Campbell v. Tiverton Zoning Bd.

• Decision Date: 25 March 2011
• Docket Number: Nos. 2010–45–Appeal,2010–46–Appeal.,s. 2010–45–Appeal
• Citation: 15 A.3d 1015
• Parties: David M. CAMPBELL et al.v.TIVERTON ZONING BOARD et al.
• Court: Rhode Island Supreme Court

15 A.3d 1015

David M. CAMPBELL et al.

v.TIVERTON ZONING BOARD et al.

Nos. 2010–45–Appeal

2010–46–Appeal.

Supreme Court of Rhode Island.

March 25, 2011.

David M. Campbell, Providence, Pro Se, Joseph J. Nicholson, Esq., Newport, for Plaintiffs.Peter D. Ruggiero, Kenneth R. Tremblay, Portsmouth, Turner C. Scott, Newport, for Defendants.Present: SUTTELL, C.J., GOLDBERG, ROBINSON, and INDEGLIA, JJ.

OPINION

Justice INDEGLIA, for the Court.

Nearly eight years ago, a fire destroyed the building facility of the Tiverton Yacht Club (TYC or defendant). The TYC subsequently, while the “embers were still smoldering,” began efforts to rebuild, which became protracted, but ultimately resulted in the grant of a building permit by the Town of Tiverton building official in 2006. However, this only fanned the flames of an existing and increasingly contentious relationship between the TYC and its neighbors to the north, David M. Campbell and Kathleen Campbell, and to the south, John H. Moran, Jr. and Eileen M. Moran (collectively, plaintiffs). The plaintiffs, who reside in homes abutting the site of the former and proposed location of the TYC clubhouse, filed an action for a declaratory judgment and injunctive relief in Newport County Superior Court on April 13, 2007, requesting that the court determine the extent to which “the expansion and intensification represented by the building plans and building permit represent[ed] a continued expansion and intensification of the TYC since it became a non-conforming use * * * in 1964.” ¹ They also requested the court to enjoin the Tiverton Zoning Board (TZB) from deciding the plaintiffs' appeals of the issuance of the building permit until further order of the trial court and to enjoin the rebuilding of the clubhouse pursuant to the building plans and issued permit.

The matter was heard before a justice of the Superior Court in a bench trial over several days in 2007. The trial justice found in favor of plaintiffs, holding that the issued building permit for the proposed clubhouse in a residential zone represented an unlawful expansion of the TYC's nonconforming use. She made a number of findings of fact to support this determination, but she also ruled that the record was incomplete concerning the impact of the TYC's marina across the street from the site of the proposed clubhouse. As a result, this matter again came before the trial justice on June 3, 2008, specifically to address the development of the marina. After a hearing, she held that because the marina did not exist in 1964 and operated “in tandem” with the TYC clubhouse, “such operations must be prohibited and declared to be an unlawful expansion of a nonconforming use.” The defendants appealed from the declaratory judgment delineating the extent and nature of the TYC's nonconforming use as it related to the issued building permit and its marina operations. Subsequently, the trial justice considered and denied the Campbells' motion for attorney's fees under Rhode Island's legislation entitled Equal Access to Justice for Small Businesses and Individuals, codified at G.L.1956 chapter 92 of title 42 (Equal Access to Justice Act or the act). The Campbells appealed from the order denying their motion.

While these appeals were pending, the Tiverton Town Council amended its zoning ordinance and map so that the TYC clubhouse lot no longer was the site of a nonconforming use. This consolidated appeal was heard before this Court on March 2, 2011. After careful consideration of the parties' written submissions to this Court as well as their oral arguments, we vacate the judgment of the Superior Court insofar as it prohibits the TYC from operating a marina and deny and dismiss the remainder of that appeal as moot. We affirm the judgment of the Superior Court denying the Campbells' motion for attorney's fees.

IFacts and Travel

The TYC was incorporated in 1945. It relocated from another area in the Town of Tiverton to 58 Riverside Drive and opened a clubhouse at that new location in 1956. When Tiverton adopted zoning in 1964, the TYC became a legal nonconforming use located in a residential (most recently, R–40) zoning district. The site of the former TYC clubhouse, a Victorian-style home, is abutted on Riverside Drive by plaintiffs' residences.

The TYC provides swimming and sailing lessons for members as well as racing and other social events. Across Riverside Drive on its west side is a lot also owned by the TYC (lot 30 or marina lot), currently located in a waterfront zoning district. This waterfront lot has a beach, once used for swimming, and a dock extending out into the Sakonnet River. By 1987, the TYC had added “four new floats” that were used as slips for about twelve boats for lease to club members only. At that time, the swimming activities relocated from the beach, when a pool was installed on the clubhouse lot, allowing the lot on the west side of Riverside Drive to be used exclusively as a marina.

After the fire destroyed its clubhouse in June 2003, the TYC endeavored to rebuild. Having revised a draft of proposed building plans several times, the TYC finally submitted a plan and application for a building permit to the Tiverton building official on or about April 28, 2006. The building official issued the building permit on or about December 1, 2006, which plaintiffs promptly appealed to the TZB.

While the matter was still pending before the TZB, plaintiffs filed a complaint for declaratory and injunctive relief in Newport County Superior Court on April 13, 2007. They contended that the building plans and permit “indicate[d] the expansion and intensification of a non-conforming use in a residential zone” and “the primary factual issues for determination in reviewing the issuance of the building permit involve the expansion of the TYC since its inception as a non-conforming use and the continued expansion represented by the building plans and building permit.” As specific instances of the intensification of the nonconforming use, they cited “the clubhouse footprint, the septic capacity, the addition of a marina, the addition of a swimming pool, the addition of interior space, an enlarged kitchen, an increased function capacity, an enlarged parking area and an intention to go from seasonal use to year-round use.” For relief, they requested that the court enjoin the TZB from proceeding to hear and decide the pending building-permit appeal until further order because they submitted that the TZB lacked the statutory authority to decide the appeal. Additionally, plaintiffs sought a declaratory judgment “that the building plans and building permit represent an unlawful expansion of a preexisting legal, non-conforming use,” and they also sought an injunction against the rebuilding of the TYC clubhouse “as contemplated by the building plans and building permit.”

The plaintiff's complaint was heard before a justice of the Superior Court in a bench trial on May 8, 9, 15, and 18, 2007. At the trial, both parties called several witnesses to support their respective positions about the extent of the TYC's legal nonconforming use and the alleged expansion and intensification of this use as reflected in its building plans and the issued building permit. The testimony both recounted the history of the TYC and addressed the technical aspects of its proposed rebuild of the clubhouse.

On August 28, 2007, the trial justice issued a decision. She found that “[a] conversion of the clubhouse from seasonal to consistent daily, year-round use is clearly impermissible.” The trial justice also found that the increased “linear extent of the building” represented “an illegal structure.” Additionally, she ruled that, because the record did not contain any evidence “to support a finding that parking occurred and/or was permitted behind the [c]lubhouse * * * the proposed lot in that area is, incontrovertibly, an impermissible expansion of a nonconforming use.” Finally, she denied defendants' “motion to dismiss on the grounds of jurisdiction, justiciability, and standing.”

An order was entered on November 30, 2007. The order specifically decreed that “[t]he [b]uilding permit issued to the [TYC] * * * and the attendant building plans, if executed, would produce an impermissible and unlawful extension and/or enlargement of a non-conforming use” as would the proposed septic system, “requiring additional zoning relief.” The order prohibited “conversion of the clubhouse from seasonal to consistent daily, year-round use” and restricted its off-season use “to the monthly holiday/harvest/spring social gatherings.” Additionally, the order declared that “[a]ny construction of a clubhouse beyond its original footprint (defined as the exterior perimeter of the foundation) or containing additional interior space would constitute an illegal structure.” The trial justice also ordered a further hearing “to determine the extent of the marina use the [TYC] [was] entitled to.”

In accordance with the order, a hearing to address the insufficient evidence about the “slips and moorings that the [TYC] had when it became a non-conforming use” was held before the trial justice on June 3, 2008. In a written decision filed on April 24, 2009, the trial justice concluded that “the evidence clearly demonstrate[d] that the marina activities [were] intended to coalesce with the operation of the clubhouse.” She also found that the record “regarding the pivotal year of 1964 * * * [was] completely devoid of any evidence probative of marina activities taking place in conjunction with the operation of the [TYC] premises.” Therefore, the trial justice concluded that “a tandem marina/clubhouse operation is contrary to the applicable law regarding non-conforming uses and must be disallowed.” An order was entered on May 26, 2009, declaring that the marina “was an unlawful expansion of a nonconforming use” and “must be prohibited” because such operations did not exist when the...