Washington County Superior Court
For Plaintiff: Karen R. Ellsworth, Esq.
For Defendant: John S. Payne, Esq.
Before this Court is an appeal from an order of the Zoning Board of Review of the Town of Westerly (Zoning Board) upholding an alleged zoning violation by Rimco, LLC (Appellant). Appellant seeks reversal of the Zoning Board's decision. Jurisdiction is pursuant to G.L. 1956 § 45-24-69. For the reasons set forth below, this Court remands the case to the Zoning Board.
Facts and Travel
Appellant, a real estate holding company, owns property on Westerly Tax Assessor's Plat 23, also known as 2 Grills Lane. Ronald Mann and Carol Mann (the Manns), Appellant's owners, bought the property in August of 2001. (Hr'g Tr. 28:8-16, Feb. 3, 2010.) Following their purchase, the Manns made repairs to the building, including replacing the rotten wood support posts with new footings and lolly columns, fixing water and gas leaks, replacing the old heating system, and replacing the roof and shingles. (Zoning Bd. R., Ex. 10-9, Letter from Mr. Mann to Anthony Giordano, Zoning Official, Jan. 2, 2002.) The Manns did not add rooms to the existing building. (Hr'g Tr. 32:18-20, Feb. 3, 2010.)
On March 26, 2002, the Office of the Building Official of the Town of Westerly sent Mr. Mann a letter indicating that the office received numerous complaints regarding the property at 2 Grills Lane. (Zoning Bd. R., Ex. 10-13, Letter from Office of the Building Official of the Town of Westerly to Robert Mann, Mar. 26, 2002.) The letter did not specify the nature of the complaints but listed various documents describing the property. No notice regarding any zoning violation, however, was issued until 2009. (Hr'g Tr. 38:5-39:2, May 5, 2010; Zoning Board R., Ex. 10-20, Notice of Apparent Violation, Nov. 4, 2009)
On November 4, 2009, Mr. Mann received a "Notice of Apparent Violation" alleging that he was using the property at 2 Grills Lane for six dwelling units, in violation of Westerly Zoning Ordinances that prohibited multifamily dwellings with four or more units. (Zoning Board R., Ex. 10-20, Notice of Apparent Violation, Nov. 4, 2009). Following this letter, a zoning official and building official performed an inspection of the building. (Hr'g Tr. 15:14-17:8, Feb. 3, 2010; Zoning Board R., Ex. 10-21, Inspection Notes, Nov. 24, 2009.)
On November 24, 2009, Mr. Mann received a notice from the Town of Westerly entitled "Final Notice of Violation and Request for Voluntary Compliance Illegal Dwelling Units – 2 Grills Lane, AP 23, Lot 45, Westerly, RI." (Zoning Board R., Ex. 10-22, Final Notice of Violation, Nov. 24, 2009.) The letter alleged that the property on 2 Grills Lane was being used for six dwelling units, in violation of Westerly Zoning Ordinances that prohibited multifamily dwellings with four or more units. The Town of Westerly asked Mr. Mann to restore the building to its legal use as a three-family dwelling to avoid further enforcement action. Appellant appealed the zoning violation notice pursuant to § 45-24-64 and Westerly Zoning Ordinance § 260-38. Zoning Board R., Ex. 1, Application for Appeal; see § 45-24-64 ("An appeal to the zoning board of review from a decision of any other zoning enforcement agency or officer may be taken by an aggrieved party."); Westerly Zoning Ordinance § 260-38 ("An appeal from any decision of an administrative official or agency or a board charged with the implementation of [chapter 260: Zoning] may be taken by an aggrieved party to the Zoning Board of Review."). The Zoning Board then held public hearings on February 3, 2010 and May 5, 2010 to address the issue of whether the building violated local zoning ordinances.
The parties presented conflicting evidence at the hearings regarding whether the building was a two, three, or multifamily dwelling. Prior to October 16, 1998, when the Town of Westerly changed the zoning designation for this property, the property was located in a Business (B2) zoning district. (Hr'g Tr. 55:8-21, May 5, 2010; Zoning Board R., Exs. 22-1 & 22-3, Assessor's Property Record Cards.) This district allowed multifamily dwellings—three or more dwelling units—as well as lodging and guest houses. Westerly, R.I. Zoning Regulations & Zoning Map Amendments, App. A, §§ 2-3 (1977). Two-family dwellings in B2 zones required a special use permit, and single-family detached dwellings were not allowed. Id. Property assessment cards indicate that the property was a one-family dwelling in 1981 and a three-family dwelling in 1994 in a B2 zone. (Zoning Board R., Exs. 22-1 & 22-3, Assessor's Property Record Cards.) The Appellant, however, testified that prior to 1998, the property had been used as a two-unit dwelling with four rooms that were rented out to boarders. (Hr'g Tr. 30:6-17, 60:2-6, Feb. 3, 2010.) The Appellant also presented witnesses who testified that prior to 1998, rooms in the building had been rented out to boarders by the week. Id. at 44:6-45:2; Hr'g Tr. 11:19-12:10, May 5, 2010. Despite the Zoning Board's request, Appellant did not provide any factual evidence in support of the testimony, such as cancelled checks verifying that the building was, in fact, being rented out to boarders. (Hr'g Tr. 61:10-62:6, 66:7-67:13, Feb. 3, 2010.)
Furthermore, according to the testimony of Elizabeth Rasmussen (Ms. Rasmussen), a Westerly zoning official, the property was a legal nonconforming use in 1981 because the first Town Hall record that she found for the property stated that it was a single-family dwelling. (Hr'g Tr. 57:21-58:6, May 5, 2010.) Ms. Rasmussen also testified that the 1994 assessor's card described the dwelling as three-family, but according to her research, the owners did not apply for a special use permit in the B2 zone to use the property as a multifamily dwelling. Id. at 65:16-20.
On October 16, 1998, the Town of Westerly changed the zoning designation for the property on 2 Grills Lane to a Neighborhood Business zone. Westerly R.I. Zoning Ordinance of 1998, 260k (1998) (Zoning District Use Tables). Neighborhood Business zoning districts allow single-family dwellings. Two- and three-family dwellings require a special use permit. Multifamily dwellings—defined as four or more units—and boarding and lodging houses are not allowed. A property record card dated October 15, 2001 stated that the building was a two-family dwelling located in a Neighborhood Business zoning district, but listed the occupancy as three. (Zoning Bd. R., Ex. 22-4, Assessor's Property Record Card.) Property Record Cards from 2009 and 2010, however, indicated that the building was a three-family dwelling, listed the occupancy as three, but also stated that the building had six units, five bedrooms, and nine total rooms. (Zoning Board R., Exs. 22-15 & 22-17, Assessor's Property Record Cards.) Appellant, however, testified that the building is currently being used as a two-unit dwelling with four rooms rented out to boarders and presented witnesses stating that the building was being rented out to boarders. (Hr'g Tr. 45:16-46:7; 48:1-17, Feb. 3, 2010; 112:6-19, May 5, 2010.) Ms. Rasmussen also testified that, according to her research, she did not find any applications requesting a special use permit for a three-family dwelling at the property in question. Id. at 68:11-18. Appellant also stipulated that it had never filed an application for a special use permit. Id. at 71:16-19.
Correspondence between public officials and the Manns also indicated confusion about the nature of the building. The Residential Sales Verification form for the property on 2 Grills Lane, dated December 17, 2001, indicates the dwelling type as "other" and states that the dwelling contains six units. (Zoning Board R., Ex. 10-6, Residential Sales Verification, Dec. 17, 2001.) On August 24, 2001, Mr. Mann sent the Westerly Fire Department a letter indicating that "Assessor's Plat 23 will be used as a three family dwelling until a local fire alarm system is installed." (Zoning Board R., Ex. 10-3, Letter from Ronald Mann to the Westerly ...