Rhode Island Superior Court

(R.I.Super. 11-15-2006) LLOYD EDEN and BERNADETTE EDEN v.
ROBERT TOTH, and IGOR RUNGE, in their official capacities
only as Members of the Zoning Board of Review of the Town
of South Kingstown No. WC-05-0163 State of Rhode Island,
Superior Court PROVIDENCE, S.C. Filed: November 15, 2006



Before this Court is an administrative appeal from a
decision by the Zoning Board of Review of the Town of South
Kingstown (hereinafter “Zoning Board”) voting unanimously
to deny a special use permit application for the property
located at 154 Post Road, South Kingstown, State of Rhode
Island. This property, containing 5.31 acres of land and
located in an R-40 Zoning District, is further designated
as Lot 26 on the Tax Assessors’ Plat 63-1 and is referred
to as Eden Manor (hereinafter “Property”). Hearings on this
application took place before the Zoning Board on January
19, 2005[fn1] and February 16, 2005.[fn2] Mr. and Mrs. Eden
(hereinafter “Petitioners”) currently operate a hotel on
said premises, in accordance with a special use permit
granted in 1997 to the previous owners, Roy and Rebecca
Fowler (hereinafter “Fowlers”). (Tr. 1 at 4.) The
Petitioners, in conjunction with seeking a three lot
subdivision of the Property, appeared before the Zoning
Board in accordance with § 200(E) of the Zoning
Ordinances for the Town of South Kingstown (hereinafter
“Ordinances”), to request a special use permit for
intensification of the special use permit previously granted
for the hotel operation. The Zoning Board voted unanimously
to deny said application and the Petitioners filed the
instant timely appeal. Jurisdiction of this appeal is
pursuant to G.L. 1956 § 45-24-69.

Facts and Travel

In 1996, the Town Council for the Town of South Kingstown
voted to change the zoning of this lot to R-40A, at the
Fowlers’ request, to permit their use of the Property as a
hotel. In 1997, the Zoning Board approved a special use
permit application permitting the Fowlers to rent fifteen
bedrooms in connection with their operation of a hotel on
said premises. (Tr. 1 at 4.) The testimony presented at the
hearings applicable to this matter indicated that the
Zoning Board approved the 1997 special use permit
application with the condition that said use strictly
conform to the site plan as it existed at that time;
specifically, that the hotel would operate on 5.31 acres of
land. (Tr. 1. at 8-9.) On May 10, 1999, this area returned
to its original zoning, R-40, thus prohibiting the
operation of any other hotel/motel; however, the continued
use of said Property as a hotel was permitted pursuant to
§ 907(C) of the Ordinances. (Tr. 1 at 9.)

The Petitioners, through a three lot subdivision
application in 2004, proposed to create two new residential
lots on the Property, which would ultimately decrease the
acreage of the lot that the hotel is located upon. Under
§ 200(E) of the Ordinances, an applicant seeking to
intensify an existing special use permit — for
example, by decreasing the size of the lot on which a
special use is located — must apply for a new special
use permit. (Tr. 1 at 9.) Although a subdivision is
permissible in an R-40 zone, the Zoning Board was faced
with the issue of the intensification of the special use by
placing the existing hotel on a 3.54 acre lot as compared
to its original 5.31 acre lot, and further whether such
change would “alter the general character of the
surrounding property or impair the intent or purpose of the
Zoning Ordinance or the Comprehensive Plan.” (Tr. 1 at
9-10.) While the Planning Board granted the Petitioners
preliminary minor subdivision approval, it recommended
denial of the special use permit.[fn3]

Several abutting landowners testified at the hearings and
the objections generally were that the character of the
neighborhood was already affected by the operation of the
hotel and that additional residential lots, constructed on
one-acre parcels, would further impact the area.
Furthermore, many of the abutters had been present when the
special use was initially approved, and their contention
was that the permit was granted on the condition that the
hotel would operate on 5.31 acres of land, in conformity
with the site plan.

The Petitioners presented three witnesses at the hearings
— Mr. Lloyd Eden, one of the Property’s owners; Mr.
Wes Grant, a professional engineer; and Mr. George
Daglieri, a licensed real estate broker and appraiser. Mr.
Grant and Mr. Daglieri were accepted as experts by the
Zoning Board. (Tr. 1 at 11, 25, 30.) Attorney James A.
Donnelly, in his representation of the abutters, presented
Mr. William McGovern, whom the Zoning Board accepted as an
expert real estate appraiser. (Tr. 2 at 17-19.)

Mr. Eden described the Property, specifically noting that
while the Edens’ have a one-hundred percent occupancy rate
during the weekends in July and August, there is minimal
drive-by traffic at the location because Eden Manor is
advertised through a B & B Association, which guests
utilize to inquire about the facility. (Tr. 1 at 15.) Mr.
Eden further testified that even if the subdivision were
approved, the existing residential-style lighting and
on-site parking would continue to accommodate the needs of
the hotel, which was recently renovated including
installation of a sprinkler system in conformance with the
current State fire codes. (Tr. 1 at 19.)

Mr. Grant testified regarding his familiarity with the
Property and his preparation of the site plan for the
subdivision application. He stated that the three lot
subdivision plan meets all the dimensional requirements
under the Ordinances, and from an engineering perspective,
he opined that a decrease in the size of the hotel’s lot
would not impact the Property. (Tr. 1 at 29.)

Mr. Daglieri discussed the existing condition of the
Property and the surrounding neighborhood, and he opined
that as long as the two new lots met the zoning
requirements, their creation will “do very little to change
the character of the area.” (Tr. 1 at 34.) Specifically
noting that although the majority of area lots are larger
than the proposed lots, a number of existing lots on Post
Road are one-acre in size. (Tr. 1 at 36-37.)

Mr. McGovern disagreed, stating that “we are now suggesting
an increase in density, a higher intensity of the use, and
as a result of that, I believe it’s going to upset the
character of that neighborhood.” (Tr. 2 at 24.) Viewing
these changes from a buyer’s perspective, Mr. McGovern
opined that such would negatively impact the marketability
of real estate in the neighborhood and would be
inconsistent with the goals and objectives of the Town’s
Comprehensive Plan.

The Zoning Board’s decision, dated and recorded in the
land evidence records on March 8, 2005, unanimously denied
the Petitioners’ special use permit application holding
that granting a special use permit would alter the
conformity of the lot with the previously approved site
plan, would be a more intense use of the lot, and would
alter the general character of the property and the
surrounding area. On appeal, the Petitioners urge this
Court to reverse the Zoning Board’s decision arguing that it
was clearly erroneous in light of the evidence of the whole
record and an abuse of the Board’s discretion.

Standard of Review

This Court’s statutory authority to review the decision of
a zoning board of review is prescribed in §
45-24-69(d) as follows:

“[T]he 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 the action of a zoning board of review, the
trial justice “must examine the entire record to determine
whether `substantial’ evidence exists to support the
board’s findings.” Salve Regina College v. Zoning Bd. of
Review of the City of Newport, 594 A.2d 878, 880 (R.I.
1991) (quoting DeStefano v. Zoning Bd. of Review, 122 R.I.
241, 245, 405 A.2d 1167, 1170 (1979)). “Substantial
evidence * * * means 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.” Lischio v. Zoning Bd. of Review
of the Town of N. Kingstown, 818 A.2d 685, 690 n. 5 (R.I.
2003) (quoting Caswell v. George Sherman Sand & Gravel
Co., 424 A.2d 646, 647 (R.I. 1981)). The “reasonableness”
of the zoning board’s action is assessed in terms of the
board’s reliance upon the evidence before it. Apostolou v.
Genovesi, 120 R.I. 501, 508, 388 A.2d 821, 824-25 (1978)
(citation omitted).


In granting a special use permit, the Zoning Board shall
require that evidence related to the standards outlined in
Section 907(A)(2) of the Town Ordinances be introduced by
the applicant.[fn4] The Zoning Board relied upon the
abutters’ testimony regarding the existing alteration to
the area, the Planning Board’s recommendation for denial,
and the fact that the original special use permit was
granted in strict conformity with the site plan. See Zoning
Board Notice of Decision, March 8, 2005.

While the probative force of lay testimony is limited, such
may be considered together with the other evidence before
the Board. See Thomson Methodist Church v. Zoning Bd. of
Review of the City of Pawtucket, 99 R.I. 675, 682, 210 A.2d
138, 142 (1965). However, lay testimony alone is not an
adequate basis for denying an application. Perron v. Zoning
Bd. of Review for the Town of Burrillville, 117 R.I. 571,
575, 369 A.2d 638, 641 (1977). A zoning board should not
deny a special use permit application “unless the standards
for its issuance are not satisfied with respect to a
particular site or location.” Id. (emphasis added.) If
there is any evidence of probative force in the record
which negates any of the conditions precedent set forth in
the Ordinances, this Court should affirm a board’s
decision. Thomson Methodist Church, 99 R.I. at 680, 210
A.2d at 141. This Court will not “substitute its judgment
for that of the zoning board of review as to the weight of
the evidence on questions of fact.” See §
45-24-69(d). Therefore, unless this Court finds that the
Zoning Board relied upon unreliable and insubstantial
evidence it cannot reverse the Board’s decision.

The initial special use permit that enabled this lot to be
used for hotel purposes was issued with the clear condition
and proviso that the development be “substantially in
conformance with the site plan submitted.” That site plan
located a bed and breakfast style hotel of no more than
fifteen rooms available for rent on a parcel of 5.31 acres.
The current proposal would result in a diminution of the
land supporting the existing hotel by 80,000 square feet,
or thirty four percent (34%). See Decision of Planning
Board, January 14, 2004. The opponents introduced the
testimony of William J. McGovern, an appraiser accepted as
an expert by the Zoning Board. He opined that the granting
of the Special Use Permit combined with a 3-lot minor
subdivision would intensify the land use at the subject
site that would alter the general character of the
surrounding area; therefore it would impair the intent and
purpose of the zoning ordinance and Comprehensive Plan of
the Town of South Kingstown. McGovern Report, Opponent’s
Exhibit 4; (Tr. 2 at 25-26). See Town Ordinance, Section

That opinion was echoed by the Planning Board which
recommended that the intensification requested in the
Special Use Permit Application be denied. See Decision of
Planning Board, January 14, 2004. The Zoning Board acted
within its discretion in considering the recommendation of
the Planning Board as it pertained to an intensification of
the special use. If the same size hotel was originally
approved for operation on a lot consisting of 5.31 acres,
and was proposed to operate on a lot thirty four percent
smaller, that by definition intensifies the use of the lot.
There was sufficient evidence in the record by way of the
McGovern report and testimony to support the Zoning Board’s
determination that this intensification would alter the
general character of the surrounding area and impair the
purpose of the Comprehensive Plan, thus justifying the
Zoning Board’s decision.


After review of the hearing record, this Court finds that
the Decision issued by the Zoning Board of Review, denying
the issuance of a special use permit, is supported by the
reliable, probative, and substantial evidence of the whole
record. Accordingly, this Court affirms the Decision of the
Zoning Board of Review.

[fn1] South Kingstown Zoning Board of Review, In Re:
Petition of Lloyd and Bernadette Eden, Transcript of
January 19, 2005 (hereinafter “Tr. 1”).

[fn2] South Kingstown Zoning Board of Review, In Re:
Petition of Lloyd and Bernadette Eden, Transcript of
February 16, 2005 (hereinafter “Tr. 2”).

[fn3] “The Planning Board’s action is based on the
following findings:

(1) The Special Use Permit granted by the Zoning Board of
Review in 1996 was specifically conditioned on the
development being `substantially in conformance with the
site plan submitted.’

(2) The South Kingstown Planning Board has granted
Preliminary Approval to the three lot minor subdivision
filed by the applicant. This results in the diminution of
land supporting the existing hotel by eighty thousand
(80,000) square-feet or thirty-four (34) percent of the
site on which the original Special Use Permit was
conditioned in 1996.

(3) The continued hotel use on AP 63-1, Lot 26 after the
approved minor subdivision is an overintensification of
use and inconsistent with the intent and the purpose of
the South Kingstown Zoning Ordinance as demonstrated by
#4, below.

(4) The continued hotel use of AP 63-1, Lot 26 after the
approved minor subdivision will not conform to dimensional
requirements of 501.9(E)(3) of the Zoning Ordinance.” (See
Planning Board Decision, RE: Preliminary Review, Eden
Manor, January 14, 2004.)

[fn4] The relevant factors to be satisfied under §
907(A)(2) are:

(a) that the special use is specifically authorized by
this Ordinance, and setting forth the exact subsection of
this Ordinance containing the jurisdictional

(b) that the special use meets all of the criteria set
forth in the subsection of this Ordinance authorizing such
special use; and

(c) that the granting of the special use permit will not
alter the general character of the surrounding area or
impair the intent or purpose of this Ordinance or the
Comprehensive Plan of the Town. In doing so, the Board
shall consider, whether or not satisfactory provisions and
arrangement have been or will be made concerning, but not
limited to the following matters, where applicable:

i. Ingress and egress to the lot and to existing or
proposed structures thereon with particular reference to
automotive and pedestrian safety and convenience, traffic
flow and control, and access in case of fire, emergency or

ii. Off-street parking and loading areas where required,
with particular attention to the items in (A) above, and
the noise, glare or odor effects of the special use permit
on adjoining lots;

iii. Trash, storage and delivery areas with particular
reference to the items in (i) and (ii) above;

iv. Utilities, with reference to locations, availability
and compatibility;

v. Screening and buffering with reference to type,
dimensions and character;

vi. Signs, if any, and exterior lighting with reference
to glare, traffic safety, and compatibility and harmony
with lots in the zoning district;

vii. Required yards and other open space;

viii. General compatibility with lots in the same or
abutting Zoning Districts.