J.M.M. Jr. Enterprises, Inc. v. Cohen, 100202 RISUP, WC2000-405

Docket Nº:C.A. WC2000-405
Case Date:October 02, 2002
Court:Rhode Island
MARILYN F. COHEN, in her capacity As Director of Planning & Development of the Town of North Kingstown, and North Kingstown Zoning Board of Review Defendants
C.A. No. WC2000-405
Superior Court of Rhode Island
October 2, 2002
         DECISION          Gagnon, J.          Before this Court is an appeal from a decision of the Zoning Board of Review of the Town of North Kingstown (the "Board"). J.M.M. Jr. Enterprises, Inc. and T. Miozzi, Inc. ("plaintiffs") seek reversal of the Board's decision of August 8, 2000 upholding the issuance of a zoning certificate. This Court has jurisdiction pursuant to G.L.1956 § 45-24-69.          Facts and Travel          The plaintiffs are the owners of Lot 79 North Kingstown Assessor's Plat 45, a parcel of approximately 23.63 acres, zoned "Light Industrial" and located in a Zone One Groundwater Protection Area. The plaintiffs proposed to construct and operate a self-contained, stationary hot- mix asphalt plant on this tract. To that end, on February 1, 2000, plaintiffs wrote to the Director of Planning and Development for the Town of North Kingstown (the "Director" or "Ms. Cohen"), and requested a zoning certificate pursuant to G.L.1959 § 45-24-54 and North Kingstown Zoning Ordinance § 21-10(c) (hereafter "§ 21-10(c)").          On February 1, 2000, Ms. Cohen issued a zoning certificate in which she stated that the proposed asphalt plant was not a permitted use under the Town of North Kingstown Zoning Ordinance (the "Zoning Ordinance"). Ms. Cohen stated that the proposed plant would violate the prohibition on storage or piping of petroleum products in a Groundwater Protection area. She also opined that an asphalt plant could not meet the performance standards of a Light Industrial zone.          The plaintiffs then instituted an action for declaratory judgment, C.A. No.WC2000-0073, seeking a ruling that as a matter of law, an asphalt plant was a permitted use. This Court dismissed the suit without prejudice, and plaintiffs appealed the Director's decision to the Board, which heard the appeal on June 27 and July 25, 2000.          At these advertised hearings, Ms. Cohen presented her observations of an asphalt plant similar to the proposed plant, derived during a tour conducted in December, 1999. Dr. Stanley M. Barnett, a professor of chemical engineering at the University of Rhode Island, testified about the chemical composition of asphalt. Finally, plaintiff Thomas Miozzi spoke about his experience of 20 years in the asphalt business, and about the proposed plant itself.          Following the second hearing, the Board unanimously upheld the zoning certificate. In its decision, dated August 8, 2000, the Board stated that because liquid asphalt cement is a petroleum product, it is included in the prohibition on storage and piping of such products in a groundwater protection area. The plaintiffs now timely appeal that decision.          Standard of Review          The standard of review for this Court's appellate consideration of the decision is outlined in G. L.1956 § 45-24-69(d), which states:
       "(d) 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 the appellant 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."
When reviewing a zoning board decision, this Court must examine the entire certified record to determine whether substantial evidence exists to support the finding of the board. Salve Regina College v. Zoning Bd. of Review, 594 A.2d 878, 880 (R.I. 1991) (citing DeStefano v. Zoning Bd. of Review of Warwick, 122 R.I. 241, 245, 405 A.2d 1167, 1170 (1979)); Restivo v. Lynch, 707 A.2d 663 (R.I.1998). "Substantial evidence as used in this context means such relevant evidence...

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