Supreme Court
N o. 2009

- 303

- M.P. (NC 07

- 621)
W. Bart Lloyd et al. :

v. : Zoning Board of Review for the City of

Newport et al. :

NOTICE : This opinion is subject to formal revision before publication in the Rhode Island Reporter. R eaders are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone 222

- 3258 of any typographical or other formal errors in order that corrections may be made before the opinio n is published.- 1

- Supreme Court
N o. 2009

- 303

- M.P. ( NC 07

- 621)
W. Bart Lloyd et al. :

v. : Zoning Board of Review for the City of

Newport et al. :

Pre sent: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia , JJ. O P I N I O N
J ustice Goldberg , for the Court. The Supreme Court granted a petition for writ of
certiorari filed by the petitioners, W. Bart Lloyd (Lloyd) and Elizabeth Lloyd ( collectively , petitioners or Lloyds), seeking review of a judgment of the Superior Court affir ming the decision of the Zoning Board of Review for the City of Newport ( z oning b oard or board ) , which granted a special

- use permit to Mark Bardorf and Diana Bardorf ( respondents or Bardorfs)

. 1 The trial justice decided two consolidated appeals from the z oning board

. 2 However, we granted certiorari only with respect to the decision of the t rial justice that affirmed the zoning b oard‟s grant of a special

- use permit to the respondents, the petitioners‟ abutting landowners. For the
reasons set forth in this opinion, we affirm the judgment of the Superior Court.

1 Lloyd appealed the zoning b oard‟s September 1, 2006 denial of his application for a specia l

- use permit (NC 06

- 467) to the Superior Court and subsequently appealed the November 28, 2007 decis ion of the zo ning b oard, which granted a special

- use permit to his neighbors, the Bardorfs (NC 07

- 621). The trial justice‟s decision encompassed both appeals. Only the Bardorf matter is before us.

2 The trial justice indicated in his decision that an or der granting the motion to consolidate was entered on October 8, 2008, but the record does not reflect that the motion was in fact granted. Nevertheless, the Superior Court‟s decision treats the cases as consolidated, and judgment has entered as to both.- 2

- Facts and Travel
T he respondents own property located at 18 Chestnut Street in Newport, Rhode Island,
which is zoned R

- 10, located in the city‟s Historic District, and designated as Lot 249 on Tax
As sessor‟s Plat 12. The petitioners own the abutting property at 16 Chestnut Street, which also
is zoned R

- 10. 3 T he Bardorfs‟ residence is a dimensionally nonconforming development as defined by both § 17.08.010 of the Code of Ordinances of the City of New port (Newport Ordinances or zoning ordinance) and G.L. 1956 § 45

- 24

- 31(49) of the Rhode Island Zoning Enabling Ac t of 1991 (P.L. 1991, ch. 307, § 1) (z oning enabling a ct) . Specifically, it is nonconforming in three respects: lot size, lot coverage, and f ront setback. The record discloses
that i n January 1992, the z oning b oard granted a dimensional variance to allow a former owner of the p roperty to maintain a deck and veranda that had been constructed without a permit and
that resulted in an increase in the building‟s lot coverage and a commensurate increase in its dimensional nonconformity

. N onconforming lot coverage and the overall mass of the new

structure lay at the heart of this dispute. The Bardorfs purchased the property in December 2006. They planned to live t here with their three children and sought to construct a two

- story addition that would include another bedroom and expan d the first floor. To avoid any “zoning issues,” the Bardorfs hired an architect to develop plans that would conform t o the zoning requirements. O n May 31, 2007, the
Bardorfs fil ed an application for a special

- use permit pursuant to §§ 17.72.030(C) and 17.108.020(G) of the Newport Ordinance s . The application proposed the removal of a deck and an existing two

- story addit ion on the rear of their home and the construction of an addition

3 R

- 10 zoning mandates a minimum lot area of 10,000 square feet with minimum lot width of eighty feet; minimum setback requirements are fifteen

- foot front line, ten

- foot side line, and twenty

- foot rear line; and the portion of a lot covered by buildings sh all not exceed 20 percent. Code of Ordinances of the City of Newport Rhode Island §§ 17.20.030; 17.20.040; 17.20.050.- 3

-

measuring twenty

- two by thirty

- four feet. The Bardorfs also sought to include a deck or veranda
off the second

- floor bedroom , measuring four feet by eleven feet. T he application stated tha t t he
addition would otherwise comply with R

- 10 zoning setback requirements: it would not exceed the thirty

- foot height limitation and

— because it would replace the previously

- authorized veranda
and deck

— respondents posited that it would result in an actua l decrease in building lot coverage
from 36 percent to 34 percent

. The petitioners objected to the application

. T he Bardorfs‟ app lication was considered by the zoning b oard at two meetings, on October 11 and October 22, 2007. 4 In addition to the testim ony from the respective parties, both sides presented real

- estate experts

. C ounsel for the Bardorfs asserted that , although the applicants were seeking a special

- use permit to construct the four

- foot by eleven

- foot second

story deck, zoning relief was not necessary to build the addition because it was an alteration that
could be made “as a matter of right.” 5 Section 17.72.030(C). According to counsel , the Bard orfs applied for both a special

- use permit and a variance to “cover[] all of the bases,” but , he
contended , according to the zoning ordinance , the Bardorfs were entitled to construct the
addition as “ a matter of right ” because it would not increase the dimensional non conformity and
would otherwise conform to the zoning ordinance‟s dimensional require ments

. The zoning board did not pass on this argument , although the trial justice made reference to it in his decision

.

4 Before the board meetings, t he application was ap proved by the Newport Historic District Co m mission, which found that the plans were com patible with the surrounding neighborhood and the house itself

. 5 Section 17.72.030 (C), “Alteration to nonconforming development,” states , in pertinent part : “Excepting Proposed Decks * * *. Alteration to dimensionally nonconforming structures that othe rwise conform to the use regulations of the zoning district shall be allowed as a matter of right if the alteration in and of itself: (1) conforms to the current dimensional requirements of the zoning district in which the property is located; and (2) doe s not increase or intensify the element(s) of the dimensional nonconformity .”- 4

-

The Bardorfs presented Peter M. Scotti (Scotti) , a real

- estate expert , who had reviewed the proposed plans, inspected the property, a nd examined the petition and applicable zoning regulations

. He had considered the characteristics of the neighborhood, the site, the structure
itself , and the planning d epartment‟s approval of the plan s as consistent with Newport‟s comprehensive p lan

. Sc otti testified that lot size would remain the same, as would the setbacks ; the building footprint

— its lot coverage

— would diminish by approximately 2 percent. He concluded that the proposal met the standard set forth in the zoning o rdinance‟s special

- use
p ermit section. William E. Coyle III (Coyle) testified as a real

- estate expert for petitioners. Like Scotti, Coyle had visited the site, reviewed the proposed plans, the application, the neighborhood, and reports from the planning d epartment and the Hist oric District Commission. Unlike Scotti, however, Coyle opined that the proposed addition on the rear of the Bardorfs‟ house would reduce neighborhood property values, diminish the Lloyd s ‟ sun light , and obstruct their view

. Although he maintained that th e zoning b oard should “concern itself with the size and the mass ”
of the structure to be situated on the lot, Coyle conceded that the zoning ordinance makes no
reference to the building mass in determining compliance with the Newport Ordinances

. T he zoni ng b oard unanimously approve d the Bardorfs‟ application . The board issued a written decision that set forth its findings and conclusions and declared that , based on the testimony of the parties and their witnesses , as well as the Historic District Commiss ion Sta ff Report and the Newport planning b oard‟s determination that the proposal conformed to the c ity‟s comprehensive community p lan , the application was approved

. 6

6 T he z oning b oard‟s findings of fact tracked the language of the zoning ordinance and include d the following: the proposed alterations were compatible with the neighborhood and were in harmony with the surrounding area; the physical improvements would be organized in a manner- 5

-

The petitioners appealed the decision to the Superior Court ; and, in a written decision , a justice of the Superior Court affirmed the b oard‟s decision

. T he trial justice found no error on the part of the zoning b oard i n granting a special

- use permit; he further found that the b oard did

not err in rejecting petitioners‟ contention that respon dents were required to seek a dimensional
variance

. The trial justice concluded that there was sufficient ly reliable, probative, and
substantial evidence on the record before the b oard to support its decision

. An order affirming
the decision of the b oard was entered on September 9 , 2009, and judgment entered nunc pro tunc on December 1, 2011. 7
In his decision , the trial justice first addressed petitioners‟ argument that the zoning board erred in failing to require respondents to seek dimensional relief in conjunction with this application. T he trial justice correctly obs erved that a special use may co exist with a
dimensional variance only if both forms of relief co extensively are allowed by the municipality‟s
ordinance and that the Newport O rdinance s do not contain such a provision; he also found t hat the zoning board did not err when it refused to apply the dimensional variance standard of review to this application and that the decision of the board was not affected by error o f law. The trial justice also rejected petitioners‟ argument that respondents may not alter their building because the addition would increas e or intensify the existing non conformity associated
that would allow reasonable use and enjoyment of the property; the improvements would be of an appropriate size and scale as shown on the plans and had earned the approval of the Historic District Commission; the percentage of lot coverage would decrease as a result of the improvement to the structure , and all improvements would conform to all minimum setback requirements; the proposed alterations would n ot increase or intensify the elements of the property‟s dimensional nonconformities; and the relief sought was a special

- use permit.

7 The record reflects that ju dgment was entered in September 2009, but only as to NC 06

- 467, the case involving petitioner s‟ own application f or a special

- use permit. Consequently, judgment for this matter, NC 07

- 621, was necessarily nunc pro tunc

. See Black‟s Law Dictionary 920 (9th ed. 2009) (“A judgment entered on a day after the time when it should have been entered, as of the earlier date.”).- 6

-

with building lot coverage. Throughout these proceedings , an increase in the structure ‟s size or
overall mass has been characterized as the “building envelope.” The petitioners have argued
before the zoning board, in Superior Court , and again before this Court , that an increase in a

structure ‟ s mass or “ building envelope” is tantamount to an increase in building lot coverage
under the ordinance. The trial justice contrasted the definitions of “building envelope” and “lot building coverag e” as set forth in the zoning ordinance . He noted that § 17.08.010 of the zoning
ordinance defines the term “ [ b ]uilding envelope” as “the three

- dimensional space within which a structure is permitted to be built on a lot and which is defined by regulations governing building setbacks, maximum height, and bulk” and that the term “lot building coverage ” was d efined as “that portion of the lot that is or may be covered by buildings and accessory buildings.” 8 He
concluded that each term has independent meaning and that the terms were not intended to be
used interchangeably. Before this Court, petitioners cont end that the zoning ordinance was misapplied and t hat

t he Bardorfs should have been required to obtain a dimensional variance rather than a special

- use permit . Second , petitioners assert that allowing the Bardorfs to make use of lot coverage that

was auth orized by a previously

- obtained dimensional variance was error. Third, petitioners argue that the failure to evaluate whether the proposed addition would constitute an intensification of the nonconforming lot coverage was erroneous . Finally, petitioners maintain
that the record evidence does not su pport the granting of a special

- use permit. We address these
issues seriatim

.

8 These definitions are synonymous with the definitions set forth in G.L. 1956 § 45

- 24

- 31(11), (40).- 7

- Standard of Review When an aggrieved party appeals a decision of a zoning board of review to the Superior Court, the Superior Cou rt “shall not substitute its judgment for th at of th e zoning board of review

as to the weight of the evidence on questions of fact. ” Section 45

- 24

- 69(d). On appeal, the Superior Court may

“ [r] everse or modify the decision if substantial rights of the app ellant 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 di scretion or clearly unwarranted exercise of discretion.” Id. 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 .” Apostolou v. Genovesi , 120 R.I. 501 , 507, 388 A.2d 821, 824 (1978 ). Substantial evidence has been defined “as more than a scintilla but less than a preponderance.” Id. at 508, 388 A.2d at 824

- 25. The trial justice may not “substitute [his or her] judgment for that of the zoning b oard if [he or she] can

cons cientiously find that the board‟ s decision was supported by substantial evidence in the whole record.” Id. at 509, 388 A.2d at 825. On certiorari, this Court confines its review to a determination of whether the trial justice- 8

-

acted within the authority granted to the Superior Court under the statute. Sciacca v. Caruso , 769 A.2d 578, 582 (R.I. 2001) ; see also Almeida v. Zoning Board of Review of Tiverton , 606 A.2d 1318, 1320 (R.I. 1992)

. We must “scrutinize the record as a wh ole to determine „ whether legally competent evidence exists to support the findings of the court below .‟” Mill Realty Associates v.
Crowe , 841 A.2d 668 , 672 (R.I. 2004) (quoting Caswell v. George Sherman Sand & Gravel Co. , 424 A.2d 646, 648 (R.I. 1981) ) ; see also Toohey v. Kilday , 415 A.2d 732, 735 (R.I. 1980). This
Court will not disturb a decision unless it is shown that the Superior Court justice “misapplied the law, misconceived or overlooked material evidence, or made findings that were clearly
wrong .” Lischio v. Zoning Board of Review of North Kingstown , 818 A.2d 685, 690 (R.I. 2003) (quoting Bernuth v. Zoning Board of Review of New Shoreham , 770 A.2d 396, 399 (R.I. 2001));

see also R. J.E.P. Associates v. Hellewell , 560 A.2d 353, 354 (R.I. 1989)

. Analysis Expansion as a Matter of Right
We address at the outset the argument that respondents were entitled to expand their
dimensio nally nonconforming development “as a matter of right” and whether the zoning board
made such a determ ination. Specific ally, ordinance provision § 17.72.030(C) contains three discrete paragraphs which are not identified separately; we shall refer to them as paragraphs one,

two , and three of § 17.72.030(C)

. Section 17.72.030(C) provides :

“No nonconforming use of land or no nconforming use of a structure shall be changed except to a conforming use or structure. No nonconforming use of land or nonconforming use of a structure, if once changed to conform, shall thereafter be changed so as to be nonconforming by use again.
“D imensionally nonconforming

― Excepting Proposed D ecks (as defined in the Rhode Island State Building Code and regulations adopted thereby) . A lteration to dimensionally nonconforming structures that otherwise conform to the use- 9

- regulations of the zoning district shall be allowed as a matter of right if the alteration in and of itself: (1) conforms to the current dimensional requirements of the zoning district in which the property is located, and (2) does not increase or intensify the element(s) of the dimensional nonconformity. “A st ructure or land which is nonconforming by dimension, but the use of which is a use permitted by right in the district in which the land or structure is located, shall only be altered, changed, enlarged or subject to addition or intensification with respect to its nonconfor ming element(s) by obtaining a special use permit from the zoning board of r eview.” Accordingly, an expansion of a nonconforming structure that falls within paragraph two
of § 1 7.72.030(C) is allowed “ as a matter of right ” and does not require application to or approval by the zoning board; a building permit generally is granted by the appropriate building
official. In this case, respondents applied for and received a special

- use permit from the zoning
board in order to construct a sign ificant addition to a dimensionally nonconforming structu re. By doing so, they invok ed the jurisdiction of the zoning board

. In issuing its decision, the board did not declare, as petitioners contend, that respondents were entitled to the expansion “as a matter of right.” Rather, the board applied the appropriate criteria set forth in the zoning
ordin ance for the grant of a special

- use permit. Therefore , we are satisfied that the trial justice erred when he concluded that the zoning board allowed the ex pansion “as a matter of right.” This error is of no moment, however , because the trial justice also carefully examined the sufficiency of the zoning board‟s decision in light of the criteria set forth in the zoning ordinance and concluded that the spec ial

- use permit properly was granted.
The Special
- Use Permit The pe titioners assert that both the zoning b oard and the trial justice erred in applying the standard governing a special

- use permit to the Bardorfs‟ application. The Bardor fs argue that they ap plied for both a special

- use permit and a variance only to “cover[] all of the bases” and- 10

-

that they were seeking a special

- use permit only to construct the second

- story deck . They argue
that they did not need zoning relief to construct the remaining portion of the addition because it
was an altera tion that could be made “ as a matter of right. ” However, this “belt and suspenders” argument is not supported by the record before this Court . The respondents‟ written application
makes no reference to a se cond

- story deck , nor does it suggest that they are entitled to this relief as a matter of right. Accordingly, we are satisfied that respondent s sought and obtained a special

- use perm it for their proposed project. T herefore , we shall address whether a s pe cial

- use permit was the appropriate relief and , if so, whether it properly was granted.
T he z oning enabling a ct , set forth in c hapter 24 of title 45 of the General Laws, mandates
that local zoning ordinances prov ide for the issuance of special

- use permits, to be approved by
the zoning board of review. See § 45

- 24

- 42 (a)

. Generally , a special

- use permit relates to a specific use the owner wishes to undertake on the parcel― a use that is not allowed under the ordinance absent zoning board approval. See § 45

- 24

- 31(5 7 ) (defining “special use” as “[a] regulated use which is permitted pursuant to the special

- use permit issued by the authorized governmental entity, pursuant to § 45

- 24

- 42 ” ).
I n addition to establishing procedural requirements for obtaining a spec ia l

- use permit , municipal zoning ordinances must :

“(1) Specify the uses requiring special

- use permits in each district; “(2) Describe the conditions and procedures under which special

use permits, of each or [ sic ] the various categories of special

- use per mits established in the zoning ordinance, may be issued; “(3) Establish criteria for the issuance of each category of special

use permit that shall be in conformance with the purposes and intent of the comprehensive plan and the zoning ordinance of the ci ty or town; “(4) Provide for public hearings and notification of the date, time,- 11

- place, and purpose of those hearings to interested parties * * * ; “(5) Provide for the recording of findings of fact and written decisions; and “(6) Provide that appeals ma y be taken pursuant to § 45

- 24

- 70.” Section 45

- 24

- 42 (b)

. T he Newport Ordinances , however, are not confined to proposed uses; the Newport Ordinances
also require a special

- use permit in order to expand a dimensionally nonconforming structure. Although this approach may give rise to confusion, the o rdinance specifically provide s that an alteration of a nonconforming development require s a speci al

- use permit as set forth in § 17.72.030(C)

. 9 T he criteria for the issuance of a special

- use permit is set for th in § 17.108.020 (G), which provides:

“ Special use permits s hall be granted only where the zoning board of review finds that the proposed use or the proposed extension or alteration of an existing use is in accord with the public convenience and welfare, after taking into account, where appropriate:

“ 1. The nature of the proposed site, including its size and shape and the proposed size, shape and arrangement of the structure;

“ 2. The resulting traffic patterns and adequacy of proposed off

- street parkin g and loading;

“ 3. The nature of the surrounding area and the extent to which the proposed use or feature will be in harmony with the surrounding area;

“ 4. The proximity of dwellings, churches, schools, public buildings and other places of public gatheri ng;

9 The language of § 17.72.030(C), “Alteration to nonconforming development,” is provided above.- 12

- “ 5. The fire hazard resulting from the nature of the proposed buildings and uses and the proximity of existing buildings and uses;

“ 6. All standards contained in this zoning code;

“ 7. The comprehensive plan for the city. ” Thus, any decision by a zo ning authorit y granting or denying a special

- use permit must be based on a finding that the proposed use or extension or alteration of an existing use “ is in accord with the public convenience and welfare. ” Section 17.108.020(G). This Court has
declared that these standards essentially are conditions precedent to the b oard‟s exercise of its authority to act affirmatively on an application for a special

- use permit. See Guiberson v. Roman Catholic Bishop of Providence , 112 R.I. 252, 258, 308 A.2d 503, 506 (1973). When the
conditions precedent are satisfied, it is an abuse of discretio n to deny the requested special

- use permit. See Salve Regina College v. Zoning Board of Review of Newport , 594 A.2d 878, 882 (R.I. 1991). In this case, petitioners argue that the dimensional variance standard is more stringent than that req uired for a special

- use permit; we disagree

. According to § 17.108.010 (B)(5) of the ordinance, “[i]n granting a [dimensional] variance, the zoning board of review

shall require that eviden ce of the following standards shall be entered into the record of the proceedings: “a. That the reasons set forth in the application justify the granting of the variance and that the variance, if granted, is the minimum variance that will make possible t he reasonable use of the land, building or structure; “b. That the variance will not be injurious to the neighborhood or otherwise detrimental to the public welfare, and will not impair the intent or purpose of the zoning code or the comprehensive plan u pon which this zoning code is based;- 13

- “c. 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 phy sical or economic disability of the applicant; and “d. 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.” See also § 45

- 24

- 41(d)(2) ( “ [I] n granting a dimensional variance , * * * the hardship suffered by the owner of the subject property if the dimensional variance is not granted amounts to more than a mere inconvenience .” (Emphase s added

. ) ) ; Lischio , 818 A.2d at 693. Although petitio ners insist ed that the Bardorfs were required to seek a dimensional variance, the

z oning bo ard declined to apply this standard to the Bardorfs‟ application . T he trial justice agreed with the zoning board . Our careful review of the relevant ordinances con vinces us that a special

use permit was the appropriate relief in this case

. The record is clear: respondents sought zoning board approval to alter and increase a dimensionally nonconforming development, as that term is defined in the ordinance. Accor ding to the ordinance, t he appropriate form of relief for a party seeking to expand a dimensionally

nonco nforming structure is a special

- use permit

. We conclude that the zoning board granted the application that was before it , a special

- use permit.
T he 1992 Variance The petitioners next allege that the trial justice overlooked “the effect of the sources” of the nonconforming lot coverage. According to petitioners, the trial justice should have considered how the parcel “came to be so significantly overb urdened.” This argument centers on the 1992 dimensional variance and whether that variance, wh ich increased lot coverage by
5 percent, was a factor that should have been con sidered in granting the special

- use permit or whether it was a disqualifying event

. Specifically, petitioners contend that the Bardorfs improperly were permitted to bootstrap “the mere authorization of a harmless deck pursuant to- 14

-

the 1992 [v]ariance into a very broad authorization for a two

- story building,” which , they contend, is in c ontravention of § 17.72.030(D) of the Newport Ordinances

. 10 The petitioners argue that any alteration to th e deck that was the subject of the 1992 dimensional variance could only occur if further dimensional relief was granted . We deem this incorrect.
Thi s Court previously has declared that “ a dimensional variance [may] be granted only in
connection with the enjoyment of a legally permitted beneficial use , [and] not in conjunction with a use granted by special permit.” Newton v. Zoning Board of Review of Warwick , 713 A.2d 239, 242 (R.I. 1998)

. After our decision in Newton , t he Legislature amended c hapt er 24 of
title 45 to address situations in which both di mensional variances and special

- use permits could
be allowed , but only if the zoning ordinance so provided

. Section 45

- 24

- 42(c) provides :

“T he ordinance additionally may provide that an applicant ma y apply for, and be issued, a d i mensional variance in conjunction with a special use. If the special use could not exist without the dimensional variance, the zoning board of review shall consider the special use permit and the dimensional variance togeth er to determine if granting the special use is appropriate based on both the special use criteria and the dimensional variance evidentiary standards.” Meanwhile, § 45

- 24

- 41(d)(2) provides , in pertinent part, that “[t] he zoning board of review has the powe r to grant dimensional variances where the use is permitted by special use permit if provided for in the special use permit sections of the zoning ordinance.” Reading these sections together, we agree with the trial justice that the General Assembly
intend ed t hat a use granted by special

- use permit may co exist with a dimensional variance only
whe n a municipality‟ s zoning ordinance so provides. The Newport Ordinance s do not allow a special

- use permit and dimensional variance to be granted in conjunction wit h each other. In this

10 Section 17.72.030(D) read s : “ A use established by variance or special use permit shall not acquire the rights of this section.”- 15

-

case, however , the dimensional variance was granted fifteen years before app lication was made for a special

- use permit. This circumstance is inapposite to our holding in Newton , 713 A.2d at 24 0 , because , in this case, respondents di d not seek permission to engage in a use of the property that required the approval of the zoning board. The respondents applied for permission to expand a dimensionally nonconforming structure

— for a permitted use

— a nd that was the issue
that was addressed by the zoning board. T he board agreed with respondents that the percentage of lot coverage would decrease as a result of the proposed addition and that the proposal, including the second

- floor deck, constituted “minimum requests for the reasonable use of the property. ” We discern no error in this conclusion. Furthermore, contrary to petitioners‟ contention, t he 1992 dimensional variance was
neither lim ited nor conditioned in any way, and there is no evidence that any express terms or special conditions were incorporated into the b oard‟s approval

. See § 45

- 24

- 43 (providing, in pertinent part, that where a zoning board of review grants a variance, the board may apply special conditions that “may include, but are not limited to, provisions for * * * [m]in imizing the adverse impact of th e development upon other land ”); see also Town of Warren v. Frost , 111 R.I. 217, 220, 301 A.2d 572, 573 (1973) (noting that the enabling legislation authorized a zoning
board to impose “ reasonable conditions ” when granting a variance)

. In this case, t he application sought “a variance to the dimensional requirements for permission to maintain a 12‟ X 13‟ veranda and an 8‟ X 13‟ porch

. ” However, petitioners argue that the variance merely allowed the owners to “maintain” the s tructure and that if the deck is not preserved or “maintained ,” the
variance is lost. W e disagree

. The 1992 decision that allowed a prior owner to maintain a deck and veranda means simply that: the deck and veranda originally were built in contravention of
the zoning ordinance , such that the owners were required to obtain a dimensional variance in- 16

-

order to preserve the structure

. T here were no express conditions attached to the relief grant ed by the b oard. We are of the opinion t hat neither the Super i or Court nor the zoning b oard erred as a matter of law in allowing the Bardorfs to utilize the expanded lot coverage authorized by this 1992 dimensional variance. Intensification of the Nonconformity
The petitioners next argue that the two

- story addition 11 to a dimensionally nonconforming structure would “increase or intensify” the nonconformity associated with lot building coverage and was erroneous ly granted by the zoning board

. 12 The petitioners suggest
that an increase in the mass of a structure or in the square foo tage of a structure‟s “building envelope ” is akin to an increase in a structure‟ s “lot building coverage,” even with no change in the “footprint ” of the building

. In fact, petitioners contend that the mass of a structure, or its density or b ulk, must be taken into consideration when calculating the portion of the lot covered by buildings. Although these factors may be good policy considerations, they are not addressed in the Newport Ordinances

. The petitioners‟ contention that an increase in the three

- dimensional space above the site of the proposed addition would “intensify” the building lot coverage wholly depends on whether “building envelope” and “lot building coverage” are synonymous terms . The zoning board, however, did not accept that proposition

. Rather , the zoning board concluded that, despite an increase in “bulk” of the overall structure , the proposed two

- story addition would result in a

11 At oral argument, it was revealed that the addition has been constructed.

12 The Newport Ordinances do not define “ intensification ,” which appears i n § 17.72.030 (C) , “Alteration to nonconforming development.”- 17

-

decrease in “lot coverage

. ” Unfortunately for petitioners, the bulk or overall mass of the

st ructure are not proper considerations under Newport‟s zoning o rdinance. The trial justice likewise rejected petitioners‟ argument that the Bardorfs were precluded from altering the structure because it would increase or intensify the existing nonconformity associated with lot building coverage. The Newport Ordinances define “lot building coverage” as “that portion of the lot that is or may be covered by buildings and accessory buildings.”
Sec tion 17.08.010. That definition is confined to the two

- dimensio nal lot coverage and is distinct from the definition of “building envelope,” which is defined in terms of three

dimensional space. The zoning ordinance fails to address building density. Therefore , the trial justice reasoned that , “[b]ased on the unambig uous language of § 17.08.010 of the Newport [Ordinances] and it s corollary, § 45

- 24

- 31 of the [G ] eneral [L ] aws, it is clear that the drafters of
the [zoning ordinance] did not intend for the terms „building envelope‟ and „lot building coverage‟ to be emplo yed interchangeably.” We agree with the trial justice‟s reasoning: “„L ot building coverage‟ is a two

- dimensional concept, encompassing the total area of the lot covered by buildings and accessory buildings; it does not contemplate a vertical dimension.” In fact, as the trial justice observed , t his conclusion is consistent with the zoning ordinance‟s definition of “lot” as “[a] parcel of land whose boundaries have been establis hed by some legal instrument. ”
Section 17.08.010

. We discern no error in the trial justice‟s analysis. T he zoning ordinance does not contemplate a calculation of building mass or three

- dimensional spaces in the criteria for alterations of dimensionally nonconforming structures. The city could, of course, consistent with
its enab ling authority, more carefully define “intensification” or amend its zoning ordinance to incorporate a three

- dimensional calculation into lot coverage concepts and thereby more- 18

-

equitably , and perhaps more fa ir ly, evaluate proposals such as those contained in respondents ‟ application for zoning relief

. 13
D Sufficiency of Record Evidence Finally, petitioners contend that the zoning board‟s analysis was incomplete and that the grant of the special

- use permit was therefore erroneous. In addition, petitioners a rgue that the evidence did not support the ultimate conclusion. In support of these contentions, petitioners cite to the expert testimony they proffered at the zoning board hearing. The trial justice reviewed the evidence and determined that the zoning bo ard‟s decision was “amply supported by legally competent record evidence.” He concluded that the members
of the b oard “made an informed and record

- supported decision after reviewing the conflicting expert testimony [and] that the requirements of § 17.108. 020(G)(1) of the Newport Code had been satisfied.” It is well settled that a fact

- finder is free to accept or reject the testimony of an expert witness. Restivo v. Lynch , 707 A.2d 663, 671 (R.I. 1998) (citing Kyle v. Pawtucket Redevelopment Agency , 106 R .I. 670, 673, 262 A.2d 636, 63 7

- 3 8 (1970 ) ). In this case, the zoning board accepted the testimony of the respondents‟ expert witness, a decision that was
within the board‟s discretion. T he trial justice carefully and comprehensively considered the

13 For instance, Barrington‟s ordinance provides that “[a]ny increase in the volume or intensity of use unaccompanied by a structural change of the premises shall not be considered an extension , addition to or enlargement of a nonconforming use.” Barrington Zoning Ordinance , § 185

- 33 (A) . Additionally, the Bristol Code of Ordinances explains that “[a] conforming use within a building or structure which is nonconfo rming by dimension may be intensified, provided that such intensification is in conformance with the use and lot area per dwelling unit regulations, if applicable, for the zone in which it is located.” Bristol Code of Ordinances, Art. VII, Sec. 28

- 219 (6) entitled “Building or structur e nonconforming by dimension”; see also North Kingstown Code of Ordinance s , § 14.3 (regulating “massing” of buildings, which is defined in Article 2.0 of the ordinances as “[ t ]he three dimensional bulk of a structure consistin g of its height, width, and depth”); Weste rly Code of Zoning Ordinances, § 260

- 64( G )(1), ( 2 ) (regulating “massing” and “bulk” of certain buildings).- 19

-

eviden ce and he neither misconceived nor overlooked any material evidence. It is apparent that
l egally competent evidence exists to support his findings. Conclusion For the reasons stated, we affirm the judgment and direct that the papers in this case be

rem anded to the Superior Court with our decision endorsed thereon.

### R HODE 

### I SLAND 

### S UPREME 

### C OURT 

### C LERK 

### ’ S 

### O FFICE 

### Clerk’s Office Order/O pinion Cover Sheet

TITLE OF CASE: W. Bart Lloyd et al

. v. Zoning Board of Review for the City of Newport et al. CASE NO : No. 20 09

- 30 3

- M.P

. ( NC 07

- 621 ) COURT: Supreme Court
DATE OPINION FILED: March 29, 2013 JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia JJ.
WRITTEN BY: Associate Justice Maureen McKenna Goldberg SOURCE OF APPEAL: Newport County Superio r Court JUDGE FROM LOWER COURT : Associate Justice Edward C. Clifton ATTORNEYS ON APPEAL : For Plaintiff : Stephen M. Richard , Esq.
For Defendant : Turner C. Scott , Esq.