Opinion
C. A. WC-2022-0240
03-20-2023
JAMES WOODS, Appellant, v. HARRY HAWKER, III and TOWN OF EXETER ZONING BOARD OF REVIEW, Appellees.
For Plaintiff: Timothy J. Robenhymer, Esq. For Defendant: Steven H. Surdut, Esq.; James P. Marusak, Esq.
For Plaintiff: Timothy J. Robenhymer, Esq.
For Defendant: Steven H. Surdut, Esq.; James P. Marusak, Esq.
DECISION
TAFT-CARTER, J.
Before this Court for decision is the appeal of James Wood (Appellant) from the June 24, 2022 decision (the Decision) of the Town of Exeter Zoning Board of Review (the Zoning Board) granting Harry Hawker, III's (Applicant) application for dimensional variances to construct a single family dwelling on an undersized, pre-existing, non-conforming lot. Jurisdiction is pursuant to G.L. 1956 § 45-24-69.
I
Facts and Travel
A
Dimensional Variance Application
Applicant is the owner of a legally nonconforming vacant lot located at 0 West Shore Drive in Exeter, Rhode Island (the Property). (Zoning Application for Applicant Harry Hawker Dated 418-2022 (First Amended Application) at 1.) The 6,488 square foot property is more specifically described as Lot 19 on Tax Assessor's Plat 84. Id. The Property is located in a Residential District (RE-2) zone. Id. Currently, the RE-2 zone sets the minimum lot size to build in the zone at two acres. Exeter Zoning Ordinance (the EZO) § 2.4.2.1.
Documents in the Certified Record are not marked as enumerated exhibits and will be identified in this Decision by the document titles listed on the Record page titled "Certification" followed by a page number where appropriate. Many of the documents in the Certified Record are not internally paginated; however, for clarity purposes any citation to a page number in this decision is in reference to the number of pages listed next to the document's title on the Certification or to the internal pagination when applicable.
Appellant is the owner of 222 West Shore Drive in Exeter, Rhode Island (Appellant's Property) which is laterally adjacent to the Property. (Copy of Transcript by Ronald M. Ronzio, Certified Court Reporter Dated 4-14-2022 (Apr. Tr.) at 37:19-38:20.)
In early 2022, Applicant submitted his application to the town requesting dimensional variances to construct a single-family home on the Property (the Application). The Application sought dimensional relief from: (1) the minimum street frontage requirement of § 2.4.2.2 of the EZO; (2) the front setback requirement of § 2.4.2.4 of the EZO; (3) the side setback requirement of § 2.4.2.6 of the EZO; and (4) the rear setback requirement of § 2.4.2.7 of the EZO. (Zoning Application for Applicant Harry Hawker (Application) at 2.)
On January 25, 2011, the Zoning Board approved Applicant's application for dimensional relief (that was identical to the Application) to construct a twenty-four foot by thirty-eight-foot singlefamily home on the Property. (Previous Zoning Certificate and Application for Harry Hawker, as well as Zoning Decision from Jan. 2011 (2011 Decision) at 3-4.) However, for personal reasons, Applicant was unable to obtain a building permit within the allotted time and was therefore required to submit a new application for dimensional relief in 2022. (Apr. Tr. at 4:13-5:19.)
B
Notice to Abutters
On March 29, 2022, Applicant mailed notices of the April 14, 2022 Zoning Board hearing to the abutting property owners in accordance with the EZO. See generally Radius Map, Abutters List, Notice Sent to Abutters and Affidavit; see also Apr. Tr. at 11:20-13:16. Notice was sent to Appellant via certified mail to "Dixon et al. Trustee / Woods Trustee" in West Hollywood, California. (Copies of Returned Certified Mailing Receipts and Green Cards from Abutters at 3.) Appellant received the notice on April 2, 2022. Apr. Tr. at 25:2-25:9; see also Apr. Tr. Ex. B. Additionally, notice of the hearing was published in The Standard Times newspaper on March 31, 2022. (Copy of Advertisement from Standard Time 3-31-2022.)
C
Zoning Board Hearings
In consideration of the Application, the Zoning Board conducted hearings on April 14, 2022, May 12, 2022, June 9, 2022, and June 15, 2022.
1 April 14, 2022 Hearing
The Zoning Board first took up the Application at the April 14, 2022 hearing (April Hearing). Applicant's attorney advised the Zoning Board that the requested relief had been previously granted by the Board. (Apr. Tr. at 3:18-6:22.) The current proposal was to construct a 950 square foot, two-bedroom, single family dwelling on the Property. Id. at 13:24-14:8. The proposed house was described as modest. Id. at 13:24-14:8. In addition, the Property was similar in size to the other lots in the neighborhood. Id. at 12:16-13:9.
During the April Hearing the Zoning Board expressed concerns about the accuracy of the calculations listed in the Deviation from Required Standards table. Id. at 7-11. The Zoning Board questioned the accuracy because (1) the requested relief and the proposed relief in subsection four of the Deviation From Required Standards table did not equal sixty and (2) the south side setback relief requested in the Application did not match the number listed on the plot plan. Id.; see also Application at 2.
Additionally, the Zoning Board questioned whether the Application reflected the least amount of relief necessary and asked Applicant whether the house could be built to a smaller scale. Id. at 13:18-13:23. It was again emphasized that the proposed house was a modest two-bedroom home with a footprint of 950 square feet. Id. at 13:24-14:8. Furthermore, it was Applicant's intention to keep the proposed house as small as possible without creating a significant inconvenience while also maintaining safe and adequate side yards to allow emergency access to and from Boone Lake. Id. at 13:24-16:6.
The Zoning Board opened the hearing for public comment and a few neighbors testified in response to the Application. First, Cliff Hackney, an abutter, explained that his reason for attending the hearing was to inform the Zoning Board that Applicant had "dug up and removed a certified boundary marker." Id. at 19:12-21:11. Second, David Gallagher testified that he did not have any issues with the Application. Id. at 21:15-22:5. Next, Jeffrey Belmonte testified that he has known Applicant for fifty-eight years and was in full support of the Application because the proposed house would enhance the community and be esthetically pleasing. Id. at 22:7-23:5.
Lastly, the Zoning Board heard from Appellant's attorney, Timothy Robenhymer. Appellant's attorney argued that Appellant did not receive notice of the April Hearing until April 2, 2022, therefore notice was improper. Id. at 23:15-25:13. The Zoning Board quickly dismissed this argument because (1) the notice was mailed sixteen days prior to the hearing, and (2) the Zoning Board had no control over when Appellant received the notice, only when the notice is mailed. Id. at 25:14-25:23.
Additionally, Appellant's attorney maintained that the Application was not in conformance with § 3.5.4.C of the EZO and as a result, the Zoning Board did not have the ability to deviate from the setback requirements to grant the relief requested in the Application. Id. at 25:25-28:14.
Appellant's attorney also argued that the issue of whether the Application sought the least relief necessary required expert testimony. Id. at 31:16-33:8. Appellant's attorney maintained that expert testimony concerning the issue of surface water runoff was required to be addressed by Applicant. Id. Furthermore, the Application did not satisfy the requirement that it would be the least relief necessary because the Property had been used for decades for access to Boone Lake through a dock on the back of the Property and the Property could continue to be used for that same purpose without the requested relief. Id. at 33-45.
In response, Applicant's attorney argued that the plain language of § 3.5.4.C of the EZO grants Applicant the right to construct a single family home on the Property because an undersized lot that meets the requirements of § 3.5.4.C of the EZO does not have to obtain a dimensional variance for construction. Id. at 48:13-49:8. Additionally, he maintained that Appellant's argument regarding access to Boone Lake was premised on the standard applied for a use variance, which in this instance was incorrect. Id. at 49:9-50:2.
Thereafter, the Zoning Board voted to close the hearing to public comment and began its discussion of the accuracy of the Application. Id. at 52:14-56:20. Following this discussion, the Zoning Board voted (1) to allow Applicant additional time to amend the Application so that it was "filled out fully with what [Applicant was] looking for in terms of relief" and (2) reopen the public hearing to explain to Applicant exactly what information he needed to change and submit before the next hearing. Id. at 58:6-64:5.
Before voting on whether to continue the April Hearing, the Zoning Board explained that renotice was not required because anyone with an interest in the Application would be aware of the continuance. Id. at 64:20-65:3. Appellant's attorney objected and argued in favor of renotice, particularly if the calculations are changed as those not in attendance may have objections to the amendment. Id. at 65:5-65:12. The Zoning Board explained that the notice sent to abutters does not include the details of an application; rather, the notice sets forth that dimensional relief is being requested for a particular property from specific provisions of the EZO. Id. at 65:13-66:7.
Following this discussion, Hal Morgan, the zoning official for the Town of Exeter, explained that Applicant was only required to seek relief from the front, side, and rear setback requirements of the EZO. Id. at 66:14-68:14. Additionally, he explained that the EZO permits an in-law structure up to 900 square feet and the footprint of the proposed house is only 950 square feet, which in his opinion, is essentially an in-law plus a closet to provide a different perspective of the size of the house to the Zoning Board. Id. at 68:14-69:6. Thereafter, the Zoning Board voted to continue the April Hearing until its next hearing on May 12, 2022. Id. at 70:2-71:2.
2 May 12, 2022 Zoning Board Hearing
The Applicant submitted a signed, amended application (First Amended Application) in advance of the May 12, 2022 hearing (May Hearing). The First Amended Application revised the relief requested in the Application for (1) the front setback, from 28.5 feet to 37.5 feet; (2) the south side setback, from ten feet to twenty feet; (3) the northside setback, from 10.2 feet to 19.8 feet; and (4) the rear setback, from 26.8 feet to 23.2 feet. (First Amended Application at 2.) Essentially, Applicant transposed the numbers in the "Proposed" column with the numbers in the "Difference" column of the Deviation from Required Standards table of the Application. See id. Applicant did not submit any changes to the relief requested for the minimum street frontage. See id.
In the Application, this section was described as "side setback" with no further description by Applicant. See Application at 2.
To begin the May Hearing, the Zoning Board explained that it was not taking any new testimony because it had closed the public hearing at the April Hearing. (Copy of Transcript by Ronald M. Ronzio, Certified Court Reporter Dated 5-12-2022 (May Tr.) at 2:13-16.) Rather, it was going to address the changes to the calculations added to the First Amended Application. Id. at 2:16-23. After reviewing the First Amended Application, the Zoning Board again questioned the accuracy of the proposed dimension and the requested relief for the front setback as required by § 2.4.2.4 of the EZO. Id. at 3:17-7:24. Applicant's attorney explained that there was a typographical error in the First Amended Application. Id. It was explained that the proposed dimension in the Deviation from Require Standards table should be 22.5 feet not 28.5 feet as indicated in the First Amended Application. Id.
As a result, the May Hearing was continued until June 9, 2022. Id. at 16:21-18:8, 21:1115. Appellant's Attorney objected to the continuance without allowing additional testimony. Id. at 13:21-16:20.
At the June 9, 2022 hearing, the Zoning Board was informed that Appellant's attorney had been diagnosed with COVID and pursuant to state law could not attend the hearing in person. (Copy of Transcript by Ronald M. Ronzio, Certified Court Reporter Dated 6-9-2022 at 2:3-7.) For that reason, the Zoning Board voted to continue the hearing to a special hearing on June 15, 2022. Id. at 11:24-12:10.
On May 18, 2022, Applicant submitted a Second Amended Application (Second Amended Application). The Second Amended Application revised the proposed dimension for the front setback from 28.5 feet to 22.5 feet. (Zoning Application for Applicant Harry Hawker Dated 5-182022 (Second Amended Application) at 2.) All other dimensions and requested relief in the Second Amended Application were identical to the First Amended Application. See generally id.; see also First Amended Application.
3 June 15, 2022 Zoning Board Hearing
On June 15, 2022, the Zoning Board held a hearing with respect to the Second Amended Application. At the hearing, the Zoning Board reopened the Public Hearing. (Copy of Transcript by Ronald M. Ronzio, Certified Court Reporter Dated 6-15-2022 (Special Hearing Tr.) at 4:4-11.) Appellant's attorney argued that the site plan presented by Applicant with respect to the Second Amended Application was not a reliable indicator of the Property's boundaries because it was not a "Class I survey." Id. at 6:14-9:3. Next, Appellant's attorney argued that the Second Amended Application failed to address water runoff. It was suggested to the Zoning Board that if it granted the requested relief, Applicant should be required to (1) put a berm along the entire length of the boundary between the Property and Appellant's Property to prevent water from running onto Appellant's Property and (2) add a rain guard on the back side of the Property along Boone Lake to prevent water runoff into the lake and the back of Appellant's Property. Id. at 10:17-11:21. In response, Applicant's attorney explained that the Department of Environmental Management's (DEM) plan approval addressed storm water runoff and Applicant is aware that he must take specific actions to comply with DEM's regulations. Id. at 12:22-13:18.
Following these discussions, the Zoning Board voted to close the public hearing and began its discussion of the Second Amended Application. Id. at 14:9-14. First, the Zoning Board explained that Applicant's building plan did not differ much from the character of the surrounding area and that the dimensions of the Property are such that, without a variance, Applicant would be unable to build on the Property. Id. at 14:24-16:2. Next, the Zoning Board listed the findings of fact it must make pursuant to § 1.3.8.C of the EZO which include: (1) the hardship from which Applicant seeks relief is due to the unique characteristics of the Property and not the general characteristics of the surrounding area and is not due to a physical or economic disability of Applicant; (2) the hardship is not the result of any prior action of Applicant and does not result primarily from Applicant's desire to realize a greater financial gain; (3) granting the Application will not alter the general character of the surrounding area or impair the intent or purpose of the EZO or the Exeter Comprehensive Plan; (4) the relief to be granted is the least relief necessary and if not granted, the hardship to Applicant will amount to more than a mere inconvenience. Id. at 16:17-17:22. Subsequently, the Zoning Board voted to approve Applicant's Second Amended Application. Id. at 18:16-19:6.
D
The Zoning Board's Decision
On June 24, 2022, the Zoning Board issued its written Decision that unanimously approved the Second Amended Application. See generally the Decision. In the Decision, the Zoning Board approved:
"[T]he issuance of the following dimensional variances under [EZO] Article II, for the proposed single family dwelling [§] 2.4.2.2, minimum street frontage relief of 99.9 feet; [§] 2.4.2.4 front setback of 37.5 [feet]; [§] 2.4.2.6 south side setback of 20 [feet]; north side setback of 19.8 [feet]; and [§] 2.4.2.7 rear setback of 23.2 [feet] to allow for the construction of a single family dwelling on the [Property]." Id. at 4.
The Decision summarized the details of the Second Amended Application, the testimony and arguments presented at each of the hearings and included a list of exhibits entered into the record. Id. at 1-3. Furthermore, the Decision described the standard for granting a dimensional variance and enumerated the Zoning Board's conclusions of law and supporting factual determinations including that: (1) the area surrounding the Property is comprised of similarly sized lots and single family homes and as such, Applicant's proposed development is consistent with the surrounding area and the hardship which Applicant seeks relief from is due to the unique characteristics of the Property, id. at 3, ¶ 1; (2) based upon the testimony before the Zoning Board, Applicant minimized his need for variance relief as much as possible and the hardship is not the result of any prior action by Applicant and does not result from Applicant's desire for greater financial gain, id. at 3, ¶ 2; (3) based upon the testimony before the Zoning Board, the granting of the requested relief will not alter the general character of the surrounding area or impair the intent or purpose of the EZO or the Exeter Comprehensive Plan, id. at 3-4, ¶ 3; (4) based upon the testimony before the Zoning Board, the Application, and the exhibits entered into the record, Applicant minimized the need for relief as much as possible and the relief granted is the least relief necessary, id. at 4, ¶ 4; and (5) if the Application was denied, the denial would constitute a hardship to Applicant and would amount to more than a mere inconvenience, id. at 4, ¶ 5.
E
Procedural History
On July 6, 2022, Appellant filed a Complaint, pursuant to § 45-24-69 and § 42-35-15, asking this Court to reverse the Decision of the Zoning Board. See generally Compl. On July 13, 2022, Appellant amended the Complaint to add Applicant as an additional appellee. (Am. Compl. ¶ 2.) The Zoning Board and Applicant filed Answers to Appellant's Amended Complaint on July 19, 2022. See Docket. On August 11, 2022, this Court accepted the parties' stipulation that the Zoning Board may have until August 25, 2022 to file the certified record. See id.
Following a hearing on October 17, 2022, the Court entered an Order for the appellate briefing by the parties. See Order, Nov. 10, 2022 (Taft-Carter, J.). Appellant filed his Memorandum on October 31, 2022, the Zoning Board filed its Brief on November 29, 2022, and Applicant filed his Brief on January 11, 2023. See Docket.
II
Standard of Review
The Superior Court's review of zoning board decisions 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).
The Court must "'examine the whole record to determine whether the findings of the zoning board were supported by substantial evidence.'" Lloyd v. Zoning Board of Review for City of Newport, 62 A.3d 1078, 1083 (R.I. 2013) (quoting Apostolou v. Genovesi, 120 R.I. 501, 507, 388 A.2d 821, 824 (1978)). "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.'" Iadevaia v. Town of Scituate Zoning Board of Review, 80 A.3d 864, 870 (R.I. 2013) (quoting Pawtucket Transfer Operations, LLC v. City of Pawtucket, 944 A.2d 855, 859 (R.I. 2008)). If the Court finds that the zoning "board's decision was supported by substantial evidence in the whole record[,]" then the zoning board's decision must stand. Lloyd, 62 A.3d at 1083. If the decision of the board does not contain sufficient findings of fact and conclusions of law to permit judicial review, the Court will remand the matter to the board so that the board may issue a ruling that is complete and susceptible to judicial review. See Irish Partnership v. Rommel, 518 A.2d 356, 359 (R.I. 1986).
III
Analysis
Appellant argues that the Zoning Board's Decision was "in violation of constitutional or statutory provisions" because neither Applicant nor the Zoning Board properly noticed the filing of the Second Amended Application or the date of the May Hearing as required by § 45-24-41(b) and Article I, Section 1.5.5.D(C) of the EZO. (Appellant, James Woods' Mem. in Supp. of his Appeal (Appellant's Mem.) at 4-5.) Second, Appellant contends that the "granting of the dimensional relief sought by [Applicant] was in direct contravention of [§] 3.5(4)(c) of the [EZO]" because the Zoning Board lacked the authority to grant the Second Amended Application. Id. at 5-6. Third, Appellant argues that Applicant "failed to place any evidence on the record before the [Zoning Board] that the relief requested in the [Second Amended Application] would not alter the general character of the surrounding area" pursuant to § 45-24-41(d)(3). Id. at 6. Specifically, Appellant contends that Applicant was required to submit expert testimony concerning the requested relief's impact to water runoff and whether the values of the surrounding properties would be impacted. Id. Finally, Appellant contends that "the construction of a residential home on [the Property] is not the least relief necessary to enjoy use of [the Property]" under § 45-24-41(d)(4) because Applicant could have continued to use the Property as a means to access Boone Lake if the Second Amended Application had been denied. Id. at 6-7.
A
Notice
It is well settled that notice of a zoning board hearing is "purposed upon affording those having an interest an opportunity to present facts which might shed light on the issue before the board [. . .] and upon assisting the board to do substantial justice to an applicant while preserving the spirit of the ordinance under consideration." Carroll v. Zoning Board of Review of City of Providence, 104 R.I. 676, 678, 248 A.2d 321, 323 (1968) (citation and internal quotation marks omitted). Proper notice is a jurisdictional prerequisite to a zoning board's exercise of review and any "'action taken by a [zoning] board that has not satisfied the notice requirements is a nullity.'" Ryan v. Zoning Board of Review of Town of New Shoreham, 656 A.2d 612, 615-16 (R.I. 1995) (quoting Corporation Service, Inc. v. Zoning Board of Review of Town of East Greenwich, 114 R.I. 178, 180, 330 A.2d 402, 404 (1975)).
The ordinance governing notice is found in § 1.3.E.B of the EZO. The EZO requires that the Zoning Board send "public notice . . . at least 14 days prior to the date of the hearing . . . in a newspaper of general circulation in the Town of Exeter" for an application for dimensional relief. See EZO § 1.3.E.B. Furthermore, § 1.3.E.B of the EZO requires that notice of the hearing be "sent by certified mail to the applicant" and to "all owners of real property whose property is located in or within not less than 200 feet of the perimeter" of the property requesting dimensional relief. See id.; see also EZO § 5.D.C.2. Here, the record includes copies of the certified mail receipts demonstrating that notice was mailed to abutting landowners within 200 feet of the Property. See generally Copies of Returned Certified Mailing Receipts and Green Cards from Abutters; see also April Tr. at 13:10-16. Furthermore, the certified record contains a copy of the publicized notice. See Copy of Advertisement from Standard Times 3-31-2022.
Appellant nonetheless argues that Article I § 1.5.5.D(C) of the EZO governs the required notice for this Application. This argument fails, however, because that section of the EZO pertains to the notice requirements for a "proposed amendment to an existing ordinance[,]" including a change in a zoning district map. See EZO § 1.5.5.D(C). Here, the Application concerns a dimensional variance. Accordingly, the April Hearing was properly noticed.
Furthermore, the record clearly reflects that the Zoning Board expressed concerns at the April Hearing about the accuracy of the relief requested in the Application. It continued the hearing to allow Applicant to correct any inaccuracy contained in the Application. See generally Apr. Tr. There is no statutory requirement that supplemental notice must be sent when a zoning board hearing is continued to a date certain. See § 45-24-41; see also EZO § 1.3.E.B. In fact, our Supreme Court has previously concluded that supplemental notice of a continued Zoning Board hearing is not necessary if the requisite formalities are observed for the first hearing and the hearing is continued to a date certain. Tramonti v. Zoning Board of Review of City of Cranston, 93 R.I. 131, 135, 172 A.2d 93, 95 (1961). In addition, an amended application does not constitute a separate application.
Here, Applicant provided notice of the April Hearing to Appellant via certified mail that was sent on March 29, 2022, fifteen days before the April Hearing. See Copies of Returned Certified Mailing Receipts and Green Cards from Abutters at 3; see also April Tr. at 25:2-9, Apr. Tr. Ex. B. Additionally, the Zoning Board published the date and subject matter of the April Hearing in The Standard Times newspaper on March 31, 2022, fourteen days prior to the April Hearing. See Copy of Advertisement from Standard Times 3-31-2022. Then, at the conclusion of the April Hearing, the Zoning Board voted to continue the April Hearing to May 12, 2022 (i.e., the May Hearing) to allow Applicant to make corrections. (Apr. Tr. at 70:2-71:2.) Based on the evidence in the record, the Zoning Board complied with the requisite notice formalities of § 1.3.E.B of the EZO in convening the April Hearing and because the April Hearing was continued to a specific date, the Zoning Board was not required to renotice the May Hearing. See Tramonti, 93 R.I. at 135, 172 A.2d at 95. Accordingly, the notice sent by Applicant and the Zoning Board was in full compliance with the requirements of § 1.3.E.B of the EZO.
Furthermore, an "appearance before the zoning board is proof that the unnotified party had the opportunity to present facts that would assist the zoning board in the performance of its duties, and therefore, such a party waives the right to object to any alleged deficiency of notice." Ryan, 656 A.2d at 616; see also Zeilstra v. Barrington Zoning Board of Review, 417 A.2d 303, 307 (R.I. 1980); Champagne v. Zoning Board of Review of Town of Smithfield, 99 R.I 283, 288, 207 A.2d 50, 53 (1965). Here, the record is clear that Appellant attended the May Hearing and as such, Appellant "waive[d] [his] right to object to any alleged deficiency of notice" for the May Hearing. Ryan, 656 A.2d at 616.
B
Zoning Board's Authority Pursuant to § 3.5.4.C of the EZO
Appellant next argues that the granting of the dimensional relief requested by Applicant was in direct contravention of the "plain and unambiguous language" of § 3.5.4.C of the EZO because Applicant had to establish that his intended residential use of the Property met the requirements of Article II without dimensional relief. (Appellant's Mem. at 5-6.) Conversely, the Zoning Board argues that (1) Appellant's interpretation of § 3.5.4.C of the EZO would prevent Applicant from using the Property for a use that is permitted by right under the EZO because any landowner can apply for a dimensional variance to construct a single-family home on their property. (Br. of Def./Appellee Town of Exeter Zoning Board of Review (Appellee's Br.) at 14- 15.) Furthermore, the Zoning Board argues that Appellant made this same argument before the Zoning Board at the April Hearing, which the Zoning Board heard, considered, and rejected, and as such, "the Court should show deference to the Board's reasonable and appropriate interpretation of [the EZO] that it administers." Id. at 15 (citing Pawtucket, 944 A.2d at 859-60).
An ordinance is interpreted in the same manner as a statute. City of Woonsocket v. RISE Prep Mayoral Academy, 251 A.3d 495, 500 (R.I. 2021). "If the language of a statute or ordinance is clear and unambiguous, it is given 'its plain and ordinary meaning.'" Id. (quoting Sauro v. Lombardi, 178 A.3d 297, 304 (R.I. 2018)). However, "'statutes should not be construed to achieve meaningless or absurd results.'" McCain v. Town of North Providence ex rel. Lombardi, 41 A.3d 239, 243 (R.I. 2012) (quoting Ryan v. City of Providence, 11 A.3d 68, 71 (R.I. 2011)). Additionally, the statute or ordinance must be considered as a whole and not as if each section is independent of all other sections. See Ryan, 11 A.3d at 71.
The language of § 3.5.4.C of the EZO is clear and unambiguous on its face. Section 3.5.4.C of the EZO states the following, in pertinent part:
"In any district in which dwellings are permitted, a dwelling may be erected, enlarged or altered on a nonconforming lot . . . subject to the following:
"C. Any vacant lot in a residence district . . . made nonconforming by the adoption of this ordinance or by the adoption of the predecessor to this ordinance on May 2, 1977, may be built upon, enlarged or altered after the effective date of such ordinance, provided that the construction, alteration or enlargement complies with the front and corner side yard, side yard and rear yard requirements of article II, dimensional regulations for the district in which such lot was formerly located[.]" EZO § 3.5.4.C.
According to the clear and unambiguous language of § 3.4.5.C of the EZO, a property owner of a vacant, legal nonconforming lot is permitted to build a house on the lot as long as the property owner complies with the dimensional regulations of the zoning district the lot is located in. See EZO § 3.5.4.C. Applicant is the owner of a vacant, legal nonconforming lot. It was his intention to construct a single-family home on the Property; however, due to the Property's size (a mere 0.15 acres), an application for dimensional relief was required.
The State Zoning Enabling Act and the EZO expressly grant property owners the right to request dimensional relief. See § 45-24-41(a) ("[a]n application for relief from the literal requirements of a zoning ordinance because of hardship may be made by any person"); see also EZO § 1.3.E.A (including substantially similar language). Additionally, Appellant's interpretation of § 3.4.5.C of the EZO would deny Applicant of zoning uses that are permitted by right in the EZO, including building a single-family home on the Property in a RE-2 zone. See Ryan, 11 A.3d at 71; see also EZO § 2.4.1.1.
Moreover, the language of § 3.5.4.A of the EZO specifically allows a property owner of a vacant, nonconforming lot that is smaller than two acres to apply to the Zoning Board for dimensional relief to build a single-family home on the lot. Section 3.5.4.A of the EZO states the following, in pertinent part:
"In any district in which dwellings are permitted, a dwelling may be erected . . . on a nonconforming lot . . . subject to the following: "A. Where such lot . . . contain[s] less than two acres of land . . . it shall be necessary for the owner thereof to receive from the zoning board of review a dimensional variance in order to construct a new dwelling thereon[.]" EZO § 3.5.4.A.
Section 3.5.4.A of the EZO clearly and unambiguously permits a property owner of a vacant nonconforming lot that is smaller than two acres to apply to the Zoning Board for dimensional relief to build on the lot. See id. Here, the Property is a vacant, legal, nonconforming undersized lot that is 0.15 acres which required Applicant to apply to the Zoning Board for dimensional relief before building a single family home on the Property, a right that is specifically permitted pursuant to § 3.4.5.A of the EZO. See EZO § 3.5.4.A.
It is clear from reading the EZO as a whole that property owners of vacant, legal conforming undersized lots have the right to build a single-family home on their property if they apply for and are granted dimensional relief by the Zoning Board. See Ryan, 11 A.3d at 71. Accordingly, the clear and unambiguous language of § 3.5.4.C of the EZO did not prohibit the Zoning Board from granting the Application.
C
Evidence on the Record 1
General Character of the Surrounding Area
Next, Appellant argues that Applicant failed to present any expert testimony that the relief requested in the Second Amended Application would not alter the general character of the surrounding area including Appellant's Property. (Appellant's Mem. at 6.) Specifically, Appellant contends Applicant was required to submit expert testimony that the requested relief would not impact surface water runoff and the neighboring property's values. Id. Conversely, the Zoning Board argues that an "applicant for a straightforward dimensional variance to construct a single family home is not required to present any expert testimony[]" because the Zoning Board is capable of understanding the character of the neighborhood without the assistance of an expert. (Appellee's Br. at 16 (citing Schofield v. Zoning Board of Review of City of Cranston, 99 R.I. 204, 208, 206 A.2d 524, 527 (1965)).) Additionally, the Zoning Board argues that surface water runoff and the impact to property values are not criteria that are considered by the Zoning Board when deciding whether to grant an application for a dimensional variance because they are not requirements within § 1.3.E of the EZO. Id.
The Court must "presume that the members of [the Zoning Board] possess an expertise as to matters peculiarly related to the administration of the zoning ordinance." Schofield, 99 R.I. at 208, 206 A.2d at 527. Here, the Application sought dimensional variances to construct a singlefamily dwelling on an undersized, pre-existing, non-conforming lot. The Application is a straightforward dimensional variance application and that is well within the Zoning Board's expertise and knowledge. See id.; see also Pawtucket, 944 A.2d at 859 ("a zoning board of review is presumed to have knowledge concerning those matters which are related to an effective administration of the zoning ordinance"). Additionally, Applicant was not required to present evidence of surface water runoff or any impacts to property values because those are evidentiary requirements for a special use permit, not a dimensional variance. See EZO § 1.3.F.C. (2) &(4) (an applicant for a special use permit must present competent evidence that the proposed use or structure will protect property values and minimize the possibility of adverse effects on neighboring properties including stormwater runoff).
Moreover, the Zoning Board concluded that granting the Application would be consistent with the general character of the surrounding area because the properties and homes in the surrounding area were similar in size to Applicant's and the placement of the proposed home was in the center of the Property. See Special Hearing Tr. at 14-15; see also Decision. This conclusion is supported by the record. Here, the Zoning Board weighed the arguments made at the hearings, reviewed the Application and the evidence in the record before it and ultimately determined that the relief requested in the Application would not alter the general character of the surrounding area. See generally Decision. Accordingly, Applicant was not required to submit expert testimony that the Application would not alter the general character of the surrounding area to the Zoning Board.
2 Least Relief Necessary
Finally, Appellant argues that the construction of a single-family home on the Property is not the least relief necessary for Applicant's enjoyment of the Property because the Property has been primarily used to access Boone Lake. (Appellant's Mem. at 6-7.) In support, Appellant contends that Applicant did not present any evidence establishing that Applicant would be denied using the Property for access to Boone Lake if the Zoning Board denied the relief sought in the Application. Id. at 7.
An applicant requesting a dimensional variance must submit evidence to the Zoning Board "'[t]hat the relief to be granted is the least relief necessary.'" New Castle Realty Company v. Dreczko, 248 A.3d 638, 647 (R.I. 2021) (quoting § 45-24-41(d)(4)). "Least relief" means that "the 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." See Standish-Johnson Co. v. Zoning Board of Review of City of Pawtucket, 103 R.I. 487, 492, 238 A.2d 754, 757 (1968); Watch Hill Fire District v. Westerly Zoning Board of Review, No. WC-2021-0195, 2022 WL 14676055, at *6-7 (R.I. Super. Oct. 20, 2022) (explaining proper legal standard considering the New Castle Realty Co. opinion).
Appellant is arguing that because Applicant has not been denied of all beneficial use of the Property, the Zoning Board should have denied the Application. (Appellant's Mem. at 6-7.) However, that is the standard for a use variance, not a dimensional variance. See § 45-24-41(e)(1); see also EZO § 1.3.E.D.1 (including substantially similar language), Lischio v. Zoning Board of Review of Town of North Kingstown, 818 A.2d 685, 691 (R.I. 2003) (an applicant for a dimensional variance is "not required to demonstrate a loss of all beneficial use"). The dimensional variance standard requires an applicant to demonstrate 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." § 45-24-41(e)(2); see also EZO § 1.3.E.D.2 (including substantially similar language). A "mere inconvenience" means "that there is no other reasonable alternative to enjoy a legally permitted beneficial use of one's property." Lischio, 818 A.2d at 693.
Here, the Zoning Board found that the relief requested in the Application was the least relief necessary because Applicant "sought to minimize the need for dimensional relief as much as possible in the proposed [building] plan." (Decision at 4.) The record clearly supports this finding because Applicant designed a modest two-bedroom home, with a footprint of a mere 950 square feet, that will be built in the center of the Property minimizing the amount of dimensional relief. See Apr. Tr. at 13:22-16:6. Moreover, it was clear to the Zoning Board that building a single-family home in a RE-2 zone is a zoning use that is permitted by right under the EZO, and without dimensional relief Applicant could not build a single-family home on the Property due to the Property's small size. See Special Hearing Tr. at 15-16; see also EZO §§ 2.3.1.A, 2.4.1.1 (single-family homes are permitted by right in RE-2 zones). Consequently, the Zoning Board determined that denying the Application would have been more than a mere inconvenience to Applicant because he would have been denied of his right to build a single-family home on his Property.
Therefore, the Zoning Board's determination that denying the Application would result in more than a mere inconvenience to Applicant is well-supported by substantial evidence in the record.
IV
Conclusion
After review of the entire record, this Court finds substantial evidence supports the Zoning Board's Decision to grant the dimensional relief requested in the Application. This Court, therefore, affirms the Decision of the Zoning Board. Counsel shall submit an appropriate order.