Wall v. Minifie, C.A. No. 2003-0130 (RI 9/20/2004)
| Decision Date | 20 September 2004 |
| Docket Number | C.A. No. 2003-0130. |
| Parties | GEORGE E. WALL and IRENE C. WALL v. ELIZABETH H. MINIFIE, PETER J. O'CONNEL, BRIAN T. McKEON, REBECCA McSWEENEY, MICHAEL MARTIN in their capacity as Members of the Zoning Board of Review of the City of Newport. |
| Court | Rhode Island Supreme Court |
This appeal arises out of a March 7, 2003 decision of the Newport Zoning Board ("Board" or "Zoning Board") granting a dimensional variance for relief from the side line setback and lot coverage requirements of the Newport Zoning Ordinance ("Ordinance") to Accrington Realty, Inc. ("Applicant"), Review is pursuant to G.L. 1956 § 45-24-69.
The lot in question is zoned as part of a R-10 residential district. The ordinance requires a minimum of area of 10,000 square feet. See CODIFIED ORDINANCES OF THE CITY OF NEWPORT, RHODE ISLAND, tit. 17, § 17.20.030 (1994). The lot here, however, has only 3,758 square feet. The Ordinance also requires that buildings comprise no more than 20% of the lot. Id. § 17.20.050. The minimum setback requirements are 15 feet front yard, 10 feet from the sidelines, and 20 feet from the rear line. Id. § 17.24.040.
The request for the variance was preceded by a grant of the City of Newport Planning Board ("Planning Board") which gave the Applicant permission to demolish an existing home on the property. The Planning Board conditioned the demolition permit upon (1) that the current structure is replaced with a single-family residence; (2) construction of the new structure commence within 6 months of demolition of the current structure; (3) the plans for a new structure consider the scale of the existing neighborhood; and (4) environmental issues, such as lead paint and asbestos, are addressed prior to demolition.
After obtaining approval from the Planning Board for the demolition, the Applicant proposed a new structure for the property. The size and shape of the proposed structure would require variances, however. Accordingly, the Applicant filed for relief with the Zoning Board and a hearing was duly held on January 27, 2003.
At the hearing, the Zoning Board heard evidence about both the existing structure and the proposed new home. The location of the existing structure, vis-à-vis the existing lot lines, is not established by the record with any accuracy. Richard Johnston ("Johnson"), Applicant's Managing Partner, testified that the home was "about five feet or one or two feet off the front property line." (Tr. at 11.) A Property Line Survey prepared for the Applicant suggests that the front setback was one foot or less, and that this included a closed in porch which, apparently because it has no foundation, is not included within the 31 foot measurement of the home. (Record, Ex. 16.)1 Johnston also testified that the structure was set two feet off of the north, side lot line. (Tr. at 11.) However, a staff report to the Zoning Board indicates that it was only a one-foot setback. (Record, Ex. 15.) Thus, all that can be gleaned from the record is that there existed on the property, at the time of the hearing, a 31' × 17" home, with a porch adding to the 31 foot measure, located approximately one to two feet from the north side, and one to two feet from the front. (Record, Ex. 16.) The south side thus exceeded the Ordinance's minimum setback requirements by approximately nine feet, and the rear setback exceeded by approximately 40-45 feet. The entire house took up only 17% of the lot's 3,785 square foot area. (Record, Ex. 13.) Thus, there were only two setback nonconformances, the structure deviating by approximately 14 and 9 feet from the front and north, side setback requirements, respectively.
Johnston also testified about the condition of the existing structure. He testified that it is "beyond repair," and that "[t]he town had ordered it to be boarded up when we purchased the property." (Tr. at 7.) He further testified that "[t]here's nothing in there that works, and there is no way that you could possibly rebuild that structure in it's [sic] present condition," (Tr. at 8), and that (Tr. at 16.) He testified that, given such extensive repairs, 2 (Tr. at 15.)
The Applicant also presented the testimony of Warren Ducharme ("Ducharme"), a registered architect with two years of experience as a Town Planner for Foster, Rhode Island, from 1998-2000. (Record, Ex. 5, (Resume, Warren J. Ducharme, Architect)). Ducharme testified that the condition of the present structure was inadequate to support a renovation that would comply with FEMA and the State Building Code. (Tr. at 21-23.)
Thus, Applicant sought to demolish the dilapidated structure and to build a new structure on the property. In designing the new house, Johnson testified, one goal was to provide on-site parking. (Tr. at 12.) This was accomplished by placing the house "centrally" on the lot, increasing the front yard setback to approximately 25 feet and eliminating the existing nonconformance. (Record, Ex. 15, (Survey of Plat 39, Lot 289.))3 Further, the north sideyard nonconformance was decreased by increasing that setback from one (or two) to four feet. However, because the design called for a 24 foot width — an increase of seven feet from the previous residence — the south-side setback was reduced to eight feet, requiring a two foot variance. Though the proposed home was enlarged to 40 feet, as opposed to the previous 31 foot residence, the new location eliminated the need for a variance from the mandatory front or rear lot line setbacks. However, because Ordinance § 17.20.050 limits the area of the lot to be covered by a structure in an R-10 zoning district to 20%, a third variance was required. Thus, the new home would deviate from the 10 foot side line setback requirements by six and two feet on the north and south side lot lines, respectively, and would also require an area variance.4
After the January 27, 2003 hearing, the Zoning Board granted the requested variance from the side line and lot coverage requirements. Plaintiffs George and Irene Wall ("Plaintiffs"), who contested the application at the hearing, timely appealed. Plaintiffs share the south lot line with the Applicant. It is clear from the record that Plaintiffs' primary concern was and is with the request for the side line variances, and in particular, the south side variance. Plaintiffs observed that a sizeable structure could be built that would reduce "the North setback nonconformance, meet[] the South and West setback, eliminate[] the front setback nonconformance (applicant's option). . . ." However, they suggested that such a structure, "consistent with the existing neighborhood," would not be as "elegant, costly... expensive" and "profitable" as Applicant desired. See Letter from George and Irene Wall to Office of Zoning and Planning, Newport, R.I. of 11/20/02 at 4); Letter from George and Irene Wall to Office of Zoning and Planning, Newport, R.I. of 11/20/02 at 4.)
Rhode Island General Laws 1956 § 45-24-69 vests the Superior Court with jurisdiction to review a zoning board's grant of an application for a variance. Section 45-24-69(d) provides:
"The 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 statue or ordinance;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(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."
"Substantial evidence... means such relevant evidence that a reasonable mind might accept as adequate to support a conclusion, and means [an] amount more than a scintilla but less than a preponderance." Lischio v. Zoning Bd. of Review of the Town of North Kingstown, 818 A.2d 685, 690, n.5 (R.I. 2003) (quoting Caswell v. George Sherman Sand & Gravel Co., 424 A.2d 646, 647 (R.I. 1981). Analysis
Plaintiffs argue that the Applicant may not seek a variance to construct a new home because the current residence exists as a legal nonconformance. Plaintiffs contend, therefore, that the Applicant must confine any development to the footprint of that building, or, alternatively, to develop a new home that adheres to the requirements of the Ordinance. For this proposition, Plaintiffs rely upon Ordinance §§ 17.72.020B. and C., which provide, in relevant part, that:
Newport's Ordinance thus promotes the principle that nonconforming uses or structures should be accorded only limited tolerance, and "discourages the re-establishment of nonconforming uses, the investment value of which has been lost to the owner through accident and...
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