Bernuth v. Zoning Bd. of Review

• Decision Date: 17 April 2001
• Docket Number: No. 99-567-M.P.,99-567-M.P.
• Citation: 770 A.2d 396
• Parties: Carl von Bernuth et al. v. Zoning Board of Review of the Town of New Shoreham et al.
• Court: Rhode Island Supreme Court

770 A.2d 396

Carl von Bernuth et al. v. Zoning Board of Review of the Town of New Shoreham et al.

No. 99-567-M.P.

Supreme Court of Rhode Island.

April 17, 2001.

Present: WILLIAMS, C.J., LEDERBERG, BOURCIER, FLANDERS and GOLDBERG, JJ.

Neal James McNamra, Providence, for Plaintiff.

Willaim Landry, Donald J. Packer, Mark A. Pogue, Providence, for Defendant.

OPINION

LEDERBERG, Justice.

This case came before the Supreme Court on the petition for certiorari brought by Carl and Dawn von Bernuth (Petitioners) to review a judgment of the Superior Court affirming variances in lot-size and setback restrictions that benefited neighboring landowners. The Zoning Board of Review of the Town of New Shoreham (the zoning board) granted a dimensional variance that relieved Bernadette Ryan-Kelly and William Kelly (the Kellys) and Susan Coffin (Coffin) (also the applicants) from these restrictions. The petitioners argued that the zoning board erred in deciding that the hardship suffered by the applicants was such that no reasonable alternative for a legally-permitted use of their property could be enjoyed unless the dimensional variances were granted. We agree with the petitioners.

Facts and Procedural History

At the center of this controversy are two adjacent lots, numbered 5 and 8 in a "Residential A zone" in New Shoreham, Rhode Island.¹ Lot No. 5 is currently in a condominium form of ownership, a condition created by the Kellys in 1994 or 1995. There are two buildings on lot No. 5, unit 1, owned by the Kellys, and unit 2, purchased by Coffin in 1996. Unit 2 is apparently an "accessory structure," which is defined in the Town of New Shoreham Zoning Ordinance (the zoning ordinance) as "[a] structure which is customarily incidental and subordinate to the principle structure."² Lot No. 5 is bounded to the west by the Atlantic Ocean, to the east by lot No. 8, and to the south by lot No. 6, which is owned by petitioners. Coffin did not participate in either the creation of the condominium form of ownership of lot No. 5 or in the construction of unit 2. At some point after she purchased unit 2, Coffin purchased lot No. 8, which is undeveloped and is bounded to the north and east by Franklin Swamp.

The zoning ordinance requires minimum lot sizes of 120,000 square feet and setbacks of fifty feet for lots zoned RA.³ Lot No. 5, which predates the zoning ordinance, contains only 108,028.80 square feet (2,48 acres), and therefore is nonconforming with respect to lot size. Unit 2 is set back forty feet from the boundary between lot Nos. 5 and 6, and there is virtually no setback between unit 2 and the boundary between lot Nos. 5 and 8, thereby resulting in nonconforming setbacks of unit 2, although unit 1 meets all such requirements. Lot No. 8 contains 139,392 square feet (3.2 acres) and therefore is a conforming lot size.

In 1997, the Kellys and Coffin jointly submitted an administrative subdivision application to the Planning Board of the Town of New Shoreham (planning board). The applicants sought to relocate the boundary line between lot Nos. 5 and 8 to the west so that unit 2 would by wholly on lot No. 8, to construct an addition that would transform unit 2 into a dwelling unit,⁴ and to dissolve the condominium form of ownership of lot No. 5, leaving the Kellys the sole owners of lot No. 5. The original plan as proposed would have complied with lot-size requirements, but that plan was rejected by the planning board, which recommended that the applicants move the lot line to coincide with a existing stone wall that lies between the units. The applicants agreed to the recommendation, and the planning board approved the application by a decision letter dated January 21, 1998, subject to certain conditions, including approval of the required variances by the zoning board.⁵ Though the amended plan increased the area of lot No. 8 to 165,737.81 square feet (3.8 acres), it decreased the area of lot No. 5 to 81,758.14 square feet (1.88 acres), thereby intensifying the nonconformity of that lot. The resulting setback of unit 1 from the common boundary between lot Nos. 5 and 8 would be approximately twenty-nine feet, and that of unit 2, approximately thirty-seven feet. The applicants applied to the zoning board for a dimensional variance relieving them from the setback and lot-size restrictions of § 306 of the zoning ordinance.

The application was heard by the zoning board in February 1998. Coffin was represented by counsel and presented evidence, including the testimony of architect David Coffin, Susan's husband, who described the area and the subdivision plan. Dawn von Bernuth, an attorney, appeared at the hearing, objected to the plan, and cross-examined Mr. Coffin. The hearing was "held open" for briefs from the parties and for the submission of any further information deemed necessary.⁶

In may 1998, the zoning board's two-page decision letter "grant[ed] the Application for a Variance from Section 306(C)" and included several "findings of fact" and certain conditions on the approval.⁷ Pursuant to G.L.1956 § 45-24-69, petitioners timely appealed to the Superior Court which affirmed the relief granted by the zoning board in December 1999.⁸ The petitioners then sought certiorari by this Court, and we issued the writ.

On appeal, petitioners made essentially three arguments in support of their position that the decision of the zoning board was defective: first, no legally competent evidence existed in support of the position that the applicants had no reasonable alternative for the enjoyment of the permitted use of the lots without the relief sought and that the board's decision failed to address that statutory requirement; second, the zoning board's decision did not address the deviation in lot size; and third, the Kellys did not submit any evidence in support of the joint application.

Standard of Review

Section 45-24-69 grants the Superior Court jurisdiction to review a zoning board's grant of an application for a variance, providing in pertinent part:

"(d) 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 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 stature or ordinance;

* * *

(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."

"This [C]ourt does not weigh the evidence; instead we review the record to determine whether substantial evidence existed to support the Superior Court justice's decision." OK Properties v. Zoning Board of Review of Warwick, 601 A.2d 953, 955 (R.I.1992). "We do not reverse a Superior Court justice's decision unless it can be shown that the justice `misapplied the law, misconceived or overlooked material evidence, or made findings that were clearly wrong.'" Id.

Evidence of Hardship

The petitioners first argued that the zoning board did not have before it any legally competent evidence that the applicants had no reasonable alternative to the enjoyment of the permitted use of lot Nos. 5 and 8 absent the relief sought, a condition required by § 45-24-41(d)(2) and § 706 E.2 of the zoning ordinance. The petitioners proposed that one reasonable alternative to the requested relief would be building an entire new house on lot No. 8, rather than expanding the existing unit 2 on a reconfigured lot No. 5.

The applicants contended that "given the close proximity of existing structures, the combined area of lot No. 5 and lot No. 8, the location of the stone walls, and the proximity of swamps and wetlands, the [applicants] would have no reasonable alternative to enjoy the legally permitted use of the two lots, to wit, to accommodate two single family dwelling units, without the relief requested."

Both parties cited numerous cases of dimensional and use variances in support of their positions. All of those cases, however, were decided prior to the 1991 amendment (P.L.1991, ch. 307, § 1)to the zoning enabling legislation. The 1991 legislation established a new statutory requirement for obtaining a dimensional variance that "effectively sounded the death knell for the old Viti doctrine that had allowed a property owner to obtain a dimensional variance simply by demonstrating an adverse impact amounting to more than a mere inconvenience." Sciacca v. Caruso, 769 A.2d 578, 583 (R.I.2001). Therefore, the cases cited by the parties "as they relate to the burden of proof required to authorize the granting of a demensional variance, have been superseded now by the 1991 amendment." Id.

The requirements for obtaining a dimensional variance are listed in § 45-24-41(c) and (d) and the analogous provisions of the zoning ordinance, § 706 D. E. Most pertinent in this case is § 45-24-41 (d)(2), which contains one of the requirements for obtaining a demensional variance and which has substantially the same language as § 706 E.2 of the zoning ordinance. Section 45-24-41(d)(2) provides in relevant part:

"The zoning board of review shall, in addition to the above standards [enumerated in subsection (c)], require that evidence is entered into the record of the proceedings showing that: * * * (2) in granting a dimensional variance, that the hardship suffered by the owner of the subject property if the dimensional variance is not granted amounts to more than a mere inconvenience, which means that there is no other reasonable alternative to enjoy a legally permitted beneficial use of one's...