Rhode Island Real Estate Lawyer Blog

Some of the most common types of cases currently coming through Rhode Island administrative boards and courts involve the request for a dimensional variance to expand or modify an existing home structure. As demonstrated in previous posts on our blog, the opinion of the municipal zoning board is given great deference by later courts when these decisions are appealed. Zoning boards consider a variety of factors when deciding whether to approve or deny a dimensional variance request. A recent zoning board decision that has been upheld by the Rhode Island Superior Court can demonstrate the best ways to make these points to the zoning board.

A dimensional variance is essentially a permit that is issued by a municipal zoning board in order to allow a property owner to build a structure on their property that would be forbidden under the existing zoning regulations of the municipality. Generally, variances are issued to allow construction that would violate the setback, height, area, or location requirements of the zoning ordinances. The plaintiff in the recently decided case was requesting a variance to allow him to add an addition to his home that would transform the structure from an “L” shape into a rectangular structure. The plaintiff requested the change because he was cohabitating with a new partner, as well as to support his desire to move his laundry facilities from the basement to the main floor as he got older and struggles with using the stars on a regular basis.

A neighbor of the plaintiff objected to his proposal at a public hearing, noting that the current regulations would not permit such a structure on the existing lot size. It is unclear why the neighbor opposed the petitioner’s proposal, but the zoning board considered several factors when unanimously approving the petitioner’s proposal in the face of the neighbors’ opposition. First, the zoning board noted that the petitioner’s proposal to “fill in the L” shape would not encroach any further on any neighbor’s property, so the prejudice to the neighbors was minimal by granting the request. Additionally, the zoning board noted that the petitioner’s growing family and issues related to aging were reasonable considerations in allowing the constriction to proceed. Finally, the board agreed with the petitioner, that the character of the neighborhood would not be negatively affected by granting the variance. As a result of these findings, the board issued the variance. The neighbor appealed the decision, but it was upheld by the state court upon review.

Rhode Island coastal communities often contain lots and structures of various sizes and shapes that have been developed inconsistently over time. As zoning, safety, and environmental regulations change, existing buildings may become noncompliant with current regulations. Although new regulations cannot generally be used to make a preexisting property illegal, owners who seek to renovate or change their existing non-compliant property must seek the approval of a municipal zoning board by applying for a dimensional variance or special use permit to proceed with construction. A Rhode Island state court recently addressed a Rhode Island property owner’s request to demolish their one-story home in Charlestown and construct a three-story home upon the same foundation.

The petitioner in the recently decided case purchased a single-story home as a vacation home in the coastal community of Charlestown in 2000. The petitioner sought to enlarge the house by demolishing the existing structure and building a multi-story dwelling in its place, for use as a primary residence. To comply with coastal and FEMA regulations that were issued since the construction of the original property, the petitioners would be required to fill in the basement of the existing home and could not have any habitations on the first floor of the structure. The petitioners sought approval from the Charlestown zoning board for a three-story structure that would be built upon the original foundation. One of the adjacent property owners objected to the petitioner’s request, in part because the proposed three-story structure would impede the neighbor’s view of the waterway.

A hearing was held on the petitioner’s proposal, where the parties each argued for and against the issuance of a dimensional variance to allow the construction to continue. The petitioner called witnesses who testified that the proposed construction was reasonable, and was the “least relief necessary” to meet the petitioner’s needs. The objector’s witnesses disputed the supporting testimony, arguing that the larger building was not within the character of the neighborhood and that the issuing of the request was not justified. After several hearings, the Charlestown zoning board decided to issue the petitioner’s request, finding that issuing the variance was necessary and reasonable for the petitioner and that the objectors’ arguments were more related to the view being blocked, and not relevant to the actual dimensional variance that was requested by the appellant. The Objectors appealed the zoning board’s decision to the Superior Court, where the lower decision was determined to be supported by the evidence on the record, and was ultimately upheld.

The increasing relevance and importance of renewable energy projects in Rhode Island and nationwide have led to conflicts between companies proposing the development of green energy projects and the owners of property adjacent to such proposals. Solar and wind energy projects generally take up less space and disrupt less environmental, commercial, and residential activity than fossil fuel-based energy production. Although green projects are less disruptive than facilities dedicated to fossil fuel-based energy generation, this does not mean that Rhode Island property owners want these projects in their backyards. Solar and wind farms can be unsightly and reduce neighboring property values. At the same time, the construction of large-scale green energy projects can be extremely disruptive to the communities in which they are being built. A Rhode Island court recently addressed an appeal filed by a solar energy company in response to conditions placed upon their project by a municipal zoning board.

The appellant in the recently decided appeal is a company that has sought approval for a photovoltaic solar energy system (PSES) within an area of Hopkinton, RI, that is zoned for manufacturing. To obtain approval for the project, the appeal needed to apply for a Development Plan Review (DPR) to the municipal zoning board for evaluation and approval. As part of the application process, the zoning board held public hearings to discuss the proposal. Many residents of Hopkinton testified at the hearing in opposition to the project. Residents expressed concerns about the amount of vegetation that would be removed as part of the construction. Residents also objected to the construction occurring outside of weekday business hours. The zoning board eventually approved the project, albeit with conditions that no vegetation in certain areas could be removed or modified, and that construction could not occur after 5 pm or on weekends.

The energy company appealed the imposition of the conditions to a board of appeals, and ultimately to the Rhode Island Superior Court. The Court agreed that the legal reasoning used by the zoning board did not justify the imposition of the challenged conditions on the appellant. The Court found that the zoning board had no right to forbid the appellant from modifying or removing vegetation from the areas at issue. Additionally, the court ruled that the working-hours restrictions could not be legally imposed based on the controlling laws and regulations when the application was made. As a result of the Court’s ruling, the appellant will be permitted to complete their project without the conditions initially imposed by the zoning board.

Towns and Cities in Rhode Island often adopt zoning ordinances in an attempt to preserve or direct the character of the municipality. These ordinances may limit the number of occupants to a dwelling, the number of families permitted in a single building, or even the total square footage of a home. In response to the proliferation of students moving into towns adjacent to colleges and universities, some municipalities have attempted to pass ordinances that prevent multiple students (or unrelated tenants in general) from occupying the same house. The Rhode Island Superior Court recently addressed a claim filed against the town of Narragansett by a group of landlords who challenged such an ordinance.

The ordinance in question was passed by Narragansett last year in response to townspeople’s concerns about the increasing numbers of houses that were being rented to groups of students attending the University of Rhode Island’s nearby Kingston campus. Supporters of the ordinance took issue with students having boisterous parties that disrupted the quiet character of the town, as well as outside landlords’ purchasing of properties to rent to students as “unofficial dormitories,” which resulted in an exodus of long-term residents. The ordinance passed prohibited any residence in the town from being rented to four or more college students unless the owner of the residence also resided there.

A group of landlords, student advocates, and property owners who opposed the ordinance filed a suit in state court, challenging the legality of the ordinance, as well as the procedure that the town followed to get it passed. The plaintiffs challenged several aspects of the ordinance’s passage, arguing that the town council did not allow all members of the public who desired to comment on the ordinance the opportunity to be heard. Additionally, the plaintiffs argued that the town did not follow a statutory requirement for passing such ordinances, by failing to refer the ordinance to the town planning board for consideration before voting and passing the regulation.

The increasing popularity and practicality of green energy production are causing conflicts between energy producers and rural residents nationwide and in Rhode Island specifically. Non-renewable energy production has commonly played a role in rural American life, through fossil fuel extraction and refining. The production of power using wind and solar energy is a more recent arrival, and rural residents may not be pleased to be in the vicinity of such developments. Conflicts involving a recently proposed solar energy farm in the town of Exeter, Rhode Island ideally demonstrate this phenomenon. In a recently issued ruling, the Rhode Island Superior Court affirmed the town’s rejection of a solar farm project proposed by the plaintiff.

According to the facts discussed in the appellate opinion, the plaintiff in the recently decided case is an energy development company that intended to build a solar energy project on 32 acres of land they own in the town of Exeter. Under local zoning and building ordinances, the plaintiff sought approval for the plan from the Town of Exeter Planning Board for the project. While negotiating compliance with the applicable regulations, several issues arose that the plaintiff was asked to address before seeking final approval for the project. These issues included the road access to the project, compliance with drainage and grading requirements, the environmental impact of the project, as well as the effects on neighboring property owners’ use and enjoyment of their own property.

The plaintiff attempted to address all of the issues presented by the Planning board and submitted their application. The Board found that the plaintiff had not sufficiently addressed all of the issues, and the board could not approve the project. The plaintiff appealed the ruling first to the zoning board of review, and ultimately to the State Superior Court, where it was rejected both times. The court ultimately ruled that the plaintiff failed to meet six requirements that were mandatory for the project to go forward. Notably, the plaintiff did not demonstrate that the proposal was environmentally safe, legally accessible, or consistent with the town’s comprehensive plan. As a result of these findings, the plaintiff will be unable to resume the development of their plan.

The law concerning business organizations in Rhode Island and nationwide can be a complicated topic. There are several forms of businesses that people can participate in, including sole proprietorships, partnerships, corporations, LLCs, as well as others. Complicating matters further, several business organizations, with different owners and members, can be behind what appears to be a single business. The Rhode Island Superior Court recently issued a judgment in a case between two former friends concerning the structure and decisions of various business entities that were formed in relation to a proposed restaurant.

According to the facts discussed in the appellate opinion, the plaintiff in the recently decided case is a woman who practices law as an attorney involving complicated business transactions. The defendants are a married couple who sought to construct and operate a restaurant near Westerly, Rhode Island. The parties were social friends, and when approached by the defendants about offering a loan or investment in the restaurant, the plaintiff agreed to invest approximately $120,000 in the venture. In exchange for her investment, the plaintiff was granted a 14% interest in an LLC that was formed to manage the real estate holdings for the restaurant, as well as a $20,000 promissory note.

According to the contract that accompanied the investment, the plaintiff was not granted any ownership interest in the restaurant itself, which was controlled by another corporation that was owned and managed exclusively by the defendants. After entering into the agreements, the defendants managed and used the plaintiff’s investment in the business. Later, the plaintiff sued the defendants over decisions made concerning the operation of the restaurant and the assets of the corporation that controlled the restaurant. The plaintiff sought substantial judgments for fraud and breach of fiduciary duty against the defendants.

Property owners who desire to construct residential or commercial projects in the state must obtain permits for construction that satisfy the zoning and planning requirements of the municipality where the proposed construction will occur. Municipal zoning boards set regulations for the types of permitted construction that can occur on any piece of property. These regulations allow property owners to easily determine if a proposed use will be acceptable to the zoning board. Noncompliant construction projects may still be approved with the issuance of a “variance” by the zoning board, which will permit the proposed construction if a majority of the zoning board members agree that certain conditions have been met to issue the variance. The Rhode Island Supreme Court recently issued a decision that affirmed a variance issued by the zoning board despite objections from neighboring property owners.

The appellees in the recently decided case are property owners who sought to build their retirement home on their property in Gloucester, Rhode Island. The property had abnormal dimensions and abutted protected wetlands. The zoning regulations in place for the town would have prevented the appellees from constructing the home they desired, so they applied for a dimensional variance. The appellees’ proposal would place their home 17 feet closer to their neighbor’s house than generally permitted under the regulations. The neighbors objected to the appellees’ proposal, and the zoning board held an evidentiary hearing to determine whether to approve the variance. The zoning board determined that the appellees’ proposal met all of the standards for approval, and was the least relief necessary to achieve the appellees’ goals. As a result of these findings, the board approved the appellees’ plan.

The neighbors appealed the zoning board decision to the Superior Court, arguing that the zoning board failed to consider other proposed construction plans for the property that would better serve the neighbors’ interests. The high court addressed the neighbor’s arguments, finding that the zoning board did not err in granting the appellee’s variance request. Notably, the Court found that the zoning board relied on sufficient evidence in approving the variance, and did not abuse its discretion in granting the variance. As a result of the Court’s ruling, the appellees will be permitted to construct their home.

The State of Rhode Island and the municipality existing within the state have passed laws and regulations to support residential and commercial development that supports the political leaders’ vision for the state. To encourage the development of “traditional, New-England style” villages, municipalities have passed ordinances that incentivize developers to construct and maintain mixed-use developments that include residential housing, community infrastructure, as well as commercially zoned units to support the needs of the residents who live nearby. These developments are sometimes known as “compact village developments,” or CVDs. Existing property owners may not desire mixed-use development in their neighborhood, as 20th Century suburban development does not always exist in harmony with more modern, mixed-use proposals. The Rhode Island Supreme Court recently ruled against a property owner who had been trying to oppose the development of a CVD near his property.

According to the facts discussed in the appellate opinion, the plaintiff has been a property owner near an existing golf course since before the CVD proposal was submitted. A developer submitted plans for a CVD development that would include residential and commercial properties, as well as a renovation of the golf course clubhouse building. Under the applicable municipal ordinances, a CVD development must include “an appropriate proportion of residential to non-residential uses” to be approved. The plaintiff challenged the development plan. The plaintiff’s position was that the renovated clubhouse as well as the proposed commercial development created an inappropriate proportion of commercial to residential properties in the plan.

The plaintiff’s objection to the plan was rejected by the town, and he appealed the decision to the Rhode Island Supreme Court. In evaluating the plaintiff’s claims, the court determined that the improvements on the golf course clubhouse were separate and distinct from the additional new commercial development anticipated in the plans. The court found that the square footage of the clubhouse renovation should not be considered “commercial space” for purposes of the proportion analysis. Based on this determination, the court found no error in the town’s decision to deny the plaintiff’s objection to the project. Without a further appeal and legal action, the plaintiff will be unable to stop the development of the CVD he had challenged.