Claveloux v. Zoning Bd. of Review for the Town of Portsmouth

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NOELLE CLAVELOUX Plaintiff/ Appellant v. ZONING BOARD of REVIEW FOR THE TOWN OF PORTSMOUTH; JAMES KNOTT; JOHN BORDEN; WILLIAM WLADYKA; ERIC RAPOSA; and SUE HOROWITZ, in their official capacities as Members of said Zoning Board; the TOWN of PORTSMOUTH; GARETH EAMES in his official capacity as Building Official for the Town of Portsmouth; and MATTHEW KENT in his official capacity as Assistant Building Inspector of the Town of Portsmouth Defendants/Appellees^[1]

C. A. NC-2021-0266

Superior Court of Rhode Island, Newport

February 2, 2024

For Plaintiff: Allyson M. Quay, Esq.

For Defendant: Marc DeSisto, Esq.

DECISION

KEOUGH, J.

Before this Court is an appeal from a Decision (Decision) of the Town of Portsmouth Zoning Board of Review (Board), denying an Application for a Special Use Permit filed by Noelle Claveloux (Appellant). Specifically, Appellant sought to convert her detached garage into a cabana or recreation room. Jurisdiction is pursuant to G.L. 1956 § 45-24-69.^[2]

I Facts

Appellant is the owner of residential property located at 134 Greenfield Ave., further identified as Tax Assessor's Plat 4, Lot 84, in the Town of Portsmouth. The lot, which is located in an R-10 Residential zoning district, consists of a two-bedroom home as well as a detached garage, and is used by Appellant primarily as a short-term rental property. See generally, Record (R.) at 33-41^[3]. Pursuant to the Portsmouth Zoning Ordinance, the minimum lot size required in an R-10 zone is 10,000 square feet. See Town of Portsmouth Zoning Ordinance (Portsmouth Zoning Ordinance or ordinance), Article IV, Section B, "Land Space Requirements." The ordinance further requires minimum front and rear yard setbacks of 20 feet and a minimum side yard setback of 10 feet. Id. It is not in dispute that the garage is located within the side setback provisions (just 1.66 feet from the side yard boundary with 132 Greenfield Ave^[4]) on an undersized lot (6098 square feet^[5]) and is therefore nonconforming by dimension. See Appellant's Memorandum in Support of Appeal (Appellant's Mem.) at 2, Defendants' Brief in Opposition to Administrative Zoning Appeal (Defs.' Br.) at 2.

Sometime in 2018, Appellant began discussions with Town Officials regarding improvements she wanted to make to the property. Appellant's Mem. at 1, R. at 3, 7-13. Specifically Appellant sought to repair and remodel the garage, converting the existing structure into a "cabana."^[6] Appellant's Mem. at 2. Pursuant thereto, Appellant obtained a survey of the property, engaged an expert to determine if the property was in a flood zone, and ultimately applied for and received a permit to begin the necessary work. Id. The permit, which was issued on July 8, 2020, authorized Appellant to convert the existing structure into a cabana, with the understanding that the remodeled structure was to be used for recreational purposes only and would be consistent with and not expand upon the footprint or dimensions of the existing garage. See R. at 16.

At or around the same time Appellant was securing the necessary surveys, plans and permits, she also hired a contractor who agreed to perform the renovations. Appellant's Mem. at 2. Due to unforeseen circumstances, the contractor was unable to start the project within the six-month period provided for by the permit. R. at 33. The Appellant notified the Building Official and indicated that the project would be delayed as she searched for a new contractor. Appellant's Mem. at 2. It does not appear from the record that she asked for or was given an extension of the original permit. Nevertheless, a new builder was hired in January of 2021 and the remodeling process resumed. Id. at 3, R. at 33. The Appellant maintains that this included numerous additional conversations with the Building Official as well as the expenditure of significant funds for the purchase of materials necessary to complete the project. Appellant's Mem. at 2. Construction was scheduled to begin on May 1, 2021. Id.

Approximately two weeks before the scheduled start date, the Assistant Building Official notified Appellant and her contractor that the building permit had been revoked.^[7] Id.; see also R. at 33. The reason given was that because the existing garage was a non-conforming structure Appellant needed to obtain a special use permit from the Board. Id. According to Appellant, this was the first time anyone associated with the Town had made her aware of this requirement. Appellant's Mem. at 2-3. Nevertheless, on May 20, 2021, Appellant filed an application for a special use permit. See R. at 3. A hearing on her petition was conducted on June 17, 2021. Id. at 33.

At the hearing, Appellant expressed her confusion regarding the revocation of her permit. Id. at 33, 36. She detailed the history and travel of the project, stressing the significant financial expenditure she made, approximately $30,000, which was based upon the statements made to her and the permit previously issued by the Town. R. at 33, 36. She maintained that she never intended nor did the plans include a bedroom within the cabana; instead, she insisted that the addition would only include a recreation room, wet-bar, storage closet and bathroom/shower meant to supplement the one bathroom currently in the home. Id. Nevertheless, and despite these assurances, several abutters objected to the requested relief. Id. at 17-22, 36-37. Specifically, the neighbors expressed concerns that the property was being used as a short-term rental unit and the addition of the cabana would increase the number of people to whom Appellant could rent, thereby increasing the amount of traffic in the residential neighborhood, adversely impacting their quality of life. Id.

Thereafter, the Board voted on Appellant's petition. While sympathetic to her position and the funds she had expended, the Board indicated that any change to the nonconforming structure must be in keeping with the characteristics of the neighborhood. Id. at 34, 37-38. Specifically, the Board considered her application in conjunction with Article VI, Section C of the Town's ordinance, which provides that

"[a] legally non-conforming use shall not be changed to a use other than a conforming use. The Zoning Board of Review may permit a change in use as a special use permit. Any change in use shall be more in keeping with the characteristics of the neighborhood." Id. at 34.

Ultimately, the Board determined "that the proposed change of use from a detached garage as an accessory use to a cabana providing for additional living space, did not meet the standard of Art. VI, Sec. C or the general criteria for the granting of a special use permit under the Zoning Ordinance [,]" and denied the application. Id. From this decision, Appellant filed this timely appeal maintaining that the Board failed to make the appropriate findings of fact upon which to base its decision and erred in revoking an otherwise valid permit.

II Standard of Review

Section 45-24-69 of the Rhode Island Zoning Enabling Act (Zoning Enabling Act) governs this Court's review of a zoning board decision and provides in subsection (d) that:

"(d) The court shall not substitute its judgment for that of the zoning board of review as to the weight of the evidence on questions of fact. The court may affirm the decision of the zoning board of review or remand the case for further proceedings, or may reverse or modify the decision if substantial rights of the appellant have been prejudiced because of findings, inferences, conclusions, or decisions which are:

(1) In violation of constitutional, statutory, or ordinance provisions; (2) In excess of the authority granted to the zoning board of review by statute or ordinance;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Clearly erroneous in view of the reliable, probative, and substantial evidence of the whole record; or

(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." Section 45-24-69(d).

"It is the function of the Superior Court to 'examine the whole record to determine whether the findings of the zoning board were supported by substantial evidence.'" Lloyd v. Zoning Board of Review for City of Newport, 62 A.3d 1078, 1083 (R.I. 2013) (quoting Apostolou v. Genovesi, 120 R.I. 501, 507, 388 A.2d 821, 824 (1978)). "Substantial evidence is defined as 'such relevant evidence that a reasonable mind might accept as adequate to support a conclusion, and means an amount more than a scintilla but less than a preponderance.'" New Castle Realty Company v. Dreczko, 248 A.3d 638, 643 (R.I. 2021) (quoting Iadevaia v. Town of Scituate Zoning Board of Review, 80 A.3d 864, 870 (R.I. 2013)). The Court "gives deference to the findings of a local zoning board of review" because it "'is presumed to have knowledge concerning those matters which are related to an effective administration of the zoning ordinance.'" Pawtucket Transfer Operations, LLC v. City of Pawtucket, 944 A.2d 855, 859 (R.I. 2008) (quoting Monforte v. Zoning Board of Review of City of East Providence, 93 R.I. 447, 449, 176 A.2d 726, 728 (1962)). Nonetheless, "a zoning board's determinations of law, like those of an administrative agency, 'are not binding on the reviewing court; they may be reviewed to determine what the law is and its applicability to the facts.'" Freepoint Solar LLC v. Richmond Zoning Board of Review, 274 A.3d 1, 6 (R.I. 2022) (quoting Pawtucket Transfer Operations, LLC, 944 A.2d at 859).

III Analysis

The central issue in this dispute concerns whether the Portsmouth Zoning Ordinance required Appellant to obtain a special use permit in order to convert her garage to a cabana, or whether instead, her building permit was...