Opinion
C. A. NC-2022-0125
02-26-2024
MARY LOU SANBORN Appellant, v. JAMESTOWN ZONING BOARD OF REVIEW, through DEAN WAGNER, JAMES KING, RICHARD BOREN, TERRANCE LIVINGSTON, JANE BENTLEY, JUDITH BELL, JOHN SHEKARCHI, and ALEX FINKELMAN in their capacities as Members of the Jamestown Zoning Board of Review; JB ON THE WATER, LLC; SHANNON BRITO; and JOHN BRITO Appellees.
For Plaintiff: Stephen J. Macgillivray, Esq. For Defendant: Wyatt A. Brochu, Esq. Mark E. Liberati, Esq. Girard Galvin, Esq
For Plaintiff: Stephen J. Macgillivray, Esq.
For Defendant: Wyatt A. Brochu, Esq. Mark E. Liberati, Esq. Girard Galvin, Esq
DECISION
KEOUGH, J.
Before the Court is an appeal from the February 22, 2022 Decision (Decision) of the Town of Jamestown Zoning Board of Review (Board) granting JB's on the Water, LLC's application for a dimensional variance and special use permit. Jurisdiction is pursuant to G.L. 1956 § 45-24-69.
Shannon Brito and John Brito are the sole members of JB's on the Water, LLC. Hereinafter, the parties will be referred to as "JB's," "Mrs. Brito," and "Mr. Brito" individually, and as "Applicants" collectively.
I Facts and Travel
On December 11, 2021, JB's submitted an Application for Exception or Variation pursuant to the Jamestown Zoning Ordinance seeking approval for proposed alterations to the building/property located at 150 Conanicus Avenue, Jamestown, Rhode Island, further identified as Tax Assessor's Plat 8, Lot 258 (Subject Property, property). See generally Record of the Jamestown Zoning Board of Review (R.) at 43-46. The property, which is located within a pie-shaped parcel at the intersection of Conanicus Avenue and Bay View Drive, Jamestown, RI, is owned by 150 Conanicus Avenue, LLC and currently houses a building identified as the Bay Voyage Inn (Main Structure, inn). This Main Structure, which was originally constructed in the early twentieth century and has been consistently used as an inn, hotel, or guesthouse, is located in an R-20 residential zone. See id. at 42, 49, 10; see also Appellant's Memorandum in Support of Appeal (Appellant's Mem.) at 2. JB's currently leases space from 150 Conanicus Avenue, LLC and operates a restaurant and bar within the Main Structure. R. at 43, 49.
In the present action, the Certified Record has been docketed with the title of "Return of Records." See Docket. That 209-page document, which contains 34 separate exhibits, does not contain a uniform pagination system. Accordingly, the Court will utilize the electronic pagination provided by virtue of its portable document format.
The Bay Voyage Inn was previously known as the Bay View Inn.
As far back as 1984, various applications related to the use of the Subject Property have been presented to the Town of Jamestown (Town) by various owners seeking to develop and utilize the lot and/or inn in a manner that required express authorization from the Town. See R. at 42, 59-71. Specifically, in 1984 and 1985, the then-owner sought and received approval of his application for several variances and a special exception in order "to extend and enlarge a non-conforming use, viz. a hotel and restaurant." Id. at 61-66. In 1991, the Board granted the application for a variance and special exception "to enclose the porch and relocate the stairway in the restaurant portion of the property[.]" Id. at 67. Later, in 2005, the Board approved a request for a special use permit to construct a "12' x 15' storage building" and in 2007, granted a request for a variance "to construct a new porch at 12 [feet] 10.5 [inches] from Bay View Dr." Id. at 68-71. Thereafter, in 2016, the Town issued two letters expressing its support for the issuance of a liquor license for the Subject Property, subject to various conditions. See id. at 73-77.
Most recently, JB's sought approval for the expansion of the Main Structure, specifically the construction of a deck as well as the relocation of an existing handicap accessible ramp. See generally R. at 37-38. In conjunction therewith, Applicants submitted a request for Development Plan approval to the Jamestown Planning Commission (Commission). In a letter dated June 8, 2021, the Commission issued JB's a Zoning Certificate stating as follows:
"The current use in the Jamestown Zoning Ordinance, 82-301 table, Uses and Districts VI, C, 3 is compliant as per Special Use Permit and Variance approval by the Jamestown ZBR on November 26, 1985, December 3, 1985 respectively, of the Jamestown Land evidence records, for the specifics. The site currently is approved for seating of Lounge 20, Bay Room 46, Tavern 34, Veranda 20, Outdoor dining deck 30, and Lawn 36. The 186 seats total requires, 37 parking spaces and 32 timeshare units require 32 parking spaces for a property total of 69 parking spaces. Any changes to those totals would require a zoning review and possibly a variance. A valid Liquor License is required. Apply for approval to the Jamestown Town Council." Id. at 10.
In January of 2022, the Town notified the Board that based on certain findings of fact and the imposition of certain conditions, it "hereby grants Development Plan approval and endorses amending the Special use Permit previously approved by the Jamestown Zoning Board of Review[.]" Id. at 47; see also id. at 47-49.
When the Board issued its decision on March 22, 2022, it indicated that the letter from the Commission granting final approval was dated January 4, 2021, but "should have said January 4, 2022." R. at 203.
At or around the same time the Commission was reviewing the Applicants' proposal, JB's submitted an application to the Board seeking approval to construct an expanded outdoor deck, including (1) the addition of an outdoor bar, (2) steps leading to a new main entrance, and (3) a ramp connecting to the expanded deck designed to comply with the requirements established under the Americans with Disabilities Act of 1990 (ADA). Id. at 43-44. Specifically, the Applicants sought:
The ADA is federal legislation codified as chapter 126 of title 42 under the United States Code.
"[A] variance from Article 3, Section 82-301 entitled 'District Development Regulations', Section 82-302 entitled 'District Dimensional Regulations[,]'Table 3-2 for the Village Special Development District Zones R-8, R-20, CL and CD authorized by th[e Jamestown] Ordinance, Article 11 entitled Jamestown Village Development District, Section 82-1107, a Special Use Permit from Article 7, NONCONFORMING USES, Section 82-704. -ALTERATION OF A NONCONFORMING USE, and Article 6, Section 82-601 entitled 'Special Use Permits Authorized by this Ordinance' . . . to add a handicap access ramp and outdoor deck with awning to the existing restaurant space." See generally R. at 43-46; Appellant's Mem., Ex. B.
Notices regarding the application were sent to residents and/or property owners in proximity to the Subject Property, and a hearing was scheduled for January 25, 2022. Id. at 91-98. The Appellant, Ms. Mary Sanborn (Appellant), owns the lot located at 21 Bay View Drive, Jamestown, Rhode Island (Sanborn Property), which abuts the Subject Property to the north. Id. at 49.
At the hearing, the Board members heard testimony from the Applicants' witnesses-i.e., Mr. Brito, Amy Sonder, Gary Lepore, and Joseph Lombardo. See generally id. at 106-40. After the presentation was completed, the Board invited members of the audience to offer public comment relative to the project. Id. at 140-41. No one came forward to speak in favor of the application; however, five individuals, all identified as abutting or adjacent property owners, came forward to object. Id. at 141-56. Collectively they voiced various concerns regarding the modification of the nonconforming use of the Subject Property and its anticipated effects on traffic, parking, and noise in the neighborhood. See generally id.
Ms. Sonder is a licensed surveyor in the state of Rhode Island who was qualified as an expert surveyor at the January 25, 2022, hearing. R. at 114. Ms. Sonder conducted the survey of the Subject Property and surrounding areas, which the Applicants presented to the Board. Id. at 49.
Mr. Lepore is a licensed architect in the state of Rhode Island and was qualified as an expert witness in the field of architecture at the January 25, 2022, hearing. R. at 119. Mr. Lepore designed the proposed deck expansion on the Subject Property. Id. at 119-20.
Mr. Lombardo is a certified use planner and was qualified as an expert at the January 25, 2022, hearing. R. at 135-36. Mr. Lombardo was engaged to review the proposed project and "determine its appropriateness with regard to existing regulatory constraints." Id. at 136.
Although not present at the January 25, 2022, hearing, Appellant sent a letter, dated January 11, 2022, to the Board echoing many of the same concerns raised by the objectors who had testified at the hearing. Id. at 78-79. Specifically, she expressed concern that (1) the alterations would impact the level of quiet and privacy enjoyed in the neighborhoods surrounding the Subject Property; (2) the outdoor bar and additional seating would cause problems with "the parking ratio that is currently in place; (3) "[t]he proposed design would further add to the complications of the current piece of property and its abutting neighbors"; (4) the proposed changes to the outdoor area of the Main Structure "would diminish the historic façade of the building and change its character"; and (5) the proposed outdoor bar and additional seating would "lead to outdoor events being held there as well as a future request for outdoor music." Id. at 78.
Other abutters sent letters and e-mails to the Board both in support of and in opposition to the application. See generally id. at 80-89.
At the conclusion of the testimony, the Board members discussed various aspects of the application with no consensus being reached regarding the suitability of the proposed changes. See generally id. at 157-65. Some indicated that the proposed alterations would result in a change to the character of the Main Structure and the surrounding neighborhood. Others disagreed and opined that the project would not constitute a significant expansion of the use because the property had been historically used as a restaurant. Still another indicated that it was "a close call," expressing concern for the increased noise associated with outdoor bars and the potential that the expansion would significantly change the character of the neighborhood. With respect to the need for the proposed changes, this particular Board member expressed concern over the timing and purpose of the application, stating as follows:.
Id. at 157-59; 162-63.
Id. at 159.
Id. at 159-162.
"The other issues I'm having, quite frankly, is I have been in [Applicants' other restaurant] on a few occasions, and I think they have a good establishment over there. But you have a[n] experienced restauranteur who just testified if I don't get this change I can't be profitable, which begs the question why did you enter into a lease that you knew going into you couldn't be profitable but for, you know, hopefully the zoning board would agree with your expansion. That doesn't make sense to me. It just doesn't make sense to me." Id. at 161.
Ultimately, the Board proposed that the Applicants be permitted to come back on another date with a modified application which would strike a balance between their requests and the concerns raised by the abutting/adjacent property owners, exploring the "possibility of redesigning the space in such a way that the relief requested will be less than" what had been presented. Id. at 163-169. The matter was continued to February 22, 2022. Id. at 169.
Prior to the February hearing, Mr. Brito and counsel for JB's met with a group of the neighboring property owners. Id. at 175-76. Recognizing the legitimacy of their concerns, the Applicants and their experts modified various aspects of the proposed project-e.g., reducing the width of the southern deck, relocating the steps facing Conanicus Avenue to provide access from the south side of the Subject Property, and shifting the proposed outdoor bar further north to ameliorate concerns of sound emitting from the easterly deck area (Amended Plans). Id. at 176-77; see also Decision ¶¶ 6-7. As a result of these efforts, several neighbors ultimately withdrew their opposition to the application. R. at 206, see also Decision ¶ 7(h).
At the February 22, 2022, hearing, the Applicants presented additional information and testimony to the Board, focusing primarily on the contents of the Amended Plans. See generally R. at 176-82. The Applicants' sole witness for this hearing, Ms. Sonder, briefly testified regarding the relevant components of the modified proposal. Id. at 180-81. The Board then gave members of the public an opportunity to offer comment in support of or in opposition to the amended proposal. Id. at 181-82. Two of the parties who originally objected spoke and indicated that the Amended Plans had generally addressed their concerns such that they were withdrawing their objections, but they acknowledged that the amelioration of issues at their properties, i.e., noise and increased traffic, may result in an intensification of those same issues for the neighborhood to the north of the Subject Property. Id. at 185.
One objector indicated that he was withdrawing his opposition with the caveat that the Board approve "last seating times and that sort of thing[.]" Id. at 188-89.
The Appellant also testified and indicated that she had not been invited to the meeting between Applicants, counsel, and the neighboring property owners and therefore had no input relative to the modifications, despite having previously objected to the proposal. Id. at 182-83. Nevertheless, Appellant indicated that she maintained her objection on the grounds that (1) the proposed changes would increase noise levels in the neighborhood due to the addition of an outdoor bar and (2) there is insufficient on-site parking, indicating that any consideration of off-site, public parking for purposes of satisfying parking requirements at the Subject Property would be inappropriate. See id. at 183-84. Her objection was seconded by another neighbor who testified that despite the modifications to the original proposal, his concerns regarding the increased noise levels as well as the issue of adequate parking remained. Id. at 190-91.
Subsequently, members of the Board offered their thoughts on the Amended Plans, largely expressing their approval of the same. See generally id. at 191-94. With respect to the concerns regarding parking, the Board indicated that the issue of sufficient on-site parking had been presented previously and resolved. Id. at 190-91. Nevertheless, at least one member expressed concerns regarding the Applicants' reliance on COVID-19 restrictions as part of the grounds for the application, noting that if the restrictions were lifted, "the temptation to put more tables closer together would be great and that would affect the parking." Id. at 193. She further stated that "[p]arking is a problem and an issue that I think we might want to write into our decision to limit it to 184 seats[,]" instead of the 186 seats listed in the application. Id.
The Board chairman then called for a vote on the application, which was approved by unanimous vote of the Board members present at the hearing. R. at 195. On March 22, 2022, at a scheduled meeting, the Board's written decision-containing its findings of fact and conclusions of law-was read into the record. See generally id. at 202-09. The Decision was subsequently recorded on April 5, 2022.
The Appellant then timely filed the instant appeal. She thereafter filed a Motion for Temporary Restraining Order and Preliminary Injunction, which was ultimately denied after hearing. See Docket, July 22, 2022, Order. The parties submitted memoranda and the case came before the Court for oral argument. Upon consideration of the parties' arguments and the evidence contained in the certified record, the Court now renders its decision.
II Standard of Review
Judicial review of a zoning board of review's decision is governed by § 45-24-69. That provision provides in pertinent part as follows:
"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).
Where a challenge to a board decision rests on an issue of law, the Superior Court conducts a de novo review. Tanner v. Town Council of Town of East Greenwich, 880 A.2d 784, 791 (R.I. 2005). Otherwise, this 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 the 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 "'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."' Lischio v. Zoning Board of Review of Town of North Kingstown, 818 A.2d 685, 690 n.5 (R.I. 2003) (quoting Caswell v. George Sherman Sand & Gravel Co., Inc., 424 A.2d 646, 647 (R.I. 1981)). This Court may not "substitute its judgment for that of the zoning board if it can conscientiously find that the board's decision was supported by substantial evidence in the whole record." Apostolou, 120 R.I. at 509, 388 A.2d at 825.
III Analysis
A. Enlargement of a Nonconforming Structure/Nonconforming Use
In support of her contention that the Board's Decision should be reversed, Appellant first argues that the Applicants' attempt to enlarge a nonconforming structure while at the same time altering and/or expanding its nonconforming use is prohibited by the Town's zoning ordinance. Appellant's Mem. at 4-5. Specifically, Appellant maintains that any expansion, enlargement, or intensification of nonconforming structures is discouraged because it contravenes the policies and planning principles of the local zoning ordinances. Id. It is for this reason, according to Appellant, that the Town's ordinance and applicable statutory provisions require that any alteration "must conform to the Zoning Ordinance without a variance." Id. at 5 (emphasis supplied).
The Appellant further argues that the Applicants' request to expand the use of the property, regardless of the structural expansion, is likewise impermissible. Specifically, Appellant argues that because nonconforming uses "are incompatible with and detrimental to permitted uses in the . . . districts in which they are located . . . and confer upon their owners and [users] a position of unfair advantage," they are "even more disfavored than nonconforming structures." Id. at 5-6 (citations omitted). As a result, Appellant maintains that while "a nonconforming use of a structure may continue," the structure cannot be "enlarged, extended, structurally altered or reconstructed, except for alteration, maintenance and repair work as is required to keep the building or structure in a safe condition." Id. at 6 (citations omitted) (emphasis supplied). The Appellant insists that consistent with the disfavored expansion of nonconforming uses, the alterations must "make the use more closely adhere to the intent and purposes of [the] ordinance" and not increase "the degree of nonconformity." Id. (citations omitted). It is Appellant's contention that the intended alterations serve only to expand a bar and/or restaurant in a residential zone and are not necessary to keep the building in a safe condition. Id. As a result, Appellant maintains that the application should not have been approved by the Board.
Conversely, the Town and Applicants (collectively Appellees) argue that with respect to the structural changes proposed by the Applicants, Appellant has misinterpreted both the meaning and effect of the applicable provision(s) of the Town's zoning ordinance. JB's Memorandum in Support of its Objection (Applicants' Mem.) at 7; see generally Town's Memorandum in Support of its Objection (Town's Mem.) at 7-8. The Appellees maintain that by its clear terms, § 82-705 of the zoning regulations "allows for a dimensional variance if an applicant can satisfy the requirements for its issuance." Applicants' Mem. at 7. To hold otherwise would be to "prohibit alterations of nonconforming structures," something that is not contemplated nor provided for by the ordinance. Id. at 8. With respect to the proposed alterations to the current nonconforming use of the property, the Appellees rely primarily on the holding in Cohen v. Duncan, 970 A.2d 550 (R.I. 2009) and maintain that "ordinance[s] which appear to allow alterations via a special use permit, cannot be read literally to prohibit reasonable alterations." Applicants' Mem. at 9; see also Town's Mem. at 8. "If the only type of special use permit that may be granted is one which requires the applicant to conform the proposed development to the current code then these code provisions are 'meaningless surplusage.'" Applicants' Mem. at 9-10.
1. Nonconforming Properties
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) (quoting Town of West Greenwich v. A. Cardi Realty Associates, 786 A.2d 354, 362 (R.I. 2001)); see also 4 Rathkopf's The Law of Zoning and Planning, §73:1 (zoning ordinances generally prohibit substantial changes in the nature of the use or structural alterations and restrict or prohibit extension or enlargement of nonconforming use). These restrictions reflect the widely accepted principle that nonconforming uses or structures are "'detrimental to a zoning scheme, and the overriding public policy of zoning . . . is aimed at their reasonable restriction and eventual elimination.'" RICO Corp., 787 A.2d at 1144-45 (quoting, Toys "R" Us v. Silva, 676 N.E.2d 862, 865 (N.Y. 1996)).
One such means of accomplishing these objectives is through statutory enactments or local city or town zoning ordinances. Rhode Island's Zoning Enabling Act (Enabling Act), G.L. 1956 chapter 24 of title 45, authorizes cities and towns to adopt ordinances that allow the alteration of nonconforming developments by special-use permit, by permit, or by right. See Cohen, 970 A.2d at 563. Specifically, § 45-24-40 provides:
"(a) A zoning ordinance may permit a nonconforming development to be altered under either of the following conditions:
"(1) The ordinance may establish a special-use permit, authorizing the alteration, which must be approved by the zoning board of review following the procedure established in this chapter and in the zoning ordinance; or
"(2) The ordinance may allow the addition and enlargement, expansion, intensification, or change in use, of nonconforming development either by permit or by right and may distinguish between the foregoing actions by zoning districts.
"(b) The ordinance may require that the alteration more closely adheres to the intent and purposes of the zoning ordinance.
"(c) A use established by variance or special use permit shall not acquire the rights of this section[.]" Section 45-24-40.
In accordance therewith, the Town has promulgated provisions within its zoning ordinance which govern the alteration of nonconforming buildings, structures, parcels of land, and uses. See Jamestown, RI Revised Code of Ordinances (Jamestown Zoning Ordinance, ordinance), Article 7 (2020 suppl.). These particular provisions reflect the general principles that
The Jamestown Zoning Ordinance was recently updated via the 2023 Supplement. For purposes of this appeal, however, the 2020 supplement was in effect at the time of the Board's Decision and is the version utilized in this Decision.
"[n]onconforming uses are incompatible with and detrimental to permitted uses in the zoning districts in which they are located, cause disruption of the comprehensive land use pattern of the town, inhibit present and future development of nearby properties, and confer upon their owners and [users] a position of unfair advantage. It is a fundamental principle of this chapter [article] that nonconformities may be continued as allowed by law. It is also the intent of this ordinance [chapter] that existing nonconformities shall not be a reason for authorizing uses otherwise prohibited in the same zoning district." Section 82-700.
In furtherance thereof, the Town has placed restrictions on nonconforming uses and structures that discourage their continuation or intensification. Specifically with respect to nonconforming uses, § 82-703, entitled "Restrictions on nonconforming uses," provides that
"[t]he nonconforming use of a building or structure may be continued, subject to the following regulations:
"A. The building or structure is not enlarged, extended, structurally altered or reconstructed, except for alteration, maintenance and repair work as is required to keep the building or structure in a safe condition.
"B. No nonconforming use of a building or structure shall be changed to another nonconforming use."
Likewise, § 82-704 provides that
"[a]ny alteration of a nonconforming use shall make the use more closely adhere to the intent and purposes of this ordinance [chapter]. Applications for alteration of a nonconforming use shall be made as a request for a special use permit to the zoning board. The board shall ensure that no alteration is permitted which would increase the degree of nonconformity, except in the CD and CW zoning districts where the zoning board may allow alteration or expansion at its discretion."
And finally, as it relates to nonconforming structures, § 82-705, entitled "Alteration of a nonconforming structure," provides that "[a]ny alteration of a nonconforming structure shall be in accordance with the provisions of this ordinance [chapter]." It is the meaning and effect of these provisions upon which the parties fundamentally disagree.
In reviewing and/or applying these provisions, the Court is mindful 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 v. City of Pawtucket, 944 A.2d 855, 859 (R.I. 2008)). Moreover, in interpreting any legislative enactment, the Court must "attribute to the enactment the meaning most consistent with its policies or obvious purposes." Brennan v. Kirby, 529 A.2d 633, 637 (R.I. 1987) (citing Gryguc v. Bendick, 510 A.2d 937, 939 (R.I. 1986)). "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)).
In this case, the ordinance clearly distinguishes between alterations of nonconforming uses and alterations to nonconforming structures. Moreover, a plain reading of § 82-705 appears to support Appellees' contention that a dimensional variance to a nonconforming structure is allowed if "the applicant can satisfy the requirements of its issuance." Applicants' Mem. at 7. This one provision, however, cannot be read in isolation. In order to discern the Town's true intent, the ordinance must be read in its entirety and viewed in light of its stated objectives and policies, that being the prohibition of expansions and alterations to properties which are nonconforming in use and in structure. For example, in addition to § 82-703, discussed infra, which prohibits the enlargement, extension, or structural alteration except that which "is required to keep the building or structure in a safe condition," § 82-706 provides that
"[i]f a nonconforming building or structure is damaged or destroyed by fire, explosion or natural disaster, it may be rebuilt or restored and the nonconforming use continued, provided that:
"A. The reconstructed building is no larger in volume or footprint than before being destroyed or damaged.
"B. The reconstructed building does not result in an increase in the degree of nonconformity.
"C. The reconstruction is commenced within one year after occurrence of the damage and is actively pursued until completion.
"D. Where reconstruction can be accomplished so as to result in greater
conformity with this ordinance [chapter], then it shall be so done."
Likewise, in § 82-707, entitled "Discontinuance of nonconforming use," the ordinance provides that any nonconforming use that "has been halted for a period of one year shall be presumed to be abandoned" and cannot be "reestablished." Id. The provision further provides that "any future use must be in conformance to the provisions of this ordinance [chapter]." Accordingly, when considering the ordinance in its entirety, viewing the applicable provisions in a manner consistent with the policy objectives disfavoring the expansion of nonconforming uses and structures, and assigning the language its plain and ordinary meaning, this Court must conclude that the ordinance prohibits alterations to nonconforming structures that increase the degree of nonconformity or otherwise fail to comport with the statutory scheme and intent.
This conclusion is further supported by the fact that the Amended Plans submitted in conjunction with the application included not only physical changes to the structure but changes to its use. While the Appellees may be correct in their assertion that § 82-704 allows for reasonable alterations that "closely adhere to the intent and purposes of this ordinance," the provision must be read in conjunction with § 82-703, which expressly prohibits the enlargement, extension, alteration, or reconstruction to any nonconforming use of a building or structure unless required for safety. In this case, the record reveals that the Subject Property contains a dimensionally nonconforming structure and that said structure is put toward a nonconforming use based on its location in an R-20 Zone. The Applicants' proposed alterations, which include the construction of a 1,167 square foot deck to be used for a new outdoor bar and additional outdoor seating, are incompatible with the permitted uses in the residential neighborhood in which it is located. Furthermore, the increase in the lot coverage by approximately 1,500 square feet would further extend the Main Structure onto the front and side setback provisions, necessarily expanding the structure's existing footprint and increasing the degree of nonconformity. As there is no evidence to suggest that these changes were needed in order to keep the building in a safe condition, the Board erred in granting Applicants the requested relief.
Discussed supra at 20-21.
Jamestown Zoning Ordinance §§ 82-200, 82-301.
2. Cohen v. Duncan
Nevertheless, Appellees insist that our Supreme Court's decision in Cohen v. Duncan constitutes controlling precedent with respect to the present appeal and should be determinative. Applicants' Mem. at 2-5; Town's Mem. at 8. The Appellant maintains that not only were the facts of the Cohen case unique, it also involved an ordinance that is readily distinguishable from the instant provisions such that its holding should not dictate the outcome of this appeal. Appellant's Reply Memorandum in Support of her Appeal (Reply Mem.) at 4-5.
In Cohen, our Supreme Court was asked to review a judgment from the trial court reversing the Newport Zoning Board of Review. Cohen, 970 A.2d at 553. Specifically, the case arose from a dispute over "a series of upgrades and renovations" to The Chanler at The Inn at Cliff Walk (Chanler or hotel) in Newport, RI, a hotel located in an R-20 Zone, which had operated as such since receiving initial approval to do so in 1945. Id. The hotel, which constituted "a nonconforming use within the meaning of the Zoning Enabling Act" as well as applicable provisions of the city ordinance, sought to make improvements to the property, "consisting of reconstructed decks, added stairs and courtyards, and relocated parking[.]" Id.
With respect to renovations, the Chanler initially received approval of its proposed plan from the Historic District Commission, the Rhode Island Coastal Resources Management Council, and the City of Newport. Id. at 554-56. After the city issued its approval of the development plan and various building permits, a neighbor who lived "in close proximity" to the hotel appealed to the Newport Zoning Board of Review insisting that the "various proposals constituted an expansion of a nonconforming use in violation of § 17.72.030" of the Newport Zoning Ordinance. Id. at 553, 556. After a hearing thereon, the board denied the appeal finding that the "planned renovations to the structure did not expand or change [the hotel's use] as a transient guest facility" and the relocation of the parking lot was not a change of use. Id. at 558-59. Thereafter, the neighbor appealed the board's decision to the Superior Court. Id.
Based upon input from the various council, commissions, and city officials, restrictions, modifications, and/or additions were made to the plans, but all were ultimately approved.
At the time of the Cohen appeal, § 17.72.030 provided as follows:
"A. Nothing in this zoning code shall be deemed to prevent the strengthening or restoring to a safe condition of any structure or part thereof declared to be unsafe by decree of any official charged with protecting the public safety, provided that such work does not increase the nonconformity thereof. Nothing in this zoning code shall be deemed to prohibit ordinary repair and maintenance of a nonconforming structure or replacement of existing materials, provided that such work does not increase the nonconformity thereof.
"B. No nonconforming use of land shall be moved to another part of a lot or outside the lot, and no nonconforming use of a building shall be moved or extended to any other part of the building not expressly arranged and designed for such use at the time the use became nonconforming, and no building containing a nonconforming use shall be moved, unless the result of such move is to end the nonconformity. No nonconforming building shall be moved unless the result of such moving is to reduce or eliminate its nonconformity.
"C. No nonconforming use of land, nonconforming use of a structure, or nonconforming structure shall be changed except to a conforming use or structure. No nonconforming structure, if once changed to conform, shall thereafter be changed so as to be nonconforming again.
"D. A use established by variance or special use permit shall not acquire the rights of this section." Cohen v. Duncan, 970 A.2d 550, 559 n.12 (R.I. 2009).
"[I]n a comprehensive bench decision," the Superior Court reversed the decision of the board, finding that it erred in affirming the approval of the hotel's proposed renovations in view of the substantial evidence before it. Id. at 559. The trial justice further determined that the board had made errors of law with respect to "its interpretation of the ordinance as permitting alterations to the hotel as a nonconforming development because the ordinance did not expressly permit alterations by right or by special permit, as required by the Zoning Enabling Act[.]" Id. at 560 (citation omitted). The Chanler thereafter petitioned our Supreme Court for a writ of certiorari, which was subsequently granted. Id.
In reversing the trial court's decision, the Cohen Court considered whether the right to alter nonconforming uses existed in the City of Newport and, if so, whether the proposed improvements amounted to a "substantial alteration," which was not permitted by the ordinance. See id. at 562. In analyzing the applicable provision(s) of Newport's zoning ordinance, the Court held that although it did "not affirmatively grant permission to 'alter' nonconforming uses by right," "by its plain meaning [the ordinance] allows some alterations, as long as they do not change the use, extend the use, or move the use or the building in the manner proscribed by the ordinance." Id. at 563 (citing § 17.72.030). The Court ultimately concluded that alterations to the building/property did not amount to an intensification of or change in its nonconforming use. Id. at 563-69.
While this Court acknowledges certain factual similarities between the instant appeal and those presented in the Cohen case, there are a few notable distinctions that render its holding instructive rather than controlling. First and foremost, the property at issue in the Cohen case was considered nonconforming in use only and the proposed changes did not otherwise violate the Newport City Zoning Ordinance.
"The only provisions applicable to the controversy before us are those provisions pertaining to nonconforming uses. This is so because the use, but not the structure, became nonconforming when Newport amended its zoning ordinances to prohibit the use of hotels in R-20 districts. There is no allegation or evidence in the record that the building itself became nonconforming as a result of any amendment to the zoning ordinance." Id. at 563.
In this case, the parties agree and the record reflects that the Main Structure on the Subject Property has been characterized as a nonconforming structure with a nonconforming use since the Jamestown Zoning Ordinance was passed. Accordingly, the proposed alterations necessarily violate the Town's ordinance and require relief from the dimensional requirements as well as the use limitations in an area zoned as residential.
Moreover, in Cohen, the Court found no evidence that the hotel's proposed alterations extended the nonconforming use of the hotel or moved it "to another part of the land or building not previously designed for such use at the time the use became nonconforming." Id. at 564. In fact, the new decks proposed in that case were roughly the same size as those they were replacing, and the changes to the parking area reduced its size rather than expanded it. Id. In the instant matter, the record reflects that the Applicants are seeking to enlarge the physical structure in which the nonconforming use is being carried on. As previously stated, the new deck would add approximately 1,167 square feet to the existing structure, which, when combined with the relocation of the existing ramp, would increase the lot coverage by approximately 1,500 square feet and would further extend the Main Structure onto the front and side setback provisions, expanding the structure's existing footprint. Furthermore, the proposed changes, i.e., new outdoor dining and bar area, would expand the use onto a portion the property not previously used for the nonconformity, thereby constituting an increase in the degree of the nonconforming use.
"An extension, expansion, or enlargement usually involves a significant physical change in the structure in which the nonconforming use is being carried on . . . . Also, a physical expansion into land not previously used for the nonconformity generally constitutes an extension of a nonconforming use . . . An extension typically involves construction of a new building, an addition to a building, an extension in the area devoted to the use, or a significant physical change in the structure that accommodates the nonconforming use." Id. (internal citations omitted).
This combined expansion of the use and the structure would therefore serve to enlarge and/or expand the nonconforming nature of the Subject Property, necessarily and impermissibly effecting the surrounding neighborhood. Accordingly, the Board's decision to approve an expansion of the physical structure and its use, both of which are nonconforming, was in violation of the restrictions imposed by the Jamestown Zoning Ordinance and constitutes error of law.
B. Requested Relief
Notwithstanding the above analysis and assuming arguendo that the nonconforming nature of the property's use and structure prohibited the Board's approval of the proposed alterations, this Court will nevertheless examine whether the existing standards relative to a dimensional variance and/or a special use permit would have provided the Board with the authority to approve the plans submitted by the Applicants. In the instant matter, Applicants sought permission "to construct a handicap access ramp and deck area" within the front setback area set forth under the Jamestown Zoning Ordinance. R. at 45. The added space was intended to be used for additional outdoor seating. Id. As a result, the Applicants needed both a dimensional variance and a special use permit in order to make the desired modifications. Section 82-607 of the ordinance does not specifically prohibit individuals from applying for a dimensional variance in conjunction with a special use permit "[i]f the special use could not exist without the dimensional variance[.]" Id. In such instances, the zoning board of review is instructed to "consider the special use permit and the dimensional variance together to determine if granting the special use is appropriate based on both the special use criteria and the dimensional variance evidentiary standards." Id; see also § 45-24-42(c).
See § 45-24-40, "General provisions--Alteration of nonconforming development
"(a) A zoning ordinance may permit a nonconforming development to be altered under either of the following conditions:
"(1) The ordinance may establish a special-use permit, authorizing the alteration, which must be approved by the zoning board of review following the procedure established in this chapter and in the zoning ordinance; or
"(2) The ordinance may allow the addition and enlargement, expansion, intensification, or change in use, of nonconforming development either by permit or by right and may distinguish between the foregoing actions by zoning districts.
"(b) The ordinance may require that the alteration more closely adheres to the intent and purposes of the zoning ordinance.
"(c) A use established by variance or special use permit shall not acquire the rights of this section[.]"
1. Dimensional Variance
As previously discussed, Applicants sought permission "to construct a handicap access ramp and deck area" within the front setback area. R. at 43-45. In opposing the request, Appellant maintains that the Applicants failed to "prove hardship" or that they were seeking the "least relief necessary." Appellant's Mem. at 8. Specifically, Appellant argues that the Applicants did not demonstrate their restaurant would need the requested variance in order to be a viable business opportunity. Rather, she maintains the evidence revealed that the variance was sought for the sole purpose of making the restaurant more profitable, a basis which is not grounds for relief. Id. at 8-9.
The Applicants disagree and insist that "[t]he record is replete with evidence to satisfy the requirements of the [ordinance] with regard to a dimensional variance." Applicants' Mem. at 11. They specifically point to testimony from Mr. Brito and Mr. Lepore to establish that the Applicants sought the least relief necessary. Id. at 12-13. Moreover, Applicants maintain "[t]he only dimensional relief requested is with regard to the handicap ramp, which by law is exempt from zoning, and the deck which ties into the ramp." Id. at 13. With respect to any financial motives relative to its request for the variance, the Applicants insist that "[t]here is a difference between aspiring to run a solvent business and aspiring solely [for] financial gain" and the evidence of record supports a conclusion that the variance is necessary rather than motivated by greed. Id. The Town likewise maintains that the Applicants satisfied each requirement necessary for the issuance of a dimensional variance and maintains that the Board's findings of fact "are supported by the legally competent evidence in the record[.]" Town's Mem. at 8-9. Accordingly, the Town submits the Board's approval of the dimensional variance must be affirmed. Id.
An applicant seeking approval of a dimensional variance must present evidence to satisfy various requirements which are enumerated as follows:
"(1) That the hardship from which the applicant seeks relief is due to the unique characteristics of the subject land or structure and not to the general characteristics of the surrounding area; and is not due to a physical or economic disability of the applicant;
"(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 ordinance [this chapter] or the comprehensive plan upon which the ordinance [this chapter] is based; and
"(4) That the relief to be granted is the least relief necessary." Section 82-606; see also § 45-24-41(d).
Furthermore, before granting a dimensional variance, a zoning board of review must find that "the hardship that will be suffered by the owner of the subject property if the dimensional variance is not granted [] amount[s] to more than a mere inconvenience. The fact that a use may be more profitable or that a structure may be more valuable after the relief is granted shall not be grounds for relief." Section 82-607(2). See also § 45-24-41(e)(2); DiDonato v. Zoning Board of Review of Town of Johnston, 104 R.I. 158, 164, 242 A.2d 416, 420 (1968); Watch Hill Fire District v. Westerly Zoning Board of Review, Nos. WC 2021-0195, WC 2021-0199, 2022 WL 14676055, at *6-8 (R.I. Super. Oct. 20, 2022). "[T]he burden is on the property owner to establish that the relief sought is minimal to a reasonable enjoyment of the permitted use to which the property is proposed to be devoted." Standish-Johnson Co. v. Zoning Board of Review of City of Pawtucket, 103 R.I. 487, 492, 238 A.2d 754, 757 (1968) (citing Westminster Corp. v. Zoning Board of Review of the City of Providence, 103 R.I. 381, 238 A.2d 353 (1968)).
a. ADA Ramp Exemption
Before beginning the analysis relative to the dimensional variance standards, the Court must pause to consider whether any applicable ADA regulations exempt the proposed changes, specifically those pertaining to the ramp, from the applicable provisions of the ordinance. General Laws 1956 § 23-27.3-118.2 provides in pertinent part that
"[n]otwithstanding the provisions of any zoning ordinance to the contrary, ramps, lifts and other accommodation alternatives necessary for compliance with the provisions of the American with Disabilities Act [ADA] relating to accessibility shall be permitted as needed in the front, side or rear yards of existing structures,
including those which have been built-out or converted to commercial uses."
Accordingly, notwithstanding setback requirements established by local ordinance, § 23-27.3-118.2(b) establishes that installation of an ADA ramp within a setback area is expressly permitted to the extent necessary. Id.
As Applicants readily admit, however, the structure already has an ADA ramp. The Applicants instead sought to change its location because in its current place, the entrance requires "[a] handicap person [to] travel the entire length of the building to enter the restaurant." Applicants' Mem. at 12-13. Moreover, the Applicants assert that because "the proposed handicap ramp lies within the setback from Conanicus Avenue, the deck must tie into it within the set back. Otherwise, the ramp becomes a ramp to nowhere." Id. at 13. As their architect Mr. Lepore testified,
"the current ADA ramp is at the far end of the site. You do have to travel through the hotel property. It makes it very cumbersome for people as well as privacy issues. So, I did present to the clients that it would be amicable and beneficial to create a handicap ramp at the restaurant entrance for guests coming down the sidewalk knowing exactly where to go." (R. at 120-21) (emphasis added).
As such, both the Applicants and their expert have failed to demonstrate that the proposed ramp is "needed" for compliance with the accessibility provisions of the ADA, a finding necessary to trigger the exemption from the ordinance's setback requirements. Rather, the location of the ramp is a matter of aesthetics, a point underscored by the fact the relocation is needed in part to "tie [it] into" the proposed deck expansion. Applicants' Mem. at 13. While the Court certainly respects the desire to provide a more convenient or "amicable" access point for disabled individuals visiting the restaurant or bar, the record simply does not support a conclusion that the proposed ramp or accompanying deck expansion is necessary for ADA compliance. Accordingly, § 23-27.3-118.2(b) does not exempt Applicants from obtaining a dimensional variance for the proposed changes.
b. Propriety of Dimensional Relief
Based upon the Applicants' assertion that "the proposed handicap ramp lies within the setback from Conanicus Avenue," and therefore "the deck must tie into it within the set back," the Court will consider the request for a dimensional variance for the ramp and deck together. Applicants' Mem. at 12-13. Accordingly, the question becomes whether approving the construction of these items within the setback area comports with the applicable standard for the granting of such relief. In this regard, the record demonstrates that the Applicants failed to establish the requisite level of hardship necessary to receive approval for the dimensional variance.
See §§ 45-24-41(d), 45-24-41(e)(2); §§ 82-302, 82-606, 82-607, 82-1107.
As previously indicated, there is no dispute that the Subject Property already contains an ADA compliant ramp providing access to the Main Structure and the restaurant. Expert testimony revealed that the new ramp, which would be located right on the property line, was designed only to provide a more "amicable" and "beneficial" way to enter the restaurant. Likewise, Mr. Brito's testimony that the proposed changes are necessary for the economic viability of the restaurant is insufficient. Specifically, Mr. Brito indicated that it was the "public health issues over the last couple of years" that primarily led him to increase the outdoor deck space. R. at 108. The COVID restrictions, however, were temporary in nature and in fact in most instances are no longer in place. Mr. Brito further indicated that most of his business was seasonal with "75 percent of our revenues [coming from the period between] Mother's Day [and] Columbus Day" such that the business would not be profitable without the outdoor expansion. Id. at 109. As was indicated by a member of the Board, however, Mr. Brito is an experienced restauranteur who knew about the seasonal nature of the business before he entered into the lease to run the restaurant. It would therefore not "make sense" that he would enter into the agreement if he thought it would not be at all profitable. Id. at 161.
See R. at 120-21.
The fact that it may be more profitable with increased outdoor seating is not enough to demonstrate the requisite hardship or justify granting the requested relief. There is also insufficient evidence to support a conclusion that the dimensional relief sought is "minimal [for] reasonable enjoyment of the permitted use to which the property is proposed to be devoted" and the least relief necessary under the circumstances. Standish-Johnson Co., 103 R.I. at 492, 238 A.2d at 757; § 45-24-41(d)(4); § 82-606(4). As a result, the Board's approval of Applicants' request for a dimensional variance was in contravention of the Jamestown Zoning Ordinance, not supported by the substantial evidence of the whole record, and constitutes a clear error of law.
See § 45-24-41(d)(2); § 82-606(2)
2. Special Use Permit
With respect to the proposed alterations to the use of the Main Structure, i.e. the expansion of the outdoor deck area and the addition of an outdoor bar, the Applicants needed to and did apply for a special use permit It is the Appellant's contention, however, that the Board failed to take into account most, if not all, of the elements that needed to be considered relative to the application. Specifically, Appellant maintains that the Board failed to consider concerns regarding appropriate parking, traffic, noise, and compatibility with the surrounding area. Appellant's Mem.at 10-11. Without the requisite findings of fact, Appellant argues that the approval of the application constituted error. The Appellees insist that the Applicants presented credible evidence that supported a conclusion that the alterations to the property were not contrary to the public health and safety and were in fact reasonable and justifiable given the unique characteristics of the property. Applicants' Mem. at 15; Town's Mem. at 8. They further argue that the expert testimony presented and relied upon by the Board indicated that the Main Structure has historically and consistently been used as an inn/hotel and has been repeatedly granted approval for modifications consistent with that use. Applicants' Mem. at 15. Accordingly, the Appellees submit that the Board acted well within its authority, and its Decision was supported by legally competent evidence. Applicants' Mem. at 15; Town's Mem. at 9.
Article 6 of the Jamestown Zoning Ordinance addresses the criteria applicable to the issuance of a special use permit. Section 82-600, entitled "Considerations of the zoning board," provides that before granting any special use permit (or variance)
"the zoning board shall consider whether or not satisfactory provisions and arrangements have been or will be made concerning, but not limited to, the following matters, where applicable:
"A. Ingress and egress to the lot and to existing or proposed structures thereon with particular reference to automotive and pedestrian safety and convenience, traffic flow and control, and access in case of fire, emergency, or other catastrophe;
"B. Off-street parking and loading areas where required, with particular attention to the items in (A) [subsection A. of this section] above, and the economic, noise, glare or odor effects of the special use on adjoining lots;
"C. Trash, storage, and delivery areas with particular reference to the items in (A) and (B) [subsections A. and B. of this section] above;
"D. Utilities and surface water drainage with reference to locations, availability and suitability;
"E. Screening and buffering with reference to type, dimensions and character;
"F. Signs, if any, and exterior lighting with reference to glare, traffic safety, economic effect on and compatibility and harmony with lots in the zoning district;
"G. Required yards and other open spaces;
"H. General compatibility with lots in the same or abutting zoning districts;
"I. Environmental compatibility and safeguards to protect the natural environment;
"J. Electrical, electronic or noise interference;
"K. Water saving devices and/or ISDS inspection or servicing." Section 82-600.
The ordinance further provides that before any special use permit can be granted, the applicant must demonstrate:
"A. That the granting of the special use permit will not result in conditions inimical to the public health, safety, morals and welfare; and
B. That the granting of such special use permit will not substantially or permanently injure the appropriate use of the property in the surrounding area or district." Section 82-600, 82-602; see also § 45-24-4.
With respect to nonconforming properties, the ordinance allows special use permits to be granted for a change in a nonconforming use; however, the relief is permitted only if the proposed changes (1) do not amount to enlargement, extension, structural alteration, or reconstruction of the same in a manner which increases the degree of nonconformity and (2) are designed to maintain the building or structure at issue in a safe condition unless special circumstances exist dictating otherwise. See §§ 82-703; 82-204; 82-705; 82-706.
While a careful review of the record reveals sufficient evidence to support a determination that the proposed changes may not increase the degree of nonconformity already in place, it is devoid of any evidence or testimony demonstrating that the proposed changes are necessary to keep the Main Structure in a safe condition. Instead, the proposed changes appear to be designed primarily to enhance JB's aesthetics and help its proprietors realize greater financial gain. For example, when asked why JB's was seeking to make the proposed alterations to the building, Mr. Brito stated that "based on my wife's and I experience being in this industry, that's why we're applying to do what we're trying to do, so it is profitable." R. at 110. The Applicants' experts served only to underscore this point by testifying that the Applicants "really wanted to make a change from the previous restaurant, have something that looks fresh and new," adding that "the seasonal bar area, as designed, would be advantageous to have someone get up from that bar area and be able to be seated at the deck seats[.]" Id. at 120, 124. In fact, the application itself states, "[t]he addition to the already existing deck area, will allow the business to thrive [during] the high season and in-turn will help to maintain the business during the off season." Id. at 44.
See R. at 135-40. In particular, Mr. Lombardo testified regarding the previous actions taken with respect to the use of the Subject Property, highlighting the "great number of regulatory reviews and regulatory actions that this property has had," concluding that the proposed changes to the Main Structure are "definitely in keeping with the nature of the previously granted approvals for the uses on the site and the expansions that were previously approved by the zoning board and town council." Id. In addition, following the January 25, 2022 hearing, the Applicants made changes to the original plans/application in order to ameliorate concerns that the proposed changes would amount to an increase in the degree of nonconformity. Id. at 175-77, 181. But see Cohen, 970 A.2d at 564 ("physical expansion into land not previously used for the nonconformity generally constitutes an extension of a nonconforming use").
The Applicants' attempt to rely on the COVID-19 pandemic restrictions to support the argument that the alterations are necessary to promote health and safety is equally unpersuasive as the nature of the regulations imposed on entities like JB's are inherently transient and in fact at present time do not exist. See, e.g., id. at 39-40. In short, the Applicants failed to demonstrate that the proposed changes were designed to maintain the Main Structure in a safe condition and, as a result, the Board's approval of their request for a special use permit was in contravention of the Jamestown Zoning Ordinance and is not supported by the substantial evidence of the whole record.
C. On-Site Parking
Despite the foregoing conclusions, there is one additional issue raised by the Appellant in her appeal of the Board's Decision that warrants discussion. Specifically, the Appellant has asserted that the Board erred when it failed to consider the issue of adequate on-site parking, instead declaring that "the town had already determined that the applicant had enough parking for this project," and finding that the issue was not properly before the Board. R. at 206. Nevertheless, the Board indicated that even if the issue had been before it, "the applicant has more than enough parking [for the project] and satisfies the statutory parking requirements." Id. at 206-07.
The Appellees insist that the parking issue had been addressed on multiple prior occasions and that in each instance the Town concluded that there is adequate on-site parking. Specifically, the Applicants contend that the propriety of utilizing off-site, public parking to satisfy the Town's parking regulations was decided back in 1984 when the Board granted a zoning variance to a prior owner, which calculated parking to include fifteen public parking spots on Bay View Drive. See Applicants' Mem. at 10. The Applicants further surmise that previous decisions made by various agents of the Town-i.e., the Town's Zoning Board, Building Official, Police Chief, and Planning Commission "were based upon parking spaces located on Bay View Drive abutting the site" and support a finding that the "parking spaces were clearly developed to support parking for the Inn and [R]estaurant." See id. at 10-11. Because these various decisions were never appealed, the Applicants maintain that the "time has long since passed for reversing the Town's approval" and that the doctrine of res judicata would prohibit any further examination of the issue. Id. at 11.
1. Res Judicata
'"[T]he doctrine of res judicata relates to the effect of a final judgment between the parties to an action and those in privity with those parties."' Cranston Police Retirees Action Committee v. City of Cranston, 208 A.3d 557, 584 (R.I. 2019) (quoting E.W. Audet & Sons, Inc. v. Fireman's Fund Insurance Company of Newark, N.J., 635 A.2d 1181, 1186 (R.I. 1994)). Its purpose is to ensure '"judicial resources are not wasted on multiple and possibly inconsistent resolutions of the same lawsuit."' ElGabri v. Lekas, 681 A.2d 271, 275 (R.I. 1996) (quoting Gaudreau v. Blasbalg, 618 A.2d 1272, 1275 (R.I. 1993)). In order for the doctrine of res judicata to apply, the party asserting it must demonstrate that there is an "(1) identity of the parties; (2) identity of the issues; (3) identity of the claims for relief; and (4) finality of the judgment." Ouimette v. State, 785 A.2d 1132, 1138 (R.I. 2001) (citing Estate of Bassett v. Stone, 458 A.2d 1078, 1080 (R.I. 1983)). Furthermore, our Supreme Court indicated that the principles of "res judicata may attach to decisions of zoning boards of review." Wawaloam Reservation, Inc., 850 A.2d at 933. Specifically, the Court stated:
"Previously, this Court has given preclusive effect to administrative agency decisions, as long as the tribunal acted in a quasi-judicial capacity . . . An administrative tribunal acts in a quasi-judicial capacity when it affords the parties substantially the same rights as those available in a court of law, such as the opportunity to present evidence, to assert legal claims and defenses, and to appeal from an adverse decision." Id. (citing Department of Corrections v. Tucker, 657 A.2d 546, 549 (R.I. 1995)) (internal citations omitted); see also Hassell v. Zoning Board of Review of City of East Providence, 108 R.I. 349, 351, 275 A.2d 646, 648 (1971) (zoning board is an administrative body whose duties are quasi-judicial); Melucci v. Zoning Board of Review of City of Pawtucket, 101 R.I. 649, 653, 226 A.2d 416, 419 (1967) ("a zoning board of review in the exercise of its fact-finding power [acts] in a quasi-judicial capacity").
In this case, the only prior Board decision relative to parking is the 1984 variance. There is nothing in the record to support a conclusion that the Appellant was given the opportunity to challenge the Board's 1984 variance decision, thereby calling into question whether the "identity of the parties" prong has been established. The record is also silent relative to what specific issues the Board considered relative to the 1984 variance and whether there were any limitations or special conditions attached to its issuance. Indeed, the 1984 application addressed a different set of proposed renovations which included a request to provided only forty on-site parking spaces where fifty-five were required. R. at 42. Accordingly, Appellees have failed to satisfy the necessary requirements for the application of the doctrine of res judicata such that this Court is not precluded from considering the issue.
In the absence of any legal authority establishing that the other actions taken by agents of the Town could also have preclusive effect, the 1984 variance decision represents the only basis upon which to consider the application of res judicata.
See, § 82-603, which provides in pertinent part that "[a] special use permit granted by the zoning board may not be extended or enlarged beyond the limits authorized by the zoning board, except by the granting of a further special use permit by the zoning board."
2. Parking Requirements
The Jamestown Zoning Ordinance provides in pertinent part that "[n]o building or structure shall be erected, substantially altered or its use changed, unless off-street parking and loading spaces have been provided in accordance with this ordinance[.]" Section 82-1200. Moreover, § 82-1202 states as follows:
"All parking facilities required under this article shall be constructed on the lot containing the primary use, or on abutting lot(s) which are located in the same zoning district as the main lot. No parking or loading facility, exclusive of driveways, shall be located within ten feet of a street or five feet of a sidewalk or abutting property line." Section 82-1202.
The ordinance further provides that upon review of an application for a special use permit, "the zoning board shall consider whether or not satisfactory provisions and arrangements have been or will be made concerning . . . [o]ff-street parking and loading areas where required . . . ." Section 82-600. Therefore, approval of the special use permit requires consideration of off-site parking requirements. See id.
In this case, there is no dispute between the parties that the Subject Property is required to have a minimum of sixty-nine parking spaces available pursuant to the ordinance. Reply Mem. at 2; see also generally R. at 145. There is also no dispute that the Subject Property only has fifty-five on-site parking spaces available. Reply Mem. at 2, R. at 49. Nevertheless, the Board not only summarily determined that there was adequate parking, it prohibited objectors, including Appellant, from addressing the issue. Specifically, the Board held that "the [parking] issue is not before the [B]oard as the [T]own ha[s] already determined that the applicant had enough parking for this project." R. at 206. The Board further indicated that if the parking issue was properly before it, it would find that the Applicants had "more than enough parking and satisfies the statutory parking requirements," apparently relying on the prior zoning board approval as well as the conclusion that various "regulatory agencies" have monitored the property for "at least 10 to 15 years" and found "no problems." R. at 144-45.
R. at 206-07.
Thus, while the Board complied with the requirement to consider off-street parking in connection with the special use permit request, it did so in summary fashion relying on a previously issued variance whose current application is in question. Indeed, neither the Town nor the Applicants have provided any legal authority demonstrating that the Board's reliance on the prior issuance of various zoning certificates or the prior involvement of regulatory agencies should dictate the adjudication of parking issues relative to the Applicants' request for a special use permit. On the contrary, in analyzing the statutory language of § 45-24-54, our Supreme Court has stated that "a zoning certificate is not legally binding." Parker v. Byrne, 996 A.2d 627, 633 (R.I. 2010). Accordingly, the Board's determination that there was adequate parking necessary to satisfy the applicable provisions of the Jamestown Zoning Ordinance is not supported by the reliable, probative, and substantial evidence of record and thus was clearly erroneous.
IV Conclusion
For the foregoing reasons, the Board's Decision approving the Applicants' requests for a dimensional variance and a special use permit are hereby reversed. Counsel shall prepare the appropriate order for entry.