Opinion
C.A. WC-2016-0382
04-11-2018
GRETCHEN G. BIGGS v. LINDA BONGIOLATTI, WALTER PAWELKIEWICZ, DAVID GIORNO, MARK DOESCHER, AND ALBERT CLEMENCE IN THEIR CAPACITIES AS MEMBERS OF THE TOWN OF WESTERLY ZONING BOARD OF REVIEW
For Plaintiff: Kelly M. Fracassa, Esq. For Defendant: Nancy Letendre, Esq.; John S. Payne, Esq.
For Plaintiff: Kelly M. Fracassa, Esq.
For Defendant: Nancy Letendre, Esq.; John S. Payne, Esq.
DECISION
TAFT-CARTER, J.
In this administrative appeal, Gretchen G. Biggs (Appellant) appeals the June 29, 2016 decision of the Town of Westerly Zoning Board of Review (the Zoning Board), affirming the zoning official's denial of a zoning certificate for her plan to build a "widow's walk" atop the roof of her home at 15 Fenway Road (the Property) in the Town of Westerly (the Town). Jurisdiction is pursuant to G.L. 1956 § 45-24-69.
I
Facts and Travel
Appellant owns the Property described as Lot 35 on Assessor's Plat 157. (Hr'g Tr. 6, May 4, 2016 (Tr. I).) The Property is a nonconforming parcel located in a medium-density residential zoning district categorized as MDR-30. Id. at 2; see Westerly Code § 260, Attach. 11.
In 2011, Appellant applied for and obtained a special use permit and dimensional variances allowing her to expand her primary residence by a total of 908 square feet or 24.66%. (Tr. I at 3; Zoning Bd. Decision, Jan. 4, 2012 (Zoning Bd. Decision I).) The zoning ordinance allows for the expansion of a nonconforming use. Id. It provides in pertinent part: "A legal nonconforming use shall be extended or added to only by special use permit; such expansion shall not exceed 25% of the floor space or area use of the use at the time the passage of this subsection or any predecessor ordinance first made the use nonconforming." Westerly Code § 260-32(D). The Zoning Board approved Appellant's application, but included in the decision one special condition:
Appellant applied for the special use permit in late 2011, and the Zoning Board granted her application in early 2012. (Zoning Bd. Decision I.)
Special conditions can be added to zoning decisions pursuant to § 45-24-43, which provides:
"In granting a variance or in making any determination upon which it is required to pass after a public hearing under a zoning ordinance, the zoning board of review or other zoning enforcement agency may apply the special conditions that may, in the opinion of the board or agency, be required to promote the intent and purposes of the comprehensive plan and the zoning ordinance of the city or town. Failure to abide by any special conditions attached to a grant constitutes a zoning violation. Those special conditions shall be based on competent credible evidence on the record, be incorporated into the decision, and may include, but are not limited to, provisions for:
"(1) Minimizing the adverse impact of the development upon other land, including the type, intensity, design, and performance of activities;
"(2) Controlling the sequence of development, including when it must be commenced and completed;
"(3) Controlling the duration of use or development and the time within which any temporary structure must be removed;
"(4) Assuring satisfactory installation and maintenance of required public improvements;
"(5) Designating the exact location and nature of development; and
"(6) Establishing detailed records by submission of drawings, maps, plats, or specifications."
"No future development on this site or additions/increase in square footage to the three existing structures is permitted. The maximum allowable increase of the floor space or area use of the nonconforming [sic] of 25% was granted with this approval." (Zoning Bd. Decision I (bold in original).)
The Zoning Board's decision was not appealed, and Appellant proceeded with the renovations. (Hr'g Tr. 9, June 1, 2016 (Tr. II); Letter from Appellant to Abutters, Apr. 16, 2016.)
In 2015, Appellant applied for a zoning certificate regarding her plan to construct a small deck or "widow's walk" recessed into her roof, along with an associated stairway for access. (Zoning Certificate Appl. at 1-2; Tr. I at 4-5.) To obtain a building permit for such a plan, the Town requires submission of a zoning certificate indicating that the proposed construction complies with the zoning ordinance. (Stipulation, Sept. 12, 2017.)
The appeal form in the record does not include the date, but the appeal number is prefaced with "15, " and was acted upon in October of 2015. There is no indication in the record that Mr. Parker took longer than the statutorily prescribed fifteen-day period to act on the application. See § 45-24-54; Westerly Code § 260-29.
Originally used by the wives of New England sailors to await, often in vain, the return of their seafaring husbands, a "widow's walk" is a small, railed platform constructed atop a house such that it has a water view. See Webster's Third New International Dictionary at 2614 (1971).
The zoning official, Jason Parker (Mr. Parker), denied the zoning certificate. (Letter from Mr. Parker to Appellant, Oct. 7, 2015.) He responded that the proposed construction would violate the zoning ordinance absent a special use permit from the Zoning Board. Id. Mr. Parker relied upon the language in the 2012 zoning decision as foreclosing all future development on the Property without additional action by the Zoning Board. Id. In his letter to Appellant, Mr. Parker instructed her to apply to the Zoning Board for a use variance. Id. Despite Mr. Parker's instructions, Appellant filed an appeal of his decision denying the zoning certificate to the Zoning Board of Review. (Appl. for Appeal to the Zoning Bd. of Review, Apr. 11, 2016.)
A public hearing was conducted on May 4, 2016. At the hearing, the Zoning Board considered the appeal. (Tr. I at 2.) Mr. Parker testified that he concluded that the proposed construction of a widow's walk was not permitted pursuant to the Zoning Board's 2012 decision. Specifically, he stated:
"[I]n that first condition that says no future development on this site, it leads me to believe that there was a reason that got put in there. I wasn't here, again, I could not identify anything to make myself feel comfortable with not seeing it for any other way than the way it was written[.]" Id. at 17.
Appellant argued that the condition had been misinterpreted by the zoning official because the proposal to build a widow's walk did not expand the nonconforming use:
"So, what I'm here today on is appealing the other language in the first sentence. It says no future development on the site is permitted, and if the development were to increase the square footage, then yes, that's perfectly appropriate, but if the development that she is proposing or the changes, or the construction she is proposing is, just as an example, a fence around a vegetable garden, a flagpole, you know, exterior features on the house, those things are not constrained by the ordinance, not constrained by the nonconforming use provisions." Id. at 7.
Appellant contended further that the previous Zoning Board decision included "surplus language" added by the zoning official at that time, Elizabeth J. Burdick (Ms. Burdick), and that this additional language violated the zoning ordinance. Id. at 9. Appellant also introduced letters from several neighbors indicating their acquiescence to her request to build the widow's walk, as well as several photographs. Id. at 10-11. The Zoning Board continued the hearing to determine whether the town zoning clerk could obtain a recording of the December 7, 2011 hearing. Id. at 20-24. The recording was never obtained.
The Zoning Board reconvened the hearing on June 1, 2016. (Tr. II at 1.) Abutter Christopher Pile (Mr. Pile) testified at the hearing and argued in opposition to Appellant's purported appeal. (Tr. II at 11-12.) He contended that Appellant had made other, unpermitted additions to her home, including some that resulted in increasing the internal square footage of the home. Id. at 12. Mr. Pile also advocated against allowing Appellant to construct a widow's walk because it would limit the privacy in parts of his home as well as that of his brother who is also an abutter. Id. at 13. Neighbor Ellen Pile (Ms. Pile) additionally spoke out against Appellant's plan because of privacy concerns, and she presented photos that suggest the proposed widow's walk would have a view into the bedrooms of her home. Id. Ms. Pile also indicated that she had been involved in the discussions related to the 2011 special use permit application, and that the decision was the result of compromises about the use of the Property, and that no development should be allowed on the Property. Id. at 17.
Appellant testified that her proposed use of the widow's walk would not involve parties or lighting. Id. 24-26. She merely sought the ability to take advantage of her water view and have a place to read outside without having to engage with her neighbors. Id.
The Zoning Board ultimately rejected Appellant's request and affirmed Mr. Parker's decision. Id. at 36-37. Appellant then filed this appeal of the decision of the Zoning Board pursuant to § 45-24-69.
Appellant contends that the Zoning Board misapplied the condition listed in the Zoning Board's 2012 decision, and as interpreted, the condition itself exceeded the Zoning Board's authority under the zoning ordinance. She contends further that her proposed widow's walk does not expand the nonconforming use, as it does not increase the interior square footage of the house. Thus she maintains she did not need any relief from the zoning ordinance. In response, the Zoning Board, in its memoranda, largely focused on jurisdiction, which it contends it lacked in the first instance. Appellant, the Zoning Board contends, has no legal right to appeal because zoning certificates are nonbinding and Appellant is not an "aggrieved party" under the Act.
II Standard of Review
Superior Court review of local zoning board decisions is governed by the Rhode Island Zoning Enabling Act of 1991 (the Act). Secs. 45-24-27 to 45-24-72. Specifically, § 45-24-69(d) provides this Court's standard of review:
"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."
The Town's ordinance related to zoning certificates provides in pertinent part:
"Within 15 days of receiving a complete application [for a zoning certificate], the Zoning Official shall determine whether the existing and/or proposed development has received all approvals and/or otherwise conforms to this chapter, and shall approve or deny the application accordingly in writing. If the application is denied, the writing shall state the reasons for the denial and shall inform the applicant that the disposition may be appealed to the Zoning Board of Review. A zoning certificate which is issued upon erroneous information provided by an applicant shall not bind the Town or any official thereof." Westerly Code § 260-29 (emphasis added).However, the Act does not empower zoning boards of review to hear such an appeal; thus they lack the authority to do so. See Section III infra; Franco v. Wheelock, 750 A.2d 957, 960 (R.I. 2000) ("the authority of zoning boards of review is limited in scope to that expressly conferred by statute"); see also R.I. Const. art. XIII, § 2 ("Every city and town shall have the power at any time to . . . enact and amend local laws . . . not inconsistent with this Constitution and laws enacted by the general assembly in conformity with the powers reserved to the general assembly."); O'Neill v. City of E. Providence, 480 A.2d 1375, 1379 (R.I. 1984) ("The authority of a municipality to engage in self-government does not extend to enacting local laws that are inconsistent with those provisions of the general laws enacted in conformity with the Legislature's reserved powers."). Insofar as the zoning official issued a zoning certificate to "provide guidance or clarification" pursuant to the Act, the certificate is not appealable to the Zoning Board. See § 45-24-54; Franco, 750 A.2d 957 at 960. The Zoning Board's review of such a certificate pursuant to § 45-24-69 would be ultra vires. See § 45-24-54; Franco, 750 A.2d 957 at 960.
III
Analysis
Zoning certificates are nonbinding and exist to provide guidance or clarification. The governing statute provides:
"In order to provide guidance or clarification, the zoning enforcement officer or agency shall, upon written request, issue a zoning certificate or provide information to the requesting party as to the determination by the official or agency within fifteen (15) days of the written request. In the event that no written response is provided within that time, the requesting party has the right to appeal to the zoning board of review for the determination." Sec. 45-24-54 (emphasis added).
The plain and unambiguous language of the statute articulates that the purpose of zoning certificates is for information. See Parker v. Byrne, 996 A.2d 627, 633 (R.I. 2010) ("We recognize that a zoning certificate is not legally binding."). It is "[a] document signed by the zoning-enforcement officer, as required in the zoning ordinance, that acknowledges that a use, structure, building, or lot either complies with, or is legally nonconforming to, the provisions of the municipal zoning ordinance or is an authorized variance or modification therefrom." Sec. 45-24-31(70).
As such, zoning certificates are authorized by statute to relate to existing uses and structures. See id. The Act defines "use" as "[t]he purpose or activity for which land or buildings are designed, arranged, or intended, or for which land or buildings are occupied or maintained." Sec. 45-24-31(65). Zoning certificates are not permits that allow construction- they exist to provide information about current uses of property and current compliance with the zoning ordinance. See § 45-24-54. Moreover, as zoning certificates have no binding effect, they are not appealable. See Roland F. Chase, Rhode Island Zoning Handbook § 199 (3d ed. 2016) ("Unfortunately for the requester, a zoning certificate, whether it is issued by the zoning enforcement officer or the zoning board, is not legally binding and therefore is not appealable."). Therefore, zoning certificates do not vest rights in an applicant.
The Act empowers zoning boards to hear appeals only from aggrieved parties. Secs. 45-24-63(a), -64. "An appeal to the zoning board of review from a decision of any other zoning enforcement agency or officer may be taken by an aggrieved party." Sec. 45-24-64 (emphasis added). The Act requires municipalities to include this restriction in their respective zoning ordinances: "A zoning ordinance adopted pursuant to this chapter shall provide that an appeal from any decision of an administrative officer or agency charged in the ordinance with the enforcement of any of its provisions may be taken to the zoning board of review by an aggrieved party." Sec. 45-24-63(a) (emphasis added). The Act defines "aggrieved party" as
"(i) Any person, or persons, or entity, or entities, who or that can demonstrate that his, her, or its property will be injured by a decision of any officer or agency responsible for administering the zoning ordinance of a city or town; or
"(ii) Anyone requiring notice pursuant to this chapter." Sec. 45-24-31(4).
The Act does not require anyone be provided notice of the consideration or issuance of zoning certificates; thus the latter provision is not material to the instant case. See § 45-24-54. As zoning certificates have no legal effect on the subject property, they cannot "injure" a property owner or piece of property: "[t]he certificate can just be ignored and the validity of the interpretation expressed in it can only be challenged by the occurrence of a subsequent appealable event, such as the issuance of a building permit." Roland F. Chase, Rhode Island Zoning Handbook § 199 n.37 (3d ed. 2016) (citing Tompkins v. Zoning Bd. of Review of Town of Little Compton, No. C.A.2001-204, 2003 WL 22790829 (R.I. Super. Oct. 29, 2003)).
For applications that require a public hearing, such as special use permit or variance applications, notice must be sent to abutters within 200 feet pursuant to the Act. Sec. 45-24-53. No such requirement is placed on zoning certificates. Sec. 45-24-54.
Similarly, the Act provides a right of appeal to the Superior Court only for "aggrieved part[ies]." Sec. 45-24-69(a). As discussed above, because a homeowner cannot be aggrieved by an "advisory" zoning certificate, the homeowner cannot have standing to bring an appeal of the zoning certificate in this Court. See id.
Furthermore, "the authority of zoning boards of review is limited in scope to that expressly conferred by statute." Franco, 750 A.2d at 960 (citing Noonan v. Zoning Bd. of Review of Town of Barrington, 90 R.I. 466, 159 A.2d 606 (1960)). There is no provision within the Act that allows zoning boards appellate jurisdiction over the issuance of zoning certificates; accordingly, no such authority exists. See id. The Act empowers zoning boards to hear issues related to zoning certificates only when the zoning official fails to respond in writing to an application for a zoning certificate within fifteen days. See § 45-24-54. Accordingly, the Zoning Board erred by hearing this purported appeal below, as it lacked any statutorily prescribed authority to do so. As such, the Zoning Board's decision affirming the zoning official was made in excess of its authority.
Here, Appellant sought a nonbinding zoning certificate from the Town's zoning official. The zoning official replied to the request in writing, thus relieving the Zoning Board of any authority relative to the zoning certificate application. Dissatisfied with the opinion the zoning official expressed in his written response, Appellant appealed to the Zoning Board and then to this Court.
Appellant, in her memorandum, contends that because the Town requires an approved zoning certificate to receive a building permit that this Court should consider the zoning certificate appealable in this circumstance. Specifically, Appellant contends that "[Appellant] is 'aggrieved' from the Westerly building official's 'failure to act' on her application, which 'failure' stems solely from the lack of a zoning certificate." Pl.'s Reply Br. 5. While the parties have stipulated that the Town's building department would not act on her building permit application without a valid zoning certificate, there is no evidence in the record that Appellant has actually applied to the building department for a building permit. (Stipulation, Sept. 12, 2017.) This distinction is notable because the Town's refusal to issue a building permit is indeed an appealable event for which a property owner is aggrieved and an appeal can be taken. See, e.g., DiMillio v. Zoning Bd. of Review of Town of S. Kingstown, 574 A.2d 754, 755 (R.I. 1990); R.J.E.P. Assocs. v. Hellewell, 560 A.2d 353, 354 (R.I. 1989).
This Court concludes that the Zoning Board acted in excess of its statutory authority by affirming the zoning official's decision. Furthermore, Appellant was not aggrieved by the zoning official or Zoning Board's actions, and she therefore lacks standing to appeal the Zoning Board's decision in this Court.
IV Conclusion
For the reasons set forth above, this Court dismisses this appeal as Appellant is not an aggrieved party under the Act, and therefore, she lacks standing to appeal.
Counsel shall submit the appropriate order for entry.