Opinion
C.A. WC-2021-495 WC-2021-496 WC-2021-497
03-09-2023
RH MCLEOD FAMILY LLC and MARGOT PEROT Plaintiffs, v. WESTERLY ZONING BOARD OF REVIEW; WALTER PAWELKIEWICZ; LAWRENCE CIOPPA; JEFFREY RUSSO; JAMES TORRES; DAWN ROBINSON; and DOUG BROCKWAY; in their capacities as members of the WESTERLY ZONING BOARD OF REVIEW; TODD NORDSTROM; and KARYN NORDSTROM, Defendants. SHAWMUT AVE LLC, Plaintiff, v. WESTERLY ZONING BOARD OF REVIEW, through WALTER M. PAWELKIEWICZ, DOUGLAS BROCKWAY, LAWRENCE CIOPPA, JEFFREY A. RUSSO, JAMES TORRES, and DAWN ROBINSON in their capacities as Members of the Westerly Zoning Board of Review; TODD NORDSTROM; and KARYN NORDSTROM, Defendants. 4 SPRAY ROCK, LLC Plaintiff, v. WESTERLY ZONING BOARD OF REVIEW, through WALTER M. PAWELKIEWICZ, DOUGLAS BROCKWAY, LAWRENCE CIOPPA, JEFFREY A. RUSSO, JAMES TORRES, and DAWN ROBINSON in their capacities as Members of the Westerly Zoning Board of Review; TODD NORDSTROM; and KARYN NORDSTROM, Defendants.
For Plaintiff: Gerald J. Petros, Esq. For Defendant: Scott D. Levesque, Esq., Kelly M. Fracassa, Esq. For Interested Party: Stephen J. MacGillivray, Esq., Robert I. Stolzman, Esq., Michael A. D'Ippolito, III, Esq. For Plaintiff: Robert I. Stolzman, Esq. Michael A. D'Ippolito, III, Esq. For Plaintiff: Stephen J. MacGillivray, Esq., David Fitzpatrick, Esq.
For Plaintiff: Gerald J. Petros, Esq.
For Defendant: Scott D. Levesque, Esq., Kelly M. Fracassa, Esq.
For Interested Party: Stephen J. MacGillivray, Esq., Robert I. Stolzman, Esq., Michael A. D'Ippolito, III, Esq.
For Plaintiff: Robert I. Stolzman, Esq. Michael A. D'Ippolito, III, Esq.
For Plaintiff: Stephen J. MacGillivray, Esq., David Fitzpatrick, Esq.
DECISION
TAFT-CARTER, J.
Before this Court for decision is the consolidated appeal of RH McLeod Family LLC, Margot Perot, 4 Spray Rock, LLC, and Shawmut Ave LLC (collectively Appellants) from the October 15, 2021 written decision (Decision) of Defendant Town of Westerly Zoning Board of Review (Zoning Board) approving Defendants Todd and Karyn Nordstrom's (Applicants) request for five-foot sideline variances to construct a new home. Jurisdiction is pursuant to G.L. 1956 § 45-24-69.
I
Facts and Travel
A
Dimensional Variance Application
Applicants own real property located at 2 Spray Rock Road in the Weekapaug area of Westerly, Rhode Island (Property). (Appl. for Dimensional Variance (Appl.) 1.) The Property is zoned Medium-Density Residential (MDR) 30, requiring a minimum lot size of 30,000 square feet and 120 feet of frontage. See id.; see also Westerly Zoning Ord. § 260-12(A)(1); Westerly Zoning Ord. ch. 260, attach. 10. Predating the Westerly Zoning Ordinance, the Property is approximately 11,750 square feet, with only sixty feet of frontage. (Appl. 1, 19; Zoning Narrative 1.) It is therefore a preexisting, nonconforming lot of record. See Westerly Zoning Ord. § 260-9 (defining "nonconformance" as "[a] building, structure, or parcel of land, or use thereof, lawfully existing at the time of the adoption or amendment of a Zoning Ordinance and not in conformity with the provisions of such ordinance as amended").
The certified Record is not paginated, and individual files in the Record are not otherwise numbered or clearly titled. When citing to the Record, this Decision will reference the individual document name, when available, and its internal page number. For ease of reference of all parties and the Court, agencies and litigants are encouraged to provide a complete and consolidated Record utilizing Bates numbering.
The MDR-30 district also requires no more than 22.5 percent impervious surface coverage; a maximum principal building height of thirty-five feet; and front, side, and rear yard setbacks of thirty-five feet, twenty feet, and forty feet, respectively. (Westerly Zoning Ord. ch. 260, attach. 10.) Built in 1957, the existing 1,741-square-foot house on the Property is nonconforming as to the side yard requirements-currently situated four and nine-tenths feet from the easterly boundary and fifteen and seven-tenths feet from the westerly boundary. (Zoning Narrative 2; Appl. 2.) The structure is also physically connected to a garage/barn located on adjacent property at 112 Noyes Neck; consequently, the existing rear-yard setback is zero feet. (Zoning Narrative 2.) Further, the structure and its asphalt driveway and concrete patio combine to equal 33.9 percent of impervious surface coverage. (Zoning Bd. Summ. - 2 Spray Rock (Nordstrom).) In sum, the existing structure does not comply with dimensional regulations for rear, right-, or left-side setbacks or for maximum impervious surface. (Zoning Narrative 1-2.) Like the lot itself, the house is also preexisting and nonconforming. (Westerly Zoning Ordinance § 260-9.)
Applicants purchased the Property in September 2020 and soon filed the disputed Application, proposing to raze the existing structure, build a new house in the center of the Property, and site a parking area at the rear of the lot where the original structure had been located. (Appl. 2, 4.) The footprint of the proposed house would be 1,597 square feet, compared to the existing 1,741 square feet. Id. at 2. Although taller than the original one-story structure, the proposed three-story home would not exceed the thirty-five-foot height maximum for the MDR-30 zone. (Br. of Todd & Karyn Nordstrom (Nordstrom Br.) App. 178-79.) The new structure would resolve the rear setback nonconformity, improve the right-side yard variance, and bring the impervious surface area within the allowable maximum; however, the proposed design would require five-foot variances from each of the left- and right-side yard setback requirements:
The certified Record did not include the relevant hearing transcripts. See generally Dec. 7, 2021 R. Certification. The Court will therefore cite to the transcripts as provided in the Appendix to the Applicants' brief. See generally Nordstrom Br. App. 84-350.
(Zoning Narrative 1-2; Appl. 19; Nordstrom Br. App. 178-79.)
Dimensional Requirements MDR-30
Required
Existing
Proposed
Requested Variance
Maximum Impervious
22.5%
33.9%
15.7%
Meets Standard
Maximum Height
35'
Unknown, but one story
34'7”
Meets standard
Front Yard
35'
132.3'
82'
Meets Standard
Right Side Yard
20'
4.9'
15'
5'
Left Side Yard
20'
15.7'
15'
5'
Rear Yard
40'
0'
53.5'
Meets Standard
Upon initial review, Westerly Zoning Office staff were "generally supportive of the [A]pplication." (Zoning Narrative 3.) The Zoning Official was of the opinion that "[t]he Applicant is removing a major nonconformity by razing a building that is attached to a building on another property" and that "[t]his reduction in nonconformity is significant." Id. Nonetheless, after receiving letters from abutters objecting to the Application, the Zoning Office referred the matter to the Zoning Board for a hearing and decision. Id.
B
September 1, 2021 Zoning Board Hearing
The Zoning Board heard testimony and legal argument relating to the Application on September 1, 2021. See generally Nordstrom Br. App. 84-289.
1
Applicants' Witnesses
Applicant Todd Nordstrom testified first, explaining that his wife's family had owned 112 Noyes Neck-the parcel adjacent to the Property where the connecting garage/barn is located- for decades and subdivided it in the mid-1950s to create the Property as a second, separate parcel. Id. at 91-92. After Applicants took full ownership of the Property in 2020, they desired to separate the existing structure from the neighboring garage due to health concerns-namely rodents entering the home through the garage-and because 112 Noyes Neck had recently been listed for sale and would likely no longer be owned by a family member. Id. at 93.
Applicants next presented their expert real estate appraiser, James Houle. Id. at 99, 111.Mr. Houle opined that the "framers of the zoning code . . . felt that there was a geometric harmony [in] having [a 1:2] ratio, both in terms of the lot [size], and in terms of what they allowed for a building envelope . . . as the most harmonious type of architectural balance[.]" Id. at 101-02. As such, Mr. Houle believed that Applicants' proposed thirty-foot by sixty-foot structure would have that same "harmonious" 1:2 aspect ratio. Id. at 102. He further explained that the requested five-foot variances were not arbitrary but rather were "very, very important to . . . allow the development of the house to maintain that same balance that the zoning code is calling for in the use of the lot." Id.
Throughout his testimony, Mr. Houle referenced a written report that he had prepared in advance of the hearing and submitted to the Zoning Board; however, no such report is included in the Record before this Court. Compare Nordstrom Br. App. 99-100, 119, 130, with Dec. 7, 2021 R. Certification. In considering "the record of the hearing before the zoning board of review," this Court is therefore limited to Mr. Houle's testimony. See § 45-24-69(c) ("The court shall consider the record of the hearing before the zoning board of review[.]").
Mr. Houle also testified that Applicants' hardship arose from the narrow lot width and that the proposed structure would conform with the rest of the neighborhood, based on the similar proportions of the surrounding homes. Id. at 102-04. He shared that a house width of twenty-four feet "is about the minimum that you want to have in terms of comfort with the rise and run of the stairs," but houses that narrow are typically ranch-style without the need for stairs. Id. at 106. He further testified that homes with stairs would normally be designed at no less than twenty-six to twenty-eight feet wide. Id. He also stated that one would "virtually never see" houses being built with a twenty-foot width because it is considered an inefficient use of the space. Id. at 107.
Despite broadly objecting to Mr. Houle's testimony as exceeding his expertise, Appellants' attorneys nevertheless cross-examined Mr. Houle about the viability of various alternative design/build options. Id. at 111, 128, 130. Asked whether it would "be reasonable and perhaps the minimum amount of relief necessary to just move the existing house to the current legal setback[,]" Mr. Houle responded that the existing house was thirty-four feet wide and relocating it would therefore make the side setback nonconformances worse than those proposed in the Application. Id. at 130-31. Questioned about the reasonableness of increasing the square footage of the home from the existing 1,741 square feet to approximately 4,100 square feet, Mr. Houle responded that the proposed design
"conforms to every other dimensional requirement so that when you look at trying to build a house that has a reasonable footprint and fits
within all the other requirements, that 30 feet [width] I consider to be the minimum relief necessary to build this house. Could it physically be built smaller? Yes. It would begin to go out of balance again with what is clearly the ratios that the zoning code calls for." Id. at 133-34.
As their final witness, Applicants offered the expert testimony of Stephen Fennell, the architect who drafted the plans for the proposed structure. Id. at 136, 140-41. Mr. Fennell testified that the home could have a narrower width by "maybe [two] feet total" but more than that would require "a whole redesign of the house." Id. at 148-49. Further, narrowing the width while retaining a "longer taller house" would create structural issues, including poor wind resistance, necessitating reinforcement such as with steel frames. Id. at 150. In Mr. Fennell's opinion, a narrower design would also decrease the efficiency of the space, preventing living spaces from being located side-by-side and adversely impacting circulation and mechanical layouts. Id. at 151.
Asked whether he could create a full redesign that decreased the width of the proposed structure, Mr. Fennell reiterated Mr. Houle's testimony, stating that:
"There's a balance with the design . . . . There's [proportions] that you want to keep to make the house functional and work well and look well . . . and we are limited on this particular site because on the east and the west side . . . where we're asking for the relief . . . we don't have a chance to, say, break down the scale or create a porch or do something with that." Id.at 176-77.
As one redesign option, Mr. Fennell confirmed that the proposed three-story design could conceivably be reduced to two stories. Id. at 168-69. He also confirmed, however, that removing the third or second floor would have no effect on the side-yard relief requested. Id. at 179-80. Finally, asked whether he could conceivably design a smaller home that complied with all setback requirements, Mr. Fennell answered in the affirmative but opined that such a design would be nonconforming with the general area. Id. at 180-81.
2
Objecting Abutters' Witnesses
Counsel for Appellant 4 Spray Rock, LLC presented the expert testimony of Chris Arner, a licensed architect who focuses on single-family residential design in coastal environments. Id. at 184-85. In Mr. Arner's opinion, "reusing the existing structure" and "exploring an option to renovate that structure" would be a "a reasonable use[,]" especially in light of the fact that it has "been used reasonably as a residence for [fifty] years." Id. at 186. Mr. Arner testified that Applicants' hardships with the conditions of the existing structure could be ameliorated through renovation-specifically, weatherproofing and modernizing, adding a second story, upgrading the septic, installing a new electrical system, and removing an underground oil tank. Id. at 187-89. As to the fact that the existing structure is physically attached to the neighboring garage, Mr. Arner believed that the "section that connects to the existing garage . . . can easily be taken down, and the existing house closed over so they're not connected anymore." Id. at 189.
Counsel for Appellants RH McLeod Family LLC and Margot Perot next presented Doug McLeod, abutting landowner at 75 Meadow Avenue. Id. at 209. In Mr. McLeod's opinion, the "minimum relief required . . . doesn't necessarily include tripling the size of the house[.]" Id. at 211. In response to Mr. McLeod's concerns, however, Zoning Member Torres explained that the requested dimensional relief had nothing to do with the structure's height or total square footage, stating:
"[J]ust in theory . . . [Applicants] could take down that existing house, build a house that's 20 feet wide and 65 feet long, and put it right on that property in the middle, so it will be a narrow house and extremely long, and it could be 3 stories high, it could be 34 [feet] and ll inches high, and that's the legal right of the owner." Id. at 225.
Mr. Torres then opined that the question before the Zoning Board was whether it would be "better and more compatible with the neighborhood" to approve the side yard variances for the existing design to "make sure that what happens is in the character of the neighborhood and fulfills the five [dimensional] requirements[.]" Id. at 226.
3
Legal Argument of Counsel
Following the presentation of witnesses, counsel placed arguments on the record relating to two legal issues implicated by the Application: 1) whether Westerly's Zoning Ordinance permitted a dimensionally nonconforming rebuild following an undisputed demolition of the existing nonconforming structure, id. at 228-29, 246; and 2) whether New Castle Realty Co. v. Dreczko, 248 A.3d 638 (R.I. 2021) (New Castle) modified the legal standard that an applicant must meet to demonstrate hardship amounting to "more than a mere inconvenience" as required by § 45-24-41(e)(2). Id. at 232, 250.
At the conclusion of testimony and argument, the Zoning Board closed the public hearing and continued the Application for decision at the next hearing in October 2021. Id. at 261-62.
Applicants waived the requirement that the Zoning Board issue a decision within fifteen days of closing the public hearing. (Nordstrom Br. App. 259.)
C
Zoning Board Decision
The October 6, 2021 Zoning Board hearing opened with a statement from Todd Romano, Westerly Assistant Solicitor, who stated his legal opinion that Westerly Zoning Ordinance § 260-32(C)(2) did not necessitate denial of the Application. Id. at 293. Solicitor Romano interpreted § 260-32(C)(2) as "only prohibit[ing] an owner from voluntarily tearing down a structure and rebuilding without first obtaining variances, if any are required." Id. (citing Wall v. Minifie, No. 2003-0130, 2004 WL 2334743 (R.I. Super. Aug. 5, 2004); Montaquila v. Zoning Board of Review of the City of Warwick, No. KC-2010-1567, 2012 WL 2995413 (R.I. Super. July 18, 2012)). He therefore concluded that "the applicants here can demolish their existing nonconforming structure on their nonconforming lot, build a new residence if they meet the dimensional standards or satisfy the dimensional variance standards." Id.
Solicitor Romano then addressed the legal dispute as to New Castle and the proper standard to be applied when assessing whether the Applicants' hardship amounts to more than a mere inconvenience. Id. at 294. He recommended that the Zoning Board "hedge [their] bets" by following the stricter standard, as proposed by Appellants, if granting the Application and the more lenient standard, as proffered by Applicants, if denying the Application. Id. at 294-95. He advised the Zoning Board, however, that the stricter standard was "not as draconian as it may sound[.]" Id. at 295 (citing Dowdell v. Zoning Board of Review of Town of Charlestown, No. W.C. 01-0351, 2003 WL 1227628 (R.I. Super. Mar. 8, 2003) (upholding a dimensional variance approval for the vertical expansion of an existing residential structure that was too small to meet the applicant's family needs and agreeing that proposed alternatives were not "realistic")).
Our Supreme Court stated in New Castle that "[t]he burden is upon the applicant to show 'that there is no other reasonable alternative way to enjoy a legally permitted beneficial use of the subject property[.]'" New Castle Realty Co. v. Dreczko, 248 A.3d 638, 648 (R.I. 2021) (quoting § 45-24-31(66)(ii)). The Court's reference to this definitional language is in seeming contradiction to Lischio v. Zoning Board of Review of Town of North Kingstown, 818 A.2d 685 (R.I. 2003) where the Court "recognize[d] that . . . [a] 2002 amendment lessen[ed] the burden of proof necessary to obtain dimensional relief and an applicant need show only that the effect of denying dimensional relief amounts to more than a mere inconvenience"-meaning that "landowners who wanted to establish a right to dimensional relief were not required to demonstrate a loss of all beneficial use[.]" Lischio, 818 A.2d at 691-92 (emphasis added); see also Watch Hill Fire District v. Westerly Zoning Board of Review, Nos. WC-2021-0195, WC-2021-0199, 2022 WL 14676055, at *6 (R.I. Super. Oct. 20, 2022) (summarizing the legislative and interpretive history of the dimensional variance standard).
The Zoning Board then discussed the Application on the record. See generally id. at 296-338. Zoning Board Member Torres reasoned that the hardship arose from the width of the lot, which restricted the width of the house structure to twenty feet. Id. at 298. He credited Applicants' witness testimony that a twenty-foot home would not "fit" with the area. Id. Mr. Torres stated that he "sample-tested [Mr. Houle's] data for accuracy and disclosed no irregularities with its findings." Id. As to "least relief necessary," he reasoned that:
"[W]hile there was no definitive evidence showing, in fact, that 30 feet zero inches was the actual least relief necessary, and the architect claimed that he could perhaps shave off the 9 to 18 inches, I concluded based on the hard evidence presented, specifically by James Houle's analysis, that a 30-foot wide house seemed to be consistent with the minimum relief necessary for the types of homes characteristic with the neighborhood . . . . [and] is the least relief necessary for proper functionality." Id. at 299-300.
Based on the testimony relating to the reasonableness of the interior of the proposed home, Mr. Torres agreed that the thirty-foot by forty-eight-foot structure as proposed constituted the least relief necessary, but he did not find it necessary to allow the front porch and outdoor showers to be placed within the side yard setback areas. Id. at 300-02.
Member Robinson stated that she found a hardship in the existing structure being located on the rear boundary line but that the Applicants presented insufficient evidence as to the feasibility of a narrower design. Id. at 303-04. Member Russo agreed that the location of the existing structure constituted a hardship and the proposed alternative to simply renovate that structure where it stands would "perpetuate[ ] more variances[.]" Id. at 305-06. As such, he believed that "there's no other reasonable alternative than to raze the property and to build." Id. at 306. He otherwise agreed with Member Torres that the proposed design represented the least relief necessary, even allowing for the porch and outdoor showers to remain in the setback area. Id. at 30506.
Member Brockway also broadly agreed with Member Torres. Id. at 307. As to the various proposed alternatives, he commented that the room sizes proposed by the Applicants aligned with Mr. Arner's testimony as to reasonable sizing, and he therefore did not "understand the logic that says we could make this house somewhat smaller for any arbitrary reason." Id. at 308. He further stated that a "small one-story cottage" within the setbacks "is not appropriate for the neighborhood at all, and it's not appropriate to the use." Id. He also did not "buy into the idea that renovating a house that's right up against the back borderline . . . [with] zero [or] . . . very minor setback" and "incredible intrusions" would be reasonable based on the testimony. Id. at 308-09.
Zoning Board Vice Chairman Cioppa observed that the variance requested involved "two lineal lines" left and right and did not implicate concerns about "[b]ulk" unless the design would alter the character of the surrounding area. Id. at 309. He concluded as to bulk that the testimony showed that the design "fits in with the other structures in the area[.]" Id. The Vice Chair stated that the design also constituted the least relief necessary based on testimony that a narrower design would create problems, including with the utilities. Id. at 310. He observed that both architects agreed that the width of the lot created a hardship in designing a reasonably-sized home. Id.
After agreeing to place conditions on the Application relating to the front porch and outdoor showers, the Zoning Board voted 4-1 to approve, with Member Robinson as the sole dissenting vote. Id. at 310-12, 338-39. The Zoning Board stated that it used "the standard proffered by the objecting abutters, specifically that the applicant must satisfy the hardship standard by proving that there is no other reasonable alternative to enjoy a legally permitted beneficial use absent relief." Id. at 326. As such, the Zoning Board concluded that denial would amount to more than a mere inconvenience because to do so would leave the Applicants with a severely nonconforming structure that could not be reasonably resolved through renovation. Id. at 334-35. The Zoning Board also concluded that a twenty-foot-wide home within the setbacks would not be a reasonable alternative as it would require specialized construction methods. Id. at 335. As a result, the requested side-yard variances constituted the least relief necessary because a thirty-foot home, as proposed, would be "centered . . . to provide symmetry to the lot, and create the least amount of burden to the neighbors on either side." Id. at 332. Further, the Zoning Board credited testimony that the proposed design "is within the size of the average American home for new construction[,]" with "customary" room sizes, and that a narrower design would be "structurally and mechanically" difficult as well as less efficient. Id.
The Zoning Board recorded its written Decision, reflecting the above findings and conclusions, on October 15, 2021. See generally Zoning Bd. Variance Decision. Appellants timely appealed and now assert that the Zoning Board erred in three respects: (1) notwithstanding the Zoning Board's statements that it applied the stricter hardship standard, its actual hardship analysis evidences the incorrect standard and contravenes New Castle, Pls.' Mem. of Law in Supp. of its Appeal of a Decision of the Town of Westerly Zoning Bd. of Rev. (McLeod Mem.) 7-10; (2) Applicants failed to establish the "hardship" and "least relief necessary" requirements of § 45-24-41(d)-(e), id. at 10-16; and (3) Westerly Zoning Ordinance § 260-32(C)(2) does not permit Applicants to demolish the existing nonconforming structure and rebuild a second nonconforming home. Id. at 16-21.
Appellants 4 Spray Rock, LLC and Shawmut Ave LLC expressly "concur[ ] with, incorporate[ ], and adopt[ ] the arguments and authorities . . . set forth" in Appellants RH McLeod Family LLC and Margot Perot's Memorandum of Law. See Pl.'s 4 Spray Rock, LLC Mem. of Law in Supp. of its Appeal of a Decision of the Town of Westerly Zoning Bd. of Rev. (4 Spray Rock Mem.) 1; Pl. Shawmut Ave. LLC's Mem. of Law in Supp. of its Appeal of a Decision of the Town of Westerly Zoning Bd. of Rev. (Shawmut Ave. Mem.) 1. As such, this Decision will primarily cite to the RH McLeod Family LLC/Perot opening brief and will reference 4 Spray Rock, LLC and Shawmut Ave LLC's briefing only to the extent those parties raise distinct arguments.
II
Standard of Review
The Superior Court's review of a zoning board decision is governed by § 45-24-69(d), which 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 statute 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." Section 45-24-69(d).
If a reviewing court determines that the zoning board's "decision was supported by substantial evidence in the whole record," then the zoning board's decision must be affirmed. Lloyd v. Zoning Board of Review for City of Newport, 62 A.3d 1078, 1083 (R.I. 2013). Substantial evidence is defined as "'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.'" New Castle, 248 A.3d at 643 (quoting Iadevaia v. Town of Scituate Zoning Board of Review, 80 A.3d 864, 870 (R.I. 2013)). Furthermore, substantial evidence is "such relevant evidence that a reasonable mind might accept as adequate to support a conclusion[.]" Iadevaia, 80 A.3d at 870 (internal quotation omitted).
The Court will defer to the zoning board's factual determinations "due, in part, to the principle that 'a zoning board of review is presumed to have knowledge concerning those matters which are related to an effective administration of the zoning ordinance.'" Pawtucket Transfer Operations, LLC v. City of Pawtucket, 944 A.2d 855, 859 (R.I. 2008) (quoting Monforte v. Zoning Board of Review of East Providence, 93 R.I. 447, 449, 176 A.2d 726, 728 (1962)). Questions of law, however, are subject to de novo review. Id. "[A] zoning board's determinations of law, like those of an administrative agency, 'are not binding on the reviewing court'" and "'may be reviewed to determine what the law is and its applicability to the facts.'" Id. (quoting Gott v. Norberg, 417 A.2d 1352, 1361 (R.I. 1980)).
III
Analysis
A
Dimensional Variance Standard
An applicant for a dimensional variance must present evidence to satisfy five elements prescribed by § 45-24-41(d)-(e):
"(1) That the hardship from which the applicant seeks relief is due to the unique characteristics of the subject land or structure and not to the general characteristics of the surrounding area; and is not due to a physical or economic disability of the applicant, excepting those physical disabilities addressed in § 45-24-30(a)(16);
"(2) That the hardship is not the result of any prior action of the applicant and does not result primarily from the desire of the applicant to realize greater financial gain;
"(3) That the granting of the requested variance will not alter the general character of the surrounding area or impair the intent or purpose of the zoning ordinance or the comprehensive plan upon which the ordinance is based; and
"(4) That the relief to be granted is the least relief necessary." Section 45-24-41(d).
Finally, 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." Section 45-24-41(e)(2).
1
Hardship Amounting to "More Than a Mere Inconvenience"
As an initial matter, the parties dispute the correct hardship standard required by § 45-24-41(e)(2). Appellants contend that an applicant for dimensional relief must prove "that there is no other reasonable alternative way to enjoy a legally permitted beneficial use of the subject property unless granted the requested relief from the dimensional regulations." See McLeod Mem. 7 (quoting § 45-24-31(66)(ii)). In support, Appellants cite to our Supreme Court's recent decision in New Castle, in which the Court quoted § 45-24-31(66)(ii) and upheld the denial of a dimensional variance request as not constituting the "least relief necessary." Id. (citing New Castle, 248 A.3d at 648-49).
In response, Applicants argue to the contrary that the demolition and construction of their new home is "reasonably necessary for the full . . . permitted use" of the Property, which they maintain is the proper standard for a dimensional variance under the Viti doctrine and as codified in § 45-24-41(e)(2). See Nordstrom Br. 2-3, 29; see also Viti v. Zoning Board of Review of City of Providence, 92 R.I. 59, 64-65, 166 A.2d 211, 213 (1960); Lischio v. Zoning Board of Review of Town of North Kingstown, 818 A.2d 685, 691, 691 n.6 (R.I. 2003).
This Court previously addressed this precise dispute in Watch Hill Fire District v. Westerly Zoning Board of Review, Nos. WC-2021-0195, WC-2021-0199, 2022 WL 14676055 (R.I. Super. Oct. 20, 2022), appeal docketed, No. SU-2022-0327-MP (R.I. Nov. 29, 2022). There, the appellants-abutting landowners-"contend[ed] that New Castle overturned a twenty-year precedent without discussion of Lischio, the Viti doctrine, or the statutory history of § 45-24-41 and without a request or related briefing on the issue by either New Castle party"-a contention this Court found "unreasonable." Watch Hill Fire District, 2022 WL 14676055, at * 6-7; cf. Bomar v. Gloucester Zoning Board of Review, No. PC-2020-07835, 2022 WL 7914001, at *10-11 (R.I. Super. Oct. 6, 2022). Instead, this Court held that "New Castle does not alter the long-standing statutory standard for a dimensional variance." Id. at *7. Therefore, as Applicants and the Zoning Board correctly contend, "'an applicant must show that the relief he is seeking is reasonably necessary for the full enjoyment of his permitted use.'" Id. (quoting DiDonato v. Zoning Board of Review of Town of Johnston, 104 R.I. 158, 164, 242 A.2d 416, 420 (1968)). Appellants offer no reason why Watch Hill Fire District must now be revised, and the Court declines to do so.
Contrary to Appellants' assertion that "[t]he only way [Applicants] can explain away the ruling in New Castle is by asserting that it was somehow 'inadvertent' or an 'oversight[,]'" (Pls.' Reply in Supp. of its Appeal of a Decision of the Town of Westerly Zoning Bd. of Review (McLeod Reply Br.) 4) this Court has stated that "a fair reading of New Castle leads to the conclusion that a petitioner must consider 'reasonable alternatives' to satisfy the § 45-24-41(d)(4) 'least relief necessary' requirement for a dimensional variance." Watch Hill Fire District, 2022 WL 14676055, at *7 (quoting New Castle, 248 A.3d at 648). This Court has reasoned that "[a]lthough the New Castle Court stated the § 45-24-31(66)(ii) definitional language in full, the Court's discussion of a 'reasonable alternative' did not otherwise rely on the second half of the definitional clause pertaining to whether the applicant could enjoy a 'legally permitted beneficial use of the subject property.'" Id. "As a result, Appellants read too much into the New Castle Court's invocation of § 45-24-31(66)(ii)." Id. New Castle, Lischio, § 45-24-31(66)(ii), and § 45-24-41 can be reconciled without impermissibly "undertak[ing] the correction of legislative mistakes." See McLeod Reply Br. 3-4 n. 1 (citing Simeone v. Charron, 762 A.2d 442, 448 (R.I. 2000)).
Applying the Viti standard, the Court finds that there exists substantial evidence in the record to support the Zoning Board's determination that denying the Application would be a hardship amounting to more than a mere inconvenience. See Zoning Bd. Variance Decision 9-10. The relevant hardships are that the Property offers a narrow building envelope and the existing structure severely encroaches on the rear lot line due to its physical attachment to a neighboring structure not owned by the Applicants. See id. at 7, 10; see also Hayes v. Charlestown Zoning Board of Review, No. WC-2020-528, 2022 WL 16559085, at *3, *12 (R.I. Super. Oct. 6, 2022) (upholding hardship finding involving a long, narrow nonconforming lot, proximately located to a coastal feature, and located relatively close to its neighbors with nonconforming and nonweather-resistant structure); Cassese v. Zoning Board of Review for the Town of Middletown, No. NC 10-0293, 2012 WL 115456, at *6 (R.I. Super. Jan. 11, 2012) ("'[I]t is well recognized that the irregular shape or other peculiar characteristics of a parcel may constitute a hardship unique to the property which justifies the granting of a variance."') (quoting 3 Rathkopf's The Law of Zoning & Planning § 58:11, at 58-68 to 58-69 (4th ed., rev. 2006)).
Denying the requested relief would prevent the full enjoyment of the permitted residential use because, as will be further discussed infra, such denial would force the Applicants to remain in a severely nonconforming location or to construct an unreasonably narrow home-options that would not be in keeping with the character of the neighborhood, create structural challenges, provide for an inefficient use of space, and perpetuate even more severe nonconformities that are otherwise avoidable by adopting the existing design plan. Cf. Dowdell, 2003 WL 1227628, at *8; Hayes, 2022 WL 16559085, at *14-15 n.11. As such, there is substantial evidence in the record to support the Zoning Board's determination that Applicants satisfied the requirements of §§ 45-24-41(d)(1) and (e)(2).
2
Least Relief Necessary
Appellants also contend that Applicants failed to establish that their proposed design represented the "least relief necessary" as required by § 45-24-41(d)(4). (McLeod Mem. 14-16.) "[T]he burden is on the property owner to establish that the relief sought is minimal to a reasonable enjoyment of the permitted use to which the property is proposed to be devoted." Standish-Johnson Co. v. Zoning Board of Review of City of Pawtucket, 103 R.I. 487, 492, 238 A.2d 754, 757 (1968)). Therefore, failure to consider reasonable alternatives or proposals is substantial evidence that an applicant has not satisfied the requirements of § 45-24-41(d)(4). See New Castle, 248 A.3d at 648.
Here, Appellants contend that the hardships identified by the Applicants could be ameliorated by the lesser relief of renovating the existing structure. See McLeod Mem. 15. More specifically, they argue that "Applicants do not need a dimensional variance to weatherize the home, make it more energy efficient, upgrade the septic system[,] or address the rodent issue[.]" Id. This recitation of hardships ignores the actual hardships identified in the Zoning Board's Decision; namely (1) the narrow width of the lot and resultant constrained building envelope, and (2) the physical attachment of the existing structure to the adjacent property. See Zoning Bd. Variance Decision 7, 10. So identified, there is substantial evidence in the record to support the Zoning Board's conclusion that the Application represented the least relief necessary to ameliorate those hardships. See id. at 9. The record reflects that renovating the existing structure would in no way resolve its severe encroachment into the rear- and side-yard setbacks and could not achieve a similar scope of design without adding additional floors. See Nordstrom Br. App. 198-99. Further, if Applicants did consider a vertical expansion in the existing footprint, the Zoning Board explicitly discussed with Mr. Arner that such an addition would necessitate more significant variances than those proposed in the Application. See id. at 197-98. Our Supreme Court has stated that an "option[ ] recommended to the zoning board . . . incapable of being implemented absent the identical relief sought herein" is not a "reasonable alternative[.]" Lischio, 818 A.2d at 695.
As to the option of narrowing the width of a relocated structure, both architects agreed that designing a twenty-foot wide functional home would be "challenging" although not impossible. (Nordstrom Br. App. 150, 199.) Appellants contend that the Zoning Board should have required additional evidence "demonstrating that each alternative feasible design would require greater dimensional nonconformance than the proposed" design. (4 Spray Rock Mem. 4.) Specifically, Appellant 4 Spray Rock LLC argues that the Zoning Board should have required evidence about the feasibility of a twenty-eight-foot house in light of Mr. Fennell's testimony that such a width could be functional. Id. at 5-6 (citing Nordstrom Br. App. 149-50).
Appellant 4 Spray Rock LLC argues that a twenty-eight-foot width would be a "20% reduction" to the requested variance. (4 Spray Rock Mem. 6.) The width of the proposed home is thirty feet, not thirty-five feet. (Appl. 4 (Dowdell Engineering, Inc. Zoning Plan).)
Appellants ignore the substantial evidence in the record supporting the Zoning Board's conclusion that a narrower design-whether twenty feet or twenty-eight feet-would not be reasonable. Contrary to Appellant's claims, the fact that Mr. Houle did not conduct an analysis of the marketability or feasibility of designs less than thirty feet in width is not fatal to the Application. See Shawmut Ave. Mem. 4 (quoting Nordstrom Br. App. 133). It is not necessary that the Zoning Board precisely identify the point of impossibility and only approve a request that falls just on the side of possible-the standard is whether there exists a "reasonable alternative," not a speculatively "possible" alternative. Cf. New Castle, 248 A.3d at 648. Mr. Houle testified that any narrower width would "begin to go out of balance . . . with what is clearly the ratios that the zoning code calls for." (Nordstrom Br. App. 133-34.) To that point, § 45-24-41(d)(3) requires the Zoning Board to consider whether "the requested variance will . . . alter the general character of the surrounding area or impair the intent or purpose of the zoning ordinance or the comprehensive plan upon which the ordinance is based[.]" See § 45-24-41(d)(3). It would be a futile endeavor if the Zoning Board required evidence of lesser alternatives that would violate other elements of the dimensional variance standard. We "[keep] in mind that this test must be applied reasonably and realistically." Travers v. Zoning Board of Review of Town of Bristol, 101 R.I. 510, 514, 225 A.2d 222, 224 (1967).
Like Mr. Houle, Mr. Fennell testified that a narrower design would not be in keeping with the character of the surrounding area as to aspect ratio and would create structural concerns. (Nordstrom Br. App. 150.) Those objective design and structural issues therefore differentiate this case from Alpert v. Middletown Zoning Board of Review, No. 2003-0436, 2004 WL 1542238 (R.I. Super. June 28, 2004), where the only evidence in the record adverse to a narrower design alternative involved the applicant's subjective aesthetic preferences. Alpert, 2004 WL 1542238, at *6. Here, although Mr. Arner testified that a twenty-foot design was possible, the Zoning Board could permissibly rely on Mr. Fennell and Mr. Houle's related and more detailed testimony that such a design would nevertheless not be in accord with the intended aspect ratio for the area, adversely impact circulation and efficiency, and necessitate specialized design and construction materials for reinforcement-substantial evidence supporting the Zoning Board's determination that a narrower design was not a reasonable alternative. See Nordstrom Br. App. 150, 200; Zoning Bd. Variance Decision 10.
In sum, Applicants presented expert testimony that the Application represented the least relief necessary, and although the record contains evidence of proposed alternatives, it also contains substantial evidence to support the determination that those alternatives were not reasonable in their design or would involve more severe nonconformities than the requested five-foot side-yard variances. "[T]he Superior Court may not substitute its judgment for the zoning board of review concerning the weight of the evidence on questions of fact." Mill Realty Associates v. Crowe, 841 A.2d 668, 672 (R.I. 2004) (citing § 45-24-69(d)).
The Court also finds that the Zoning Board's statement that the "abutters failed to provide a reasonable . . . design for a newly constructed home" did not erroneously shift the burden of proof. See Zoning Bd. Variance Decision 10; see also 4 Spray Rock Mem. 5. Read in the context of the entire Decision and the comments by the Zoning Board in the October 2021 hearing, this Court finds that the contested statement intended to permissibly convey that nothing in the record before the Zoning Board rebutted Applicants' evidence that there was no reasonable alternative to the Application's proposed design. This conclusion is supported by the immediately preceding sentence in the Decision, which states that "the Board finds that although the objecting abutters presented an alternative to the proposed structure, the alternative proposed was not reasonable." See Zoning Bd. Variance Decision 10.
B
§ 260-32(C)(2): Demolition
Appellants' final challenge to the Zoning Board's Decision is that granting the Application violated § 260-32(C)(2) of Westerly's Zoning Ordinance, which states:
"Destruction or demolition. A nonconforming structure which is destroyed or damaged by any means which is beyond the control of the owner shall be rebuilt or restored within one year, or thereafter conform to the dimensional provisions of this Zoning Ordinance. If a nonconforming building or structure is demolished or removed by or for its owner, it shall not be rebuilt or replaced except in conformity with the dimensional requirements of this Zoning Ordinance." See Westerly Zoning Ordinance § 260-32(C)(2); see also McLeod Mem. 16-21.
Appellants contend that any new construction must fully comply with Westerly's dimensional regulations without any allowance for a variance. (McLeod Mem. 16.) The Zoning Board rejected this argument below, reasoning that § 260-32(C)(2) "simply does not apply" to Applicants' situation because it "only prohibits an owner from voluntarily demolishing a structure and rebuilding that same structure by right" and "does not prohibit an owner from applying for a dimensional variance." (Zoning Bd. Variance Decision 7.) The Zoning Board therefore concluded that § 260-32(C)(2) "does not strip the owner of the right to a dimensional variance that he would otherwise be afforded if the lot were unimproved." Id.
In opposition to this conclusion, Appellants misconstrue various Superior Court cases. They first reiterate their argument that Applicants cannot demonstrate a hardship by citing to Sullivan v. Zoning Board of Review for the City of Providence, No. 87-3611, 1989 WL 1110283 (R.I. Super. Mar. 28, 1989). (McLeod Mem. 17.) Sullivan, however, deals with a use variance, not a dimensional variance or a demolition. Sullivan, 1989 WL 1110283, at *1. Similarly, Appellants cite Vivieros v. Powis, No. C.A. 94-0535, 1997 WL 1526531, at *5, *7 (R.I. Super. Dec. 10, 1997) to support their contention that "Rhode Island law and public policy disfavor nonconforming structures and their expansion." (McLeod Mem. 19 n.7 (emphasis added).) This statement misrepresents Vivieros, which-like Sullivan-deals with nonconforming uses, not structures, and is therefore inapposite to the issues raised in this appeal. Vivieros, 1997 WL 1526531, at *5. Finally, Appellants pluck a quote from Wall, 2004 WL 2334743 without context and without acknowledging that the Wall Court reached a conclusion that directly undermines Appellants' contention; specifically that "[w]here a variance would be proper given the absence of the pre-existing nonconformance and the nonconformance is to be wholly demolished, to deny the applicant the right to relief would be a tortured reading of the Ordinance. Wall, 2004 WL 2334743, at *4.
Appellants' further citation to various cases from other states dealing with "intensifying" nonconformities as a result of the "bulk" of additional building stories is also unprevailing. (McLeod Mem. 19 n.7.) This Court recently observed that "Westerly's dimensional requirements do not consider three-dimensional mass" and that our Supreme Court has stated that "a zoning board does not err by refusing to accept a challenger's argument that an increase in height intensifies an existing nonconformity when the zoning ordinance 'does not contemplate a calculation of building mass or three-dimensional spaces[.]'" Watch Hill Fire District, 2022 WL 14676055, at *11 (quoting Lloyd v. Zoning Board of Review for City of Newport, 62 A.3d 1078, 1088-89 (R.I. 2013)). Nevertheless, "bulk" may be considered to the extent that it "alter[s] the general character of the surrounding area or impair[s] the intent or purpose of the zoning ordinance or the comprehensive plan upon which the ordinance is based[.]" See § 45-24-41(d)(3); see also Lischio, 818 A.2d at 693 (examples of when a proposal would alter the general character of a surrounding area include structures that are "massive or out of place"). Here, Appellants do not challenge the Zoning Board's determination as to § 45-24-41(d)(3). See generally McLeod Mem.; Shawmut Ave. Mem.; 4 Spray Rock Mem.
Therefore, in the absence of any relevant authority to the contrary, this Court is persuaded by the reasoning of Wall and Montaquila. In both cases, justices of this Court concluded that similar demolition prohibitions in Newport and Warwick did not divest the relevant zoning boards of authority to grant dimensional variances for new construction following voluntary demolition. See Wall, 2004 WL 2334743, at *4; Montaquila, 2012 WL 2995413, at *5. As the Wall opinion observed, the demolition restriction "must be interpreted with common law policies in mind- policies which serve as the background of every piece of legislation on the law of legal nonconformances." Wall, 2004 WL 2334743, at *4. Here, permitting Applicants to rebuild, but only after receiving any necessary variance approvals from the Zoning Board, comports with the plain language of § 260-31(C)(2), numerous common law principles, and standards of statutory construction.
The relevant sections of the Newport ordinance included that "'[n]o nonconforming building shall be moved, unless the result of such moving is to reduce or eliminate its nonconformity'"; "'[n]o . . . nonconforming structure shall be changed except to a conforming . . . structure'" and "'[n]o nonconforming structure, if once changed to conform, shall thereafter be changed so as to be nonconforming again.'" Wall v. Minifie, No. 2003-0130, 2004 WL 2334743, *3 (R.I. Super. Aug. 5, 2004) (quoting Newport Zoning Ordinance §§ 17.72.020B, C). The Warwick ordinance stated: "'A building or structure nonconforming by dimension, if voluntarily demolished, shall not be reconstructed, unless it conforms with the dimensional regulations of the zone in which it is located . . . If such building or structure is involuntarily demolished, destroyed or damaged, it may be repaired or rebuilt to the same size and dimension as previously existed.'" Montaquila v. Zoning Board of Review of the City of Warwick, No. KC-2010-1567, 2012 WL 2995413, *4 (R.I. Super. July 18, 2012) (quoting Warwick Zoning Ordinance App. A §§ 403.4, 403.8).
"'When interpreting an ordinance, we employ the same rules of construction that we apply when interpreting statutes.'" Freepoint Solar LLC v. Richmond Zoning Board of Review, 274 A.3d 1, 6 (R.I. 2022) (quoting Ryan v. City of Providence, 11 A.3d 68, 70 (R.I. 2011)).
First, "[z]oning ordinances are in derogation of the common-law right of the owner as to the use of his property and must therefore be strictly construed." Earle v. Zoning Board of Review of City of Warwick, 96 R.I. 321, 324, 191 A.2d 161, 164 (1963). "In determining restrictions upon an owner's use of his property in instances where doubt exists as to the legislative intention, the ordinance should be interpreted in favor of the property owner." Id. at 324-25, 191 A.2d at 164.
Second, "[w]hen performing [the] duty of statutory interpretation," courts "consider[] the entire statute as a whole; individual sections must be considered in the context of the entire statutory scheme, not as if each section were independent of all other sections." In re Brown, 903 A.2d 147, 149 (R.I. 2006) (internal quotation omitted). As is relevant here, "the specific governs the general" and the Court "will defer to the more precise language governing a particular subject." See Felkner v. Chariho Regional School Committee, 968 A.2d 865, 870 (R.I. 2009) (internal quotation omitted); see also G.L. 1956 § 43-3-26. While § 260-32(C)(2) broadly and generally refers to "conformity with the dimensional requirements of [the] Zoning Ordinance[,]" other sections of the Zoning Ordinance more specifically address how one may conform to those dimensional requirements, including a landowner's ability to pursue an "application for relief from the literal requirements of a Zoning Ordinance because of hardship[.]" See Westerly Zoning Ordinance § 260-33(A); id. ch. 260, attach. 10. Consequently, "conformity with the dimensional requirements" more specifically means conformity with the Schedule of Dimensional Regulations for the MDR-30 district or an approved variance to deviate from those requirements. Cf. Wall, 2004 WL 2334743, at *4.
Finally, "'some deference should be paid' to the 'interpretation placed on [an] ordinance by the municipal official responsible for enforcing it[.]'" City of Woonsocket v. RISE Prep Mayoral Academy, 251 A.3d 495, 502 (R.I. 2021) (quoting New England Expedition-Providence, LLC v. City of Providence, 773 A.2d 259, 263 (R.I. 2001)). Here, the Zoning Board determined that § 260-32(C)(2) "does not strip the owner of the right to a dimensional variance that he would otherwise be afforded if the lot were unimproved." (Zoning Bd. Variance Decision 7.) Contrary to Appellants' contention, this interpretation does not "render[ ] the second sentence of [§ 260-32(C)(2)] meaningless." (McLeod Reply Br. 16.) As the Zoning Board further explained, the first sentence allows a landowner to rebuild as of right following involuntary destruction, while the second sentence retains independent force and meaning by foreclosing by-right construction following voluntary demolition. See Zoning Bd. Variance Decision 7; see also Cohen v. Duncan, 970 A.2d 550, 563 (R.I. 2009) (interpretations must avoid transforming an ordinance into "meaningless surplusage" because "'we must presume that the drafters intended every word of the ordinance to have a useful purpose and to have some force and effect'") (quoting Ruggiero v. City of Providence, 893 A.2d 235, 238 (R.I. 2006)). The Court accords deference to this determination, especially where it harmonizes the various sections of the Zoning Ordinance, comports with common law principles, and aligns with prior Superior Court case law. Cf. RISE Prep Mayoral Academy, 251 A.3d at 502 (trial justice may "not accord blind deference to the zoning official's determination").
IV
Conclusion
For the reasons stated above, the Zoning Board applied the proper legal standard for a dimensional variance, specifically as applied to a request following voluntary demolition of a preexisting, dimensionally nonconforming structure. The Zoning Board's Decision is also supported by substantial evidence in the record. This Court therefore affirms. Counsel shall prepare the appropriate order.