Skelley v. Zoning Bd. of Review of Town of South Kingstown

• Court: Rhode Island Supreme Court
• Writing for the Court: Before FAY; KELLEHER
• Citation: Skelley v. Zoning Bd. of Review of Town of South Kingstown, 569 A.2d 1054 (R.I. 1990)
• Decision Date: 13 February 1990
• Docket Number: No. 88-416-M,88-416-M
• Parties: William R. SKELLEY and Marilyn H. Skelley v. ZONING BOARD OF REVIEW OF the TOWN OF SOUTH KINGSTOWN et al. P.

Page 1054

569 A.2d 1054

William R. SKELLEY and Marilyn H. Skelley v. ZONING BOARD OF REVIEW OF the TOWN OF SOUTH KINGSTOWN et al.

No. 88-416-M.P.

Supreme Court of Rhode Island.

Feb. 13, 1990.

James V. Auckerman, Kenyon & Auckerman, Wakefield, for petitioners.

Karen R. Ellsworth, Providence, for respondents.

Before FAY, C.J., and KELLEHER, WEISBERGER, MURRAY, and SHEA, JJ.

OPINION

KELLEHER, Justice.

This controversy is before us pursuant to this court's grant of a common-law writ of certiorari. The petitioners seek review of a Superior Court judgment affirming the denial of their request for a variance by the Zoning Board of Review of the Town of South Kingstown. The variance sought by the petitioners would have enabled them to build a single-family dwelling on a substandard lot.

In October 1980 petitioners purchased the subject property, a 23,925-square-foot parcel of land situated on Border Avenue in the Green Hill section of South Kingstown. The property had been platted in 1940 as lot No. 20, containing 12,325 square feet, and lot No. 22, containing 11,600 square feet. In 1961 a summer cottage was built on lot No. 20. The two-lot parcel is now designated as lot No. 46 on tax assessor's plat No. 90-3.

In March 1976 a comprehensive revision of the South Kingstown Zoning Ordinance was enacted. The subject property was zoned R-30, rendering lot Nos. 20 and 22 substandard. Pursuant to article 2, section 230, of the ordinance, a residential zoning classification of R-30 requires that each lot contain a minimum area of 30,000 square feet and a minimum frontage of 125 feet.

The 1976 general amendment also authorized the merger of contiguous nonconforming lots in common ownership. Section 421 of the zoning ordinance requires adjoining lots in common ownership that fail to meet the prescribed minimum-frontage and area restrictions to merge automatically to form one lot. The ordinance was amended five months prior to petitioners' purchase of the property and provides in pertinent part:

"Section 421--Adjacent Non-Conforming Lots of Record Under the Same Ownership (Amended 5-28-80) If two or more adjacent lots or parcels of land are under the same ownership on the effective date of this Ordinance, such lots shall be considered to be an undivided parcel of land for the purpose of this Ordinance, and no single lot or portion thereof shall be used in violation of the requirements of Section 230 as to lot width and area. If the total lot width or lot area of such adjacent lots of record is less than required by Section 230, such lots may be considered as a single non-conforming lot of record for single family residential purposes and shall be governed by the provisions of Section 420."

On September 26, 1986, petitioners applied for a "variance" from the requisite area and frontage requirements in order to construct a singlefamily residence on the unimproved portion of the property formerly known as lot No. 22. On December 15, 1986, the zoning board denied petitioners' request for a variance. The board found that the lots were merged in 1976 and that the single parcel with its 23,925 square feet of land could not be subdivided because it did not measure up to the 30,000-square-foot requirement.

The petitioners appealed the decision of the zoning board to the Superior Court pursuant to G.L.1956 (1980 Reenactment) § 45-24-20. On June 28, 1988, the trial justice upheld the board's decision. The trial justice found that in March of 1976, when the property at issue was rezoned, lot No. 22 became a nonconforming lot of record pursuant to section 400(C) ¹ and lot No. 20 became a nonconforming use pursuant to section 400(A). ² The trial justice determined that this court's analysis in Redman v. Zoning and Platting Board of Review of Narragansett, 491 A.2d 998 (R.I.1985), was applicable to the instant matter. Following Redman, the trial justice ascertained that "lot 20 stands alone as a prior non-conforming use which cannot be merged with lot 22." He further reasoned, "Since lot 22 cannot be merged with lot 20, it qualifies as a single non-conforming recorded lot pursuant to Section 420." ³ Construing Section 420 of the zoning ordinance, he found that lot No. 22 did not meet the conditions that would qualify it as buildable and he therefore upheld the board's decision.

When reviewing a decision of the Superior Court in its consideration of an appeal from a municipal zoning board, this court's concern is whether the trial justice acted within his or her authority as set forth in G.L.1956 (1988 Reenactment) § 45-24-20. ⁴ We shall not weigh the evidence but rather determine whether competent evidence exists to support the Superior Court justice's decision. We shall not reverse the decision below unless shown that the Superior Court justice "misapplied the law, misconceived or overlooked material evidence, or made findings that were clearly wrong." R.J.E.P. Associates v. Hellewell, 560 A.2d 353, 354 (R.I.1989); Lett v. Caromile, 510 A.2d 958, 960 (R.I.1986); Camara v. City of Warwick, 116 R.I. 395, 407, 358 A.2d 23, 31 (1976).

This court subscribes to the trial justice's analysis that lot No. 22 became a nonconforming lot of record and lot No. 20 consisted of a nonconforming use when the zoning ordinance was amended in 1976. We are also of the opinion, however, that lot Nos. 20 and 22 merged while they were held in common ownership by petitioners' predecessors in title pursuant to section 421 of the ordinance. As a result of the merger, the zoning board's denial of petitioners' application for a variance to construct a second dwelling on the property consisting of 23,925 square feet is valid. Accordingly we affirm the trial justice's actions in upholding the board's decision.

The concept of merger of contiguous nonconforming lots in common ownership as an appropriate method to combine nonconforming lots is gaining increased recognition. See 2 Anderson, American Law of Zoning § 9.67 at 307 (3d ed.1986). Merger provisions frequently contain exceptions whereby a lot that is smaller than the minimum zoning requirements will be exempted from the merger rule if it was a lot of record prior to the effective date of the zoning ordinance. Such an exception allows the landowner to develop a substandard lot only if the lot remains isolated and was under single ownership at the time the zoning ordinance was adopted. R.J.E.P. Associates, 560 A.2d at 356.

A controversy involving the issue of merger must be resolved by analyzing the language in the particular ordinance and the specific factual scenario in that dispute. The petitioners assert that the issues we addressed in Redman are legally indistinguishable from the instant case; therefore, this court's ruling in Redman is controlling in the case at bar. In Redman the petitioners owned five adjoining lots that were rendered substandard by a subsequent zoning amendment. One lot was developed, and the other four lots were unimproved. This court held that the developed lot was a lawful nonconforming use that could stand alone notwithstanding the merger provision in the Narragansett ordinance and that petitioners therefore were entitled to two building permits for the remaining four lots. 491 A.2d at 1000. We find the decision in Redman to be inapposite to the situation presently before us because the South Kingstown zoning ordinance and enabling legislation do not afford the same protections for nonconforming uses that were provided in the Narragansett ordinance at issue in Redman.

In 1973 the General Assembly enacted special zoning-enabling legislation for South Kingstown, P.L.1973, ch. 101, § 8, which provided that the South Kingstown zoning ordinance "may provide that any nonconforming use or structure may be continued upon the lot or in the building or structure so occupied." (Emphasis added.) Pursuant to the authority delegated by the General Assembly, South Kingstown's current zoning ordinance was enacted, which provides in section 401: "Nonconforming uses are declared by this ordinance to be incompatible with permitted uses in the Zoning Districts in which such use is located. It is the intent of this ordinance to permit non-conforming uses to continue until they are removed or discontinued, but not to encourage their survival."

This court has recognized that special zoning-enabling legislation takes precedence over the provisions of the general zoning-enabling statute. ⁵ Town of Johnston v. Barrett, 100 R.I. 405, 216 A.2d 513 (1966). We find no merit in petitioners' argument that the South Kingstown Town Council exceeded its authority by enacting the current zoning ordinance because the consolidation of nonconforming lots is encouraged by the enabling legislation.

This court believes that the cottage located on the original lot No. 20 in the instant case does not preclude a merger of the two substandard lots at issue. The petitioners' two adjacent nonconforming lots were held under the same ownership on the effective date of the ordinance; therefore, they "shall be considered to be an undivided parcel of land" pursuant to section 421 of the ordinance. The resulting parcel consists of only 23,925 square feet, remaining substandard subsequent to the merger. Accordingly, petitioners' property is considered a single nonconforming lot of record for single-family-residential purposes. The petitioners' requested relief cannot be characterized simply as a variance from minimum lot size requirements because they are seeking to build a second dwelling on this substandard lot. This relief is precluded by section 301 of the ordinance, which provides, "Number of Residential Structures Per Lot--In any zoning district other than Residential-Multi-Family (RM), no more than one principal residential building shall be permitted on a lot except in the case of motels, hotels and mobile home parks further provided in this ordinance."

The South Kingstown zoning ordinance does not...