Opinion
C. A. WC-2022-0221
12-04-2023
EDWARD HAYDE, III, DIANE L. HAYDE, PATRICIA HARTIGAN, JAMES M. HARTIGAN, PATRICIA TANGNEY, in her capacity as Trustee of the PATRICIA TANGNEY TRUST OF 2007, dated January 21, 2007, SHARON TAVILLA, CHARLIE S. DODGE, in his capacity as Successor Trustee of the S. WILLIS DODGE REVOCABLE LIVING TRUST, dated October 8, 2003, LUCILLE J. KILEY, in her capacity as Trustee under the LULU FAMILY LIVING TRUST, dated April 29, 2014, and OLD HARBOR HOLDINGS, LLC, Appellants, v. NEW SHOREHAM ZONING BOARD OF REVIEW; KATE ATWATER BUTCHER, ROBERT LAMOUREUX, SUSAN BUSH, ROBERT CLOSTER, and STEVEN FILIPPI, in their capacities as members of the NEW SHOREHAM ZONING BOARD OF REVIEW; and JUDITH B. ROSE, Appellees.
For Appellants: Thomas J. Capalbo, III, Esq. For Appellees: Michelle M. Hawes, Esq.; Keith B. Kyle, Esq.
For Appellants: Thomas J. Capalbo, III, Esq.
For Appellees: Michelle M. Hawes, Esq.; Keith B. Kyle, Esq.
DECISION
TAFT-CARTER, J.
Before this Court for decision is the appeal of Edward Hayde, III, Diane L. Hayde, Patricia Hartigan, James M. Hartigan, Patricia Tangney, in her capacity as Trustee of the Patricia Tangney Trust of 2007, Sharon Tavilla, Charlie S. Dodge, in his capacity as Successor Trustee of the S. Willis Dodge Revocable Living Trust, Lucille J. Kiley, in her capacity as Trustee under the Lulu Family Living Trust, and Old Harbor Holdings, LLC (collectively, Appellants) from the May 25, 2022 written decision (Decision) of the Town of New Shoreham Zoning Board of Review (Zoning Board) granting Judith B. Rose's (Applicant) application for a dimensional variance 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 on Sunset Hill Lane in New Shoreham, Rhode Island (Property). (Zoning Application for Applicant Judith B. Rose Dated March 14, 2022 (Ex. B.2 or First Amended Application) at 1.) The 7,177 square foot property is more specifically described as Lot 68 on Tax Assessor's Plat 7. Id. The Property is located in a Residential C (RC) Zone. Id. Currently, the RC zone sets the minimum lot size of developable land to build in the zone at 20,000 square feet. New Shoreham Zoning Ordinance (NSZO) § 308(B)(1).
Appellants are the owners of abutting property including Lot 67-1 on Tax Assessor's (T.A.) Plat 7, Lot 85 on T.A. Plat 7, Lot 75 on T.A. Plat 7, Lot 74 on T.A. Plat 7, Lot 80 on T.A. Plat 7, Lot 61 on T.A. Plat 7, and Lot 76 on T.A. Plat 7 (collectively abutting property) (Compl. ¶¶ 2-8.) Appellees include the Zoning Board, Applicant, and the members of the Zoning Board in their capacities as members of the board. Id. ¶ 9-11.
On February 3, 2022, Applicant submitted her initial application to the Town requesting dimensional variances from the requirements in § 308(C) of the NSZO to construct a single-family home (Ex. B.1, Initial Application.) The initial Application sought the following dimensional relief: (1) 13.8 feet from the front minimum setback of 25 feet; (2) 5.3 feet from the left side minimum setback of 20 feet; and (3) 21.1 feet from the rear minimum setback of 40 feet. Id. ¶ 13. Subsequently, on March 15, 2022, Applicant filed the First Amended Application, the operative Application, seeking dimensional relief in the form of (1) 13.8 feet from the front minimum setback; and (2) 19.9 feet from the rear minimum setback. (Ex. B.2, ¶ 13.)
B
Notice to Abutters
On March 1, 2022, Applicant mailed notices of the March 23, 2022 Zoning Board public hearing to the abutting property owners in accordance with section 702 of the NSZO. See generally Ex. B.1 and Ex. C. Additionally, notice of the hearing was provided on the New Shoreham government website. See Ex. F-1 attached to Applicant's final memorandum (Applicant's Final Mem.)
C
Zoning Board Hearings
In consideration of the Application, the Zoning Board conducted hearings on February 23, 2022, March 23, 2022, and May 25, 2022.
1
February 23, 2022 Hearing
The Zoning Board first took up the initial Application at the February 23, 2022 hearing. Applicant and her Counsel were present. (Ex. E-2 attached to Applicant's Final Mem.) After noting her concern with the Application's setbacks and building coverage, Zoning Board Chair Kate Atwater Butcher moved to schedule a public hearing for March 23, 2022, which unanimously passed. Id.
2
March 23, 2022 Hearing
A public hearing was held on Applicant's First Amended Application on March 23, 2022 (Mar. Hr'g) Applicant and her attorney were present, along with Applicant's land surveyor, Jim Calderone, and property abutter Patricia Tangney. (Ex. F-3 attached to Applicant's Final Mem.) Applicant's Counsel at the time, Joseph Priestley, started the hearing with a brief presentation stressing that Applicant already had received Historic District Commission approval and met all the dimensional zoning requirements except the front line and rear line setbacks. (Ex. B, March 23, 2022 Application Hearing Transcript (Appl. Hr'g Tr.) at 3:17-24.)
Applicant's land surveyor, Jim Calderone, was called to testify about the site plan he had prepared. Id. at 5:7-9. Mr. Calderone testified that the lot was 7,177 square feet in an RC zoning district with a front yard minimum setback of 25 feet and a rear yard minimum setback of 40 feet. Id. at 6:7-22. He further testified that the proposed house conforms to the building lot coverage requirements of the RC Zone and that the design is in conformity with the characteristics of the houses in the area. Id. at 9:13-10:22.
Applicant then testified that she designed the home to be a forever home. Id. at 12:17-13:2. She further testified that she had received permission from the Historic District Commission and the house will be served by public sewer and water. Id. at 13:7-12.
The Zoning Board Chair expressed concern about the porch and proving hardship, while also asking if the design could be flipped. Id. at 14:12-16, 18:4-5. Applicant testified that it would be a hardship to have a home on Block Island without some outside space to enjoy and that she would "faint" if she was asked to flip the design after all of the work that went into it. Id. at 15:3-5, 18:6-9. Ultimately, she testified that the home is meant to be a caretaker home for people in her family. Id. at 19.
Zoning Board member Steven Filippi commented,
"I mean, personally, I don't have an issue with the porch. I think everyone, especially the elderly, need to get outside and get as much sunlight as possible. I think it is kind of a hardship to actually not -- it's kind of impractical to build a house on Block Island without a porch. In terms of hardship, I think it is." Id. at 22:14-21.
After repeated questioning about adjusting the design or flipping the porch, Applicant stated that, "Yes, it's a very tiny deck. I mean, you can barely get a couple of chairs and a grill on it." Id. at 24:20-22.
Thereafter, the Zoning Board opened the hearing for public comment, and abutting property owner Patricia Tangney testified that she was concerned that the proposed home would block her view. Id. at 29:15-18. The Zoning Board advised that "zoning doesn't protect viewscapes." Id. at 31:6-7. The public hearing was closed, and the matter was taken under advisement. Id. at 33:21-23.
3
May 25, 2022 Hearing
The May 25, 2022 hearing was convened, and a Decision on the Application was issued. (Ex. G attached to Applicant's Final Mem.) Several property abutters were present and requested to speak. Id. The Zoning Board clerk noted that two letters were received a week after the public hearing was closed. Id. The Zoning Board Chair explained that the public hearing was closed, and the clerk was asked to confirm that proper notice of the public hearing was given to the abutters. Id. A motion was made, and a vote taken to deny in part and approve in part the Application by Judith Rose. Id. All Board members who were present voted in favor of the motion. Id. The findings of fact and the conditions and stipulations were announced into the record. Id.
D
The Zoning Board's Written Decision
On June 6, 2022, the Zoning Board issued its written Decision that unanimously approved the First Amended Application. See generally Ex. A. In the Decision, the Zoning Board made fourteen findings of fact including: (1) New Shoreham Historic Commission approved the plans; (2) the original application was amended such as to seek no side-yard relief and a smaller rear porch; (3) setback standards for the zone do not allow for a habitable dwelling to be built on the lot without relief; and (4) based on testimony, the dwelling will be located on the center of the property, is smaller than other lots in the neighborhood, and the dwelling is in keeping with the surrounding neighborhood and depth of other houses. Id.
Additionally, the Zoning Board subjected approval to several conditions and stipulations: (1) the rear porch would not be allowed as proposed; (2) 12.7 feet of dimensional variance relief from the rear setback requirement and 13.8 feet of dimensional variance relief from the front setback requirement granted; (3) no relief from the maximum lot building coverage; and (4) the relief granted represented the least relief necessary to address Applicant's hardship. Id.
E
Procedural History
On June 27, 2022, Appellants filed a Complaint, pursuant to § 45-24-69, asking this Court to reverse the Decision of the Zoning Board, issue an order denying Applicant's dimensional variance, issue an order requiring the Zoning Board to produce transcripts related to all proceedings, and enter judgment in favor of Appellants. See generally Compl. On July 18, 2022, the Zoning Board filed an Answer to Appellants' Complaint. Subsequently, Applicant filed a Motion to Dismiss on February 8, 2023.
On May 22, 2023, Appellants filed a memorandum of law in support of their appeal of the Zoning Board's Decision. Shortly thereafter, they filed an amended memorandum of law in support on June 15, 2023. (Appellants' Mem. of Law in Supp. of Appeal (Appellants' Mem.))
Finally, Applicant filed a final memorandum of law in opposition to the appeal with supporting exhibits on July 11, 2023. (Applicant's Final Mem.) The Zoning Board filed a final memorandum of law on September 13, 2023. (Mem. of Appellees New Shoreham Zoning Board of Review (Zoning Board Mem.)) One week later, on September 20, 2023, the parties stipulated that all briefing was complete, and the appeal was ready for decision.
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
Appellants argue that the Decision should be reversed because Applicant failed to comply with the public notice requirements of the NSZO § 702(B)(2) in that some addresses or names were incorrect. (Appellants' Mem. at 15.) Additionally, Appellants argue that the Decision should be reversed because the Applicant failed to comply with the public notice requirements of § 702(B)(3) in that notice was not provided to the Associate Director of the RI Department of Administration, Division of Planning, but instead, notice was provided to the Local Planning Assistance Program in the Office of Municipal Affairs. Id. at 16. Consequently, Appellants argue these notice violations lack compliance with § 45-24-69(d)(1). Id. at 17.
Section 702(B)(2) of the NSZO provides in relevant part:
"All notices of a public hearing shall contain the name of the owner of the subject property, the Assessor's Plat and Lot number(s) of the subject property . . . . Notification of a public hearing for a Variance . . . shall be as follows . . . . Notice of the public hearing shall be sent to the applicant, all property owners within 200 feet of all boundaries of the subject property and the owner of the subject property. The notice shall be sent by first class mail . . . not less than 14 days before the public hearing. The notices shall be mailed by the applicant." Id.
Section 702(B)(3) provides in relevant part: "The applicant shall send notice of the public hearing, by first class mail, to the Associate Director of the RI Department of Administration, Division of Planning."
Finally, Appellants argue that, should the Court find the notice requirements satisfied, it still should reverse the Decision because the Zoning Board erred in its conclusion that the Applicant was seeking the least relief necessary and abused its discretion in violation of § 45-24-69(d)(5-6). Id. at 21. Specifically, Appellants argue that the Zoning Board provided multiple alternatives to the rear porch as designed that would have eased Applicant's hardship, but they were dismissed by the Applicant based on Applicant's personal preferences as opposed to expert testimony. Id. at 22. Finally, Appellants argue that the Applicant failed to provide objective evidence that the lack of a front porch would result in more than a mere inconvenience, providing the Zoning Board with substantial justification to determine that Applicant did not meet her standard in requesting the least relief necessary. Id. at 25.
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)). Sufficient notice "must be reasonably calculated, in light of all the circumstances, to apprise the interested parties of the pendency of the action, of the precise character of the relief sought and of the particular property to be affected . . . but it need not necessarily be letter-perfect." Paquette v. Zoning Board of Review of West Warwick, 118 R.I. 109, 111, 372 A.2d 973, 974 (1977).
The ordinance governing notice is found in § 702(B)(1-3) of the NSZO. That section provides in relevant part:
"All notices of a public hearing shall contain the name of the owner of the subject property, the Assessor's Plat and Lot number(s) of the subject property . . . . Notification of a public hearing for a Variance . . . shall be as follows . . . (1) The Zoning Board of Review . . . shall give public notice of the hearing, at least 14 days prior to the date of the hearing, in a newspaper of general circulation in the Town. (2) Notice of the public hearing shall be sent to the applicant, all property owners within 200 feet of all boundaries of the subject property and the owner of the subject property. The notice shall be sent by first class mail . . . not less than 14 days before the public
hearing. The notices shall be mailed by the applicant. (3) The applicant shall send notice of the public hearing, by first class mail, to the Associate Director of the RI Department of Administration, Division of Planning." Section 702(B)(1-3).
Here, the Applicant filed an Affidavit and Certificate of Mailing from the United States Postal Service on March 1, 2022. (Ex C). Furthermore, the record contains a copy of the publicized notice on the New Shoreham government website. See Ex. F-1 attached to Applicant's Final Mem.
Appellants averred that additional notice of the March hearing was not provided for the amended application within the certified records submitted to the Court by the Zoning Board. See Appellants' Mem. at 5. Critically, "an amended application does not constitute a separate application." Woods v. Hawker, III, No. WC-2022-0240, 2023 WL 2668123, at *7 (R.I. Super. Mar. 20, 2023). Therefore, supplemental notice would be unnecessary for the March hearing. See Tramonti v. Zoning Board of Review of City of Cranston, 93 R.I. 131, 135, 172 A.2d 93, 95 (1961) (additional notice not required where zoning board hearing continued to another date).
Appellants also argue that notice of the March public hearing was inadequate with respect to Lot 76 because ownership changed on February 18, 2022, and for Lot 77 because the notice was returned as undeliverable. See Appellants' Mem. at 13. Appellants state that ownership of Lot 76 changed from Gabisoki 116, LLC to Old Harbor Holdings, LLC by Warranty Deed recorded in the New Shoreham Land Evidence Records on February 18, 2022, two weeks before Applicant mailed notice on March 1, 2022. Appellants' Mem. at 13. Thus, Appellants argue notice was mailed to the wrong owner and wrong address. Id. Appellee Zoning Board argues that there are often delays in updating municipal Assessor's Databases and that notice was properly sent to the abutters as reflected in the Assessor's Database on March 1, 2022. Zoning Board Mem. at 6. Additionally, Appellee Applicant argues that certification of the tax rolls would not have occurred until June 15, 2022, and that lot 76 was owned by Gabisoki 116, LLC as reflected in the assessment records from the last assessment date of December 31, 2021. Applicant's Final Mem. at 9.
With respect to the issue of change of ownership of Lot 76, the record establishes that certification of the town tax roll would not have occurred until June 15, 2022. See Ex. D attached to Applicant's Final Mem. Therefore, at the time Applicant mailed notice on March 1, 2022, Lot 76 was still owned by Gabisoki 116, LLC as reflected in the town tax records because certification of the tax roll occurred on June 15, 2022, which then reflected the new owner, Old Harbor Holdings, LLC. There is no obligation on the part of the applicant here to conduct title searches the day prior to mailing notice to reconfirm ownership of property. The Appellants are entitled to rely on the certified tax records of a municipality. See Newport Auto Salvage, Inc. v. Town Council of Town of Portsmouth Acting as Board of License Commissioners, 502 A.2d 339, 342 (R.I. 1985) (administrative agency permitted to take official notice similar to judicial notice of town's tax assessor records); see also G.L. 1956 § 45-24-53(c) (generally requiring notice to owners of real property as shown on the current real estate tax assessment records of the city or town).
Furthermore, the owner of Lot 77 as well as owns Lot 74 is Sharon L. Tavilla. Ms Tavilla was sent and she is presumed to have received it as it was not returned as undeliverable. "Notice becomes effective upon mailing pursuant to the time-honored 'mailbox rule.'" Degasparre v. Fay Servicing, LLC, 288 A.3d 146, 152 (R.I. 2023) (quoting University Emergency Medicine Foundation v. Rapier Investments, Ltd., 197 F.3d 18, 21 (1st Cir. 1999); see Pezzi v. Zoning Board of Review of City of Warwick, No. KC 04-0861, 2005 WL 1898779, at *6 (R.I. Super. Aug. 9, 2005) ("Consequently, once notice is properly dispatched to the appropriate owners, the Board has satisfied its duty."). Moreover, the affidavit of notice and names of abutters in the application demonstrate notice was sent to the addresses on file for Lot 76 and Lot 77. See Exs. C and B.1. "Rhode Island law demands only that notice be mailed, not that it be received." Degasparre, 288 A.3d at 153. The Court finds that notice was reasonably calculated and sufficient to provide abutters with awareness of the pendency of the action, the relief requested, and the property affected. See Paquette, 118 R.I. at 111, 372 A.2d at 974.
Finally, Appellants argue that notice was insufficient under § 702(B)(3) because the notice should have been mailed to the Associate Director of the Rhode Island Department of Administration, Division of Planning, instead of to the Local Planning Assistance Program in the Office of Municipal Affairs. Appellants' Mem. at 16. The Applicant mailed notice to Jared L. Rhodes, III, with the Local Planning Assistance Program, Office of Municipal Affairs. See Ex. C, Affidavit of Notice. The Zoning Board's application form for a variance provides submission requirements within the application and specifically details where notice of the public hearing should be sent. See Ex. B.1, ¶ 14. The application requirements state that notice should be sent to property abutters who are within 200 feet and that notice should be sent to the Director of the Rhode Island Local Planning Assistance Program, Office of Municipal Affairs. Id.
As such, there is a conflict between the NSZO § 702(B)(3) and the New Shoreham Zoning Board Application for Variance. This conflict, however, is not fatal to the application because it has not been argued that the State has an interest in this application. Furthermore, § 45-24-53(a) was amended in 2019 and removed the requirement that notice be sent to the statewide planning program of the department of administration. See P.L. 2019, ch. 191 and ch. 244, § 3.
It is clear, based upon this court's review of the record that notice of the public hearing for Applicant's variance was "reasonably calculated, in light of all the circumstances, to apprise the interested parties of the pendency of the action, of the precise character of the relief sought and of the particular property to be affected." Paquette, 118 R.I. at 111, 372 A.2d at 974 (citations omitted)).
Evidence on the Record
Next, Appellants contend that there were errors on behalf of the Zoning Board or the Applicant regarding whether proof of all the necessary standards were met under the NSZO and § 45-24-41(d)(1-4). Appellants' Mem. at 17. Appellants' primary contention is that there was no evidence before the Zoning Board that the relief requested was the least relief necessary. As an initial matter, the first two standards in § 45-24-41(d)(1)-(4) have been met. Those being, that the hardship the applicant seeks relief from is due to the unique characteristics of the subject land and not to the general characteristics of the surrounding area, and that the hardship is not the result of any prior action of the applicant and does not result primarily from the desire of the applicant to realize financial gain. § 45-24-41(d)(1)(2). Here, the evidence contained on this record clearly establishes that the hardship the Applicant seeks relief from is due to the unique characteristics of the land. First, the Applicant's land surveyor testified that it would not be possible to build a single-family dwelling on the 7,177 square foot property without relief from the front and rear lot setback requirements. Ex. D, Appl. Hr'g Tr. at 6:7-7:3. Additionally, the Applicant's unrebutted testimony is that the purpose of the home is to be a forever home on Block Island for people in her family so they can age and be taken care of. Id. at 12:24-13:2.
Section 45-24-41(d)(1-4) provides in relevant part:
"In granting a variance, the zoning board of review . . . shall require that evidence to the satisfaction of the following standards is entered into the record of the proceedings: (1) That the hardship from which the applicant seeks relief is due to the unique characteristics of the subject land or structure and not to the general characteristics of the surrounding area . . . .; (2) That the hardship is not the result of any prior action of the applicant and does not result primarily from the desire of the applicant to realize greater financial gain; (3) That the granting of the requested variance will not alter the general character of the surrounding area or impair the intent or purpose of the zoning ordinance or the comprehensive plan upon which the ordinance is based; and (4) That the relief to be granted is the least relief necessary." Section 45-24-41(d)(1-4).
1
General Character of the Surrounding Area
Appellants do not advance specific arguments as to § 45-24-41(d)(3), only that there needs to be proof of the necessary standards provided by the statute. Applicant argues that the variance requested, and the proposed design, is in keeping with the general character of the surrounding area. (Applicant's Final Mem. at 18).
The Court must "presume that the members of a board of review possess an expertise as to matters peculiarly related to the administration of the zoning ordinance." Schofield v. Zoning Board of Review of City of Cranston, 99 R.I. 204, 208, 206 A.2d 524, 527 (1965); see Pawtucket Transfer Operations, LLC, 944 A.2d at 859.
Here, the Zoning Board concluded that granting the Application would be consistent with the general character of the surrounding area and the depth of other houses in the neighborhood. See Decision, Ex. A, ¶ 10. Joseph Priestley-counsel for the Applicant-noted that the Applicant designed a small house that was in keeping with the surrounding neighborhood. (Ex. D, Appl. Hr'g Tr. at 4:6-8). Additionally, Applicant testified that she had received Historic District Approval. Id. at 13:7-8. Finally, Jim Calderone-Applicant's land surveyor-testified that the location of Applicant's designed home on the lot was a fixed characteristic of the neighborhood. Id. at 10:16-22, 11:8-11. 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.
Clearly, there is substantial evidence in the record to support the Zoning Board's conclusion that the variance would be consistent with the character of the surrounding area.
2
Least Relief Necessary
Appellants argue that the Zoning Board's decision was clearly erroneous in view of the evidence in the record in that it failed to establish Applicant was seeking the least relief necessary for her variance. Appellants' Mem. at 20. Specifically, Appellants contend that the Applicant failed to consider other reasonable alternatives to her design for front and rear porches and failed to provide evidence that the lack of porches would result in more than a mere inconvenience. Id. The Court disagrees.
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 Co. 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." 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, Nos. WC-2021-0195, WC-2021-0199, 2022 WL 14676055, at *6-7 (R.I. Super. Oct. 20, 2022) (explaining proper legal standard in light of the New Castle Realty Co. opinion).
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." Section 45-24-41(e)(2); see also NSZO § 706(E)(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 v. Zoning Board of Review of Town of North Kingstown, 818 A.2d 685, 693 (R.I. 2003).
In the present case, Applicant considered alternative designs after the first hearing. After the Zoning Board expressed concern about the relief requested regarding setbacks in the February 2022 hearing, Applicant amended her Application and requested less relief prior to the March 2022 hearing. See Ex. E-2 attached to Applicant's Final Mem.; see also Exs. B.1 and B.2. Moreover, the Zoning Board found that the relief requested in the Application was the least relief necessary to address the asserted hardship. See Decision, Ex. A, Conditions and Stipulations, ¶ 4. Attorney Priestley stated to the Zoning Board that by eliminating the need for sideline relief, the Applicant was asking for the least relief necessary. (Ex. D, Appl. Hr'g Tr. at 13:22-24). In response to questioning about the relief needed, Applicant testified that "it's a shame to have a house on Block Island without some outside space to sit and have a grill or something like that." Id. at 14:6-9. When asked if she could flip the design, Applicant testified that:
"[y]ou don't know what I went through to fit everything in. . . . Believe me, it took forever to figure this out inch by inch and foot by foot . . . I was trying to compress all the utilities in one spot and get all the rooms arranged so it would work out." Id. at 18:6-20.The record clearly supports the Zoning Board's determination because Applicant designed a small house placed in the center of the lot, with a footprint of 1,145.7 square feet out of 7,177 square feet, seeking only relief from the front and rear setback requirements of the NSZO. Id. at 4:6-8; Ex. A, Decision, ¶¶ 5, 9, 10. Furthermore, Applicant's land surveyor testified that it would not be possible to build a single-family dwelling on the lot without the rear and front setback relief requested in the variance Application. (Ex. D, Appl. Hr'g Tr. at 6:23-7:3). Finally, this is a straightforward dimensional variance application, and Applicant is not required to submit expert testimony as such applications are well within the Zoning Board's expertise. See Woods, 2023 WL 2668123, at *9. Consequently, the Zoning Board determined that denying the Application would have been more than a mere inconvenience to Applicant because she would have been denied of her right to build a single-family home on her 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 a thorough review of the entire record, this Court finds that the Decision of the New Shoreham Zoning Board of Review is based on reliable, substantial, and probative evidence. Therefore, the Court affirms the Decision of the Zoning Board.
Counsel shall submit an appropriate order.