Opinion
C. A. NC-2021-0266
02-02-2024
NOELLE CLAVELOUX Plaintiff/ Appellant v. ZONING BOARD of REVIEW FOR THE TOWN OF PORTSMOUTH; JAMES KNOTT; JOHN BORDEN; WILLIAM WLADYKA; ERIC RAPOSA; and SUE HOROWITZ, in their official capacities as Members of said Zoning Board; the TOWN of PORTSMOUTH; GARETH EAMES in his official capacity as Building Official for the Town of Portsmouth; and MATTHEW KENT in his official capacity as Assistant Building Inspector of the Town of Portsmouth Defendants/Appellees[1]
For Plaintiff: Allyson M. Quay, Esq. For Defendant: Marc DeSisto, Esq.
For Plaintiff: Allyson M. Quay, Esq.
For Defendant: Marc DeSisto, Esq.
DECISION
KEOUGH, J.
Before this Court is an appeal from a Decision (Decision) of the Town of Portsmouth Zoning Board of Review (Board), denying an Application for a Special Use Permit filed by Noelle Claveloux (Appellant). Specifically, Appellant sought to convert her detached garage into a cabana or recreation room. Jurisdiction is pursuant to G.L. 1956 § 45-24-69.
Aside from the appeal of the Board's decision, Appellant's complaint had four additional counts: Count II was filed pursuant to the Equal Access to Justice Act (G.L. 1956 §§ 42-92-1 et seq.); Count III asserted Equitable Estoppel; Count IV alleged Negligence; and Count V alleged Negligent Misrepresentation. (Am. Compl.). This Court previously heard the Town's Motion for Summary Judgment relative to Count II-Equitable Estoppel. See Docket. The Court reserved judgment on that motion and instead instructed the parties to prepare briefings for Count I-Appe of Zoning Board Decision. Id. This decision will address only Count I.
I
Facts
Appellant is the owner of residential property located at 134 Greenfield Ave., further identified as Tax Assessor's Plat 4, Lot 84, in the Town of Portsmouth. The lot, which is located in an R-10 Residential zoning district, consists of a two-bedroom home as well as a detached garage, and is used by Appellant primarily as a short-term rental property. See generally, Record (R.) at 33-41 . Pursuant to the Portsmouth Zoning Ordinance, the minimum lot size required in an R-10 zone is 10,000 square feet. See Town of Portsmouth Zoning Ordinance (Portsmouth Zoning Ordinance or ordinance), Article IV, Section B, "Land Space Requirements." The ordinance further requires minimum front and rear yard setbacks of 20 feet and a minimum side yard setback of 10 feet. Id. It is not in dispute that the garage is located within the side setback provisions (just 1.66 feet from the side yard boundary with 132 Greenfield Ave) on an undersized lot (6098 square feet) and is therefore nonconforming by dimension. See Appellant's Memorandum in Support of Appeal (Appellant's Mem.) at 2, Defendants' Brief in Opposition to Administrative Zoning Appeal (Defs.' Br.) at 2.
The Certified Record is a single 41-page file containing fourteen documents. (R. at 1-2 Citations to the record will reference the relevant page number for the consolidated file and n the individual document pages.
See R. at 37.
See R. at 3.
Sometime in 2018, Appellant began discussions with Town Officials regarding improvements she wanted to make to the property. Appellant's Mem. at 1, R. at 3, 7-13. Specifically, Appellant sought to repair and remodel the garage, converting the existing structure into a "cabana." Appellant's Mem. at 2. Pursuant thereto, Appellant obtained a survey of the property, engaged an expert to determine if the property was in a flood zone, and ultimately applied for and received a permit to begin the necessary work. Id. The permit, which was issued on July 8, 2020, authorized Appellant to convert the existing structure into a cabana, with the understanding that the remodeled structure was to be used for recreational purposes only and would be consistent with and not expand upon the footprint or dimensions of the existing garage. See R. at 16.
There is some disagreement between the parties concerning the label for Appellant's proposed structure, i.e., whether it is a cabana or a recreational room. The Town cites to a dictionary definition from the American Heritage Dictionary of the English Language identifying a "cabana" as a "light structure on a beach or at a swimming pool used for shelter from the sun or as a dressing room[,]" or a "cabin or hut" and insists that the proposed structure does not fit either definition. See Defendants' Br. at 3. The Appellant maintains that proposed structure was "intended to be used for recreational purposes as a cabana as determined by the Building Official and defined by the Portsmouth Zoning Code." Appellant's Mem. at 1. Regardless of what name the parties use to identify the structure before this Court, the record is clear that the description of the structure found in the Site Plans, which were submitted to the Building Official, and the building permit originally issued, indicate that the structure is intended to be converted into a "cabana" that will be used for "recreational use only." See R. at 3,16 and 32.
At or around the same time Appellant was securing the necessary surveys, plans and permits, she also hired a contractor who agreed to perform the renovations. Appellant's Mem. at 2. Due to unforeseen circumstances, the contractor was unable to start the project within the six-month period provided for by the permit. R. at 33. The Appellant notified the Building Official and indicated that the project would be delayed as she searched for a new contractor. Appellant's Mem. at 2. It does not appear from the record that she asked for or was given an extension of the original permit. Nevertheless, a new builder was hired in January of 2021 and the remodeling process resumed. Id. at 3, R. at 33. The Appellant maintains that this included numerous additional conversations with the Building Official as well as the expenditure of significant funds for the purchase of materials necessary to complete the project. Appellant's Mem. at 2. Construction was scheduled to begin on May 1, 2021. Id.
Approximately two weeks before the scheduled start date, the Assistant Building Official notified Appellant and her contractor that the building permit had been revoked. Id.; see also R. at 33. The reason given was that because the existing garage was a non-conforming structure Appellant needed to obtain a special use permit from the Board. Id. According to Appellant, this was the first time anyone associated with the Town had made her aware of this requirement. Appellant's Mem. at 2-3. Nevertheless, on May 20, 2021, Appellant filed an application for a special use permit. See R. at 3. A hearing on her petition was conducted on June 17, 2021. Id. at 33.
The Town maintains that the permit was not revoked but instead had expired. For purposes o this decision, the distinction is immaterial.
At the hearing, Appellant expressed her confusion regarding the revocation of her permit. Id. at 33, 36. She detailed the history and travel of the project, stressing the significant financial expenditure she made, approximately $30,000, which was based upon the statements made to her and the permit previously issued by the Town. R. at 33, 36. She maintained that she never intended nor did the plans include a bedroom within the cabana; instead, she insisted that the addition would only include a recreation room, wet-bar, storage closet and bathroom/shower meant to supplement the one bathroom currently in the home. Id. Nevertheless, and despite these assurances, several abutters objected to the requested relief. Id. at 17-22, 36-37. Specifically, the neighbors expressed concerns that the property was being used as a short-term rental unit and the addition of the cabana would increase the number of people to whom Appellant could rent, thereby increasing the amount of traffic in the residential neighborhood, adversely impacting their quality of life. Id.
Thereafter, the Board voted on Appellant's petition. While sympathetic to her position and the funds she had expended, the Board indicated that any change to the nonconforming structure must be in keeping with the characteristics of the neighborhood. Id. at 34, 37-38. Specifically, the Board considered her application in conjunction with Article VI, Section C of the Town's ordinance, which provides that
"[a] legally non-conforming use shall not be changed to a use other than a conforming use. The Zoning Board of Review may permit a change in use as a special use permit. Any change in use shall be more in keeping with the characteristics of the neighborhood." Id. at 34.
Ultimately, the Board determined "that the proposed change of use from a detached garage as an accessory use to a cabana providing for additional living space, did not meet the standard of Art. VI, Sec. C or the general criteria for the granting of a special use permit under the Zoning Ordinance [,]" and denied the application. Id. From this decision, Appellant filed this timely appeal maintaining that the Board failed to make the appropriate findings of fact upon which to base its decision and erred in revoking an otherwise valid permit.
II
Standard of Review
Section 45-24-69 of the Rhode Island Zoning Enabling Act (Zoning Enabling Act) governs this Court's review of a zoning board decision and provides in subsection (d) that:
"(d) 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).
"It is the function of the Superior Court to '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.'" New Castle Realty Company v. Dreczko, 248 A.3d 638, 643 (R.I. 2021) (quoting Iadevaia v. Town of Scituate Zoning Board of Review, 80 A.3d 864, 870 (R.I. 2013)). The Court "gives deference to the findings of a local zoning board of review" because it "'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 City of East Providence, 93 R.I. 447, 449, 176 A.2d 726, 728 (1962)). Nonetheless, "a zoning board's determinations of law, like those of an administrative agency, 'are not binding on the reviewing court; they may be reviewed to determine what the law is and its applicability to the facts.'" Freepoint Solar LLC v. Richmond Zoning Board of Review, 274 A.3d 1, 6 (R.I. 2022) (quoting Pawtucket Transfer Operations, LLC, 944 A.2d at 859).
III
Analysis
The central issue in this dispute concerns whether the Portsmouth Zoning Ordinance required Appellant to obtain a special use permit in order to convert her garage to a cabana, or whether instead, her building permit was validly issued in the first instance. Specifically, Appellant maintains that because the existing garage is non-conforming by dimension only, not by use, and because the proposed renovations did not expand the footprint of the structure but rather altered its use to another permissible accessory use, she was not required to apply to the Board to obtain a special use permit. Appellant's Mem. at 9-12. Conversely, the Town insists that once Appellant filed her petition for a special use permit with the Board, she invoked its jurisdiction and "cannot now shift gears" and claim that she was entitled to make the changes as a matter of right. Defs.' Br. at 11-12. Furthermore, the Town argues that if Appellant believed that "the proposed garage conversion and change of use was allowed as a matter of right," she was required to file an administrative appeal of the Building Official's revocation of her permit to the Board. According to the Town, her failure to do so precludes her from raising the issue in the instant appeal because she failed to exhaust her administrative remedies. Id. Nevertheless, the Town insists that any nonconforming development existing before passage of the ordinance cannot be altered without the Board's approval of a special use permit, regardless of whether it is nonconforming by use or nonconforming by dimension. Id. at 3.
A. Exhaustion of Remedies and Waiver
It is undisputed that generally speaking, a party aggrieved by a government agency's action is required to exhaust administrative remedies before bringing a claim in court. Bellevue-Ochre Point Neighborhood Association v. Preservation Society of Newport County, 151 A.3d 1223, 1231 (R.I. 2017). "The doctrine "aids judicial review by allowing the parties and the agency to develop the facts of the case, and . . . promotes judicial economy by avoiding needless repetition of administrative and judicial factfinding, perhaps avoiding the necessity of any judicial involvement.'" Id. at 1231, citations omitted. Such a requirement will not be imposed, however, if an appeal of an administrative board would be futile or is in contravention of the plain language and manifest intent of a statutory provision. See, e.g., Downey v. Carcieri, 996 A.2d 1144, 1150-51 (R.I. 2010); Burns v. Sundlun, 617 A.2d 114, 117 (RI. 1992).
Section 45-24-57 of the Zoning Enabling Act, which is entitled "Administration--Powers and duties of zoning board of review," authorizes a local zoning board of review "[t]o hear and decide appeals . . . where it is alleged there is an error in any order, requirement, decision, or determination made by an administrative officer or agency in the enforcement or interpretation of [the Zoning Enabling Act], or of any ordinance adopted pursuant thereto." Section 45-24-57(1)(i). Article XIV of the Portsmouth Zoning Ordinance, entitled "Appeals to the Zoning Board of Review," further provides that "[a]n appeal from any decision of the Zoning Enforcement Officer may be taken to the Zoning Board of Review by an aggrieved party." Article XIV, Section A (emphasis added). Accordingly, while it appears Appellant could have initially filed an appeal of the decision to revoke her permit to the Board, the language of both provisions appears to be permissive rather than mandatory. Neither the Act nor the Ordinance unequivocally mandates Appellant to have first appealed the revocation of her permit before filing a petition for a special use permit. Indeed, there is an equally persuasive argument to be made that Appellant was required to apply to for the special use permit prior to filing an appeal of the Building Official's decision to revoke her permit because had she been granted the permit, regardless of whether the project needed one, she may have avoided "the necessity of any judicial involvement." Accord, Bellevue-Ochre Point Neighborhood Association, 151 A.3d at 1231. See also Downey, 996 A.2d at 1151 (plaintiffs not required to exhaust administrative remedies prior to bringing APRA claim because the act repeatedly used the term "may" in describing alternative available remedies).
Perhaps more importantly, while Appellant "could and [perhaps] should have filed an administrative appeal [of the Building Official's decision to revoke her permit] to the Zoning Board" as the Town suggests, it is not entirely clear from the record before the Court that she failed to do so during the June 17, 2021 hearing. The minutes of that proceeding, sparse though they may be, indicate that Appellant began her comments by expressing her confusion "by the Building Department's actions and decision." Appellant claimed to have had a permit that was issued in 2020 giving her permission to replace the "existing neglected garage" with a cabana and she did not "understand why this happened." Indeed, the Board inquired why the permit had been revoked and why Petitioner was told she needed a special use permit, to which legal responded that the detached garage was nonconforming and because "it is nonconforming, the use cannot be changed without a special use permit." R. at 36. Thus, while it is clear that the issue was presented in conjunction with her application for a special use permit rather than an appeal, Appellant's reason for seeking the requested relief was the allegedly improper revocation of her building permit. It is therefore implicit that Appellant believed and maintained that she was entitled to the building permit as a matter of right and the issue was considered by the Board.
The Town's reliance on Lloyd to support its argument that Appellant waived the right to present this issue in support of her appeal is also unpersuasive. To begin, our Supreme Court "has not explicitly held that the raise-or-waive doctrine applies to administrative proceedings," East Bay Community Development Corp. v. Zoning Board of Review of Town of Barrington, 901 A.2d 1136, 1153 (R.I. 2006), and this court has declined to extend it to appeal of zoning board decisions. See Girard v. Zoning Board of the Town of Barrington, No. PC-2015-1264, 2016 WL 6157122, at *4 (R.I. Super. Oct. 19, 2016) (Taft-Carter, J.) (explaining that the court was "not persuaded that the 'raise-or-waive' rule applies to [its] review of the decision of a zoning board (as opposed to the Supreme Court review of a lower court decision)"); White Columns Properties, Inc. v. Zoning Board of Review of the City of Providence, No. PC-2020-02088, 2020 WL 5923218, at *8 (R.I. Super. Sept. 30, 2020) (Vogel, J.) (determining that the raise-or-waive rule "is not mandated" in the context of administrative proceedings). Furthermore, the facts of Lloyd are readily distinguishable from those present in the instant appeal such that whatever controlling authority the case may have is inapplicable.
In that case, the respondents sought to "construct a two-story addition that would include another bedroom and expand the first floor." Id. at 1080. The plans also proposed removing "a deck and an existing two-story addition on the rear of their home and the construction of an addition," which would include a "deck or veranda off the second-floor bedroom." Id. Although the respondents maintained that the alteration could be made "as a matter of right," they nonetheless applied for both a special use permit and a variance to cover all bases. Id. at 1081. In support of their application, the respondents proffered an expert who concluded that the proposed renovations would comply with the town ordinance's special use permit section. Id. at 1081. Despite objections by the neighboring property owners, the zoning board of review ultimately granted the application and issued a special use permit, never passing on the issue of whether the proposed changes could have been made as a matter of right. Id. The objectors appealed the decision, which was affirmed by the Superior Court. Id. at 1081-82. Our Supreme Court thereafter granted their petition for certiorari. Id. at 1080.
In affirming the trial court's decision, the Lloyd court began its analysis by addressing the argument that the respondents were "entitled to expand their dimensionally nonconforming development 'as a matter of right' and whether the zoning board made such a determination." Id. at 1083. In quickly dispensing with that argument, the Lloyd court noted that in issuing its decision, the board "did not declare . . . that respondents were entitled to the expansion 'as a matter of right,'" nor had the respondents made any such argument in their application Id. at 1084. Instead, the Court noted that because the respondents sought "to construct a significant addition to a dimensionally nonconforming structure," they had applied for and received a special-use permit. Id. The court affirmed the decision to do so, holding that the board applied the appropriate provisions of the Newport zoning ordinance, which specifically required an application for a special use permit for alterations of nonconforming uses as well as dimensionally nonconforming structures. Id. at 1084-85.
The particular provision of the Newport Zoning Ordinance that was considered, ⸹17.72.030(C), provides in pertinent part that:
"A structure or land which is nonconforming by dimension, but the use of which is a use permitted by right in the district in which the land or structure is located, shall only be altered, changed, enlarged or subject to addition or intensification with respect to its nonconforming element(s) by obtaining a special use permit from the zoning board of review."
In this case, the proposed changes do not constitute "a significant addition to a dimensionally nonconforming structure." Instead, Appellant sought to make necessary repairs to an existing structure and maintains that she is proposing a change from one permissible use to another. Moreover, unlike the applicable section of the city of Newport's Zoning Ordinance which clearly required a special use permit if making any change in use to a dimensionally nonconforming structure, the Portsmouth Zoning Ordinance is silent on changes of permissible uses to structures that are nonconforming by dimension only. Accordingly, Appellant did not waive her argument that she is allowed to make the changes as a matter of right and the court will consider it in the context of the instant appeal.
See Carello v Zoning Board of Review of the City of Providence, No. PC20125979, 2013 WL 6714081, at *8 (R.I. Super. Dec. 17, 2013) (Vogel, J.) (refusing to apply raise-or-waive because "the appeal to the Zoning Board necessarily was premised on a claim that the CPC's preliminary approval was made in clear error").
B. Expansion as a Matter of Right vs. Special Use Permit
The Appellant maintains that while a "special use permit is required for a change in use when a building or structure is currently nonconforming by use," the ordinance "does not state anywhere" that a special use permit is required to make changes from "one permitted use to another" of a dimensionally nonconforming building or structure. As a result, Appellant insists that because a cabana is a permissible accessory use, she is permitted to make the proposed renovations to her garage as a matter of right. Appellant's Mem. at 12. The Town insists, however, that the ordinance "does not regulate a development which is nonconforming by dimension differently than a development which is nonconforming by use." Defs.' Br. at 3. Specifically, Defendants argue that pursuant to Article VI, Sections B and C, "any nonconforming development existing before passage of the Zoning Ordinance is considered a legally existing nonconforming use-which cannot be altered without Zoning Board approval of a special use permit-regardless of whether it is nonconforming by use or nonconforming by dimension." Id.
Nonconforming Buildings and Structures
Nonconforming properties are generally defined as "a use or structure that complied with the zoning laws in effect at the time of their establishment or construction, but are prohibited under subsequently adopted regulations" 4 Rathkopf's The Law of Zoning and Planning, § 73:1 (4th ed.); see also RICO Corp. v. Town of Exeter, 787 A.2d 1136, 1144 (R.I. 2001). While a nonconforming use or structure may be lawfully permitted to continue, the right to do so generally "does not . . . include the right to expand or intensify that use,[] even if the owners had plans to do so." Town of Richmond v. Wawaloam Reservation, Inc., 850 A.2d 924, 934 (R.I. 2004) (citing Town of West Greenwich v. A. Cardi Realty Associates, 786 A.2d 354, 362 (R.I. 2001)). The Zoning Enabling Act provides in part that:
"[a]ny city or town adopting or amending a zoning ordinance under this chapter shall make provision for any use, activity, structure, building, or sign or other improvement, lawfully existing at the time of the adoption or amendment of the zoning ordinance, but which is nonconforming by use or nonconforming by dimension. The zoning ordinance may regulate development which is nonconforming by dimension differently than that which is nonconforming by use." Section 45-24-39(a) (emphasis added).
Therefore, it is for the Town to decide whether it chooses to regulate a development which is nonconforming by dimension differently than a development nonconforming by use. Id.
Article II, Section B of the Portsmouth Town Zoning Ordinance defines "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 or amendment. Nonconformance shall be of only two (2) types:
a. NONCONFORMING BY USE: A lawfully established use of land, building, or structure which is not a permitted use in that zoning district. A building or structure containing more dwelling units than are permitted by the use regulations of a zoning ordinance shall be nonconforming by use; or
b. NONCONFORMING BY DIMENSION: A building, structure, or parcel of land not in compliance with the dimensional regulations of the zoning ordinance. Dimensional regulations include all regulations of the zoning ordinance, other than those pertaining to the permitted uses. A building or structure containing more dwelling units than are permitted by the use
regulations of a zoning ordinance shall be nonconforming by use; a building or structure containing a permitted number of dwelling units by the use regulations of the zoning ordinance, but not meeting the lot area per dwelling unit regulations, shall be nonconforming by dimension. See also § 45-24-3 1(52).
The Ordinance thereafter provides restrictions relative to the alteration of "Non-Standard Developments." Specifically, Article VI provides the following:
"Section A. Substandard lots of record.
1. Applicability. For the purpose of this section a substandard lot of record lot is a lot which does not meet one (1) or more of the minimum dimensional requirements for size or frontage required in the zoning district in which it is located, and which is a lot of record the dimensions of which have not been altered since its creation by a voluntary conveyance which rendered such lot more substandard and which was:
a) Approved by the Planning Board and duly recorded after August 3, 1959; or
b) Approved by the Zoning Board of Review and duly recorded after June 13, 1965; or
c) Certified by the Planning Board as 'approval not required' and duly recorded after August 3, 1959; or
d) Created by a deed or plat duly recorded prior to August 3, 1959.
2. Continuance of a use on a substandard lot of record. Any legal use shall be permitted to continue in the manner and extent existing as of the effective date of enactment or amendment of this ordinance, subject to the provisions of this ordinance regarding discontinuance, destruction or demolition, change of use, and extension or alterations.
"Section B. Nonconforming development.
1. A non-conforming use of land lawfully existing at the time of the passage of this Ordinance may be continued provided that such non-conforming use of land shall not in any way be expanded or enlarged, except as provided in this Section.
4. A building or structure that exists as a non-conforming use at the time of passage of this Ordinance, may continue to function as a non-conforming use of the same type or any other use that is permitted by this Ordinance, or other such use may be added to the existing use within the confines of the existing building, with the approval of the Zoning Board of Review.
"Section C. Alteration of Nonconforming development.
1. With Board of Review approval as a special use permit, a building or structure which is devoted to a non-conforming use lawfully existing at the time of the passage of this Ordinance may be added to or enlarged provided that the front, side and rear yards, lot coverage, height of such enlarged building or structure and parking requirements meet the zoning requirements of the district in which is located.
3. A legally [sic] non-conforming use shall not be changed to a use other than a conforming use. The Zoning Board of Review may permit a change in use as a special use permit. Any change in use shall be more in keeping with the characteristics of the neighborhood.
4. Any alteration or change in use permitted herein shall adhere more closely to the intents and purposes of this Ordinance."
Based upon the foregoing, the question becomes whether the separate definitions for nonconformance by use versus nonconformance by dimension, which are also found in the Zoning Enabling Act, as well as the different provisions relating to alterations of substandard lots versus nonconforming developments evince an intent to treat the two types of nonconformance differently. In this Court's opinion, they do.
"It is a well-settled principle in this jurisdiction that the rules of statutory construction apply equally to the construction of an ordinance." Mongony v. Bevilacqua, 432 A.2d 661, 663 (R.I. 1981). If the language of a statute or ordinance is clear and unambiguous, it is given "its plain and ordinary meaning." Sauro v. Lombardi, 178 A.3d 297, 304 (R.I. 2018) (quoting Pawtucket Transfer Operations, LLC, 944 A.2d at 859). In performing this function, the court must attempt to ascertain the intent by considering the enactment in its entirety and by viewing it in light of circumstances and purposes that motivated its passage. Id. (citing Shulton, Inc. v. Apex, Inc., 103 R.I. 131, 134, 235 A.2d 88, 90 (1967)). Basic tenants of statutory construction require this court to construe an ordinance or statute in a manner that gives effect to all its several parts and '"[n]o sentence, clause or word should be construed as unmeaning and surplusage, if a construction can be legitimately found which will give force to and preserve all the words of the statute."' Gerald P. Zarrella Trust v. Town of Exeter, 176 A.3d 467, 470-71 (R.I. 2018) (quoting, St. Clare Home v. Donnelly, 117 R.I. 464, 470, 368 A.2d 1214, 1217-18 (1977)).
In this case, the Board relied on Article VI, Section C in determining that a special use permit was required, and that Appellant had failed to make the requisite showing to obtain the permit. The clear and unambiguous language of that particular provision makes clear, however, that its restrictions regarding alterations to nonconforming developments apply only to those that are nonconforming by use-not properties that are nonconforming by dimension. Specifically, the section provides that a special use permit is needed to make alterations to "a building or structure which is devoted to a non-conforming use." Portsmouth Zoning Code, Art. VI, Section C.1 and 3 (emphases added). It further states that "a legally [sic] non-conforming use shall not be changed to a use other than a conforming use." Id. While it is true that this section is broadly entitled "Alteration of nonconforming development [,]" it does not support an inference, as the Town suggests, that it was intended to include dimensionally nonconforming structures. On the contrary, the court must give effect to the more specific language within the section identifying nonconforming uses-rather than nonconforming structures-as the subject to which it applies. See Rhode Island Council on Postsecondary Education v. Hellenic Society Paideia - Rhode Island Chapter, 202 A.3d 931, 936 (R.I. 2019) (explaining that the "specific-over-general" rule may be used "when two statutory or contractual provisions cannot be reasonably construed to avoid a conflict between them").
Likewise, in the section entitled "Special Use permits," the ordinance clearly distinguishes between structures and/or properties that are nonconforming in size versus those that are nonconforming in use. Specifically, Article VII, Section A provides that board approval is required if the proposed changes to a building or structure involves
"c) Enlargement of a structure on a substandard lot of record according to the provisions of Article VI, Section A.
d) Alterations to or change in use of non-conforming uses according to the provisions of Article VI, Section B and C." (emphasis added.)
In the definitions provided as well as the sections previously cited, the ordinance repeatedly distinguishes between buildings that are nonconforming in dimension from those that are nonconforming in use and this court will not deem those distinctions to have no meaning. To hold otherwise would subsume dimensional nonconformances into use nonconformances and would render the separate definition for structures that are "nonconforming by dimension" mere surplusage. See, Brennan v. Kirby, 529 A.2d 633, 637 (R.I. 1987) (holding that "[a] statute or enactment may not be construed in a way . . . if at all possible, to render sentences, clauses, or words surplusage"); see also Stebbins v. Wells, No. Civ.A NC95-0324, 2001 WL 1255079, at *3 (R.I. Super. Oct. 12, 2001) (holding that "to equate the meanings of . . . two terms would render the inclusion of separate definitions for these terms mere surplusage within the statute").
The court hastens to add that this construction is in accord with the interpretation of similar ordinances governing alterations of nonconforming developments that have been interpreted by numerous courts in this jurisdiction and elsewhere. See, e.g., Savage v. Zoning Board of Review of Town of Westerly, No. CIV.A. WC2000-0258, 2002 WL 1035428, at *3-4 (R.I. Super. May 14, 2002) (holding that no special use permit required for Wal-Mart seeking to add supermarket to its store because ordinance treated nonconforming uses and nonconforming structures differently and structure was nonconforming by dimension only); Bluff Head Corp. v. Zoning Board of Review of Town of Little Compton, No. CIV A NC97-0364, 1999 WL 226215, at *3 (R.I. Super. Mar. 23, 1999) (holding local ordinance differentiated between structures that are nonconforming by use from those that are nonconforming by dimension such that provision identifying nonconforming uses as its subject was inapplicable to properties that were nonconforming by dimension); Singh Sukthankar v. Hearing Board of Radnor Township, 280 A.2d 467, 470 (Pa. Commw. Ct. 1971) (recognizing that the "distinction between nonconforming uses and nonconforming buildings [is] obvious in fact and recognized in law"). Simply stated, if the Town wanted to require a special use permit for alterations to all nonconforming properties, whether by use or dimension, it could have done so; it did not. See, e.g., Lloyd, 62 A.3d at 1084. Therefore, this court finds there to be a meaningful distinction in the manner in which the town regulates developments that are nonconforming by dimension than developments that are nonconforming by use. The Court further finds the Board incorrectly applied Article VI, Section C to Appellant's application for a special use permit as that provision does not apply to a situation where a property owner seeks to change the use of a dimensionally nonconforming structure from one permitted use to another permitted use.
2. Permissible Accessory Use
Having determined that the Board applied the incorrect standard to Appellant's application regarding the proposed renovations, the Court must determine whether Appellant was allowed to convert her dimensionally nonconforming garage to a cabana or recreational room as a matter of right. The Appellant insists that the permit originally issued to her was valid as the ordinance "does not require a special use permit for garages and/or cabanas in an R-10 zone" as they are lawful accessory uses. Appellant's Mem. at 9. The Town reiterates its position that no alteration may be made to a legally existing nonconforming building or structure without a special use permit. Defs.' Br. at 3.
As was previously indicated, Article VII, Section A of the ordinance delineates those instances in which a special use permit is required. Specifically, that section provides that
"A Special Use Permit is required for the following uses:
"a) Uses in Flood Hazard Areas designated by the letter "R" in Article III, Section E.
b)Uses designated by the letter "S" in the Tables of Use Regulations, Article V, Section B.
c) Enlargement of a structure on a substandard lot of record according to the provisions of Article VI, Section A.
d) Alterations to or change in use of non-conforming uses according to the provisions of Article VI, Section B and C.
e) Signs requiring a Special Use Permit as specified in Article IX, Section B.
f) Apartments, condominiums, cluster development or townhouses, as further defined in Section C. herein.
g) Hotels and Motels, as further defined in Section D. herein.
h) Antennas, as further defined in Section E. herein.
i) Light Industry, as further defined in Section F. herein.
j) Retail, Office or Consumer services Complex, as further defined in Section G. herein.
k) All proposed uses in the Town Center District that are not prohibited per Article V, Section B
l) Agriculture - special events.
m) Solar energy systems, as specified in Article V, Section J." Id.
The Ordinance also defines an accessory use as follows:
"A use of land or of a building, or portion thereof, customarily incidental and subordinate to the principal use of the land or building. An accessory use shall not be permitted without the principal use to which it is related. In no case shall such accessory use dominate, in area, extent or purpose, the principal lawful use or building; and except in the case of signs permitted by this ordinance, it shall not be located between the principal building and the street right-of-way." Portsmouth Zoning Ordinance, Article II, Accessory Use.
Finally, Article V of the ordinance contains a table showing which types of accessory uses are allowed in various zones and whether that use is allowed as of right, or instead, upon obtaining a special use permit. See Portsmouth Zoning Code, Art. V, Sec. I. Specifically, the table provides that a "[p]rivate greenhouse, tennis court, or other similar building or structure for domestic use" is as an accessory use that is allowed as of right in an R10 Residential Zone. Id. Sec. I.4.
In this case, the record indicates that the existing garage is nonconforming by dimension as it sits within the required dimensional setbacks on an undersized lot. The record further demonstrates that Appellant is not seeking to expand or enlarge the footprint of the existing garage; the size of the structure will remain the same. The proposed renovations relate to the use of the structure, which currently functions as a garage, a use all parties agree is permitted in the R-10 residential zone. The record further indicates that the proposed alterations include a conversion to a structure that is to be used for recreational use only and will include a recreation room, storage closet, wet bar, and bathroom/shower. While it is true that the term "domestic use" is not defined in the ordinance, it is noteworthy that the term is included in the same section that permits "tennis courts." It stands to reason that Appellant's proposed cabana would be less intrusive than a tennis court and is "subordinate to the principal use of the land or building[,]" in no way dominating "in area, extent or purpose, the principal lawful use or building." Accordingly, it is this Court's opinion that the proposed use fits within the definition of "other similar building or structure for domestic use."
Therefore, because Appellant has not sought to enlarge or expand the dimensions of the existing structure but rather proposed changing the structures use from one permissible accessory use to another, and because the ordinance is silent relative to the need for a special use permit to make changes to a permissible use of a dimensionally nonconforming structure, this Court holds that Appellant was allowed to make the proposed alterations as a matter of right and the Board's insistence on a special use permit constituted a clear error of law. See In re Miserocchi, 749 A.2d 607, 612 (Vt. 2000) ("courts have generally allowed a change from one permitted use to another permitted use within a noncomplying structure"); Spring Garden Civic Association v. Zoning Board of Adjustment of City of Philadelphia, 617 A.2d 61, 64 (Pa. Commw. Ct. 1992) ("[a]n existing non-conforming structure may be put to any use permitted in the district so long as the altered use does not increase the non-conformity of the structure").
IV
The Court need not render a decision on the Town's Motion for Summary Judgment on the Equitable Estoppel claim, which was heard on April 5, 2022. That Motion is deemed moot by the Court's Decision today.
Several months after the matter was assigned for a decision but before the written decision was published, Appellant submitted a Supplemental Memorandum of Law in Support of her Appeal. The Town objected on both substantive and procedural grounds. In that Appellant has been granted the relief she requested, the Court will not consider the additional arguments.
Accordingly, this Court holds that the Board's Decision was affected by error of law and was clearly erroneous in view of the reliable, probative, and substantial evidence of the record. Appellant's Zoning Board Appeal is granted, and the Board's Decision is vacated. The parties will prepare and enter the appropriate judgment.