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Thompson v. Carlson12/14/2005
he unique characteristics of the subject property and is not due to the general characteristics of the surrounding neighborhood and further, the hardship is not due to a physical or economic disability of the applicant.
3. The applicant has clearly shown that the hardship is not the result of any prior action of the applicant and does not result primarily from the desire of the applicant to realize greater financial gain.
4. The applicant has clearly shown that the granting of the requested relief will not alter the general character of the surrounding area or impair the intent or purpose of the Zoning ordinance or the Providence Comprehensive Plan.
5. The applicant has shown that that the relief requested is the least relief necessary in order for the hardship to be alleviated.
6. The Board has considered the written recommendation of the Department of Planning and Development prior to making its decision.
Thereafter, the Zoning Board granted "the expansion of this legal non-conforming use and grants relief from Sections 201.5 and 202.4 for a special use permit pursuant to Section 303-use code 58 under Section 902 of the Zoning Ordinance . . . ."
The Appellants assert that the Zoning Board applied the incorrect standard for issuing a special use permit and, in particular, for issuing a special use permit in a waterfront district. This Court agrees.
A review of the Decision and the applicable zoning ordinances reveals that the Zoning Board failed to apply the proper standard in granting the Application. Rather than apply the special use permit standard, this Court finds that the Zoning Board applied the standard that is applicable to the granting of a variance. Even if this were the correct standard, the Zoning Board failed to provide an appropriate record for judicial review because no findings of fact or conclusions of law were assembled on the record to support any type of decision to grant a variance. See Ridgewood Homeowners Ass'n v. Mignacca, 813 A.2d 965, 977 (R.I. 2003) (observing that the record contained "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 [applicable] Code . . . .") (Emphasis added). Likewise, in this case the Applicants presented insufficient evidence of hardship.
The only evidence of an alleged hardship in this case came from the testimony of an expert for the Applicant, who stated that with respect to the bathrooms: "They, the ADA, with the bathrooms, there's a possibility of violation." Tr. at 93 (emphasis added). On the issue of the expansion of the kitchen, he testified that "though it's been in existence for many years, it really doesn't comply with safety standards." Tr. at 89. He later testified:
"The fire marshal always had some concerns with the old [kitchen], as well as the City of Providence. They did allow it anyway, they allowed it for the past 21 years, but it's time to upgrade. While they're doing the bathroom, let's do the rest. The kitchen was not a kitchen, per se, it was a grill." Tr. at 101 (emphasis added).
The expert also testified that " he proposed plans are to bring both the areas [bathrooms and kitchen] up to speed, as far as handicap accessibility and the number of toilets for the facilities . . . and to bring the kitchen area
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