Bluff Head Block Island LLC v. Bush

1

BLUFF HEAD, BLOCK ISLAND, LLC Appellant, v. SUSAN BUSH, JUDITH CYRONAK, STEVEN FILIPPI, ROBERT CLOSTER, and ALISON WARFEL In their capacity as Members of the ZONING BOARD OF REVIEW FOR THE TOWN OF NEW SHOREHAM Appellees.

C. A. No. WC-2022-0335

Superior Court of Rhode Island, Washington

December 4, 2024

For Plaintiff: Thomas A. Tarro, III, Esq.

For Defendant: James M. Callaghan, Esq.

Robert E. Craven, Esq. Nicholas A. Solitro, Esq.

DECISION

Lanphear, J.

Before this Court is Bluff Head, Block Island, LLC's (Bluff Head) appeal from a Town of New Shoreham Zoning Board of Review Decision, which allowed a fence to be constructed without a permit and then allowed the fence to remain on property adjacent to Bluff Head's property. Jurisdiction is pursuant to G.L. 1956 § 45-24-69.

I Facts and Travel

Bluff Head is the title owner of property situated at 1423 SW Point Road, Plat 14, Lot 20-11, in the Town of New Shoreham, Rhode Island. (Compl. ¶ 1.) Adjacent to Bluff Head's property is Plat 14, Lot 31 owned by Phillip Trahanas and Jennifer A. Trahanas as Co-Trustees of the Jennifer A Trahanas Revocable Trust. Id. ¶ 11. On or around February 24, 2021, Marc Tilson submitted a demolition permit to Tom Risom, who was the Building Inspector for the Town of New Shoreham. Id. ¶ 12. The application requested permission to remove structures on the property. The application was not signed and did not identify the property owner, but the demolition permit application was approved and signed by the Town of New Shoreham through David Murphy. Mr. Murphy was hired by the Town of New Shoreham to provide services such as reviewing, approving, and denying building permit applications, but he was not the Zoning Official for the Town of New Shoreham. Appellees' Ex. A, Tr. 12:1-8, May 25, 2022.

Subsequently, the three structures on the property were demolished. After the structures were demolished, a fence was constructed on the property without a building permit application being filed with the Town.

In April 2021, Tom Risom, the Town Building Inspector, discovered that a fence was built on the Trahanas' property without a building permit. Mr. Risom prepared and sent a letter to Mr. and Mrs. Trahanas on May 14, 2021 informing them that Rhode Island Dwelling Code section R105.2 "does not exempt compliance with municipal ordinance provisions," that a "fence is a 'structure,'" and "our local Zoning Ordinance requires a permit for structures." Appellant's Ex. 4. He then issued a building permit for the "construction of [their] fence" and stated that "not permitting this construction was an error on our part[.]" Id.

Bluff Head timely appealed to the New Shoreham Zoning Board of Review claiming the titled owner of the property failed to file an application for a building permit with the Town to construct the fence prior to the fence being constructed.

A hearing was held on May 25, 2022. At the hearing, Bluff Head was precluded from presenting witnesses in support of its appeal by the Chair of the Zoning Board. The Zoning Board issued a decision on August 5, 2022 allowing the fence to remain. Appellant's Ex. 1.

On August 22, 2022, Bluff Head appealed the Zoning Board decision to the Superior Court alleging that (1) it was not allowed a fair hearing and its due process rights were violated, (2) the Zoning Board's decision was arbitrary and capricious, and (3) the Zoning Board's decision was made contrary to the facts and the law. In appealing, Bluff Head asks the Court to reverse and modify the August 5, 2022 Zoning Board decision, order the fence be removed, order that the title owner of Plat 14, Lot 31 be precluded from filing for a fence permit application for two years, order that the title owner comply with Town Zoning Ordinances that a construction permit is required to construct a fence, and award Bluff Head attorneys' fees and expenses pursuant to the Equal Access to Justice for Small Businesses and Individuals Act, G.L. 1956 chapter 92 of title 42 (EAJA).

II Standard of Review

Section 45-24-69(a) grants the Superior Court jurisdiction to review decisions of local zoning boards. Such review is governed by § 45-24-69(d), which provides:

"The court shall not substitute its judgment for that of the zoning board of review as to the weight of the evidence on questions of fact. The court may affirm the decision of the zoning board of review or remand the case for further proceedings, or may reverse or modify the decision if substantial rights of [Bluff Head] have been prejudiced because of findings, inferences, conclusions, or decisions which are:

"(1) In violation of constitutional, statutory, or ordinance provisions;

"(2) In excess of the authority granted to the zoning board of review by statute or ordinance;

"(3) Made upon unlawful procedure;

"(4) Affected by other error of law;

"(5) Clearly erroneous in view of the reliable, probative, and substantial evidence of the whole record; or

"(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."

In other words, this Court "reviews the decisions of a plan commission or board of review under the 'traditional judicial review' standard applicable to administrative agency actions." Restivo v. Lynch, 707 A.2d 663, 665 (R.I. 1998). The Court is "limited to a search of the record to determine if there is any competent evidence upon which the agency's decision rests. If there is such evidence, the decision will stand." E. Grossman & Sons, Inc. v. Rocha, 118 R.I. 276, 285-86, 373 A.2d 496, 501 (1977) (emphasis added). The Court may not substitute its judgment for that of the zoning board's with respect to the weight of the evidence, questions of fact, or credibility of the witnesses. Lett v. Caromile, 510 A.2d 958, 960 (R.I. 1986). However, this Court conducts a de novo review of questions of law. Tanner v. Town Council of Town of East Greenwich, 880 A.2d 784, 791 (R.I. 2005). The burden is on the applicant "seeking relief . . . to prove the existence of the conditions precedent to a grant of relief." DiIorio v. Zoning Board of Review of City of East Providence, 105 R.I. 357, 362, 252 A.2d 350, 353 (1969).

The Court must consider '"the entire record to determine whether 'substantial' evidence exists to support the board's findings."' Salve Regina College v. Zoning Board of Review of City of Newport, 594 A.2d 878, 880 (R.I. 1991) (quoting DeStefano v. Zoning Board of Review of City of Warwick, 122 R.I. 241, 245, 405 A.2d 1167, 1170 (1979)). "Substantial evidence" is defined as "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." Caswell v. George Sherman Sand & Gravel Company, Inc., 424 A.2d 646, 647 (R.I. 1981).

III Analysis

A Whether Due Process Rights Were Denied

Bluff Head contends it was denied its due process at the Zoning Board hearing when it was precluded from presenting witnesses to testify in support of its appeal. In response, the Zoning Board suggests a building permit was not required to erect a fence under six feet by either the State Building Code or by Town Zoning Ordinance and, thus, Bluff Head's contention that a building permit was improperly issued for the fence was moot.

Generally, courts limit review of cases to those involving issues in dispute and avoid "moot, abstract, academic, or hypothetical questions." H.V. Collins Co. v. Williams, 990 A.2d 845, 847 (R.I. 2010) (internal quotation omitted). The court will "review an otherwise moot case only when the issues are of extreme public importance, which are capable of repetition but which evade review." Campbell v. Tiverton Zoning Board, 15 A.3d 1015, 1022 (R.I. 2011) (internal quotations omitted). A case is moot if "there is no continuing stake in the controversy" or "if the court's judgment would fail to have any practical effect on the controversy." Blais v. Rhode Island Airport Corp., 212 A.3d 604, 612 (R.I. 2019).

The Court affords the local board some discretion in controlling its own procedures, but an issue arises when the Zoning Board does not follow its own procedures, as is the case here. In allowing the fence to be constructed, the Zoning Board did not follow its own procedures because it allowed the fence to be built without a permit, contrary to Town Ordinances and state law. Upon realizing its error, the Town issued a permit without application or review after the fence was already built. Then, after Bluff Head appealed the fence permit, the Zoning Board stated that a building permit was not needed, contrary to the Town's assertions that a fence was a structure and that a building permit was required to construct the fence.

The Court does not find the fence issue moot where the Town and the Zoning Board ignored their own rules in allowing the fence to go in without a permit and without a structure associated with the fence. There is a continuing stake in this controversy, both for Bluff Head and for future applicants who may face the same improper procedures in future dealings with the Zoning Board.

Next, the Court finds that Bluff Head was denied its due process rights at the Zoning Board hearing because it was precluded from presenting witnesses in support of its appeal. The Town avers that Bluff Head's alleged due process violations are without merit because the witnesses Bluff Head sought to present would have been irrelevant to the zoning appeal because the Zoning Board alone was to decide on the issue of whether or not the building permit was properly issued.

"Procedural due process guards against the modalities of state action addressing itself to the task of rectifying perceived...