, 16-17. Boon Street argues that the Board of Review added its own requirement of showing prejudice by the late recording-and that the statute does not require Boon Street to show prejudice. Pl.'s Mem. at 17. Rather, Boon Street argues, the Application should be approved solely because the deadline required in the statute was not met. Id. However, because this Court has found that § 45-23-63 is directory and not mandatory, it was not clear error for the Board of Review to require that Boon Street be prejudiced. Furthermore, here, the facts of this case reveal only a seventeen-day delay beyond the time limit set in the statute. Def.'s Mem. at 11; see Providence Teachers Union, 113 R.I. at 177, 319 A.2d at 364 ("[T]he delay of a few days in commencing the hearing could not affect the rights of the parties . . . . As no injustice, fraud, or injury is shown to have been done either party by the delay, we observe no reason for vacating the award on the basis asserted.").
B
Compliance with the Town's Comprehensive Plan
Boon Street argues that the Planning Board's motion to deny the Application did not include any findings of fact. Pl.'s Mem. at 18, 21. Boon Street contends that the Planning Board members did not specifically explain how Boon Street's proposal Application did not comply with the Comprehensive Plan due to the density and parking proposed. Pl.'s Reply Mem. at 3; Pl.'s Mem. at 18. Boon Street asserts that because the Planning Board's motion to deny the Application did not include any required findings of fact or any explanation of the evidence on which the Planning Board was basing their determination, the Board of Review's decision to uphold the Planning Board's denial based on the Application's non-conformance with the Comprehensive Plan was clearly erroneous in view of the reliable, probative, and substantial evidence of the whole record. Pl.'s Mem. at 18.
The Board of Review's position is that the Planning Board Decision is well supported and consistent with its municipal function. Def.'s Mem. at 12. The Board of Review contends that the record supports the Planning Board's conclusion that the Application did not meet the statutory requirements for the proposed development. Id. at 13. The Board of Review asserts that the proposed project was inconsistent with the Town's Comprehensive Plan, specifically with respect to density. Id. at 14-16.
It is well settled under Rhode Island law that this Court "shall not substitute its judgment for that of the planning board as to the weight of the evidence on questions of fact." Section 45-23-71(c). This Court "gives deference to the findings of fact of the local planning board." West, 18 A.3d at 531 (citing Munroe, 733 A.2d at 705; Kirby, 634 A.2d at 290). As long as there is competent evidence in the record, the Planning Board Decision will stand. See Prete, 99 R.I. at 176, 206 A.2d at 523. "Except for administrative subdivisions, findings of fact must be supported by legally competent evidence on the record which discloses the nature and character of the observations upon which the fact finders acted." Section 45-23-60(b).
"This deferential standard of review, however, is contingent upon sufficient findings of fact by the zoning board." Kaveny v. Town of Cumberland Zoning Board of Review, 875 A.2d 1, 8 (R.I. 2005); see also JCM, LLC v. Town of Cumberland Zoning Board of Review, 889 A.2d 169, 176 (R.I. 2005) (stating and citing same). A board's findings, together with its reasons for the actions taken, are essential to proper judicial review of any appealed matters. Bernuth v. Zoning Board of Review of New Shoreham, 770 A.2d 396, 401 (R.I. 2001). However, "[t]hose 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." Irish Partnership v. Rommel, 518 A.2d 356, 358-59 (R.I. 1986). "'[A] municipal board, when acting in a quasi-judicial capacity, must set forth in its decision findings of fact and reasons for the action taken.'" Sciacca, 769 A.2d at 585 (quoting Irish Partnership, 518 A.2d at 358). Thus, when the record is devoid of findings of fact, or findings of fact are inadequate, judicial review becomes impossible, and this Court "will not search the record for supporting evidence or decide for itself what is proper in the circumstances." Kaveny, 875 A.2d at 8 (citations omitted); see also JCM, 889 A.2d at 176 n.7 (commenting courts will not scour record for support of board's "laconic" decision).
Although Kaveny states that "[t]his deferential standard of review, however, is contingent upon sufficient findings of fact by the zoning board[, ]" this standard has been applied to cases involving planning boards. See Town of Cumberland v. Town of Cumberland Planning Board, No. PC07-1575, 2006 WL 5908879 (R.I. Super. June 27, 2006); Bristow v. Kenyon Terrace Apartments, Inc., No. WC 11-0508, 2012 WL 1014579, at * 5 (R.I. Super. Mar. 22, 2012).
This Court is aware that zoning boards "should make express findings of fact and should pinpoint the specific evidence upon which they base such findings." Hopf v. Board of Review of City of Newport, 102 R.I. 275, 288, 230 A.2d 420, 428 (1967). In addition, zoning boards "should disclose the reasons upon which they base their ultimate decision because the parties and this court are entitled to know the reasons for the board's decision in order to avoid speculation, doubt, and unnecessary delay." Id.
The Planning Board's written decision dated April 20, 2018 states findings of fact from the Director's March 26, 2018 memorandum to the Planning Board. Pl.'s Mem. at 18; R. at 004-07. This written decision, as supported by the minutes of the March 28, 2018 meeting, states that the majority cited to the Comprehensive Plan and agreed with the Director's memorandum while discussing the Application after the motion to approve the Application but before the motion to deny the Application. (R. at 004-07.) A review of the record clearly shows that the written decision was factually incorrect. Id. at 004-07, 407-10, 645-58. The discrepancy between the transcript and the minutes of the meeting are of grave concern to this Court. Id. at 407-10, 645-58. In fact, a majority of the Planning Board members neglected to cite to the Comprehensive Plan or state that they agreed with the Director's memorandum. Id. at 645-58.
Furthermore, after the motion to approve the Application, only the Chairman spoke about his concerns with the zoning requirements and the density issues that are articulated in the Comprehensive Plan. Id. at 654. The Planning Board members did not refer to the Comprehensive Plan or state that they agreed with the Director's memorandum when ruling on the motion to deny the Application on March 28, 2018. Id. at 656-58. The motion to deny the Application was based solely on the inability to make positive findings of fact. Id. There were absolutely no facts stated to support the conclusion. Id.
The Chairman stated "[r]ight, that would be me. Right. That would be my-I'm just responding to that, from my perspective. It doesn't meet the underlying zoning, No. 2, clearly. I don't think there's any compelling reasons why that should be ignored. And the second-the first one is, we all know the comp plan is much like the Bible. You know, whatever you want to point to, there's something in there you can point to and, of course, it doesn't meet the underlying density issues that have been articulated in the comp plan. So that's how I would say it doesn't meet those two. That's my opinion." Id. at 654.
Most disturbing is the fact that a review of the transcript clearly indicates that the Planning Board's written decision misstates what occurred at the Planning Board meeting on March 28, 2018. Id. at 645-58. At that meeting, a motion to approve the Application was entertained based on positive findings of fact pursuant to § 45-23-60. Id. at 646-48. That motion failed. Id. at 648-49. Subsequently, a motion to deny the Application was made based on the inability to make positive findings of fact. Id. at 656-57. This motion to deny the Application passed three-to-two. Id. at 657-58. The Chairman, Dr. O'Neill, and Ms. Plaziak voted in favor of the motion to deny the Application based, not on specific findings, but rather, on the inability to make positive findings of fact. Id. Mr. Indeglia and Mr. Leighton opposed the motion. Id.
The motion to deny the Application did not state the explicit findings of fact supporting the reason for denial. Id. at 656-58. In reviewing the record after Mr. Indeglia's motion to approve the Application, the majority never cited the Town's Comprehensive Plan or agreed by consensus that the memorandum as drafted by staff was accurate. Id. at 649-58. This clearly contradicts what was stated in the Planning Board's written decision that
"[t]he majority of the Planning Board did not agree with the proponent's rationale of a positive finding relative to conformance with the Comprehensive Plan (Finding #1) and relative to meeting the Zoning Ordinance requirements of the R10 zone (Finding #2). The majority cited the town's Comprehensive Plan which recently eliminated the allowance for densities greater than 1unit/10, 000 of land on the FLUM Map and the numerous forms of zoning relief being requested. In their discussion following this vote, the majority agreed by consensus that the memorandum as drafted by staff, particularly relative to Finding #1 and Finding #2 was accurate and therefore the majority was unable to make the positive findings to enable approval of the plan as submitted." Id. at 004 (emphasis added).
In this record, it is clear that the Chairman and Dr. O'Neill had concerns with the density proposed in the Application. Id. at 611, 617, 621-22, 654, 692, 693, 699, 798. Both the Chairman and Dr. O'Neill stated these concerns after the motion to close and before the motion to approve the Application was made. Id. at 653-54, 621-22. However, these specific findings were not mentioned in support of the motion to deny the Application. Id. at 656-58.
The Chairman also expressed his issue with the Application's density at the meetings. At the February 20, 2018 meeting he stated that "the density issue is just a huge issue for me." Id. At 692. At that same meeting he stated, "we've never had four market-rate units approved on a lot that was zoned for one, unless there were extenuating circumstances, like grandfathered rights." Id. at 693. The Chairman stated "[d]ensity bonuses are appropriate and allowable when there's affordable units introduced, as the property across the street. We've never taken a single unit, 17, 000 square feet, and given a 300 percent density bonus to market rate units, to my knowledge." Id. at 617. The Chairman reiterated at the final meeting that the Application "doesn't meet the underlying zoning, No. 2, clearly. . . . it doesn't meet the underlying density issues that have been articulated in the comp plan." Id. at 654. In the record, Dr. O'Neill and the Chairman each expressed their issues with the density multiple times throughout the several meetings on the Application. For example, at the January 16, 2018 meeting, Dr. O'Neill stated "[f]irst of all, the density bothers me." (R. at 798.) At the February 20, 2018 meeting, Dr. O'Neill again noted that "[b]ut, to me, it's over-over-overdense." Id. at 699. At the final meeting on March 28, 2018 Dr. O'Neill once again made his concerns known by stating "[y]ou know the density in the surrounding area. The density on this property, by right, is less than two units. And in looking at the density of the area, it's a little over two units. So to go to 4 units is, from a planning perspective, in considering what is going to come through that door in the future, I just-it's-it's too dense." Id. at 611. Again, Dr. O'Neill reiterated at the final meeting that "the proposal is just, in my opinion and I think it's supported by all the town regulations, is too dense. Four units, too much." Id. at 621-22.
Furthermore, the record is void of the factual findings necessary to support the Decision. This Court is not required to scour the record in search of facts to support a decision. JCM, 889 A.2d at 176 n.7. A satisfactory factual record is not an empty requirement. Detailed and informed findings of fact are a precondition to meaningful administrative or judicial review. Kaveny, 875 A.2d at 8; Bernuth, 770 A.2d at 401. This Court will not guess what findings of fact exist upon which the Planning Board members based their vote. See Kaveny, 875 A.2d at 8.
Thus, because it is unclear upon which findings of fact the majority of the Planning Board members voted to deny the Application, the Board of Review's decision to uphold the Planning Board's denial of the Application was clearly erroneous in view of the reliable, probative, and substantial evidence of the whole record. It is inherent in the power of this Court to order a remand to the administrative agency to "'correct deficiencies in the record and thus afford the litigants a meaningful review.'" Birchwood Realty, Inc. v. Grant, 627 A.2d 827, 834 (R.I. 1993) (quoting Lemoine v. Department of Mental Health, Retardation, & Hospitals, 113 R.I. 285, 290, 320 A.2d 611, 614 (1974)). Accordingly, this Court vacates the Planning Board Decision and remands the case to the Planning Board for further proceedings consistent with this Decision. On remand, the Planning Board is directed to adequately set forth each of its findings of fact, to address the specific evidence that led the Planning Board to deny the Application, and to relate those findings to the applicable law. Kaveny, 875 A.2d at 9; see Sciacca, 769 A.2d at 585.
C
Question Regarding Planning Board's Jurisdiction
Boon Street argues that the fact the Planning Board denied the Application based on the need for zoning relief interferes with the Zoning Board's jurisdiction and was made upon unlawful procedure. See Pl.'s Mem. at 22-24. Boon Street asserts that the Zoning Board has sole jurisdiction over the review and granting of zoning relief and claims that the Planning Board usurped the Zoning Board's authority. See id.
At the hearing before the Board of Review, Boon Street relied on a Rhode Island Superior Court case in support of this argument. See Love's Travel Stops and Country Stores, Inc. v. DiOrio, No. WC 09-844, 2014 WL 1246540 (R.I. Super. Mar. 21, 2014); R. at 484-85. In DiOrio, the appellants argued that the planning board had usurped the zoning board's role when the planning board concluded that the "plan would not meet the requirements for a special use permit and aquifer protection permit." DiOrio, 2014 WL 1246540, at *11. The Superior Court decision concluded that the planning board had usurped the zoning board's authority. Id. at *19. However, the statute discussing master plan applications, § 45-23-40, has been amended since that case was decided. P.L. 2016, ch. 527, § 2. In 2014, when DiOrio was decided, § 45-23-40(e) only required the planning board to "approve of the master plan as submitted, approve with changes and/or conditions, or deny the application, according to the requirements of § 45-23-63." P.L. 2008, ch. 464, § 1. (Emphasis added.) In 2016, the statute was amended to read that "[t]he planning board shall, within one hundred and twenty (120) days of certification of completeness, or within a further amount of time that may be consented to by the applicant, approve of the master plan as submitted, approve with changes and/or conditions, or deny the application, according to the requirements of §§ 45-23-60 and 45-23-63." P.L. 2016, ch. 527, § 2 (emphasis added).
The 2016 amendment requires planning boards to approve or deny the master plan application based on the requirements in § 45-23-60. See § 45-23-60(a)(2); P.L. 2016, ch. 527, § 2. Section 45-23-60(a) provides that:
"All local regulations shall require that for all administrative, minor, and major development applications the approving authorities responsible for land development and subdivision review and approval shall address each of the general purposes stated in § 45-23-30 and make positive findings on the following standard provisions, as part of the proposed project's record prior to approval: "…
"(2) The proposed development is in compliance with the standards and provisions of the municipality's zoning ordinance." (Emphasis added.)
Pursuant to § 45-23-60(a)(2), a planning board must make positive findings that the "proposed development is in compliance with the standards and provisions of the municipality's zoning ordinance." Therefore, it is not unlawful procedure for the planning board to consider the municipality's zoning ordinance and the zoning relief that would be required to comply with the zoning ordinance when reviewing master plan applications. Thus, in the present case, it was not unlawful procedure for the Planning Board to consider whether Boon Street would be required to obtain zoning relief to comply with the Town's Zoning Ordinance, because § 45-23-60(a)(2) requires such a consideration by the Planning Board.
Moreover, the Town of Narragansett Subdivision and Land Development Regulations also require the Planning Board to consider the Town's Zoning Ordinance, as well as the Town's Comprehensive Plan. See Narragansett Code of Ordinances, Appendix B-Subdivision and Land Development Regulations, § III(A). These regulations provide that "[e]ach subdivision shall be consistent with the requirements of the Narragansett comprehensive community plan and/or shall satisfactorily address the issues where there may be inconsistencies"; and "Each lot in the subdivision shall conform to the standards and provisions of the Narragansett zoning ordinance[.]" Id. (emphasis added). Therefore, it was not unlawful procedure for the Board of Review to uphold the Planning Board Decision based on the Application's non-compliance with the Town's Zoning Ordinance.
D
Access to Justice Count
Finally, Boon Street argues it is entitled to attorneys' fees under the EAJA. Pl.'s Compl. ¶¶ 16-20. The EAJA was enacted to "mitigate the burden placed upon individuals and small businesses by the arbitrary and capricious decisions of administrative agencies made during adjudicatory proceedings." Taft v. Pare, 536 A.2d 888, 892 (R.I. 1988). The EAJA provides that the "adjudicative officer will not award fees or expenses if he or she finds that the agency was substantially justified in actions leading to the proceedings and in the proceeding itself." Section 42-92-3. Under the EAJA, "substantial justification" means that "the initial position of the agency, as well as the agency's position in the proceedings, has a reasonable basis in law and fact." Section 42-92-2(7). The EAJA further provides that "a prevailing [p]arty . . . may be awarded [r]easonable litigation expenses . . . where the [a]gency . . . was without [s]ubstantial justification . . . in actions that led to an [a]djudicatory proceeding [ ] . . . or taken in the proceeding itself." Tarbox v. Zoning Board of Review of Town of Jamestown, 142 A.3d 191, 200 (R.I. 2016) (internal quotation marks and citations omitted); see § 42-92-3.
Because this matter is being remanded to the Planning Board for sufficient findings of fact, it is unclear whether Boon Street will be the prevailing party. See Preston v. Town of Hopkinton, No. WC-2017-0470, 2020 WL 356692, at * 9 (R.I. Super. Jan. 16, 2020) ("the Decision of the Rhode Island Supreme Court did not guarantee that Plaintiff would eventually obtain the result that she sought. . . . The Decision did not secure a favorable decision at the Zoning Board for Plaintiff." (citation omitted). Therefore, this Court will not yet rule on Boon Street's EAJA count.
IV
Conclusion
The Board of Review's decision is not supported by reliable, probative, and substantial evidence in the record. This Court remands this matter to the Planning Board to make specific findings of fact pursuant to § 45-23-60 and the Town of Narragansett Subdivision and Land Development Regulations, 1995, as amended.