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MacBain v. Town of Portsmouth Zoning Board of Review

Superior Court of Rhode Island

April 3, 2014

DAVID MACBAIN, MARY ELIZABETH MACBAIN, THOMAS WHITTINGTON and JUDY A. WHITTINGTON
v.
TOWN OF PORTSMOUTH ZONING BOARD OF REVIEW, ET AL.

Newport County Superior Court

For Plaintiff: Lynne Barry Dolan, Esq.

For Defendant: Vernon L. Gorton, Esq., Donato Andre D'Andrea, Esq.

DECISION

MATOS, J.

This matter arises before the Court on appeal from a decision of the Portsmouth Zoning Board of Review (the Board). In that decision, the Board upheld the issuance of a building permit to Michael and Maureen Antonellis (the Antonellises) for the construction of a single-family home on property identified as Lot 30A (Lot 30A or the Lot) on Portsmouth Tax Assessor Plat 40. Plaintiffs David and Mary E. MacBain (the MacBains), who own abutting property to the north, and Plaintiffs Thomas and Judy A. Whittington (the Whittingtons, collectively, Plaintiffs), who own abutting property to the south, filed a Complaint against the Board and the Antonellises (collectively, Defendants) seeking a reversal of the Board decision. Jurisdiction is pursuant to G.L. 1956 § 45-24-69.

I

Facts and Travel

The Antonellises own Lot 30A, which is located on Prospect Lane in Portsmouth, Rhode Island in an R-20 Zoning District. The property, which is 11, 800 square feet in area and which has 54.5 feet of frontage, does not conform to requirements of the Zoning Ordinance, which mandate that lots in R-20 districts have a minimum lot area of 20, 000 feet and minimum frontage of 110 feet. The parties do not dispute that the Lot fails to meet minimum dimensional requirements for size and frontage. Rather, Plaintiffs argue that Lot 30A is not a legal non-conforming lot of record under the Portsmouth Zoning Ordinance (Zoning Ordinance).

A

Regulatory History of Portsmouth Zoning Ordinances

Prior to August 3, 1959, the Town of Portsmouth (Portsmouth or the Town) had no land use regulations, and all lots were legal, buildable lots. Although the Town had previously enacted an ordinance on April 1, 1958, establishing the Planning Board (the 1958 Ordinance), that ordinance carefully circumscribed the powers granted under it. The 1958 Ordinance specifically enumerated the Planning Board's power and limited the Planning Board's authority to control platting or subdivision of land to instances in which it was directed to do so by the Town Council. Under the 1958 Ordinance, the Planning Board did not have direct authority over subdivision and platting.

On August 3, 1959, the Town enacted a new ordinance (the 1959 Ordinance), which authorized the Planning Board to restrict the subdivision of land. Although the 1959 Ordinance authorized the Planning Board to control the subdivision and platting of land, that control could only be exercised through the enactment of rules and regulations. Further, the 1959 Ordinance provided that before any rules or regulations enacted under it would have effect, those rules and regulations had to be submitted to the Town Council and be subject to a public hearing, preceded by three weeks of advertisement. The 1959 Ordinance did not contain any immediate restrictions on the right of any person to subdivide his or her property. Accordingly, although the enabling ordinance was adopted on August 3, 1959, the first date on which the Planning Board's rules or regulations were effective in restricting an individual's right to subdivide land was August 28, 1959.

Approximately six years later, in 1965, Portsmouth adopted its first comprehensive Zoning Ordinance (the 1965 Ordinance). The 1965 Ordinance stated, in pertinent part, that it would not "prevent or be construed to prevent the continuance of the use of any building or improvement for any purpose to which such building or improvement or land is lawfully devoted at the time of enactment of this Ordinance." The 1965 Ordinance further provided that "a dwelling is permitted on . . . any plat duly recorded in the records of Land Evidence of the Town of Portsmouth prior to the passage of this Ordinance even though said lot may have been less than the required area and/or frontage." The 1965 Ordinance did not make any reference to August 3, 1959—the date on which the 1959 Ordinance was enacted—or August 28, 1959—the date on which the first regulations under the 1959 Ordinance took effect.

In 1980, Portsmouth enacted a comprehensive revision of its Zoning Ordinance (the 1980 Ordinance). That reenactment, like the 1965 Ordinance, stated that no provision in the 1980 Ordinance "shall prevent or be construed to prevent the continuance of the use of any building or improvement for any purpose to which such building or improvement or land is lawfully devoted at the time of enactment of this Ordinance." The 1980 Ordinance also defined a "lot" as the "whole area of a single parcel of land undivided by a street, under one ownership, with ascertainable boundaries established by deed or deeds of record or a segment of land ownership, defined by lot boundary lines on a land division plan duly approved by the Planning Board under the subdivision control statute."

In 1994, Portsmouth again enacted a comprehensive revision of its Zoning Ordinance.[1]The 1994 amendments to the Zoning Ordinance (the 1994 Ordinance) include a table of dates delineating the status of particular substandard lots as "of record" or not, based on the effective dates of the various Zoning Ordinances. Specifically, the 1994 Ordinance provides that a substandard lot of record is one:

a) approved by the Planning Board and duly recorded after August 3, 1959; or
b) approved by the Zoning Board of Review and duly recorded after ...

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