Murphy v. Zoning Bd. of Review

• Decision Date: 18 November 2008
• Docket Number: No. 2007-51-M.P.,2007-51-M.P.
• Citation: 959 A.2d 535
• Parties: Joseph T. MURPHY et al. v. The ZONING BOARD OF REVIEW OF the TOWN OF SOUTH KINGSTOWN et al.
• Court: Rhode Island Supreme Court

959 A.2d 535

Joseph T. MURPHY et al. v. The ZONING BOARD OF REVIEW OF the TOWN OF SOUTH KINGSTOWN et al.

No. 2007-51-M.P.

Supreme Court of Rhode Island.

November 18, 2008.

Karen R. Ellsworth, for Plaintiff.

Archibald B. Kenyon, Wakefield, for Defendant.

Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.

OPINION

Justice ROBINSON for the Court.

This case came before the Supreme Court on the petition for certiorari filed by Edward and Teresa Timpson seeking review of a Superior Court judgment that reversed a decision of the Zoning Board of Review of the Town of South Kingstown and ruled that the Timpsons' lot fronting Ministerial Road in South Kingstown is an illegal nonconforming lot under the zoning ordinance and subdivision regulations of the Town of South Kingstown.

This case came before the Supreme Court for oral argument on September 23, 2008 pursuant to an order directing the parties to show cause as to why the issues raised in this petition should not be summarily decided. After hearing the arguments of counsel and examining the record and the memoranda filed by the parties, we are of the opinion that cause has not been shown. Because we hold that the Timpsons' Ministerial Road property has at all times since the date of its creation been an illegal nonconforming lot, we affirm the judgment of the Superior Court.

Facts and Travel

On October 20, 1992, William E. Bassett subdivided a 9.53-acre parcel of land fronting Ministerial Road in South Kingstown, otherwise known as lot No. 45 on Tax Assessor's Map No. 61; he thereby created two lots by deed. No plat was prepared or recorded, and no planning board or planning department review or approval took place. One lot, which continued to be designated as lot No. 45, was deeded to Ministerial Realty, Inc. The other lot was designated as lot No. 64 on Tax Assessor's Map No. 61. Lot No. 64, which is the subject of this petition, consists of 5.22 acres.

The ownership of lot No. 64 passed from Mr. Basset through several other persons between October 20, 1992 and June 24, 2004. On the latter date, Mr. and Mrs. Timpson purchased lot No. 64.

The respondants, Joseph T. and Jacqueline A. Murphy, reside in a home located on lot No. 43 on Tax Assessor's Map No. 61; their lot is directly to the east of lot No. 64. On October 4, 2004, the Murphys' counsel sent a letter to Russell W. Brown, the South Kingstown Zoning Enforcement Officer/Building Official, asserting that lot No. 64 "does not meet the dimensional requirements for developmental purposes."

In apparent response to the letter from the Murphys' counsel, in a letter dated February 8, 2005, Mr. Brown advised the Timpsons that "the lot/parcel of land you purchased * * * was and still is an illegal zoning lot when it was created by deed * * * and recorded in the Land Evidence Records of the Town of South Kingstown on October 20, 1992 * * *."

At all times pertinent to this appeal, lot No. 64 was zoned R-80 under the zoning ordinance for the Town of South Kingstown. Lots within a R-80 district must be at least 80,000 square feet in size. Lot No. 64 has always contained in excess of 80,000 square feet. Nevertheless, as stated in his letter of February 8, Mr. Brown concluded that Section II(O) of the subdivision regulations of the Town of South Kingstown required the exclusion of wetlands from any calculation of land suitable for development. Accordingly, Mr. Brown advised the Timpsons that lot No. 64 did not meet the 80,000-square-foot dimensional requirement for an R-80 district. On February 17, 2005, the Timpsons timely appealed Mr. Brown's decision to the Zoning Board of Review of the Town of South Kingstown (the board).

At a duly noticed hearing of the board on April 20, 2005, Mr. Brown testified that it was his conclusion that lot No. 64 "was illegally created under the subdivision regulations of the town"; he based his conclusion on the fact that most of the land in question was "unsuitable for development." He stated that land unsuitable for development may not be taken into account when calculating the area of a lot for the purpose of determining if the lot complies with the minimum square-footage requirement. Mr. Brown further testified that, at the time of his investigation in 2004, lot No. 64 contained only approximately 30,000 to 40,000 square feet of dry, buildable land. He conceded that he did not know how much of the property would have been suitable for development in 1992, when lot No. 64 was created.

The Murphys then presented the testimony of an expert, Christopher Mason, the president and principal scientist of an environmental consulting firm located in Scituate Rhode Island.¹ Mr. Mason testified that he had visually evaluated lot No. 64 from public roads and that he had also researched the extent of wetlands on the property in 1992. Mr. Mason testified that, in the process of estimating the extent of wetlands on lot No. 64 in 1992, he used a number of government reports and surveys, including Rhode Island Geographic Information System (GIS) mapping; aerial photography; and the Rhode Island Department of Agriculture's soil survey documentation. Mr. Mason concluded that, "based on the soil survey, the wetland mapping, [his] inspection of aerial photographs and [his] inspection of the site more recently," it was his opinion that since 1992 "the wetlands have been essentially in place on the lot over the entire northern portion of the lot down to * * * two to three hundred feet from [lot No. 64's] southern border."

On June 22, 2005, the board reconvened to continue consideration of the matter. Russell Brown was recalled as a witness. Mr. Brown confirmed that he relied exclusively on Section II(O) of the South Kingstown subdivision regulations in concluding that lot No. 64 did not meet the area requirements and was an illegal zoning lot. After closing arguments, the hearing was closed, and the board took the matter under advisement.

On July 20, 2005, the board unanimously voted to overturn Mr. Brown's decision concerning the Timpsons' property. In its decision, the board opined that lot No. 64 was a legal nonconforming lot of record because, at the time of lot No. 64's creation in 1992, the zoning ordinance did not expressly state that a lot had to conform to the subdivision regulations. The board noted that the lot met the literal requirements of the zoning ordinance by virtue of the fact that it contained more than 80,000 square feet. The board further indicated that it could not conclusively determine whether or not lot No. 64 had contained 80,000 square feet of land suitable for development in 1992.

In addition, the board cited § 205A of the South Kingstown Zoning Ordinances, which provides that a lot with less than the required area may nevertheless be considered buildable if it was (1) shown on a plat or duly recorded deed prior to the effective date of the ordinance, (2) met minimum zoning requirements in effect at the time the lot was recorded, and (3) did not abut other land of the same owner on March 29, 1976 or at any time after the lot was rendered substandard by virtue of the zoning ordinance. The board therefore concluded that § 205A applied to the instant case and that lot No. 64 was a buildable lot.

Mr. and Mrs. Murphy timely appealed the board's decision to the Washington County Superior Court.² Exercising jurisdiction over the case pursuant to G.L.1956 § 45-24-69(d), and after conducting a hearing, the Superior Court issued a decision on December 6, 2006, overturning the decision of the zoning board of review. The Superior Court held that the building official properly applied Section II(O) of the subdivision regulations in determining that lot No. 64 is an illegal nonconforming lot; it further held that "the Board's finding that Brown improperly applied Section II(O) of the subdivision regulations was clearly erroneous" as a matter of law.

The Superior Court's ruling was consistent with Mr. Brown's interpretation of the 1992 zoning ordinance as requiring conformity with the subdivision regulations in certain instances. In so holding, the court rejected the Timpsons' argument that the South Kingstown Planning Board did not have authority to enact the regulation at issue. Rather, it held that "the Planning Board had clear statutory authority to enact Section II(O) of the subdivision regulations pursuant to [G.L.1956] chapter 23 of title 45 and that such authority is consistent with the broad legislative mandate explicit in the statute."

The Superior Court further held that the board's disregard of the undisputed testimony of the Murphys' expert witness concerning the presence of wetlands on the property in 1992 was "clearly erroneous in view of the reliable, probative, and substantial evidence, as well as an abuse of discretion." The Superior Court therefore reversed the board's decision and concluded that lot No. 64 did not and does not satisfy the area requirement of 80,000 square feet for an R80 district and thus was an illegal lot of record.

The Timpsons timely filed the instant petition for certiorari.

Standard of Review

In reviewing a case that is before us pursuant to a writ of certiorari, we will "limit our review * * * examining the record to determine if there are any errors of law." Brown v. State, 841 A.2d 1116, 1121 (R.I.2004). We must "scour the record to discern whether any legally competent evidence supports the lower tribunal's decision * * *." Kent County Water Authority v. State (Department of Health), 723 A.2d 1132, 1134 (R.I.1999). "If legally competent evidence exists to support that determination, we will affirm it unless one or more errors of law have so infected the validity of the proceedings as to warrant reversal." Id. In a zoning case, this Court will "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...