56 RI Bar J., No. 5, Pg. 17. Zoning Boards: Balancing Expert Testimony with Personal Knowledge.

• Author: Roland F. Chase, Esq.

Rhode Island Bar Journal

Volume 56.

56 RI Bar J., No. 5, Pg. 17.

Zoning Boards: Balancing Expert Testimony with Personal Knowledge

Rhode Island Bar JournalMarch/April 2008 Volume 56, No. 5, Pg. 17Zoning Boards: Balancing Expert Testimony with Personal KnowledgeRoland F. Chase, Esq.Of counsel to Miller Scott & Holbrook in Newport, and the author of the

Rhode Island Zoning Handbook (Second Edition)

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. (fn1) 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. (fn2)

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. (fn3)

"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. (fn4)

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. (fn5) 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. (fn6)

However, there is a way to loosen 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. (fn7) 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! (fn8) The Rhode Island Supreme Court has approved it in many cases, (fn9) even as the basis for a minority 2-3 decision against a proposed development. (fn10) Here is an example of the kind of observations by zoning board members that may properly under gird 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. (fn11)

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. (fn12) In fact, many cases mention approvingly that zoning board members relied on both knowledge acquired by inspections and their own knowledge. (fn13) 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, (fn14) and more particularly concerning local conditions and needs as they relate to zoning. (fn15) 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...