DocketNumber: C.A. Nos. 2002-599, 2001-380
Judges: HURST, J.
Filed Date: 6/9/2004
Status: Non-Precedential
Modified Date: 4/18/2021
In early 2000, John Shufelt ("Shufelt") purchased the property and hotel business and did so with the intent of continuing the existing use and, in pursuit thereof, making superficial alterations and additions to the property. Although Shufelt and his companies ("Cliff Walk") originally planned to fix the hotel up and operate it largely the way it had been before, these plans quickly evolved into a new idea of transforming the hotel into a world class luxury hotel and spa. To this end, Cliff Walk determined to undertake substantial renovations, alterations, and additions to the hotel building and surrounding site. Cliff Walk's development plans included adding private balconies and walled entry courtyards to the building. The courtyard walls were to be 6 to 10 feet in height with doors allowing private ingress and egress for the newly renovated rooms. Cliff Walk's plans also included the addition of a swimming pool to the site and to a change of location of the existing parking lot from the front of the hotel to the southwest corner, which involved tearing up the asphalt currently in place and paving over the lawn area of the proposed site. Outdoor pavilions, patios, food staging areas, a large refrigeration unit with a courtyard kitchen, and a carriage house also were planned. And although Cliff Walk modified various aspects of its development plans as work on the project progressed, the core concepts for its multimillion dollar development plan were substantially solidified by September 1, 2000, when Cliff Walk applied for and received its first building permit.
Cliff Walk's development project faced neighborhood opposition and, as part of an attempt to avoid any challenge to the project, Cliff Walk's principal, John Shufelt, met with the hotel's neighbors to discuss Cliff Walk's ideas. (Jon E. Cohen, who resides at 12 Cliff Walk Terrace in Newport, is one such neighbor of the hotel property). Simultaneously, Cliff Walk set out on a fractionalized path to obtain administrative approval for its ambitious project. As disclosed by the record in theses cases, Cliff Walk sought piecemeal administrative approval for its project through an array of unorthodox devices — including requests for zoning certification, advisory opinions, unauthorized construction approvals, belated development plan approval, and protestations of detrimental reliance — the collection of which ultimately allowed the project, as a whole, to escape scrutiny under the terms of the Newport Zoning Ordinance governing the alteration of non-conforming development. Through the use of these devices, Cliff Walk was able to parse this considerable project into smaller components, the approvals for which it would then attempt to stack into an administrativefait accompli for the entire project.
In a pre-briefing conference with this Court, counsel for the parties agreed that Cliff Walk has substantially completed its renovations, alterations, and additions notwithstanding the pendency of these appeals.
"(D) The 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. The court may affirm the decision of the zoning board of review or remand the case for further proceedings, or may reverse 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."
In July 2000, Cliff Walk submitted architectural renderings to the Historic District Commission, the purpose of which was to obtain design approval3 for certain exterior alterations. The renderings depicted the easterly and northerly sides of the hotel building. (Record, In Re: Zoning Bd. of Review Appeal ofJon E. Cohen, Respondent's Ex. 3 and 4).4 Indicated as "new" were a flat roofed colonnade porch with a balustrade or railing and second floor balcony above, an extension of the balustrade or railing to a flat roofed addition, replacing a window with a door leading to the second floor balcony, a slate roof, wooden architectural columns and privacy lattice. On August 28, 2000, the Historic District Commission approved certain of the defendant's proposals, i.e. to change the window to a door on the easterly side of the hotel, to add a dormer on the westerly side of the hotel, to extend the flat roof and the colonnade on the northerly, easterly and southerly sides of the hotel, and to add the balcony on the east and north side of the flat roof extension. Although the renderings did show stairs leading to each of the rooms, they did not show the private balconies or fortress-like walled entry courtyards that were eventually constructed.5 And, the very specific August 28, 2000 Historic District Commission written approval did not purport to authorize any first floor balconies, walls, or courtyards. The approval contained language directing Cliff Walk to obtain any necessary building permits from the building official's office. (Res. Ex. 5).
It was also in August 2000 that the defendant applied to the State of Rhode Island Coastal Resources Management Council for permission to create the private balconies at issue by extending the hotel's existing porch or deck 6 feet closer to the coastline. On August 21, 2000, as part of the CRMC process, the City of Newport building official, William Pasco ("Building Official") certified that he had reviewed Cliff Walk's plans dated August 2000 for a project titled "Cliff Walk — Alterations and Additions."6 He also certified that the plans conformed to all elements of the zoning ordinance but that a building permit was required for the proposed alterations. (Res. Ex. 13). CRMC approval was forthcoming on August 23, 2000, and Cliff Walk was permitted to "extend existing balconies 6 feet (6') by means of cantilever, construct (2) new porches on north side of structure. . . ." (Res. Ex. 12). The CRMC approval did not purport to authorize the construction of the walled courtyard systems or stairs which were to extend far closer to the coastline than the proposed balconies.
Thereafter, on August 31, 2000, Cliff Walk submitted an application for the issuance of a building permit to the Building Official. The permit application described the work to be performed in this way: "relocate non-bearing partitions, remove ceilings, replace windows on [1st, 2nd, 3rd floors.]" Although the face of the application indicated there were no stamped prints involved, Cliff Walk submitted building plans to the building official. These technical plans (Res. Ex. 6A and 7) showed interior drawings including replacement windows and a new set of exterior entrance doors. The first floor detail for the east wing of the hotel (Res. Ex. 7) also showed shadowy, lightly shaded outlines of portions of the existing porch or deck extended by approximately 6 feet (6'), and two stairways that were vague in detail. It also showed some privacy screening on the north side of that wing. The plans did not reveal the systems of balconies, stairs, and walled entry courtyards that were eventually added to the hotel building, and Cliff Walk did not apply for development plan review7 for its proposed alterations. The total cost of the proposed construction, as indicated on the permit application, was estimated at $500,000.00. The next day, on September 1, 2000, the Building Official issued a permit that allowed Cliff Walk to "relocate non-bearing partitions, remove ceilings and replace windows on 1st, 2nd, 3rd floors. Install exterior door, per plan[.]" Although the permit language was plainly limited, Cliff Walk did not appeal the Building Official's decision to issue the permit using that language. Shortly after the permit was issued, Cliff Walk commenced a development and construction project, the first phases of which are now complete, and which, by all accounts, involved extensive renovation of the property and some $6-7 millions in work.
Despite the language of the September 1, 2000 permit, Cliff Walk's construction activities were "much more extensive than what it says on the permit." (Testimony of John Shufelt, Tr. at 103-104 (Oct. 22, 2001)). Cliff Walk not only commenced "gutting the building," but also made "all kinds of architectural changeson the outside of the building with regard to the columns,reconfiguring the decks, [and] building the courtyards. . ."Id. (Emphasis added.) It also commenced replacing almost everything including the electrical, plumbing, HVAC, sprinkling,8 and even the walls and floors, and making the guest rooms luxurious, with fireplaces in each room, larger bathrooms with big marble/tile showers, and many other luxury amenities. Id. at 78-79, 104, 127.
During the construction process, on October 17, 2000, Cliff Walk provided modified first floor building plans to the Building Official. (Res. Ex. 10 11). The first page of the plans (Res. Ex. 10) was an interior plan for the main building only, showing the technical changes to the first floor, namely, a staircase, a proposed office, and reconfigured men's and ladies' restroom. The second page of the plans (Res. Ex. 11) depicted the east wing of the building. This plan showed, in more detail than the plan submitted with the application for the building permit, the existing colonnade or deck, reconfigured and enlarged to extend outward approximately 6 feet (6") to form a system of four balconies, and four sets of stairs leading from the balconies to enclosed areas below. The outlines of the system were no longer lightly shaded as they had been in the earlier plans but were, instead, darker and in the same tone as the rest of the drawing. The plan did not include technical specifications for the system such as the width of the stairs, the nature or height of the enclosure walls, etc. The plan did not depict any additions to the northerly side of the building. Cliff Walk neither applied for development plan review of its anticipated additions to the site nor made an application for a building permit to construct the changes shown in the plans, and no new or amended permit was issued. Neither the Building Official nor the local zoning officer stamped or otherwise marked the building plan as "approved."
Then, on October 26, 2000, Cliff Walk's attorney9 sent three10 letters to Guy Weston, Zoning Officer for the City of Newport ("Zoning Officer"), in an attempt to obtain administrative approval of various other aspects of its development project. One of the letters, dated October 26, 2000, bore the caption "RE: Request for Zoning Certificate-Parking Area." In that letter, Cliff Walk, purportedly pursuant to G.L. §
On October 31, 2000, the Zoning Officer informed Cliff Walk that the City of Newport viewed the hotel property to be a nonconformance and that Cliff Walk's proposal to build the proposed 14' × 18' addition to the hotel was "strictly forbidden." Zoning Certificate, Guy Weston, Zoning Officer, City of Newport, to Turner C. Scott (Oct. 31, 2000). Cliff Walk subsequently claimed an "appeal" from this information, but later withdrew that "appeal" in late December 2000.
On November 22, 2000, Cliff Walk provided the Zoning Officer with a follow-up letter bearing the caption "RE: Tax Assessor's Plat 31, Lot1; Request for Zoning Certificate — Parking area; Request for Zoning Certificate — Use of common area." The letter referenced a plan prepared by a landscape architect. That plan showed a detailed layout for 50 parking spaces. Full sized spaces, spaces for compact cars, and handicapped parking spaces were all clearly designated. (Res. Ex. 1). The plan also showed proposed additions to the site in the form of a permanent patio, outdoor bathrooms, and a food service staging area — the proposal of which Cliff Walk eventually would abandon. The plan also depicted, on the north side of the hotel building, the outline of courtyards and the 14' × 18' refrigeration unit that Cliff Walk, at that time, was still proposing to build. Finally, the plan showed the outline of proposed changes to the easterly side of the hotel structure, i.e. the porch or colonnade reconfigured and extended to form four private balconies with steps leading to enclosed private entry courtyards and a surrounding outer wall. In the letter, Cliff Walk reiterated its intention to add a swimming pool to the premises notwithstanding that it was not shown on the plan. Cliff Walk did not request development plan review, and the City undertook none.
The Zoning Officer responded to Cliff Walk's inquiry concerning the parking area on December 8, 2000, by issuing a "zoning certificate." Although the Zoning Officer's certificate stated that the proposed layout of the parking spaces was permitted under the zoning ordinance, it also stated that the proposed off-street parking changes must be reviewed as a development plan. Notwithstanding the non-binding nature of a zoning certificate,11 and despite the fact that Cliff Walk had applied neither for development plan review nor CRMC approval to relocate the parking lot, the Zoning Officer undertook to record this certificate in the land evidence records for the City of Newport.
Thereafter, in March 2001, Cliff Walk provided yet another set of building plans (Res. Ex. 19A and B)12 to the Building Official. These building plans showed slightly more technical detail than the October 2000 plans, depicting minor interior changes and a reduction in the number of private balconies and staircases from four to three. The plans also depicted the vague outline of some form of addition to the north side of the building in the area where Cliff Walk had previously sought to add the 14' × 18' refrigeration unit. Cliff Walk did not make an application for an additional permit, and no new or amended permits were issued. Neither the Building Official nor the Zoning Officer stamped or otherwise marked the building plans as "approved."
On May 22, 2001, approximately eight months after it began construction, Cliff Walk belatedly submitted a request for development plan review to the Zoning Officer. With it, Cliff Walk submitted a two page set of plans entitled "Development Site Plan" and "Development Planting Plan," both of which were dated May 22, 2001. (Res. Ex. 15A and 15B). These plans were different from the Proposed Landscaping and Parking Plan submitted to the Zoning Officer for the purpose of garnering the zoning certificate. The new plans showed a reconfigured front entrance, a relocated driveway and, on the easterly side of the building, the plans showed four private balconies extending from the original colonnade or porch, three of which were replete with stairs that afforded private ingress and egress to the individual rooms, and all of which were surrounded by a garden wall and courtyards, more stairs, and a gate for general pedestrian access and egress to that courtyard. The plan also showed four walled courtyard additions on the north side of the building, all of which were depicted as encroaching into the yard setbacks. The plan did not depict all of Cliff Walk's anticipated improvements, such as the swimming pool.
On May 25, 2001,13 the Zoning Officer wrote a letter to Cliff Walk purporting to approve its Development Site Plan subject to certain provisos having to do with signage, landscaping, and the like. The Zoning Officer also stamped the Development Site Plan and Development Planting Plan as "approved," dated them, and initialed them.
On June 4, 2001, Cohen responded by writing the Board a letter in which he claimed an appeal to the Board from:
"(a) the granting of Development Plan Review Approval for changes to the Property; (b) from any and all permits or other approvals permitting any expansions of or changes in the use of the Property; and (c) the failure to obtain proper permits for all changes to the Property, including, but not limited to, the following:
• approval of an outdoor pool in the northeast corner of the Property,
• the construction of any gardens, platforms, or other areas located in the northwest corner of the Property to be used for conducting outdoor weddings at the Property,
• a terrace adjacent to the patio on the southeast side of the building on the Property[,]
• any pad, patio, platform, or foundation or other structure to be used in conjunction with tents, kitchens, bathroom facilities or storage areas for outdoor entertainment activity at the Property,
• any permanent or temporary kitchen and/or bathroom facilities adjacent to the pad, patio, platform or other structure or staging area to be used for outdoor entertainment at the Property,
• the construction of terraces and additions to the easterly side of the building on the Property[,]
• the establishment of any permanent paved parking spaces on the former lawn area at the west, south and southwest part of the Property as shown on plans filed with the Zoning Officer,
• the use of a driveway running between the Property and Cliff Avenue,
• the narrowing of the Memorial Boulevard entrance to the Property."
Letter of Jon E. Cohen to Zoning Bd. of Review, (June 4, 2001). Thus, Cohen sought to collect the pieces of Cliff Walk's development project and challenge the project in its entirety.
While Cohen's appeal was pending, Cliff Walk continued with its efforts to obtain administrative approval for the project. On July 27, 2001, it obtained CRMC approval to "redesign and relocate parking area, install water quality management measures, inground pool, and landscaping:" (App. Ex. 2, Letter of CRMC (July 27, 2001)). The approval specifically referenced and approved an 8 page plan entitled "The Chanler at Cliff Walk" and dated June 2001 and prepared by Northeast Engineers.14 Cliff Walk also continued with its construction of the alterations and additions to the exterior of the hotel, including the courtyard system at issue in this appeal. It also commenced tearing up the old parking lot.
On Sept. 11, 2001, after a request from John Shufelt and his architect, the Building Official, William Pasco, wrote a letter to Cliff Walk's architect in which Pasco stated that his inspections revealed the construction to have been "in substantial accord with approved plans, or with revised submittals, also approved." (Res. Ex. 9). The letter did not identify what plans or "revised submittals" were actually approved and was silent as to when or in what form these approvals may have been given. The letter was also silent as to what other aspects and phases of Cliff Walk's ongoing development project may also have been approved.
The Board held hearings on October 22, 2001 and on January 31, 2002.15
It was Cliff Walk's contention that Cohen's appeal to the Board was untimely. With respect to the December 8, 2000 zoning certificate, it argued that this letter constituted a binding approval of the proposed parking lot relocation and that the timeliness of Cohen's appeal should be measured against the date the zoning certificate was issued and not May 25, 2001 — the date that the May 22, 2001 Development Site Plan and Development Planting Plan were approved. With respect to Cohen's appeal, as it related to the other improvements to the hotel building and property, Cliff Walk argued that Cohen had been aware of its intentions with respect to the project since late 2000 and early 2001 when Cohen saw various versions of Cliff Walk's site plans, including the Proposed Lawn and Parking Plan, which revealed the existence of the balcony, stairs and courtyard systems. Thus, Cliff Walk argued that this knowledge created a duty to appeal the September 1, 2000 building permit and the various plans that had been filed in follow-up to it.
As a further defense to the appeal, Cliff Walk asserted an estoppel argument. It was Cliff Walk's contention that the facts and circumstances barred the City of Newport, acting through the Board, from rescinding or canceling the approvals conferred by the Building Official. In furtherance of this argument, Cliff Walk pointed to the Historic District Commission approval, the August 2000 CRMC approval, and the September 1, 2000 building permit. It argued that throughout the lengthy construction process, it had harbored a good faith belief that, by September 1, 2000, it had all of the necessary approvals to launch its development plans and that it relied on those approvals when it undertook to make the improvements to the property.
At the hearings, Cliff Walk's attorney testified that he met with Cohen in December 2000 and again thereafter in an effort to appraise Cohen of Cliff Walk's development concepts. (Testimony of Turner Scott, Tr. at 21, 28 (Oct. 22, 2001)). He further testified that he reviewed the Landscaping and Parking Plan (Res. Ex. 1) with Cohen, whose main objection was potential activity in the lawn area. He also testified that there were several iterations to Cliff Walk's development and site plans — some aspects of which changed and other aspects of which never changed. Id. at 43-45.
John Shufelt testified that it was in July 2000 that Cliff Walk developed its core plans to move the parking lot, to reconfigure the entrance to the hotel, to build the system of private entrances and courtyards and to renovate the hotel. (Tr. at 75-79 (Oct. 22, 2001)). He testified that between September 1, 2000 and June 4, 2001 when Cohen launched his appeal,
"We put a new slate roof on the building; we put some architectural balusters on the roof of the building; we gutted the inside of the building; there were some structural areas that had not been caught by the structural engineers that needed some additional reinforcement, so I put a lot of steel into the building — it's going to be here another 150 years — we ripped out all the old electrical system; all the old plumbing system; ripped out all the plaster; reframed the inside of the building; put in all new electrical; rough plumbing; all new HVAC system; all new sprinkling system; fire alarm system; put fireplaces in each of the guest rooms; built the framing and the electrical plumbing for wet bars in each of the guest rooms; and the framing and plumbing for all of the bathrooms; we demolished the old decks on the outside; we built new decks on the outside; we ripped out some of the asphalt where the old parking lot was; cut down about ten trees; planted about 80 new trees. I'm sure we've done more." Id. at 126-27
He also testified that underground utilities had been installed and a new entry gate was in the making. Id. at 136-37. Shufelt testified that the changes to the hotel have been a work in progress and that changes were added as the project went along. (Tr. at 213 (Jan. 31, 2002)).
Shufelt further testified that a Cliff Walk employee had requested the September 1, 2000 building permit and that other plans — in addition to those provided at the hearing before the Board — had been submitted to the Building Official for purposes of obtaining that permit. (Tr. at 105-106 (Oct. 22, 2001)). Shufelt testified that as changes were made in the plans, his architect or other employees would provide the revisions to the building department and Historic District Commission. Id. at 106, 114 118. Shufelt testified that his architect obtained the September 11, 2001 letter from William Pasco after Shufelt had asked the architect to demonstrate that the appropriate building approvals had been obtained. Id. at 106.
Through Shufelt, Cohen introduced into evidence two iterations of Cliff Walk's development plans. The plans were entitled "Master Plan" and were dated January 12, 2001 (App. Ex. 10) and February 28, 2001 (App. Ex. 8), respectively. These Master Plans revealed the full extent of Cliff Walk's proposed project. They depicted additions to the property, along the easterly and northerly sides of the hotel building, in the form an interconnected system of balconies, private entry courtyards, decking and stairs, and a swimming pool and terrace (the northerly side of which encroached into the yard setback). The courtyards are depicted as being enclosed by walls which, via testimony before the Board, Shufelt revealed to be up to 10 feet in height in some areas. (Tr. at 244 (Jan. 31, 2002)). The Master Plans also showed a proposed carriage house and extensive gardens including a reflecting pool. After questioning by Cohen, Shufelt admitted that it remained his intention to design and construct the pool and terrace in a future phase of the project. Id. at 239. In an effort to keep the administrative review process fractionalized, Shufelt's attorney objected to evidence concerning the pool, arguing that Cliff Walk had not yet applied for a building permit for the pool and, therefore, questions relating to the pool were not properly before the Board. Id. at 285. Shufelt admitted, too, that he had not applied for a variance in order to obtain approval for the construction of the structures within the setbacks. Id. at 240. Finally, Shufelt conceded that the system of private courtyards, decking, stairs, pool and terrace and walls was not detailed in any plan submitted to the Building Official — either at the time that the defendant applied for the September 1, 2000 building permit or thereafter.Id. at 242-45.
Shufelt testified that in January 2001, he showed Cohen another iteration of his plans and proposed changes. Shufelt testified that he believed that the majority of the hotel's neighbors, including Cohen, were in agreement with his various proposals and that he relied on that in proceeding with his plans. (Tr. at 168 (Oct. 22, 2001)). Nonetheless, Shufelt also testified that from the time he first consulted with his attorney regarding his development project,16 he was aware that there was a question of the hotel existing as a non-conforming use.
The Zoning Officer also testified at the hearing. He testified that he had informed Cliff Walk that it did not need zoning relief before making the architectural changes approved by the Historic District Commission. (Tr. at 269 (Jan. 31, 2002)). He also testified that he had reviewed Cliff Walk's various plans submitted to the Building Official and he confirmed that Cliff Walk's construction was substantially in accord with those plans.Id. at 260. He testified that he issued the December 8, 2000 zoning certificate approving Cliff Walk's October 26, 2000 request to move the parking lot because of a 1999 decision of the Board in which the Board purported to adjudicate questions concerning the use of the parking area. Id. at 264. He testified that, based upon what Cliff Walk had presented to him, he did not believe Cliff Walk needed any zoning approvals for its development plans. Id. at 266.
Noticeably absent from the proceedings before the Board were the Building Official or Cliff Walk's architect, construction manager or other employees — the only individuals who might shed light on which of Cliff Walk's development and construction plans or revised submittals had been approved, when they had been approved or the form of the approval. Expectedly, the Board's attorney pointed out to the Board that there was no evidence before it upon which it could conclude that any particular iteration of Cliff Walk's plans or revised plans had been deemed approved by the Building Official. (Tr. at 110 (Oct. 22, 2001)). Jon Cohen testified that he had been shown 5 or 6 iterations of Cliff Walk's development and site plans but that, seemingly, they were always in a state of flux. (Tr. at 282 (Jan. 31, 2002)). He testified that he understood the September 1, 2000 building permit to allow interior renovations only.17 Id. at 293. He also testified that he did not look at the various plans that Cliff Walk had submitted to the building office but relied on the language of the permit and his observations of what was going on at the property, i.e. that it was being fixed up and Cliff Walk was replacing doors and windows. Id. at 300. Cohen testified that could not be sure what it was that Cliff Walk was actually intending to build until he saw the recent construction and additions to the north and east faces of the hotel — construction that he initially perceived to have been scaffolding. Id. at 289. Cohen also introduced evidence demonstrating that, although Cliff Walk admitted it had spent or committed to actual construction costs of over $6,000,000.00 purportedly in reliance on the September 1, 2000 permit, the estimated construction costs shown on the application for that permit were only $500,000.00. Cohen also produced photographs of the courtyard structures. (App. Ex. 11A, 11B, 12A, and 12B). The photographs clearly depict substantial additions to the hotel building as well as pedestrian entrances and exits. Cohen testified that Cliff Walk's additions to the hotel structure amounted to more than a 40% increase in the hotel's original footprint. (Tr. at 290 (Jan. 31, 2002)). Cohen testified that Cliff Walk continued with its construction of the courtyard system notwithstanding the pendency of his appeal. Id.
Thereafter, on October 29, 2002, the Board issued a written decision. In that decision, the Board found Cohen's appeal to be timely brought and it turned to the merits of his appeal. The Board approved the parking relocation and concluded that "since the approved parking is not a change of use, the Zoning Official's determination approving the parking in the southwest area of the property, on which the property owner relied in good faith, is affirmed." Decision of Newport Zoning Bd., In Re:Appeal of John E. Cohen, Re: Inn at Cliff Walk, Inc. d/b/a TheChanler, at 3 (Oct. 29, 2002). The Board apparently relied, in part, on its previous 1999 decision purporting to approve the general area of the proposed relocation as having been historically used by the hotel owners for paid parking,18 as well as Cliff Walk's reliance on the December 8, 2000 zoning certificate.
As to Cliff Walk's exterior alterations and additions to the hotel structure, the Board found that they would not expand or change the use of the property as a transient guest facility. In making this determination the Board relied upon its finding that the newly renovated hotel would have only twenty rooms, rather than the current twenty-two, and a smaller bar and, therefore, would reduce the intensity of the non-conforming use. The Board concluded that "since the exterior changes to the structure do not constitute a change in use, the actions of the Building Official and Zoning Official approving such changes, on which the property owner relied in good faith, are affirmed." Id. at 3.
Apparently, as was the case in the various other proceedings having to do with the Cliff Walk's project and which came before the Board, the Board's focus remained narrow and directed at isolated components of Cliff Walk's project only, i.e. the balcony/stair/courtyard systems and the change in the parking lot. The Board did not consider the full nature and extent of Cliff Walk's development project in toto. Nor did it attempt to determine whether the project, as a whole, was allowed by the Ordinance or whether a variance was required prior to the issuance of a building permit in furtherance of it. The Board did not make specific findings regarding the expansion of the hotel's physical size, whether Cliff Walk's alterations would change the character of the hotel use, whether the alterations went beyond ordinary repair and maintenance, whether the alterations exceeded mere replacement of existing materials, or whether they were undertaken for the purpose of protecting the public safety. Nor did the Board make specific findings concerning which iterations of Cliff Walk's construction and site plans it believed had been approved, by whom it believed them to have been approved, or when they may have been approved. Nor did it make findings concerning the nature and extent of Cliff Walk's reliance on such approvals.
Cohen filed a timely appeal to this Court on November 13, 2002. Cohen contends that Cliff Walk's changes to the property are prohibited by Ordinance § 17.72.030. Cohen also contends that the system of private balconies and courtyards constitute substantial alterations to the property prohibited by Ordinance § 17.72.030(C), and that the parking relocation contravenes § 17.72.030(B). Those sections provide, in pertinent part, that
"[n]o nonconforming use of land, nonconforming use of a structure, or nonconforming structure shall be changed except to a conforming use or structure," Ordinance § 17.72.030C, and that "[n]o nonconforming use of land shall be moved to another part of a lot . . . and no nonconforming use of a building shall be moved or extended to any other part of the building not expressly arranged and designed for such use at the time the use became nonconforming. . . ." Ordinance § 17.72.030B.
Cliff Walk counters that § 17.72.030(C) prohibits only "changes in use" which, it argues, requires a use substantially different from the nonconforming use to which the premises are put. Thus, Cliff Walk urges, as long as the hotel remains a hotel its development plans are permissible if they do not violate any dimensional zoning requirements. Cliff Walk also asserts that its proposed courtyards and parking lot constitute allowable accessory uses. Finally, relying on the Board's 1999 decision, Cliff Walk argues that the area of the proposed parking lot has historically been used for parking and that merely paving it cannot constitute a change in use.
Although the approvals referred to in the September 11, 2001 letter from the Building Official were not properly formalized, those approvals affected the substantial rights of Cohen who, as an aggrieved party, was entitled to appeal to the Zoning Board of Review, pursuant to G.L. §
B. The Board Did Not Err in Concluding that Cohen's Appeal from the Building Official's Decision to Approve the Cliff Walk's Construction Activities Was Timely Filed
Cliff Walk contends that Cohen's appeal was untimely because its building permit was issued almost a year earlier. However, the time for appeal21 does not start as to "one allegedly aggrieved by the decision of a building inspector who has neither actual knowledge of that decision nor who, under the circumstances of a given case could be reasonably charged with such knowledge." Hartunian v. Matteson,
As indicated previously, Cohen testified that although he had been shown various iterations of Cliff Walk's proposed plans, he could not be sure what it was that Cliff Walk was actually intending until the construction was underway. He testified that he initially believed the work on the reconfigured decks to have been scaffolding. Furthermore, the record clearly revealed that written confirmation of the "approvals" given to Cliff Walk came months after Cohen claimed his appeal to the Board. Thus, there was substantial evidence before the Board to support its finding that Cohen's appeal from the Building Official's decision to approve Cliff Walk's construction activities was timely filed.
C. The Board Did Not Err in Concluding that Cohen's Appeal from the Zoning Officer's Approval of the Development Site Plan and Development Planting Plan Was Timely Filed
Cliff Walk contends that Cohen's appeal was untimely as to the development plan review approval because, on December 8, 2000, Cliff Walk received a zoning certificate purportedly allowing the proposed change to the parking lot location, of which certificate Cohen had notice. Putting aside the question of whether a zoning certificate can operate as final administrative approval,22 there was abundant evidence before the Board to support its finding that Cohen's appeal to the approval of the development plans was timely filed.
There was evidence before the Board that the December 8, 2000 zoning certificate expressly stated that the layout of the parking spaces as shown in the November 15, 2000 Proposed Landscaping and Parking Plan were in conformity with the Newport Zoning Ordinance, but that development plan review was required before the changes shown by the Plan could be approved. Thus, the certificate itself did not purport to authorize the relocation of the parking lot, as did the Zoning Officer's May 25, 2001 approval of the May 22, 2001 Development Site and Development Planting Plans. There was also evidence before the Board that Cliff Walk did not receive CRMC approval for the change in site for the parking lot until after Cohen's appeal was filed and that, therefore, the zoning certificate, to the extent it could be said to operate as some form of administrative approval, remained ineffective.23 The evidence before the Board also was that Cohen appealed the May 25, 2001 approval of the development plan within 10 days. Therefore, the Board did not err in finding Cohen's appeal to be timely filed.
D. The Board's Approval of Cliff Walk's Exterior Alterations and Changes to the Parking Area Was Affected by Error of Law and Was Clearly Erroneous in View of the Reliable, Probative, and Substantial Evidence of the Whole Record due to Cliff Walk's Status as Non-Conforming Development
Turning to the merits of Cohen's appeal, it is necessary to determine, at the outset, whether the parties correctly agree — for purposes of Part I of this consolidated appeal — that the property exists as a nonconforming development and, if so, what implications must follow. Although not squarely presented to the Court, the determination of the property's zoning status is essential to the Court's determination of the propriety of the defendant's various attempts to gain administrative approval for its development project and to the resolution of the issues on appeal from the Board, namely, (1) the propriety of the Board's decision that the changes in the parking lot and the exterior changes to the structure do not constitute a change in use and are, therefore, permitted by the Ordinance, (2) the propriety of Cliff Walk's "approvals," and (3) whether Cliff Walk's permits and "approvals" are immunized from cancellation on grounds of estoppel.
Mirroring G.L. §
As to the instant case, the hotel was lawfully established with Board approval, under the ordinance in effect in 1945. However, in 1977, the ordinance was amended. Pursuant to that amendment, the district in which the hotel was located was zoned as an R-20 district. In such districts, hotels were not permitted by special exception or otherwise. And, in 1994, the City of Newport reenacted and adopted Title 17 of the City of Newport Codified Ordinances, pursuant to the Rhode Island Zoning Enabling Act of 1991. The new ordinance incorporated the R-20 zoning district in which the property was located and continued to prohibit hotels.See Ordinance § 17.28.020. Thus, as early as 1977, the hotel, its existence having been lawfully established at the time it came into being, was rendered nonconforming by an amendment to the Ordinance and, therefore, continued to exist lawfully by virtue of its `grandfather' rights only. See Ordinance § 17.72.020.
Despite the public policy of zoning "to abolish nonconforming uses as speedily as justice will permit," RICO Corp. v. Town ofExeter,
"(a) A zoning ordinance may permit a nonconforming development to be altered under either of the following conditions:
(1) The ordinance may establish a special-use permit, authorizing the alteration, which must be approved by the zoning board of review following the procedure established in this chapter and in the zoning ordinance; or
(2) The ordinance may allow the addition and enlargement, expansion, intensification, or change in use, of nonconforming development either by permit or by right and may distinguish between the foregoing actions by zoning districts."
It is clear from the statutory language that alteration25
of nonconforming development26 may be achieved only when permitted by an ordinance and, when so permitted, it may be permitted by two means only. If a municipality allows alteration of non-conforming development, it may establish, in its ordinance, a special-use permit process for that purpose, G.L. §
Although G.L. §
By failing to accept the State Legislature's invitation to permit the alternation of nonconforming uses and the structures that house them, and by expressly excluding the extension or moving of such development, the drafters of Newport's Ordinance held true to the stated intent of permitting "nonconformities to continue until they are removed or abandoned." Ordinance § 17.72.020. The restrictive provisions of the Ordinance properly recognize that "[n]onconforming uses are a thorn in the side of proper zoning and should not be perpetuated any longer than necessary." RICO, Corp., 787 A.2d at 1145 (quoting Inhabitantsof Windham v. Sprague,
"the common-law rule that the right which a nonconforming owner has is only that which existed on the effective date of the ordinance which made the use nonconforming, the limits of which are marked by character, size and degree of use as it then existed." 4 Rathkopf, The Law of Zoning and Planning, § 73:6 (2002).
Thus, by refusing to allow the owner of nonconforming development to breathe new life into the property when it has lost its own ability to survive by, e.g., market or social forces, the Newport Ordinance accomplishes fully the "overriding public policy" of eventual elimination of nonconforming uses.RICO, 787 A.2d at 1145 (quoting Toys "R" Us v. Silva,
The overwhelming evidence before the Board was that Cliff Walk's alterations and additions were part of a multi-phased development project designed to transform the existing building into a "150-year" structure and to transform the property and business, over all, from a local inn into an exclusive, world class destination spa and hotel. There was no evidence whatsoever that Cliff Walk's construction was necessitated by any of the limited purposes anticipated by the Ordinance, i.e., to maintain and repair the hotel's physical structures, to ensure the public safety, or to replace existing materials. Even ignoring the totality of Cliff Walk's ongoing development project and the question of whether that project, as a whole, would work a prohibited change in the use of the hotel property, the evidence before the Board was that the challenged development — balconies, stairs, courtyards, walls, changes to the parking area and other anticipated improvements such as the patio and swimming pool — would amount to a substantial alteration in the nonconformity and would be far beyond that allowed by the Ordinance. 4 Rathkopf,supra., § 73:16 ("courts have held that the test for illegal alterations is whether the alterations tend to extend the nonconforming use and the life of the nonconforming building. . . . Unauthorized enlargement or extension has been found in the extension of or addition to a building previously used in the exercise of a nonconforming use"). Thus, at the very least, the exterior additions and alterations, including the parking lot changes, could not be undertaken in the absence of a variance, and the Board erred in thinking that they were permissible because they did not amount to a change in use. Therefore, Cohen's appeal must be granted and the Board's decision reversed as in excess of its statutory authority, in violation of statutory and ordinance provisions, and clearly erroneous in view of the reliable, probative, and substantial evidence of the record.
E. The Board's Approval of Cliff Walk's Exterior Alterations Was Affected by Error of Law, Made upon Unlawful Procedure, and Was in Excess of the Authority Granted to the Zoning Board of Review due to Cliff Walk's Failure to Obtain Development Plan Review Prior to the Issuance of a Building Permit.
Cliff Walk's failure to apply for proper development plan review prior to its application for its building permits and other "approvals" underlies its success in fragmenting administrative approval for its project and is the undergirding of Cohen's complaints. By leapfrogging over the development plan review process at the outset, Cliff Walk ensured that its development project would escape administrative scrutiny as a whole. Cliff Walk continued on the same path when it attempted to limit its belated May 22, 2001 request for development plan review to the parking area changes and landscaping plan only.
Pursuant to G.L. §
With respect to Newport's development plan review process, the Ordinance clearly states: "[i]t shall be unlawful for any person to construct, erect or alter any building or structure, or develop, change or improve land for which a development plan is required, except in accordance with the approved development plan." Id. § 17.88.080. The Ordinance also states that
"[n]o building permit shall be issued to construct, erect, or alter any building or structure, or develop, change or improve land for which a development plan is required, except in accordance with the approved development plan. The approved development plan. . . . shall become part of the application for a building permit and shall be binding on any building permit issued." Id. § 17.88.070.
The Ordinance also requires that the contents of a development plan be detailed and include, inter alia, landscaping and parking plans, the location and square foot of buildings proposed, as well as the location and dimensions of pedestrian entrances, exits and walkways. Id. § 17.88.030. Significantly, the Ordinance also requires that for any project which is proposed to be constructed in more than one phase, that fact should be clearly indicated on the development plan. Id. § 17.88.030(E)(2). Finally, the Ordinance requires that any substantial modification or revision to a development plan requires re-submittal as for a new plan. Id. § 17.88.100. Pursuant to the Ordinance, development plan review is required for both transient guest facilities and parking lots for over 10 vehicles. Id. at § 17.88.029(A) and (G).
Therefore, assuming the validity of the provisions of the Newport Zoning Ordinance having to do with development plan review,33 and even assuming that Cliff Walk's plans could have properly been approved otherwise, Cliff Walk was required to obtain development plan approval prior to obtaining the September 1, 2000 and other building permits and not after. The Board thus exceeded its authority when it approved Cliff Walk's construction in the face of Cliff Walk's failure to follow the proper administrative procedures — procedures that would have required Cliff Walk to commit to and publicly disclose the true nature and extent of its multiphased development plan, would have incorporated that plan into any building permit issued in furtherance of it, and would have facilitated orderly administrative review of its project as a whole. Thus, the Board's decision was affected by error of law, in violation of ordinance provisions, made upon unlawful procedure, and in excess of the authority granted to the zoning board of review by ordinance provisions.
F. The Board Erred When It Failed to View the Alterations to the Property in Their Entirety
At Cliff Walk's urging, the Board examined isolated, individual components of Cliff Walk's development project without considering it as a whole. In doing so, the Board made a fundamental mistake in its approach to the questions before it. The question for the Board was not whether a courtyard or balcony or a parking lot constituted a change in use or even a nonconforming use, the question was whether the alterations proposed for this non-conforming development were beyond the scope of those permitted by the Ordinance. The Board was required to consider the nature and extent of the project as a whole and, against that backdrop, determine whether or not Cliff Walk's development plan and/or its proposed renovations were permitted by the Ordinance. If Cliff Walk's plans or renovations were illegal for the reason that they exceeded that which was allowed by the Ordinance — which the record evidence reflects is the case — the Board erred in approving alterations undertaken in furtherance of that plan. Instead, the Board seemingly focused on distinctions between use and structure. The Board considered "whether the exterior renovations . . . constituted a change in use of the property as a transient guest facility," and concluded that they did not. It found that the property would still constitute a transient guest facility and, relying only on the numerical difference between the existing 22 rooms and proposed 20, concluded that the use would be less intense. The Board's determinations, reflecting its legal conclusion — that where the development in question is nonconforming by use, physical alterations that do not change the class or intensity of the use are permitted of right under the Newport Ordinance, regardless of physical enlargement or extent of alteration — are affected by error of law. The Board's clearly erroneous conclusion is belied by an examination of the Newport Zoning Ordinance and the Zoning Enabling Statute, which, as previously discussed herein, do not provide for alterations to nonconforming development — even those which fall short of a change in use.34 However, even if Cliff Walk's grandfather rights have not terminated due to a substantial change in use, Cliff Walk's renovations are plainly illegal to the extent they exceed the allowed repairs, maintenance and replacement of existing materials.
G. The Board Erred in Concluding that Cliff Walk Was Entitled to the Benefit of Principles of Estoppel
It was Cliff Walk's contention that by September 1, 2000 it harbored a good faith belief that it had all of the approvals necessary to carry out the construction of the system of balconies, stairs, and courtyard systems, and that any subsequent changes in its plans for those additions were insubstantial. Cliff Walk contended that its alterations and additions were well within that which was approved and authorized by the City. Cliff Walk further contended that its September 1, 2000 building permit should not be cancelled or rescinded because it had undertaken millions of dollars of construction in reliance on that permit.
It is clear from the evidence that the building permit of September 1, 2000 allowed defendant only to "relocate non-bearing partitions, remove ceilings, replace windows on 1st, 2nd, 3rd floors. Install exterior doors, per plan." It did not, as Cliff Walk contends, and the Board quite apparently found, approve the plans in full. Cliff Walk's interpretation of the sentence "[i]nstall exterior doors, per plan," is not only absurd, but it also violates general requirements regarding the application and issuance of building permits.
The state law is clear that construction, such as that carried out by Cliff Walk, must be undertaken pursuant to local authorization in the form of a building permit, without which the construction is plainly illegal. Any other form of "approval" is unauthorized. Rhode Island General Laws 1956 §
Furthermore, in his testimony before the Board, Cliff Walk's principal admitted that Cliff Walk undertook construction "muchmore extensive than what it says on the permit" and that Cliff Walk not only commenced "gutting the building," but also made "all kinds of architectural changes on the outside of thebuilding with regard to the columns, reconfiguring the decks,[and] building the courtyard. . . ." (Tr. at 103-104 (Oct. 22, 2001)) (emphasis added). Finally, as noted earlier in this decision, Shufelt also conceded that the courtyard systems did not appear on the plans submitted to the Building Official when Cliff Walk applied for the September 1, 2000 building permit. (Tr. at 242-45 (Jan. 31, 2002)). The uncontroverted evidence before the Board was that, except for the September 1, 2000 permit and the permits having to do with the electrical, plumbing and similar mechanical work, Cliff Walk simply failed to apply for any building permit for the purpose of constructing its presently existing system balconies, stairs, courtyards, and walls.
Likewise, with respect to the Building Official's other "approvals," it was Cliff Walk's legal obligation to apply for the necessary building permits to accomplish its construction and, therefore, Cliff Walk cannot hide behind its failure to do so. Had Cliff Walk followed the proper administrative procedures and received proper building permits for the exterior alterations and additions, the opportunity for Cohen and others to challenge Cliff Walk's plans would have arisen before Cliff Walk changed its position. The evidence was that Cliff Walk had been informed by the Zoning Official that exterior alterations in the form of additions to the property were "strictly prohibited" by the Ordinance. The evidence was also that Cliff Walk, having applied for and received over a dozen building permits, was quite familiar with the process involved in obtaining a building permit but that, when it undertook to construct these particular additions — construction activities which it clearly knew were likely to raise the ire of its neighbors — Cliff Walk sought approvals in a form not authorized by law. Thus, Cliff Walk was not entitled to rely upon these unauthorized approvals. "An actor may not base a claim of estoppel in its favor upon its own wrongful acts." Wellington Hotel Associates v. Miner,
Furthermore, as previously discussed, Cliff Walk also failed to obtain development plan approval as required by Ordinance § 17.88.060. Given the language of the Ordinance, it is plain enough that any appeals taken from the issuance of permits applied for in furtherance of approved development plans would necessarily trigger scrutiny of the proposed project as a whole. Had Cliff Walk applied for and obtained development plan approval prior to obtaining the September 1, 2000 building permit and other "approvals," questions concerning its right to construct the alterations and additions at issue could have been joined at the outset, and Cliff Walk would not have fallen into its present position. Thus, Cliff Walk may not now complain that it justifiably relied upon its own failure to follow the law. Seeid.
Nor is the Building Official's failure to enforce the legal requirement for a written application of any benefit to Cliff Walk. Cliff Walk was at its peril when it determined to seek, and apparently received, the unauthorized approvals referred to in the Sept. 1, 2001 letter, and when it undertook construction for which it did not seek development plan review, and which was outside the scope of its limited building permit (whether properly issued or not). Absent Cliff Walk applying for and obtaining development plan review and the necessary variances, neither the Zoning Official nor the Building Official had authority to issue permits or provide "approvals" for alterations that do not fall within § 17.72.030A and other applicable provisions of the Ordinance. Therefore, Cliff Walk's estoppel argument must necessarily fail. See Almeida v. Zoning Board ofReview of Tiverton,
The Board also erred when it extended the benefits of estoppel to Cliff Walk with respect to the changes in the parking area. The uncontroverted evidence before the Board was that Cliff Walk's changes to the parking area were part of its core development plans as early as July 2000, and, furthermore, the December 8, 2000 zoning certificate contained language reminding Cliff Walk that development plan review was required for approval of the those changes. Furthermore, CRMC approval of the parking area relocation was not forthcoming until after Cohen's appeal had been filed, and CRMC's approval contained language plainly indicating that all applicable local approvals would be required. Thus, the evidence before the Board was that Cliff Walk had not completed the approval process for its proposed changes to the parking area. Therefore, if Cliff Walk changed its position by undertaking construction for which it had no final approvals, it necessarily did so at its own peril. Bald statements of good faith reliance without showing that the reliance is justified cannot support an estoppel defense. See, e.g., Casa DiMario,Inc. v. Richardson,
Finally, it is crystal clear from the record that Cliff Walk's efforts to splinter administrative approval for its project were calculated and were designed to ensure that the Board would focus on isolated elements of Cliff Walk's proposed alterations — as opposed to considering the project as a whole in order to determine whether the proposed alterations to the property were such that a variance was required. At Cliff Walk's insistence, the Board and other administrative officials for the City ignored the ongoing objections of Jon Cohen and allowed themselves to become mired in a series of hearings or proceedings, each having to do with a separate aspect of Cliff Walk's development plan. Thus Cliff Walk's current predicament is very much a product of its own devices.
Accordingly, the Board's finding that Cliff Walk was entitled to the benefit of an estoppel defense was affected by error of law, was clearly erroneous in view of the reliable, probative, and substantial evidence of the whole record, and constituted an abuse of discretion.
H. Absent a Variance, neither the Proposed Parking Area nor the Exterior Additions Are Authorized as Accessory Uses or Accessory Structures.
Cliff Walk asserts that its construction of the parking lot is permitted as an accessory use. Cliff Walk is incorrect. An accessory use or structure is one "customarily incidental and subordinate to the principal use of the land or building," and is not "permitted without the principal use to which it is related." G.L. §
In late 2000, after John Shufelt purchased Nicholas, Inc. and Inn at Cliff Walk, Inc. with the intent of continuing the hotel operation and undertaking substantial improvements to the existing development, as well as making new improvements to the property, Shufelt and his companies ("Cliff Walk") caused four letters to be sent to Guy Weston, Zoning Officer for the City of Newport ("Zoning Officer"), the purpose of which were to obtain various administrative rulings concerning the property and Cliff Walk's development proposals. Because these letters are critical to the disposition of this case, this Court will discuss them inseriatim.
On October 26, 2000, Cliff Walk's attorney sent three letters to the Zoning Officer. In a letter that bore the caption, "RE: Request for zoning certificate — Refrigeration Unit," Cliff Walk pointed out that the hotel was a non-conforming use, but, nonetheless, argued for a zoning certificate confirming that the installation of a proposed refrigeration unit would not "be an enlargement or increase in the non-conforming use of the property, but merely an insignificant change that requires no approval." Letter from Turner C. Scott to Guy Weston, ZoningOfficer, City of Newport, "Request for Zoning Certificate —Refrigeration Unit" at 1 (Oct. 26, 2000).
In another letter, sent on October 26, bearing the caption, "RE: Request for Zoning Certificate — Parking Area," Cliff Walk plainly and clearly requested a zoning certificate containing a statement or opinion that a proposed plan to relocate an existing parking lot to another area on the property would be permissible.
The final letter, also sent on October 26, bore the caption, "RE: Request for Zoning Certificate — Use of common area." In that letter, Cliff Walk described the hotel's history, particularly as it related to use of the hotel's lawn area as a function service area replete with alcoholic beverage license. In the letter, Cliff Walk argued its legal position that "[t]his use of the lawn is certainly one that has acquired rights pursuant to R.I. §
Subsequently, on November 22, 2000, Cliff Walk sent a fourth letter, which bore the captions of the previous two letters having to do with the parking area and use of the common area, and was introduced as "a follow-up to those letters of October 26, 2000 concerning the above-captioned property and matters."Letter to Guy Weston, Zoning Officer, City of Newport at 1 (Nov. 22, 2000). The letter discussed the proposed improvements to the property, referencing attached plans and site map. Cliff Walk concluded the letter stating, "I invite any opportunity to discuss this matter with you further so that my clients canproceed with the improvements as shown on the plan." Id. at 2. (Emphasis added).
The Zoning Officer responded to this sequence of letters, purporting to be requests for Zoning Certificates pursuant to G.L. §
The certificate of December 8, 2000 acknowledged the property to be a transient guest facility, acknowledged the lot to be an existing, conforming lot, and further stated that the property "is in compliance with all applicable zoning regulations."Zoning Certificate, Guy Weston, Zoning Officer, City of Newport,to Turner C. Scott (Dec. 8, 2000). The Zoning Officer went on to inform Cliff Walk that the proposed layout of the parking spaces was permitted under the zoning ordinance, but the certificate also stated that the proposed off-street parking changes must be reviewed as a development plan. The Zoning Officer did not address the proposed improvements to the lawn area.38
Thereafter, Cliff Walk filed a document entitled "Notice of Appeal" with the City of Newport Zoning Board of Review ("Board"). In its notice of appeal, Cliff Walk pointed to the zoning certificate issued December 8, 2000 and to three of the four letters sent by it to the Zoning Officer and ". . . request[ed] . . . a determination of the use of the . . . property. . . ."39
The Board held a public hearing on May 29, 2001, during which Cliff Walk described its property as a 24-room hotel undergoing major renovations. Although Cliff Walk agreed that the zoning certificate request that was before the Board was the October 26, 2000 request concerning the proposed improvements to the lawn common area, Cliff Walk nonetheless attempted to redirect the Board's focus by contending that the issue before the Board was to "either confirm or deny the longstanding right of this property to use this lawn for placement of tents for public and private events." (Tr. at 10 (May 29, 2001)).40 During the course of the hearing, Cliff Walk presented evidence in an attempt to show that the hotel's legal status was that of a special (or conditionally) permitted use. Cliff Walk also presented evidence of the former owners' previous use of tents on the property.
One of the hotel's neighbors, Jon E. Cohen, appeared at the hearing. Expressing frustration at the seemingly convoluted process through which Cliff Walk was attempting to gain approval for extensive renovations, Cohen posited that "[t]here's all kinds of changes to the land and grounds. Shouldn't all of those issues be before the Board? It shouldn't be just to decide the tent issue. That's not the only issue before the Board, and it should be the entire operation of the property." Id. at 7. Cohen's complaints were rebuffed by Cliff Walk's attorney, who warned the Board that Cohen was trying to confuse the issues and that the questions before the Board were narrow ones. Id. at 8.
Thereafter, on August 17, 2001, Cliff Walk filed a memorandum with the Board in which it contended, once again, that its G.L. §
"The letters to Mr. Weston dated October 26, 2000 and November 22, 2000 while originally dealing with the hotel's right to make certain improvements in order to facilitate continued use of the lawn area should now be read as simply a request for a Zoning Certificate which states the use of tents on the lawn areas for varied functions continues to be permitted as they have in the past." (Appellant's Mem. to Zoning Bd. of Newport, In Re: Appeal of Inn at Cliff Walk, Inc. at 2).
Cliff Walk went on to claim that the Board had before it only two questions: (1) whether the lawn had historically been used for outside events under tents, and, (2) the "completely separate and distinct" question of whether the hotel existed as a conditionally permitted use, (alternatively, "special use"), or as a legally nonconforming lot. Memo to Board at 3-4.41 Thus, Cliff Walk invited the Board to render advisory rulings or declarations concerning two issues of significance to Cliff Walk — rather than to merely supply the remainder of information originally requested of the Zoning Officer but which the officer failed to give.
The Board held another public hearing on August 27, 2001. At that time, the Board members agreed that they would also address the plans to construct a permanent staging and patio area, as well as a bathroom facility, i.e., the subjects of the letter that were also unaddressed by the zoning certificate. (Tr. at 10 (Aug. 27, 2001)). During the course of the hearing, the Board members rightly referred to the various proceedings having to do with the hotel as a "mess." Id. at 10. The record reveals the Board members' confusion concerning the nature of the proceedings before them, the contents of Cliff Walk's original request for a zoning certificate, and what it was that Cliff Walk was actually seeking. The Board members concluded, inter alia, that the hotel existed as a legal non-conformity.
Thereafter, the Board issued a written response denominated as a "decision" in which it made findings of fact and in which it (1) denied Cliff Walk's appeal insofar as Cliff Walk sought to establish that the hotel existed as a special or conditionally permitted use;42 (2) denied Cliff Walk's appeal insofar as it sought to establish that the use of tents over a permanent patio, bathroom structure, and staging area would be a permitted expansion of the nonconforming use; and (3) granted Cliff Walk's appeal to the extent it determined that the use of temporary tents in conjunction with the hotel use is an extension of a non-conforming use enjoying grandfathered rights. The Board also stated that the continued use of the tents, as previously used, would amount to a permitted, non-conforming use provided they were (a) used only during the summer; (b) erected separately for each event or function and removed after that event or function is over; and (c) used only in conjunction with events or functions held or exercised by the property owner, not by outside caterers or other parties.43 Thus, notwithstanding that the Board's response to Cliff Walk's appeal spoke in terms of "sustaining" and "denying" that appeal, the Board supplied the information requested by Cliff Walk in its original letter of October 26, 2000 concerning the use of the common area and in its August 17, 2001 memorandum.
Unhappy with the illumination it received from the Board, Cliff Walk appealed the Board's response to this Court, citing G.L. §
Jon E. Cohen has intervened in Cliff Walk's appeal and has filed memoranda. The defendant Board rests its arguments on those of Cohen.
General Laws §
"In order to provide guidance or clarification, the zoning enforcement officer or agency shall, upon written request, issue a zoning certificate or provide information to the requesting party as to the determination by the official or agency within fifteen (15) days of the written request. In the event that no written response is provided within that time, the requesting party has the right to appeal to the zoning board of review for the determination." Id.
It is clear from the statutory language that either the zoning official or the zoning board of review, upon appeal in the event that the zoning official fails to respond to an informational request, may supply the requested information for the limited purpose of supplying guidance or clarification.46
One of the means by which this information can be provided is through the issuance of a zoning certificate which, by definition, is a document signed by the zoning officeracknowledging that a use, structure, building, or lot complies with or is legally nonconforming to the provisions of the zoning ordinance or is an authorized variance or special use. See G.L. §
Furthermore, the purpose for which a zoning certificate is given is to provide information concerning the present status
of the existing use, structure, building or lot but not proposed uses, structures, buildings or other development. Taking G.L. §
To construe the zoning certification as binding would lead to the conclusion that a zoning board could, in the first instance, determine conclusively (subject to judicial review) the legality of an existing use. However, though the Enabling Act provides the convenience of an informational notice or advisement — whether from a zoning officer or, upon his failure, a zoning board — a zoning board is without jurisdiction to render a binding opinion as to the legality of an existing use, at least, that is, outside an appeal from an officer's determination made while enforcing
the laws. See Olean v. Zoning Bd. of Review of the Town ofLincoln,
General Laws §
Because the express language of G.L. §
Thus, a zoning certificate or other information supplied in response to a request made pursuant to G.L. §
A. The Question of the Use of Tents on the Lawn Area Was Not Properly before the Board.
Because the Zoning Officer did not respond in 15 days to Cliff Walk's inquiry concerning the proposed development of the lawn area, Cliff Walk was entitled to appeal to the Board to obtain the information it sought. Thereafter, however, both at the hearing before the Board and in its memorandum, Cliff Walk advocated that its request to the zoning officer, regarding proposed improvements, included — "should now be read as" — a request for a determination that the use of tents on the property lawn, from time-to-time, will continue to be allowed. This twelfth hour request, however, was never submitted to the Zoning Officer and, therefore, the Board lacked the authority to respond to the request in the first instance. Parties requesting information pursuant to G.L. §
B. Cliff Walk Is Not Aggrieved of The Board's Response that the Hotel Is a Legal Nonconformity
Cliff Walk contends that the Board erred in finding that the hotel exists as a legal nonconformity, rather than as a special use by virtue of the Board's approval under the 1945 zoning ordinance. However, the Zoning Board made that observation in the context of supplying information concerning the use of tents in conjunction with function service on the lawn area, as Cliff Walk had requested. In fact, in that request, Cliff Walk argued that the lawn use enjoyed rights pursuant to those sections of the Ordinance and the Enabling Act dealing with nonconforming developments. Thus, because the Board's was the very statement that Cliff Walk was seeking, it cannot be aggrieved by it. And although Cliff Walk contends that the Board improperly restricted the lawn use, it is clear that those "provisions" constituted nothing more than the Board's observations concerning the extent to which the Board viewed the use of those structures to belegally nonconforming, albeit haphazardly cast in terms of enforceable restrictions.
Finally — and even assuming that the lawfulness of using the lawn for functions, replete with tents, was properly addressed to, and by, the Board — as discussed above, only an aggrieved party may appeal a decision to the Superior Court and, where the individual claiming the appeal is not aggrieved of the zoning board's decision, this Court lacks the authority to hear the matter. "Aggrievement in the personal sense requires an actual and practical, as distinguished from a mere theoretical, interest in the controversy, and it results when the judgment whose review is sought adversely affects in a substantial manner a personal or property right of the applicant or imposes upon him some burden or obligation." Hassell v. Zoning Bd. Of Review
Here, because the information supplied by the Board in response to Cliff Walk's G.L. §
C. Cliff Walk Is Not Aggrieved of the Board's Response Concerning Proposed Improvements to the Lawn Area
Cliff Walk also cannot be aggrieved by the Board's findings relating to proposed improvements to the lawn area including the patio, food service station, and future swimming pool.52
In the case of proposed development, it is only upon submission of a "substantially complete" application, in proper form, to the appropriate official or agency that a grant or denial of enforceable rights is at stake, and a substantial interest will arise accordingly. G.L. §
This Court's conclusion — that review is unavailable for determinations as to proposed plans made pursuant to a request that falls short of a substantially complete application for a building permit or for other relief allowed pursuant to the provisions of a local zoning ordinance — is confirmed by policy considerations, in light of settled principles of statutory construction. "In matters of statutory interpretation our ultimate goal is to give effect to the purpose of the act as intended by the Legislature." Webster v. Perotta,
Moreover, the availability of administrative or judicial review absent a formal application would encourage premature litigation — as this justice has observed to be occurring often.53
The requirement of a "substantially complete" application for a building permit or relief allowed pursuant to the provisions of a local zoning ordinance assures a sincere intent to develop, and thus a real case or controversy, and, in particular, discourages judicial involvement in local zoning matters when this involvement might ultimately become unnecessary as a result of an applicant's changed plans. See Pepperman v. Town of Rangeley,
"B. No nonconforming use of land shall be moved to another part of a lot or outside the lot, and no nonconforming use of a building shall be moved or extended to any other part of the building not expressly arranged and designed for such use at the time the use became nonconforming, and no building containing a nonconforming use shall be moved, unless the result of such move is to end the nonconformity. No nonconforming building shall be moved, unless the result of such moving is to reduce or eliminate its nonconformity.C. No nonconforming use of land, nonconforming use of a structure, or nonconforming structure shall be changed except to a conforming use or structure. No nonconforming structure, if once changed to conform, shall thereafter be changed so as to be nonconforming again."
(Likewise, Section 17-72-010 treats unimproved sub-standard lots under single ownership as merged, evidencing the intent that nonconformities be eliminated).
Southwestern Iron & Steel Industries, Inc. v. State , 123 Ariz. 78 ( 1979 )
Inhabitants of Town of Windham v. Sprague , 219 A.2d 548 ( 1966 )
Kooloian v. Town Council of Bristol , 572 A.2d 273 ( 1990 )
Matter of Falstaff Brewing Corp. , 637 A.2d 1047 ( 1994 )
Erlich v. First Nat'l Bank of Princeton , 208 N.J. Super. 264 ( 1984 )
Pepperman v. Town of Rangeley , 659 A.2d 280 ( 1995 )
Town of Warren v. Thornton-Whitehouse , 740 A.2d 1255 ( 1999 )
Webster v. Perrotta , 774 A.2d 68 ( 2001 )
Technology Investors v. Town of Westerly , 689 A.2d 1060 ( 1997 )
Town of Charlestown v. Beattie , 422 A.2d 1250 ( 1980 )
Rhode Island Department of Mental Health, Retardation & ... , 549 A.2d 1028 ( 1988 )
Kaya v. Partington , 681 A.2d 256 ( 1996 )
Harmel Corp. v. Members of the Zoning Board of Review , 603 A.2d 303 ( 1992 )
Olean v. ZONING BOARD OF REVIEW OF TOWN OF LINCOLN , 220 A.2d 177 ( 1966 )
Health Havens, Inc. v. Zoning Board of Review , 101 R.I. 258 ( 1966 )
Casa DiMario, Inc. v. Richardson , 763 A.2d 607 ( 2000 )
RIH Medical Foundation, Inc. v. Nolan , 723 A.2d 1123 ( 1999 )
Town of Johnston v. Pezza , 723 A.2d 278 ( 1999 )
Rico Corp. v. Town of Exeter , 787 A.2d 1136 ( 2001 )