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The
Mignacca owned a miniature horse, named Sonny, that they wished to keep on their
property. The neighborhood
association sought to prevent that. The
zoning board granted a variance from the zoning ordinance that prohibited
keeping any animals except dogs and cats on property of less than 10 acres.
The association sought a reversal of this order from the trial court.
The trial court upheld the zoning board and also held that the keeping of
Sonny did not violate a restrictive covenant dealing with keeping animals on the
property. The association appealed
and in this opinion, the Supreme Court says that there was no justification for
a zoning variance and that the restrictive covenants did prohibit keeping Sonny
on the property. So, Sonny must go!
Can
David and Kathy Mignacca (Mignaccas), two of the defendants in this case, keep
their miniature horse on their residential property in the Ridgewood Estates
subdivision in the City of Cranston? We answer in the negative. The Ridgewood
Homeowners Association and certain members of the association individually
(collectively, the association or plaintiffs) sought to prevent the Mignaccas
from keeping the horse on their property. The defendant Zoning Board of Review
of Cranston granted a zoning variance that allowed the horse, even though the
Mignaccas did not own the ten acres required by the City of Cranston Zoning Code
for raising and keeping animals. The plaintiffs appealed that decision and also
brought a separate action seeking to enforce a restrictive covenant that they
claimed prevented the Mignaccas from sheltering the horse in Ridgewood Estates.
Following the entry of judgment against the association in both the zoning
appeal and the restrictive covenant action, the plaintiffs appealed and filed a
petition for a writ of certiorari, which we issued. We sustain the appeal and
reverse the judgment of the Superior Court in the covenant action, and we grant
the petition and quash the judgment of the Superior Court in the zoning appeal.
Facts
and Procedural History
In
July 2001, the Mignaccas' miniature horse, which the record sometimes refers to
as "Sonny," stood thirty and one-half inches high, one or two inches
less than its eventual full height. The horse was not trained for riding but was
shown competitively. The Mignaccas' son, Christian, whose
"therapeutic" needs led his parents to the purchase, has won numerous
ribbons by showing the horse at competitions. The horse requires approximately
one-quarter to one-half acre for its exercise and an outdoor shed for shelter.
The Mignaccas' property consists of four acres, comprising two adjoining lots in
Ridgewood Estates, a subdivision of two-acre lots.
Concerned
that the zoning code required a minimum of ten acres for them to keep their
horse, the Mignaccas filed an application for a variance with the Cranston
Zoning Board of Review (board) for permission to keep a miniature horse and to
build and shelter the animal in a ten-foot by twelve-foot stable on their lot.
They specifically sought relief from Sec. 30-8 of the City of Cranston Zoning
Code (zoning code) titled Schedule of uses, under zoning code Sec. 30-28,
entitled Variances. Section 30-28 requires that all applications be transmitted
to the Cranston Planning Commission (commission) for its review and
recommendation to the board, which then decides whether to grant the variance.
On April 3, 2001, the commission issued findings of fact based on the Mignaccas'
application, including a finding that the zoning code required a minimum of ten
acres to keep the miniature horse. The commission "voted to make no
specific recommendation" on the Mignaccas' request for a variance, however.
After examining exhibits and hearing both opposing and supportive testimony on
the request, on April 11, 2001, the board granted the Mignaccas a variance with
conditions.
The
association appealed the board's decision to the Superior Court, where
plaintiffs filed a second suit seeking to enjoin the Mignaccas from keeping the
horse on their land on the basis of restrictive covenants in the deeds to all
the properties in Ridgewood Estates. The plaintiffs specifically argued that
restrictive covenant 8 ("Livestock and Poultry") barred the Mignaccas
from maintaining the horse and from building a stable on their property. [FN1]
The Superior Court justice consolidated the two cases for trial on the merits.
The justice, sitting without a jury, heard extensive testimony and conducted a
"view" of the Mignaccas' property to observe the horse and the
surrounding lots in the subdivision. Based on testimonial evidence and on the
view, the association amended its complaint during trial to allege that the
Mignaccas also violated Ridgewood Estates' restrictive covenants by keeping
three dogs, four ducks, and two rabbits on their property, as well as a boat, a
go-cart, five all-terrain vehicles, an industrial dumpster, an industrial
loader, and a fence erected without the association's approval. The Mignaccas
filed a counterclaim during trial, challenging the keeping of any animals by
plaintiffs, other than cats and dogs. All claims were consolidated.
FN1. While the suit to enjoin the Mignaccas from keeping
the horse was pending, a Superior Court justice--not the trial justice--granted
plaintiffs a temporary restraining order, barring the Mignaccas from keeping the
horse on their premises. Concurrently, the Mignaccas applied for a temporary
restraining order to bar one of the plaintiffs, Rena Dressler, from keeping any
animals other than two cats or two dogs in her home. A different Superior Court
justice denied the Mignaccas' application.
On
July 13, 2001, the justice entered judgment on all claims, accompanied by a
written decision. Addressing the zoning issue, the trial justice remanded the
case to the board, directing it to declare that "because the Mignaccas have
well in excess of 20,000 square feet on which to permit [their horse] to amble
and graze, Cranston Ordinance 4-2.1 precludes the necessity of granting a
dimensional or any other variance to the Mignaccas, as that ordinance allows the
keeping of a horse, even in a built-up area, so long as the owner has more than
20,000 square feet for use as a pasture." Additionally, the justice refused
to enforce any of the restrictive covenants cited in the claim, counterclaims,
and plaintiffs' amended complaint. In so doing, he found that covenant 8 did not
apply to the Mignaccas' horse and that the association could not enjoin the
Mignaccas from keeping it because of plaintiffs' own violations of certain
restrictive covenants. He declared that the Mignaccas could keep the horse on
their property and complete the ten-foot by twelve-foot stable they had begun to
build for housing the animal.
The
plaintiffs filed a petition for issuance of a writ of certiorari with respect to
the zoning decision and appealed the justice's decision not to enforce covenant
8. This Court issued the writ and consolidated the appeal with the petition. The
Mignaccas have not appealed the trial justice's decision denying their
counterclaim, and plaintiffs did not appeal the denial of the additional claims
in their amended complaint. Pending the resolution of the dispute by this Court,
we granted the association's motion for a stay of the decision, enjoining the
Mignaccas from keeping the horse on their property.
[FN2]
FN2. The parties disclosed at oral argument that the
Mignaccas have purchased a nearby farm where the horse is kept, along with
additional miniature horses they subsequently acquired.
Additional
facts will be presented in discussing the issues on appeal.
Restrictive
Covenants
The
plaintiffs argued on appeal that the Superior Court justice erred in finding
that the miniature horse was not barred by covenant 8, based on his finding that
the covenant was ambiguous, that it was enforced arbitrarily, and that the
equities of the situation did not support an injunction against the horse's
presence on the Mignaccas' property. In addition to covenant 8, plaintiffs had
pointed to restrictive covenants 5 ("Nuisances") and 6
("Temporary Structures") in their suit to enjoin the keeping and
maintaining of a horse on the Mignaccas' land in Ridgewood Estates. The three
covenants are listed in the Declaration of Restrictions and Protective Covenants
(declaration) that are imposed on all lots in the Ridgewood Estates subdivision.
Phillips Associates, Inc., the developer of Ridgewood Estates, recorded the
declaration with the City of Cranston in 1987. The limitations, restrictions,
covenants, and uses enumerated in the declaration were intended to be
"covenants running with the land * * * for the benefit of and limitation on
all future owners" of land in the subdivision. The declaration explicitly
allows any property owner in Ridgewood Estates "to institute and prosecute
any proceedings at law or in equity against [any] person or persons * * *
attempting to violate any such covenant or restrictions * * *." Moreover,
this Court has recognized that owners may enforce restrictive covenants on land
burdened by the same restrictions as their land, when the purpose of the
covenants is to maintain a common scheme of development, as is the case with
these covenants, and in particular, with covenant 8. Emma v. Silvestri, 101 R.I.
749, 751-52, 227 A.2d 480, 481 (1967). This Court's objective in interpreting
restrictive covenants is to achieve the delicate balance in favor of "the
free alienability of land while still respecting the purposes for which the
restriction was established." Gregory v. State Department of Mental Health,
Retardation and Hospitals, 495 A.2d 997, 1000 (R.I.1985). In so doing, we give
the words of a restrictive covenant "their plain and ordinary meaning
unless a contrary intent is discernable from the face of the instrument."
Id. at 1001. Because the specific effects of applying restrictions can vary,
depending on the land and covenants involved, "cases involving the
interpretation of restrictive covenants must be decided on a case-by-case basis
* * *." Id. at 1000-01.
The
key restrictive covenant at issue here is covenant 8, entitled "Livestock
and Poultry," which provides:
"No
animals, livestock or poultry of any kind shall be raised, bred or kept on any
lot, except that two (2) dogs and/or two (2) cats may be kept provided that they
are not kept, bred or maintained for any commercial purpose. No kennels or other
structure for the keeping of such pet shall be maintained on the premises."
The
trial justice found that this covenant was ambiguous and concluded that
"the
intent of the drafter of Restrictive Covenant 8 was to provide the residents and
potential residents of the Ridgewood development from having a neighbor or
neighbors engage in the business of keeping and raising animals in a farm-like
setting for commercial purposes, i.e., the raising of chickens for their eggs
and meat, the raising of cattle for dairy products, the maintaining of a horse
stable for riding lessons and to make a profit by boarding other people's
horses, etc.
"Additionally, the covenant is unclear as to whether
such animals as are barred by Restrictive Covenant 8 are precluded from only the
outside of a dwelling place or whether they are barred from the inside as
well."
In
construing restrictive covenants, we have held that "if there is ambiguity,
it is to be resolved in favor of an unrestricted use." Emma, 101 R.I. at
751, 227 A.2d at 481. Covenant 8, however, is not ambiguous in stating that no
structures for housing animals, kennels or otherwise, "shall be
maintained" on any lot in Ridgewood Estates. This provision would
constitute mere surplusage if its applicability were limited to animals kept for
commercial purposes, as the trial justice found, given that the covenant's first
clause restricts even cats and dogs from being kept for commercial purposes.
When presented with such a clear directive, "[w]e will not * * * seek
ambiguity where none exists but rather we will effectuate the purposes for which
the restriction was established." Hanley v. Misischi, 111 R.I 233, 238, 302
A.2d 79, 82 (1973). The Mignaccas began building a shed, which they stated was
necessary to shelter their horse. Given covenant 8's unambiguous proscription of
structures for keeping animals, it was error to rely on ambiguity as a basis for
not enforcing covenant 8.
We
next address whether, as the trial justice found, covenant 8 was enforced
arbitrarily and therefore should not be enforced in this case. Based on
testimony and his viewing, the justice referred to numerous infractions of
covenants in addition to those barred by covenant 8--for example, the presence
of freestanding garages, sheds, and cabanas in Ridgewood Estates. He also noted
that Rena Dressler (Dressler), the president of the association and one of the
plaintiffs in the case, kept a snake and parrots in her home, in apparent
contravention of covenant 8's allowing only cats and dogs. The trial justice
further reported that the DelFarno family had kept a miniature horse similar to
the Mignaccas' horse on their property, a fact that was known to at least one
board member of the association, Laurie Biern (Biern).
This
Court only rarely has addressed the issue of whether underenforcement of
restrictive covenants renders them unenforceable. Duffy v. Mollo, 121 R.I. 480,
400 A.2d 263 (1979); see post. In such situations, "we often look to
leading authorities and the law of other jurisdictions for guidance in making
our determination." Liberty Mutual Insurance Co. v. Harbor Insurance Co.,
603 A.2d 300, 302 (R.I.1992).
The
assertion that a covenant should not be enforced because of its previous
arbitrary or under-enforcement is an affirmative defense, so when the Mignaccas
raised it at trial, they bore the burden of proof. Circle Square Co. v. Atlantis
Development Co., 230 S.E.2d 704, 708 (S.C.1976). This burden may be met by
showing that the covenant has been so arbitrarily or laxly enforced that its
present enforcement is barred by waiver, estoppel, or laches. In this case, the
Mignaccas argued that plaintiffs had waived the right to enforce covenant 8. To
establish the defense of waiver, in our opinion, a defendant must prove that a
plaintiff has waived the covenant through "substantial and general
noncompliance." Kalenka v. Taylor, 896 P.2d 222, 226 (Alaska 1995) (quoting
B .B.P. Corp. v. Carroll, 760 P.2d 519, 523-24 (Alaska 1988)). Alternatively,
waiver can be demonstrated when changes to the area caused by unenforcement
become "so radical and permanent as to render perpetuation of the
restriction * * * plainly unjust because its original purpose can no longer be
accomplished." Duffy, 121 R.I. at 486, 400 A.2d at 266.
The
rationale for placing such a significant burden on a defendant claiming waiver
is set forth in Restatement (Third) of Property: Servitudes, s 8.3, cmt. f at
502 (2000), which explains that doing so "is particularly important in
common-interest communities and other real estate developments with
associations, because the association should not be impelled to engage in
overzealous covenant enforcement fearing possible waiver of future enforcement
rights. Overzealous enforcement is costly to the community both financially and
because it tends to be socially divisive." Moreover, while it may be
appropriate for a court to refuse to enjoin the violation of a covenant on the
ground of waiver if that covenant "has become obsolete," id., the
Rhode Island General Assembly has addressed obsolescence by creating a
thirty-year limitation on the enforcement of restrictive covenants. G.L.1956 s
34-4-21. Hence, in this case, covenant 8, recorded in 1987, will not be
enforceable after the year 2017, by operation of law.
In
addition, it is our opinion that the enforcement of one covenant or the failure
to enforce that covenant has no bearing on the validity of a different covenant,
in the event that both are contained in the same deed. See Snow v. Van Dam, 197
N.E. 224, 229 (Mass.1935) (holding that "the violation of some of the less
important restrictions, but not of the restriction in question, by some of the
plaintiffs [does not] deprive them * * * of the right to relief in
equity"). Even if the residents of Ridgewood Estates have waived covenants
regulating garages, tool sheds, and cabanas, as the trial justice suggested,
such waiver could not be transferred or applied to covenant 8, which deals with
an entirely different subject matter. Therefore, the enforcement of other
covenants should not have been considered in ruling on the enforcement of
covenant 8.
Moreover,
it was error to rely on evidence that many residents of Ridgewood Estates,
including association president and plaintiff Dressler, kept house animals other
than cats or dogs. The justice considered these examples as evidence of the
arbitrary manner by which covenant 8 was being enforced. At trial, however,
Dressler explained her interpretation of covenant 8 as barring outdoor animals
such as horses but not indoor pets. In our opinion, this distinction was
justified. For one, the title of covenant 8, "Livestock and Poultry,"
renders it reasonable to conclude that the restriction was not intended to ban
indoor pets such as hamsters, birds, or fish. Second, the two animals explicitly
permitted by covenant 8, namely, dogs and cats, are pets that can be kept
outdoors. Third, covenant 8 prohibits "kennels or other structure[s],"
which may be necessary to maintain certain animals outdoors. Thus, the Mignaccas'
evidence that indoor pets other than cats and dogs were kept by numerous
residents of the development, including the association president, was not
probative of plaintiffs' selective enforcement or waiver of the covenant.
Our
holding in this respect is consistent with the position taken by courts in other
jurisdictions that have overlooked "technical" covenant violations
confined within a home while enforcing the same covenant to enjoin obvious
violations occurring in the open. Crimmins v. Simonds, 636 P.2d 478 (Utah 1981);
Miller v. Bolyard, 411 S.E.2d 684 (W.Va.1991) (per curiam).
In
addition to the horse at issue here, only three violations involving structures
for the housing of outdoor animals were presented at trial: Carl Weinberg
(Weinberg), an association board member, kept a dog kennel on his lot; the
Mignaccas housed their two Siberian huskies in a pen next to their horse; and
the DelFarnos had kept a miniature horse in a utility shed that they converted
into a barn. The Mignaccas, however, failed to establish that plaintiffs'
actions or inactions in these instances amounted to a waiver of covenant 8.
Specifically,
no evidence was presented that these infractions were brought to the attention
of the association or its board as a whole, or that the association considered
and declined to enforce the covenant. The fact that Biern, a board member of the
association, knew of the DelFarnos' miniature horse but failed to take action to
enforce the covenant does not establish plaintiffs' waiver of covenant 8 as a
result of selective enforcement. See Miller, 411 S.E.2d at 687 (citing Wallace
v. St. Clair, 127 S.E.2d 742, 756 (W.Va.1962) (holding that a lot owner is not
precluded from "insisting upon such observance because of his failure to
complain of violations of the restriction by other property owners in a
different portion of the restricted area, which were not consequential or, if
consequential, did not materially and adversely affect him in the use and
enjoyment of his own property")). Likewise, although Weinberg's maintenance
of a dog kennel may be interpreted as a personal waiver of his enforcement
rights against the Mignaccas, that alone did not preclude other plaintiffs from
taking action to enforce covenant 8. See Miller, 411 S.E.2d at 687 (holding that
"[t]he willingness of some lot owners in an area restricted to residential
purposes to waive the benefit of the restriction does not preclude others from
insisting upon its observance * * * "). Moreover, the Mignaccas have not
established that they reasonably relied on any affirmative actions by the
association indicating that it would be acceptable to keep a miniature horse on
their property. Therefore, plaintiffs were not estopped from enforcing covenant
8 against the Mignaccas. See Wallace, 127 S.E.2d at 757.
Overall,
the Mignaccas have failed to establish that the instances in which covenant 8
was violated amounted to "substantial and general noncompliance" with
the regulations, Kalenka, 896 P .2d at 226, or that those breaches were
indicative of changes to the subdivision "so radical and permanent as to
render perpetuation of the restriction against [the proposed] use plainly unjust
* * *." Duffy, 121 R.I. at 486, 400 A.2d at 266. The three violations cited
in a subdivision of over seventy families did not change the character of
Ridgewood Estates. See Crimmins, 636 P.2d at 480 (holding that "the
existence of several breaches of a restrictive covenant does not justify refusal
of enforcement unless the character of the neighborhood has changed"). The
Mignaccas thus did not meet their burden of establishing that plaintiffs' waived
their ability to enforce covenant 8.
Our
final consideration is whether, as the trial justice found, plaintiffs were not
entitled to equitable relief even if the covenant were read to bar the horse
from the Mignaccas' property because the justice determined that "[b]alancing
the equities * * * none of the plaintiffs experience[d] any hardship by the
Mignaccas keeping Sonny." Notwithstanding this finding, the trial justice
correctly stated during trial that enforcing the covenants was of value to the
parties and also to all residents of Ridgewood Estates. The trial justice noted
the importance of enforcing Ridgewood Estates' restrictive covenants when he
refused to allow a settlement of the case that would have permitted numerous
violations of the covenants. He pointed out that: "the settlement that was
proposed * * * was basically a sweetheart deal that would lead to the violation
of the restrictive covenants on the
part of both people on both sides. I, a Court sitting in equity, cannot approve,
in my view, such a settlement.
"So, I
think it important that * * * to the extent that there is to be any settlement
in this matter, that we do so in a way that will not prejudice the rights of any
parties not before this Court, including the other people who have homes in
Ridgewood and have something to say or might have something to say in the future
about the validity of these restrictive covenants."
The
trial justice also voiced concern that "anything that happens in this case
* * * will not be precedent for other people on other lots to start horse farms
or any other form of farming * * *."
The
trial justice recognized that enforcing a restrictive covenant is important to
all who are burdened and benefited by the restriction. For precisely that
reason, plaintiffs seeking to enforce restrictive covenants need not establish
money damages or any other hardship to receive equitable relief. Crimmins, 636
P.2d at 480. The trial justice therefore erred by denying enforcement of the
covenant on the ground that plaintiffs did not experience any hardship by the
Mignaccas keeping a horse. Establishing that the Mignaccas violated covenant 8
was sufficient for a court to provide the injunctive relief sought by the
association.
Because
we conclude that covenant 8 bars the Mignaccas from maintaining a horse in their
yard in Ridgewood Estates, we need not address whether the horse's presence
violated covenant 5 (Nuisances) or whether its shed violated covenant 6
(Temporary Structures).
Adding
Christian Mignacca as a Party
In
midtrial, after the parties stated that they would like to settle the case, the
trial justice suggested that Christian Mignacca (Chrisitian), the Mignaccas'
minor son for whom his parents originally purchased the show horse, testify for
a second time and be added as a party defendant to the deed restriction
litigation. "Before there's any settlement," said the trial justice,
"I want to hear from the child. As a matter of fact, the child should * * *
be a party to this litigation * * *." The trial justice made this proposal
in the belief that the court has a "paren[ ]s patriae or * * * some general
supervisory authority over children who come [into court] and have an interest
in the outcome of the litigation * * *."
This
suggestion was not warranted. The parties agreed that Christian neither owned
the real property, nor was he the owner of the horse. However, it does not
appear that Christian was added as a party. Although he is named as a party in
the case heading to the Mignaccas' memorandum of law filed on July 11, 2001,
wherein defendants are named as "David Mignacca and Kathy Mignacca in their
individual capacity and in their capacity as parent and next best friend of
Christian Mignacca," the record contains no motions requesting that
Christian be added or joined as a party, and none of the parties' memoranda
filed with the court before or after July 11, 2001, contain any mention of
Christian as a party or of the Mignaccas suing in their capacity as his parent
and next best friend.
Inapplicability
of Cranston City Code s 4-2.1
The
Superior Court judgment affirmed the board's decision to allow "the
Mignaccas to keep Sonny on their [p]roperty and house him in the shed they
erected for that purpose * * *." In so doing, the trial justice found that
the variance that the board granted was unnecessary because the Mignaccas were
entitled to keep the horse on their property pursuant to chapter 4, section 2.1
of the Cranston City Code (city code s 4-2.1). Although none of the parties had
raised this argument at trial, the trial justice seized upon this ordinance and
remanded the case back to the zoning board with directions to declare that
"Ordinance 4-2.1 precludes the necessity of granting a dimensional or any
other variance to the Mignaccas * * *." We deem this to be error.
Chapter
4, entitled "Animals," and s 4-2.1 therein, entitled "Keeping
animals in certain districts prohibited" and enacted as ordinance
[19]74-77, provides that "No person shall keep any horse within any closely
built-up residential area unless he shall have available * * * at least twenty
thousand square feet of pasture area ." The trial justice reasoned,
"As an acre contains 43,560 square feet, and the Mignaccas have a four acre
house lot, there does not appear to be any question but that they can keep a
miniature horse on their property." This finding, however, conflicts with
Cranston's zoning code, Chapter 30 of the Code of the City of Cranston,
effective as of December 31, 1994, pursuant to the Rhode Island Zoning Enabling
Act of 1991 (P.L.1991, ch. 307, s 1) (enabling act), G.L.1956 s 45-24-27 through
s 45-24-72. The "Schedule of uses" delineated in s 30-8 of Cranston's
zoning code provides that the "[r]aising and keeping of animals on not less
than 10 acres " is a "permitted use" in the A-80 zone in which
the Mignaccas reside. (Emphasis added.) Clearly, the zoning code's Schedule of
uses conflicts with city code s 4-2.1.
Generally,
when two ordinances irreconcilably conflict one with the other, we shall give
effect to the more recent enactment, Whyte v. Sullivan, 119 R.I. 649, 654, 382
A.2d 186, 188-89 (1978). Further, we held in Munroe v. Town of East Greenwich,
733 A.2d 703, 708 (R.I.1999), that an act of general applicability, in that case
the Development Review Act, superseded an inconsistent home rule charter
provision. Consequently, we can conclude that the Cranston zoning code, enacted
pursuant to the zoning enabling act, trumps inconsistent provisions in the city
code. As such, zoning code s 30-8, the more recent ordinance enacted pursuant to
a state law of general applicability, trumps city code s 4-2.1. In the absence
of findings of fact on whether s 30-8 prohibits the keeping of miniature horses
on less than ten acres, the trial justice had no basis on which to declare that
a variance was unnecessary in this instance.
Moreover,
our well-established precedent controls in this case, namely, that
"[a] zoning ordinance cannot destroy the force and effect of a
restrictive covenant." Farrell v. Meadowbrook Corp., 111 R.I. 747, 750, 306
A.2d 806, 808 (1973) (citing Hill v. Ogrodnik, 83 R.I. 138, 143, 113 A.2d 734,
738 (1955)). Therefore, even if s 30-8 of the zoning code did permit a horse on
the property, restrictive covenant 8 of the Mignaccas' deed trumps the zoning
provision. Consequently, the horse is not permitted and the judgment of the
Superior Court is vacated.
General
Laws 1956 s 45-24-69
With
respect to plaintiffs' appeal of the board's decision to grant the Mignaccas a
variance, the Superior Court justice exceeded his limited authority when
reviewing a zoning board of review decision pursuant to s 45-24-69. Although s
45-24-69(c) does "allow any party to [a zoning board of review] appeal to
present * * * evidence in open court" if the Superior Court trial justice
finds "that additional evidence is necessary for the proper disposition of
the matter," the trial justice in this case exceeded his authority by
conducting a view and sua sponte telephoning the Clerk of the City of Cranston
to request a copy of city code s 4-2.1. In addition, when an appeal of a zoning
board of review's decision is consolidated with a restrictive covenant case, the
facts relevant only to the restrictive covenant issue cannot be subsumed or
commingled in deciding the zoning appeal. If the consolidated case is thereby
rendered difficult or impossible to decide, then the cases should be bifurcated.
Moreover, s 45-24-69(d) provides that, in hearing an appeal from a zoning board
of review decision, the Superior Court "shall not substitute its judgment
for that of the zoning board of review as to the weight of the evidence on
questions of fact. 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 * *
*." We have held that, when a zoning board of review or other municipal
board acting in a quasi-judicial capacity does not provide a record sufficient
to allow for judicial review, the case should be remanded to the board with
directions to make findings of fact and conclusions of law based on the required
evidence. Cranston Print Works Co. v. City of Cranston, 684 A.2d 689, 691-92
(R.I.1996).
In
this case, the board did not provide a record suitable for judicial review when
it granted the variance to maintain the horse on the Mignaccas' land. No
findings of fact or conclusions of law were compiled on the record to support
the board's decision to grant this variance. Eastern Scrap Services, Inc. v.
Harty, 115 R.I. 260, 263, 341 A.2d 718, 719-20 (1975). The record contains no
evidence whatsoever that "the hardship from which the applicant seeks
relief is due to the unique characteristics of the subject land" or that
"the hardship that will be suffered by the owner of the subject property if
the dimensional variance is not granted shall amount to more than a mere
inconvenience, which shall mean that there is no other reasonable alternative to
enjoy a legally permitted beneficial use of one's property," as required by
the Cranston City Code s 30-28(b)(1) and (c)(2) and by s 45-24-41(c)(1) and
(d)(2). Moreover, even assuming that city code s 4-2.1 were applicable to this
case, the record contained no findings of fact relevant to that ordinance, such
as whether the Mignaccas' land contained any pasture at all. In these
circumstances, the case should have been remanded to the board with directions
to provide a record delineating findings of fact and conclusions of law that
would be sufficient to support judicial review.
Preservation
of "Accessory Use" Issue
Last,
we decline to consider the Mignaccas' argument, raised for the first time during
the appeal before the Superior Court, that a variance was not required to
maintain a horse because keeping the horse was merely an "accessory
use" of their property for which no variance is needed. "The
established rule of law in Rhode Island is that we shall not consider an issue
raised for the first time on appeal that was not properly presented before the
trial court for its consideration." International Depository, Inc. v.
State, 603 A.2d 1119, 1122 (R.I.1992). Although the Mignaccas raised the
argument that a variance was unnecessary before the Superior Court, the zoning
board of review was the appropriate venue in which this issue should have been
presented. After applying for a variance to the board and after arguing in favor
of a variance at a hearing before the board following the planning commission's
determination that a variance was required to maintain a horse on their land,
the Mignaccas cannot, for the first time on an appeal before the Superior Court,
disclaim the need for a dimensional variance.
Conclusion
In
summary, therefore, the association's appeal is sustained, and the judgment of
the Superior Court denying injunctive relief is reversed. We return the papers
in this case to the Superior Court, with directions to enter judgment
permanently enjoining the Mignaccas from keeping a miniature horse on their
property in Ridgewood Estates.
Additionally,
with respect to the judgment of the Superior Court affirming the decision of the
zoning board of review, the petition for certiorari is granted, the Superior
Court judgment is quashed, and the case is remanded to that court with
instructions to enter judgment denying the relief granted by the zoning board of
review.
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