EDITH L. BLANE AND CHRISTOPHER J. BLANE
TOWN OF NEW SHOREHAM ZONING BOARD OF REVIEW AND BATTYVILLE, LLC
Washington County Superior Court
For Plaintiff: Joseph A. Priestley, Jr., Esq.
For Defendant: Donald J. Packer, Esq.; William R. Landry, Esq.
Before the Court is the appeal of Appellants Edith L. Blane and Christopher J. Blane (Appellants) from the Town of New Shoreham Zoning Board of Review's (the Board) May 31, 2013 decision. The Board granted a dimensional variance to Appellee Battyville, LLC (Battyville), to increase the height of a prior existing, nonconforming accessory structure. Appellants contend that: (1) Battyville failed to satisfy the requirement that the relief granted be the least relief necessary; and, (2) the Board exceeded its authority because its decision was premised upon the finding of a pre-existing nonconforming use. Jurisdiction is pursuant to G.L. 1956 § 45-24-69. For the reasons set forth below, this Court affirms the Board's decision.
I Facts & Travel
The subject property is one of three condominium units on one lot (the Lot), described as Lot 32-3 on Tax Assessor's Plat 4 in the Town of New Shoreham (the Town). Although the Lot was divided into three condominium units in the early 1990s, the Town treated the condominiums as one lot for zoning purposes. (Board Hr'g Tr. (Tr.) 5, Apr. 24, 2013.)
Battyville is the owner of the condominium unit known as Unit C, which includes one principal dwelling and four accessory buildings. (Appellants' Ex. 2.) One of these accessory buildings was a small 11' 6" by 21' 3" (the original shed). (Tr. 11). Due to the original shed's deteriorating condition, Battyville demolished it with the intent to replace the structure on the same footprint with a small increase in height (the proposed shed). (Decision, ¶ 8.)
The Lot is located in the Residential A Zone (RA Zone). (Tr. 6.) In this zone, the zoning ordinance requires a minimum lot size of 120, 000 square feet and a minimum frontage of 200 feet. (Art. III, § 306(C) of the Town of New Shoreham Zoning Ordinance.) This Lot is 84, 085 square feet with 156 feet of frontage. (Tr. 6-7.) A Zoning Certificate for the Lot, dated July 15, 1994, describes the Lot's nonconformity as follows:
"1. All prior existing structures on this property were constructed prior to March 4, 1989.
"2. A prior existing, non conforming use of three (3) single family dwelling units continues on the property.
"3. No more than three (3) complete independent living facilities for one or more persons, including permanent provisions for living, sleeping, eating, cooking and sanitation, and containing a separate means of ingress and egress shall exist on the property.
"4. The remaining structures on the property may be used for any lawful accessory use.
"5. There shall be no further increase in the non-conforming use without Zoning Board of Review approval. (Battyville Ex. 4.)
The footprint of both the original and proposed shed are within the applicable side yard setback requirement of forty feet. The proposed shed was within the side yard setback, and Battyville planned to increase the height of the structure. On February 13, 2013, Battyville applied for a dimensional variance from the requirements of Article I, § 113(c)(1) and Article III, § 306(C) of the Town's Zoning Ordinance. Battyville's application for the variance described the proposed project as follows: "Replace non-residential accessory building demolished in accordance with Sec. 711 to slightly less than original footprint of 11' 6" x 21' 3" but with increased max. roof height from 11' 10" (within pre-existing setback encroachment) to 14.'" (Battyville's Appl. for Variance.) Without this variance, Battyville maintains it would be unable to increase the height of the structure within the side yard setback requirement because § 113(c)(1) of the Zoning Ordinance states that: "[a] ...