Supreme Court

No. 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. Readers 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 opinion is published.
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Supreme Court

No. 2009-303-M.P.

(NC 07-621)

W. Bart Lloyd et al. :

v. :

Zoning Board of Review for the City of 

Newport et al.

:

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

O P I N I O N

Justice 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 affirming the decision 

of the Zoning Board of Review for the City of Newport (zoning board 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 zoning board.

2

 However, we granted 

certiorari only with respect to the decision of the trial justice that affirmed the zoning board‟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 board‟s September 1, 2006 denial of his application for a special-use 

permit (NC 06-467) to the Superior Court and subsequently appealed the November 28, 2007 

decision of the zoning board, 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 order 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.
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Facts and Travel

The 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 

Assessor‟s Plat 12. The petitioners own the abutting property at 16 Chestnut Street, which also 

is zoned R-10.3 The Bardorfs‟ residence is a dimensionally nonconforming development as 

defined by both § 17.08.010 of the Code of Ordinances of the City of Newport (Newport 

Ordinances or zoning ordinance) and G.L. 1956 § 45-24-31(49) of the Rhode Island Zoning 

Enabling Act of 1991 (P.L. 1991, ch. 307, § 1) (zoning enabling act). Specifically, it is

nonconforming in three respects: lot size, lot coverage, and front setback. The record discloses 

that in January 1992, the zoning board granted a dimensional variance to allow a former owner 

of the property 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. Nonconforming 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 there with 

their three children and sought to construct a two-story addition that would include another

bedroom and expand the first floor. To avoid any “zoning issues,” the Bardorfs hired an 

architect to develop plans that would conform to the zoning requirements. On May 31, 2007, the 

Bardorfs filed an application for a special-use permit pursuant to §§ 17.72.030(C) and 

17.108.020(G) of the Newport Ordinances. The application proposed the removal of a deck and 

an existing two-story addition 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 shall not exceed 20 percent. 

Code of Ordinances of the City of Newport Rhode Island §§ 17.20.030; 17.20.040; 17.20.050.
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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. The application stated that the 

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 actual decrease in building lot coverage 

from 36 percent to 34 percent. The petitioners objected to the application. 

The Bardorfs‟ application was considered by the zoning board at two meetings, on 

October 11 and October 22, 2007.4 In addition to the testimony from the respective parties, both 

sides presented real-estate experts. Counsel for the Bardorfs asserted that, although the 

applicants were seeking a special-use permit to construct the four-foot by eleven-foot secondstory 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 Bardorfs 

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 nonconformity and

would otherwise conform to the zoning ordinance‟s dimensional requirements. 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, the application was approved by the Newport Historic District 

Commission, which found that the plans were compatible 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 otherwise 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) does not increase or intensify the element(s) of the dimensional 

nonconformity.” 
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The Bardorfs presented Peter M. Scotti (Scotti), a real-estate expert, who had reviewed 

the proposed plans, inspected the property, and examined the petition and applicable zoning 

regulations. He had considered the characteristics of the neighborhood, the site, the structure 

itself, and the planning department‟s approval of the plans as consistent with Newport‟s 

comprehensive plan. Scotti 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 ordinance‟s special-use 

permit 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 department and the Historic 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 Lloyds‟ sunlight, and obstruct their view. 

Although he maintained that the zoning board 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. 

The zoning board unanimously approved 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 Commission Staff 

Report and the Newport planning board‟s determination that the proposal conformed to the city‟s 

comprehensive community plan, the application was approved.

6

 

6

 The zoning board‟s findings of fact tracked the language of the zoning ordinance and included

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 
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The petitioners appealed the decision to the Superior Court; and, in a written decision, a 

justice of the Superior Court affirmed the board‟s decision. The trial justice found no error on 

the part of the zoning board in granting a special-use permit; he further found that the board did 

not err in rejecting petitioners‟ contention that respondents were required to seek a dimensional 

variance. The trial justice concluded that there was sufficiently reliable, probative, and 

substantial evidence on the record before the board to support its decision. An order affirming 

the decision of the board 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. The trial justice correctly observed that a special use may coexist with a 

dimensional variance only if both forms of relief coextensively are allowed by the municipality‟s 

ordinance and that the Newport Ordinances do not contain such a provision; he also found that 

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 of law.

The trial justice also rejected petitioners‟ argument that respondents may not alter their 

building because the addition would increase or intensify the existing nonconformity 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 not 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 judgment was entered in September 2009, but only as to NC 06-467, 

the case involving petitioners‟ own application for 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.”). 
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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 coverage” 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 defined 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 contend that the zoning ordinance was misapplied and that 

the 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 authorized 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 support 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). 
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Standard of Review 

When an aggrieved party appeals a decision of a zoning board of review to the Superior 

Court, the Superior 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.” Section 45-24-69(d). On appeal, the 

Superior Court may

“[r]everse 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.” 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 board if [he or she] can 

conscientiously 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
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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 whole 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

dimensionally nonconforming development “as a matter of right” and whether the zoning board 

made such a determination. Specifically, 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 nonconforming 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. 

“Dimensionally nonconforming―Excepting Proposed 

Decks (as defined in the Rhode Island State Building Code and 

regulations adopted thereby). Alteration to dimensionally 

nonconforming structures that otherwise conform to the use 
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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 structure or land which is nonconforming by dimension, 

but the use of which is a use permitted by right in the district in 

which the land or structure is located, shall only be altered, 

changed, enlarged or subject to addition or intensification with 

respect to its nonconforming element(s) by obtaining a special use 

permit from the zoning board of review.”

Accordingly, an expansion of a nonconforming structure that falls within paragraph two

of § 17.72.030(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 significant addition to a dimensionally nonconforming structure. 

By doing so, they invoked 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 

ordinance 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 expansion “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 special-use permit properly was granted.

The Special-Use Permit

The petitioners assert that both the zoning board and the trial justice erred in applying the 

standard governing a special-use permit to the Bardorfs‟ application. The Bardorfs argue that 

they applied for both a special-use permit and a variance only to “cover[] all of the bases” and 
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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 alteration 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 second-story deck, nor does it suggest that they are entitled to this relief 

as a matter of right. Accordingly, we are satisfied that respondents sought and obtained a 

special-use permit for their proposed project. Therefore, we shall address whether a special-use 

permit was the appropriate relief and, if so, whether it properly was granted.

The zoning enabling act, set forth in chapter 24 of title 45 of the General Laws, mandates 

that local zoning ordinances provide 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(57) (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”).

In addition to establishing procedural requirements for obtaining a special-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 specialuse permits, of each or [sic] the various categories of special-use 

permits established in the zoning ordinance, may be issued;

“(3) Establish criteria for the issuance of each category of specialuse permit that shall be in conformance with the purposes and 

intent of the comprehensive plan and the zoning ordinance of the 

city or town;

“(4) Provide for public hearings and notification of the date, time, 
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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 may be taken pursuant to § 45-24-70.” 

Section 45-24-42(b). 

The 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 ordinance specifically provides that an 

alteration of a nonconforming development requires a special-use permit as set forth in 

§ 17.72.030(C).

9

The criteria for the issuance of a special-use permit is set forth in 

§ 17.108.020(G), which provides: 

“Special use permits shall 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 parking 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 gathering;

 

9

The language of § 17.72.030(C), “Alteration to nonconforming development,” is provided 

above. 
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“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 zoning authority 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 board‟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 discretion 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 required 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 evidence 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 the 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 

upon 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 physical 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.” (Emphases added.)); Lischio, 818 A.2d at 693. 

Although petitioners insisted that the Bardorfs were required to seek a dimensional variance, the 

zoning board declined to apply this standard to the Bardorfs‟ application. The trial justice agreed

with the zoning board. Our careful review of the relevant ordinances convinces us that a specialuse 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. According 

to the ordinance, the appropriate form of relief for a party seeking to expand a dimensionally 

nonconforming structure is a special-use permit. We conclude that the zoning board granted the 

application that was before it, a special-use permit. 

The 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 overburdened.” This argument centers on 

the 1992 dimensional variance and whether that variance, which increased lot coverage by 

5 percent, was a factor that should have been considered 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 
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the 1992 [v]ariance into a very broad authorization for a two-story building,” which, they 

contend, is in contravention of § 17.72.030(D) of the Newport Ordinances.

10

 The petitioners 

argue that any alteration to the deck that was the subject of the 1992 dimensional variance could 

only occur if further dimensional relief was granted. We deem this incorrect.

This 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, the Legislature amended chapter 24 of 

title 45 to address situations in which both dimensional variances and special-use permits could 

be allowed, but only if the zoning ordinance so provided. Section 45-24-42(c) provides:

“The ordinance additionally may provide that an applicant 

may apply for, and be issued, a dimensional 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 

together 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 power 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 

intended that a use granted by special-use permit may coexist with a dimensional variance only 

when a municipality‟s zoning ordinance so provides. The Newport Ordinances do not allow a 

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

 

10 Section 17.72.030(D) reads: “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 application was made 

for a special-use permit. This circumstance is inapposite to our holding in Newton, 713 A.2d at

240, because, in this case, respondents did 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—and that was the issue 

that was addressed by the zoning board. The 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, the 1992 dimensional variance was 

neither limited nor conditioned in any way, and there is no evidence that any express terms or 

special conditions were incorporated into the board‟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]inimizing the 

adverse impact of the 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, the 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 structure and that if the deck is not preserved or “maintained,” the 

variance is lost. We 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. There were no express conditions attached to the relief granted 

by the board. 

We are of the opinion that neither the Superior Court nor the zoning board 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 addition11 to a dimensionally 

nonconforming structure would “increase or intensify” the nonconformity associated with lot 

building coverage and was erroneously granted by the zoning board.

12

 The petitioners suggest 

that an increase in the mass of a structure or in the square footage 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 bulk, 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 in § 17.72.030(C), 

“Alteration to nonconforming development.” 
- 17 -

decrease in “lot coverage.” Unfortunately for petitioners, the bulk or overall mass of the 

structure are not proper considerations under Newport‟s zoning ordinance.

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.” 

Section 17.08.010. That definition is confined to the two-dimensional lot coverage and is 

distinct from the definition of “building envelope,” which is defined in terms of threedimensional space. The zoning ordinance fails to address building density. Therefore, the trial 

justice reasoned that, “[b]ased on the unambiguous language of § 17.08.010 of the Newport 

[Ordinances] and its 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 employed interchangeably.” We agree with the trial justice‟s reasoning: “„Lot 

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, this conclusion is consistent with the zoning ordinance‟s definition of 

“lot” as “[a] parcel of land whose boundaries have been established by some legal instrument.” 

Section 17.08.010. 

We discern no error in the trial justice‟s analysis. The 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 enabling authority, more carefully define “intensification” or amend its zoning ordinance to 

incorporate a three-dimensional calculation into lot coverage concepts and thereby more 
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equitably, and perhaps more fairly, 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 argue 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 board‟s decision 

was “amply supported by legally competent record evidence.” He concluded that the members 

of the board “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, 637-38 (1970)). In this case, the 

zoning board accepted the testimony of the respondents‟ expert witness, a decision that was 

within the board‟s discretion. The 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 nonconforming 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 structure nonconforming by dimension”; see also North Kingstown

Code of Ordinances, § 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 consisting of its height, width, and 

depth”); Westerly Code of Zoning Ordinances, § 260-64(G)(1), (2) (regulating “massing” and 

“bulk” of certain buildings).
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evidence and he neither misconceived nor overlooked any material evidence. It is apparent that 

legally 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 

remanded to the Superior Court with our decision endorsed thereon.
RHODE ISLAND SUPREME COURT CLERK’S OFFICE

Clerk’s Office Order/Opinion 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. 2009-303-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 Superior 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.