The applicant’s attorney is putting on his case for a special-use permit. The proposed use is contentious: a funeral home in a residential district. The neighbors are out in force, but the applicant has a secret weapon. Two of them, in fact: a real estate expert and a traffic expert.

What the applicant’s attorney knows, and the neighbors probably do not, is that all their earnest and perhaps emotional testimony about reduced property values and traffic congestion is just “sound and fury, signifying nothing.”1 If the experts testify that the funeral home will have no adverse impact on the neighborhood – and you can bet their generous fees that they will – it is very unlikely that the board can lawfully turn down the application.2

The reason for this is a firm rule of evidence followed by the Rhode Island Supreme Court in zoning cases for more than four decades. As the court has explained it:

We have uniformly held since 1965 that the lay judgments of neighboring property owners on the issue of the effect of the proposed use on neighborhood property values and traffic conditions have no probative force in respect of an application to the zoning board of review for a special exception.3

“No probative force” is lawyer-speak for worthless. The basic reason why non-experts cannot testify about property values and traffic conditions is because by their very nature those matters are, in the eyes of the law, too complex for lay judgments. They involve more than just stating facts (which lay persons can do) – they call for an opinion or judgment based on underlying facts. And because of their training and experience, experts are more likely to be able to give sound opinions about the subject of their expertise.4

At least, that’s the theory of the law. And that’s why so many zoning cases turn on the availability of expert testimony. With well-heeled objectors, experts are countered with opposing experts, so there is probably no great harm done. Although the invariable slant of their testimony – the applicant’s experts always find the project compatible if not beneficial to the neighborhood, while the defendant’s experts always see the neighborhood being ruined or at least going down hill if the project is approved – may raise doubts about their objectivity, the zoning board at least has differing opinions to choose from.

Not so when the applicant has money to hire experts and the objectors do not, which is often the case.5 Whatever the merits of the objections, the zoning board’s hands are tied. They must listen to the experts, and cannot rely on lay testimony, on crucial aspects of the petition.6

However, there is a way to loose the hands of the zoning board members, so that even when only one side has expert testimony the board may, if justified by the circumstances, rule against the experts and deny the application for development.

Here’s how board members can do it: Take a break, continue the matter for another hearing, and in the meantime drive out to the location of the proposed development.7 Take careful, detailed notes of everything you see that is relevant, including the date and time of the inspection; for example, the types and sizes and number and condition of buildings in the immediate vicinity, the number of parking spaces and how many were empty, the location of traffic signals, whether traffic was moving freely or backed up, and so on. Then come back when the hearing on that application is reconvened and, relying on your notes, tell what you learned from your visit.

Can zoning board members really do this? Absolutely! 8 The Rhode Island Supreme Court has approved it in many cases,9 even as the basis for a minority 2-3 decision against a proposed development. 10 Here is an example of the kind of observations by zoning board members that may properly undergird their decision:

The record before us discloses that prior to the hearing on the instant application the board made an inspection of the tract and noted that it consisted of “vacant, undeveloped and filled land …” and was bounded on the west by a stream and a superhighway. It further observed that on the south the tract is bounded by or is adjacent to property zoned for commercial and industrial uses, while on the easterly side of Charles street there are some residential properties which are in an R-3 general residence zone. Directly to the north of the tract, the board noted, is located a public school. 11

In fact, the Court has gone beyond allowing zoning board members to gain evidence by inspecting the subject property – it has also allowed board members to use their own knowledge of the area, apart from any specific visit, as a basis for their decision on a zoning application. 12 In fact, many cases mention approvingly that zoning board members relied on both knowledge acquired by inspections and their own knowledge.13 The law says that a zoning board is presumed to possess special knowledge with respect to matters peculiarly related to the administration of the zoning ordinance,14 and more particularly concerning local conditions and needs as they relate to zoning.15 In one case, for example, the Court said

This is not to say, however, that affirmative relief must necessarily be granted where an applicant for a special exception has made out a prima facie case and remonstrants fail to appear, or, appearing, fail to offer competent evidence. The board may take into consideration probative factors within their knowledge in denying the relief sought and their decision will not be disturbed if disclosed therein are the conditions by which they were motivated.16

Thus it has been held that a board of review may rely solely on its own knowledge of traffic conditions at the location in denying a special exception for the establishment of a gasoline service station near a busy intersection.17 Personal knowledge or inspection by board members has been held especially useful in deciding on the extension of a nonconforming use.18 The personal knowledge of board members has even been held to outweigh the contrary testimony of expert witnesses.19

However, a zoning board’s presumed expertise only goes so far. It does not extend to such matters as the cost of construction of a building, the cost of preparation of site for building, or the suitability of particular construction methods, even though these relate to the use of land.20

Furthermore, the knowledge of board members, whether acquired from living in the community or inspecting the site, can be relied upon only if an important condition is met: it must be disclosed in the public hearing and recorded as part of the proceedings.21 Not only must such members state that they are relying on their own knowledge; they must also explain the “underlying facts or circumstances” derived from that knowledge.22 It is not enough for a board member to say that he or she is familiar with the area, or inspected the site.23 The board cannot rely on secret knowledge possessed by its members.24

Two cases illustrate the requirement of full disclosure on the record. In one, the zoning board rejected a funeral home in a residential district, stating that it had “viewed the premises and agreed with the remonstrants that if the premises were used for a Funeral Home it wou ld create a traffic hazard as the plans submitted do not provide enough area on front and southerly side for off street auto use.” 25 The reviewing court held, however, that the board’s inspection of the premises “did not have the effect of providing legally competent evidence” because it the board did not disclose in the record the conditions and circumstances it observed and upon which it rested its decision.26

In another case, however, the Supreme Court upheld a zoning board decision based in part upon an inspection by board members where the board said it had viewed the lots in question and the immediate surroundings and expressly noted “the residential character of Sunset Terrace, the spotty residential development on the easterly side of Mill street, the undeveloped character of the westerly side of Mill street, and the applicant’s need for parking facilities in connection with its business.” 27

In short, what zoning board members must do in order to lawfully bring their own knowledge to bear upon a petition for zoning relief is disclose two things during the public hearing. First, they should describe when and where and how they acquired their knowledge; for example, “I grew up in that neighborhood” or “On June 23 of this year, at about 4:00 p.m., I spent an hour walking through that neighborhood and taking notes.”

Second, they should state, in detail, the facts they are relying on in making their decision. 28 For example, in a case involving a proposed subdivision of a tract of land with drainage problems, the Supreme Court quoted approvingly the following testimony by a city council member 29 who disclosed that he had walked the neighborhood in the past and familiarized himself with the problems of the residents:

I have seen it with my own eyes. They get up during the middle of the night. They open their doors. They see children’s toys floating around their cellars. They have the tiles in the basement floor lifted up. They have their rugs curled. They have furniture in and around the area destroyed. Is there a guarantee the city council will give them by approving this subdivision here tonight that those concerns and fears of the neighborhood would be taken care of, I don’t think so. 30

Finally, a few words of caution. This article describes a valid and perhaps under-used method of providing a solid evidentiary foundation for zoning board decisions apart from expert testimony. But there are temptations to avoid. Needless to say, observations of board members should be scrupulously accurate and impartial. 31 It is not the zoning board’s job to build a case for or against a proposal for zoning relief. 32 Nor should board members spring their knowledge as a surprise at the end of the hearing, with no opportunity for rebuttal. 33

But zoning board members who honestly and openly state their knowledge of relevant circumstances on the record, and explain the conclusions they derive from that knowledge, are well within their rights and may even, in some cases, help prevent injustice that might otherwise result from unopposed expert testimony.

FOOTNOTES:

1. Borrowed from William Shakespeare’s Macbeth, Act V, Scene V.  (back to text)
2. Dawson v. Zoning Bd. of Review of Cumberland, 97 R.I.299, 197 A.2d 284 (1964) (board abused discretion in denying special exception to permit funeral home in residential district where realtor testified proposed use would not diminish substantially value of surrounding properties and there was no competent testimonial evidence concerning creation of traffic hazards). See also Goldstein v. Zoning Bd. of Review of Warwick, 101 R.I. 728, 227 A.2d 195 (1967) (denial of special exception was arbitrary and abuse of discretion where testimony by applicant’s experts on property values and traffic was opposed only by testimony of lay witnesses).  (back to text)
3. Toohey v. Kilday, 415 A.2d 732, 737 (R.I. 1980), citing Smith v. Zoning Board of Review of Warwick, 103 R.I. 328, 334, 237 A.2d 551, 554 (1968). See also Goldstein v. Zoning Bd. of Review of Warwick, 101 R.I. 728, 733, 227 A.2d 195 (1967) (testimony by nonexpert witnesses that erection of gasoline station would depreciate neighborhood property and that increasing flow of traffic would result in such congestion as to be hazard are lay judgments, lacking in expertise and therefore without probative force).  (back to text)
4. See, e.g., Our Lady of Mercy, Greenwich, R.I. v. Zoning Bd. of East Greenwich, 102 R.I. 269, 229 A.2d 854 (1967) (testimony of laymen that special exception would increase traffic hazards and decrease value of neighboring property lacked expertise required to make such opinions competent evidence).  (back to text)
5. Often, but not always. There are cases in which only the objectors produce an expert witness. See Noyes v. Zoning Bd. of Review of Providence, 95 R.I. 201, 186 A.2d 70 (1962).  (back to text)
6. Of course, this assumes that disputed issues really are too complex for lay testimony, or that board members are not able to draw inferences from factual testimony by law witnesses. For example, the “actual observed effects of prior residential construction,” like “the presence of water in one’s basement,” may be the subject of lay testimony. Restivo v. Lynch, 707 A.2d 663, 671 (R.I. 1998).  (back to text)
7. However, do not go with more than one other board member, because that might constitute a “meeting” requiring notice to the public under the Open Meetings Law. See R.I.G.L. § 42-46-2(c).  (back to text)
8. In Restivo v. Lynch, 707 A.2d 663 (R.I. 1998) the court said “there is no talismanic significance to expert testimony … [i]t may be accepted or rejected by the trier of fact.” The majority in Restivo expressly rejected a much narrower view of the validity of lay testimony expressed by the dissenting justice, who characterized it as “unfounded anecdotal statements” and “anecdotal fluff.” Id. at 674.  (back to text)
9. See, e.g., Goldstein v. Zoning Bd. of Review of Warwick, 101 R.I. 728, 733, 227 A.2d 195 (1967) (stating that if they possess no personal knowledge of area, board members may subsequently acquire it by “taking a view and relating their resulting observations to the evidence adduced by the applicant in the reasons for their decision”); Coderre v. Zoning Bd. of Review of Pawtucket, 105 R.I. 266, 251 A.2d 397 (1969) (noting three times in four-page opinion that board’s decision was based on its inspection of area); Toohey v. Kilday, 415 A.2d 732, 737 (R.I. 1980) (board may acquire adequate knowledge for decision through observation and inspection).  (back to text)
10. Noyes v. Zoning Bd. of Review of Providence, 95 R.I. 201, 186 A.2d 70 (1962) (decision of minority, based at least in part on knowledge acquired by their own observations of property and neighborhood, constituted competent evidence sufficient to sustain decision); Schofield v. Zoning Bd. of Review, 99 R.I. 204, 206 A.2d 524 (1965) (since two members voting against relief based their decision on disclosed knowledge acquired by observation of premises and by expertise imputed to them as members of board of review, their minority decision was supported by legally competent evidence).  (back to text)
11. Charles Land Co. v. Zoning Bd. of Review of Providence, 99 R.I. 161, 164-65, 206 A.2d 453 (1965).  (back to text)
12. Smith v. Zoning Bd. of Review of Warwick, 103 R.I. 328, 237 A.2d 551 (1968) (zoning board that gave sufficient reasons for expressly rejecting testimony of experts acted properly in basing its decision denying special exception on its own knowledge of area); Toohey v. Kilday, 415 A.2d 732, 737 (R.I. 1980) (board may consider probative factors within its knowledge in denying relief sought).  (back to text)
13. See, e.g., Fiske v. Zoning Bd. of East Providence, 72 R.I. 217, 50 A.2d 65, rehearing den. 72 R.I. 229, 50 A.2d 779 (1946); Zimarino v. Zoning Board of Review of Providence, 95 R.I. 383, 187 A.2d 259.  (back to text)
14. Monforte v. Zoning Bd. of Review of East Providence, 93 R.I. 447, 176 A.2d 726 (1962); Noyes v. Zoning Bd. of Review of Providence, 95 R.I. 201, 186 A.2d 70 (1962) (relevant knowledge and information is presumed to be possessed by board “by reason of the character of their function”); Pettine v. Zoning Bd. of Providence, 96 R.I. 404, 192 A.2d 433 (1963); Braun v. Zoning Bd. of Review of South Kingstown, 99 R.I. 105, 206 A.2d 96 (1965) (recognizing presumption that board of review has expert knowledge “in all matters involving the administration of the zoning ordinance”); Melucci v. Zoning Bd. of City of Pawtucket, 101 R.I. 649, 226 A.2d 416 (1967) (competent evidence includes not only information acquired by inspections but also that knowledge which is presumed to be possessed by zoning board members in administration of ordinance).  (back to text)
15. Perrier v. Bd. of Appeals of Pawtucket, 86 R.I. 138, 134 A.2d 141 (1957) (board members may act “upon their knowledge of the character of the district”); Smith v. Zoning Bd. of Review of Warwick, 103 R.I. 328, 237 A.2d 551 (1968); Coderre v. Zoning Bd. of Review of Pawtucket, 105 R.I. 266, 251 A.2d 397 (1969); DeStefano v. Zoning Bd. of Review, 122 R.I. 241, 405 A.2d 1167 (1979), citing Kelly v. Zoning Bd. of Review, 94 R.I. 298, 303-04, 180 A.2d 319, 322 (1962).  (back to text)
16. Goldstein v. Zoning Bd. of Review of Warwick, 101 R.I. 728, 733, 227 A.2d 195 (1967). See also Heffernan v. Zoning Bd. of Review of Cranston, 50 R.I. 26, 144 A. 674 (1929) (board may consider matters well known to its members which bear upon local situation, even though not presented in evidence at hearing).  (back to text)
17. Monforte v. Zoning Bd. of Review of East Providence, 93 R.I. 447, 176 A.2d 726 (1962) (court need not pass on question whether finding of resultant traffic congestion was supported by legal evidence since it was “abundantly clear that the board reached its decision and its findings in reliance upon its own knowledge as to the highway pattern existing in the vicinity of petitioner’s property and the volume of traffic using those highways”).  (back to text)
18. Drabble v. Zoning Bd. of Review, 52 R.I. 228, 159 A.2d 828 (1932) (stating that cases involving expansion of nonconforming use often present “numerous elements to be considered which can only be understood from a thorough knowledge of the surrounding property, its nature and use”); Fiske v. Zoning Bd. of East Providence, 72 R.I. 217, 50 A.2d 65, rehearing den. 72 R.I. 229, 50 A.2d 779 (1946) (noting that board was composed of residents of town of East Providence who were familiar with local conditions and needs and had inspected premises and viewed neighborhood before rejecting expansion of nonconforming use).  (back to text)
19. See Smith v. Zoning Bd. of Review of Warwick, 103 R.I. 328, 237 A.2d 551 (1968) (upholding board’s decision expressly rejecting testimony of expert real estate witness that gasoline service station use would not adversely affect surrounding residential properties and would be in harmony with character of neighborhood, and testimony of traffic expert that visibility in all directions was more than adequate). For further discussion of the use of expert and lay testimony in zoning proceedings, see Roland F. Chase, Rhode Island Zoning Handbook, 2nd Ed. (1996), §§ 106, 107.  (back to text)
20. Bonitati Bros., Inc. v. Zoning Bd. of Review of Cranston, 99 R.I. 49, 205 A.2d 363 (1964) (board could not use its own knowledge to refute uncontradicted and unimpeached testimony of expert witnesses that cost of developing land was prohibitive). Cf. Restivo v. Lynch, 707 A.2d 663, 771 (R.I. 1998) (lay testimony about presence of water in one’s basement and other actual observed effects of prior residential construction was competent evidence countering expert testimony).  (back to text)
21. Bloch v. Zoning Bd. of Review of Cranston, 94 R.I. 419, 181 A.2d 228 (1962) (board had right to view area at any time prior to its decision and to consider what it saw, so long as its decision disclosed knowledge gained therefrom); Center Realty Corp. v. Zoning Bd. of Review of Warwick, 96 R.I. 76, 84, 189 A.2d 347 (1963) (board’s opinions based on inspection constitute competent evidence upon which its decision may rest when it is disclosed in record; Toohey v. Kilday, 415 A.2d 732, 737 (R.I. 1980) (reversing decision where board did not disclose particular evidence upon which it relied but merely stated that it was “well familiar with the area in question and knows of its character”).  (back to text)
22. See DeStefano v. Zoning Bd. of Review, 122 R.I. 241, 405 A.2d 1167 (1979) (decision relying upon board members’ special knowledge will not be upheld unless record reveals “underlying facts or circumstances) board derived from its knowledge); Restivo v. Lynch, 707 A.2d 663 (R.I. 1998) (evidence gleaned from the personal observations of zoning board members constituted “legally competent evidence upon which a finding may rest … if the record discloses the nature and character of the observations upon which the board acted”), citing Perron v. Zoning Board of Review of Burrillville, 117 R.I. 571, 576, 369 A.2d 638, 641 (1977). Compare Sciacca v. Caruso, 769 A.2d 578 (R.I. 2001) (board member’s observation that he was moving to grant petition because of his familiarity with “very nice neighborhood” where petitioner lived, adding that “I have been through there several times,” provided no evidentiary support for grant of dimensional variance because record failed to reveal facts underlying his observation).  (back to text)
23. Anderson v. Zoning Bd. of Review of Warwick, 100 R.I. 766, 219 A.2d 484 (1966) (board’s statement that it had inspected premises treated as “mere surplusage” since record did not disclose conditions or circumstances observed by board); Melucci v. Zoning Bd. of City of Pawtucket, 101 R.I. 649, 226 A.2d 416 (1967) (fact that board states it has taken view means nothing unless what it observed on its view is made part of record).  (back to text)
24. Heffernan v. Zoning Bd. of Review of Cranston, 50 R.I. 26, 144 A. 674 (1929), (noting that “the board did not act upon secret information, nor upon anything in the local situation which was not open to the observation of all”).  (back to text)
25. Dawson v. Zoning Bd. of Review of Cumberland, 97 R.I.299, 301, 197 A.2d 284 (1964).  (back to text)
26. Id.  (back to text)
27. Bloch v. Zoning Bd. of Review of Cranston, 94 R.I. 419, 181 A.2d 228 (1962).  (back to text)
28. See Coderre v. Zoning Bd. of Review of Pawtucket, 105 R.I. 266, 251 A.2d 397 (1969) (upholding variance based in part on visit to site, where board’s decision contained “a detailed report of its observations”).  (back to text)
29. The East Providence City Council was acting as the city’s plan commission under former R.I.G.L. § 445-23-19. Restivo v. Lynch, 707 A.2d 663, 665 (R.I. 1998). By citing zoning cases to support its statements about the validity of testimony of council members, the court made clear that the same evidentiary rules apply to zoning and subdivision cases regardless of the forum.  (back to text)
30. Restivo v. Lynch, 707 A.2d 663, 667 (R.I. 1998).  (back to text)
31. Hassell v. Zoning Bd. of Review of East Providence, 108 R.I. 349, 275 A.2d 646 (1971) (zoning board is not partisan and it has no interest, personal or official, in matters which come before it other than to decide them according to law and proved fact). See also Lamothe v. Zoning Bd. of Town of Cumberland, 81 R.I. 96, 98 A.2d 918 (1953) (invalidating board’s decision that included statement that it would never grant variance at any time in future to allow poultry farm in residential district, which court said “clearly indicates an arbitrary prejudgment of the status and rights of the petitioners”); Barbara Realty Co. v. Zoning Bd. of Cranston, 85 R.I. 152, 128 A.2d 342 (1957) (reversing zoning board decision authorizing motor lodge in residential district based on member’s prior comments to objectors that “we are going to shove it down your throats anyway”).  (back to text)
32. Justice Robert G. Flanders, dissenting in Restivo v. Lynch, 707 A.2d 663 (R.I. 1998), expressed his fears that allowing lay witnesses and members of the permitting authority to testify against subdivision applications will “all too easily be converted into an impermeable cloak to cover confiscatory regulatory takings, official pandering to neighbors’ antidevelopment biases, political shenanigans, and other such local governmental capriciousness ….” Id. at 673.  (back to text)
33. See Heffernan v. Zoning Bd. of Review of Cranston, 50 R.I. 26, 144 A. 674 (1929) (although zoning board is warranted in taking view of locality and in considering matters well known to its members, it is bound to act without prejudice and it should not act upon matters affecting applicant’s interests which are not well known and apparent without giving applicant opportunity to be heard thereon). See also Bloch v. Zoning Bd. of Review of Cranston, 94 R.I. 419, 181 A.2d 228 (1962) (noting that nothing in record indicated that objectors were unlawfully prejudiced by board’s taking view of area or that board unlawfully had withheld anything pertaining thereto from them).  (back to text)