Mill Realty Associates v. Crowe

FLANDERS, J.,

dissenting.

I believe the Superior Court misapplied the law when it interpreted the towns ordinance as vesting the building official with unfettered discretion to grant or deny a building permit in these circumstances. And because the zoning board also acted arbitrarily and capriciously in affirming the building officials denial of the property *676owners building-permit application, I would quash the Superior Court judgment upholding the boards decision and remand this case with directions to that court to enter a new judgment requiring the building official to issue the permit.

This case is here on certiorari to review a Superior Court judgment affirming a decision by the Zoning Board of Review (board) for the Town of Coventry (town). The town’s building official denied an application for a budding permit filed by the petitioner, property owner Mill Realty Associates (Mill Realty). On appeal, the board upheld the denial and the Superior Court affirmed the board’s decision.

As the owner of a parcel of undeveloped land (the property) comprising more than half of an acre in the town and qualifying as a substandard lot of record, Mill Realty sought permission from the town to build a single-family home on it. In denying its application for a budding permit, the budding official ruled that Mill Realty either must connect the property to the nearest public water supply line (located approximately 1,600 feet or one-third of a mile from the property), or else obtain a dimensional variance from the board to build a single-famdy house on the property. Both the board and the Superior Court affirmed this permit denial. In asking us to reverse, Mid Realty argues that because the property was duly platted and recorded in the town’s land-evidence records before the effective date of the town’s enactment of a zoning ordinance (ordinance) and because its property otherwise constituted a buildable parcel, the town should have treated it as such, issued the permit, and not required Mill Realty to obtain a dimensional variance or a connection to the public water supply.

In this case, I would hold that competent evidence does not support the Superi- or Court judgment because the trial justice misapplied the law in interpreting Article 8, Section 870-871 of the Coventry Zoning Ordinance, the board acted arbitrarily and capriciously in denying Mill Realty’s application for a building permit,, and Mill Realty did not possess an adequate remedy at law. For the reasons indicated herein, I would reverse, quash that judgment, and remand the case with directions to enter a new judgment requiring the building official to issue the permit.

I

In my opinion, the trial justice misconstrued Article 8, Section 870-871 of the ordinance by interpreting it as granting the building official virtually unfettered discretion to issue or deny a building permit for a substandard parcel of land such as this property that “was duly recorded prior to the effective date of this Ordinance.” Section 870-871.

Section 870-871 provides in pertinent part:

“A lot or parcel of land having a lot width or area which is less than required by Article 6 may be considered builda-ble for single family residential purposes regardless of the lot width or area, provided such lot or parcel of land was duly recorded prior to the effective date of this Ordinance, and further provided that at the time of the recording said lot or parcel of land so created conformed in all respects to the minimum requirements of the Zoning Ordinance in effect at the time of such recording, and did not adjoin other land of the same owner on the effective date of this Ordinance or at any time after such lot or parcel of land was rendered substandard by the provisions of any prior Zoning Ordinance.” (Emphasis added.)

The trial justice interpreted Section 870-871’s use of the word “may” as vesting the *677building official with virtually unfettered discretion to refuse to consider a substandard lot of record as buildable for the construction of a single-family dwelling. In reaching this conclusion, the Superior Court cited Article 2, Section 200-201(C) of the Coventry Zoning Ordinance, which defines “may” as permissive rather than “mandatory.” See Carlson v. McLyman, 77 R.I. 177, 182, 74 A.2d 858, 855 (1950) (conceding that the ordinary meaning of the word may is permissive and not compulsory).

I agree with the trial justice insofar as she reasoned that Section 870-871’s use of the “may” usually contemplates some degree of discretion rather than requiring that the town treat the nonconforming lot or parcel of record as buildable. I disagree, however, that the use of the word “may” in Section 870-871 vests the zoning official with unfettered discretion to grant or deny a building permit to the owners of such lots or parcels of property that are substandard in area or width. In my view, Section 870-871’s use of the term “may” grants the building official only limited discretion to deny a building permit when the lot fails to comply with one of the provisos in Section 870-871 or when some other legal nonconformity exists — besides an undersized lot area or width — to warrant the denial of a building permit. Thus, the zoning official “may” deny a building permit under Section 870-871 to an owner of a lot that is nonconforming by area if that lot was not duly recorded before the effective date of the ordinance, or if the proposed development would violate some other provision of the ordinance — for example, if the proposed use was nonconforming or the proposed access road to the premises would not comply with the applicable sections of the ordinance. In my opinion, however, the building official cannot deny a building permit under Section 870-871 to a substandard parcel of record if the proposed construction on that parcel otherwise complies with the provisions of Section 870-871 and with the other applicable zoning requirements.

This position comports with the well-established rule that, generally speaking, a building official has no discretion when deciding whether to issue or deny a building permit; instead, his or her obligation is ministerial in nature because the proposed construction project either complies with the ordinance or it does not. Town of Johnston v. Pezza, 723 A.2d 278, 284 (R.I.1999) (citing Johnson & Wales College v. DiPrete, 448 A.2d 1271, 1276-77 (R.I.1982); Wood v. Lussier, 416 A.2d 690 (R.I.1980)). Interpreting the word “may” in the ordinance in such a manner as to invest the building official with unfettered discretion to treat substandard lots of record as buildable opens the door to arbitrary and retaliatory permit denials.5

Here, but for the exemption in Section 870-871 for substandard lots of record, Mill Realty’s proposed construction of a single-family residence would violate the ordinance’s area requirements for a lot not served by public water. Section 870-871, however, states that the building official may nevertheless consider the lot as “buildable” — that is, issue a building permit to Mill Realty — without requiring it to obtain a dimensional variance or a connection to the public water supply because the lots comprising this substandard parcel were duly recorded in 1896, predating the *678enactment of the ordinance. No evidence showed that Mill Realty’s proposed development contravened any other provisions in Section 870-871 or any other provisions of the ordinance. But instead of considering the property as “buildable,” the zoning official and the board arbitrarily required it to obtain a dimensional variance or to connect to the public water supply — totally disregarding its favored status as a substandard parcel of record.6 Accordingly, I conclude that the Superior Court misapplied the law when it affirmed the town’s denial of Mill Realty’s application for a building permit.

Here, the trial justice’s interpretation of Section 870-871 as vesting the board and the building official with virtually unlimited discretion to grant or deny such applications, tends to defeat the purpose of protecting substandard lots of record from later-enacted zoning requirements because it denies to owners of lots of record that are nonconforming by area the “buildable” status that the ordinance intended for them to enjoy. “When interpreting an ordinance this Court applies the same rules of construction that are applied for statutes.” Town of North Kingstown v. Albert, 767 A.2d 659, 662 (R.I.2001) (citing Mongony v. Bevilacqua, 432 A.2d 661, 663 (R.I.1981)). By construing the word “may” as vesting the board with only limited discretion, I interpret the ordinance in a manner consistent with its evident underlying purpose of protecting substandard parcels of record that are nonconforming by dimension from the later-enacted area requirements of the existing zoning ordinance. See id. (citing Brennan v. Kirby, 529 A.2d 633, 637 (R.I.1987)). Moreover, when we are faced with a choice between one interpretation that furthers the purpose of an ordinance and another that defeats it, we should adopt the former. See Town of Tiverton v. Fraternal Order of Police, Lodge # 23, 118 R.I. 160, 165, 372 A.2d 1273, 1276 (1977) (citing State v. Sprague, 113 R.I. 351, 355, 322 A.2d 36, 38 (1974)). By interpreting the word “may” as giving the building official only limited discretion to deny a building permit under Section 870-871 — for example, when the proposed construction would violate some law or regulation other than the applicable area or width regulation— we would further G.L.1956 § 45-24-38’s and § 45-24 — 39(a)’s purpose of protecting owners of substandard lots of record from later-enacted area and width requirements without unduly confining the building official’s ability to deny applications for noncompliance with other sections of the ordinance.

The Superior Court also misapplied Section 870-871 by ruling that Mill Realty’s lot did not qualify as a nonconforming lot under § 45 — 24—31(49)(ii).7 The trial jus*679tice ruled that petitioner’s parcel did not qualify for nonconformance by dimension because the lot was in excess of the 20,000 square feet required by the R-20 zone. But lots in an R-20 zone that are in excess of 20,000 square feet satisfy the dimensional requirements only if they also are connected to the public water supply. Therefore, the trial justice reasoned, Mill Realty’s lot was not a nonconforming lot because the building official believed that it was possible — no matter how expensive and impractical it might prove to do so— for it to connect the lot to the public water line located one-third of a mile, or 1,600 feet, from the property line. Although the trial justice correctly found that the R-20 zone required only 20,000 square feet to obtain a permit to build a residence, this was true only for lots that were tied into a public water line. This property, however, was not connected to the public water supply. The fact that it may have been technically possible (albeit practically imprudent) for the owner to connect the lot to the public water supply was, in my judgment, irrelevant. Rather, it was nonconforming by area because Article 6, Table 6-7 of the Coventry Zoning Ordinance provided that lots with no public water— that is, those lots utilizing private wells and an ISDS instead of public water— must contain at least 43,650 square feet in area. Indeed, the whole reason for this litigation is Mill Realty’s desire to construct a private well and ISDS on this property, rather than incur the greater expense and inconvenience of connecting to the public-water line some 1,600 feet away. Thus, when considered in this context, Mill Realty’s property was indeed nonconforming by area because, regardless of whether the building official believed it was possible for the lot to connect to the public water supply, it was not so connected when Mill Realty applied for the permit. Consequently, given its status as a nonconforming lot of record, the building official should have considered it to be buildable under the ordinance without requiring Mill Realty to obtain a variance or to connect the property to the public water supply.

Finally, the Superior Court’s interpretation of Section 870-871 violated the zoning enabling act by delegating too much unguided discretionary authority to the board and to the town’s building official. Jurisdiction in zoning matters is limited in scope by the act and the “jurisdiction thereby conferred can neither be expanded nor diminished by the terms of an ordinance.” Lincourt v. Zoning Board of Review of Warwick, 98 R.I. 305, 309, 201 A.2d 482, 485 (1964) (describing as a “nullity” an ordinance providing for a variance that authorizes something more or something less than the terms of the zoning enabling act); Reynolds v. Zoning Board of Review of Lincoln, 96 R.I. 340, 343, 191 A.2d 350, 353 (1963) (“[Jjurisdiction of zoning boards of review is that prescribed in the enabling act and that the jurisdiction therein vested in such boards can neither be enlarged nor restricted by enactments contained in a zoning ordinance.”). Here, the Superior Court’s interpretation of Section 870-871 expanded the jurisdiction of the board and the building official by granting them broad, uncanalized discretion to grant or deny building permits to nonconforming parcels of record in the town, in the absence of any guidelines, limitations, or *680safeguards for doing so. See Bailey v. Zoning Board of Review of Warwick, 94 R.I. 168, 171, 179 A.2d 316, 317 (1962) (invalidating zoning board action pursuant to provision vesting it with “carte blanche authority to approve or disapprove in its uncontrolled discretion”).

By interpreting Section 870-871 as giving the building official and board only limited authority, we would comply with the enabling act without expanding or diminishing their respective jurisdictions. See Carlson v. Town of Smithfield, 723 A.2d 1129, 1131 (R.I.1999) (per curiam) (“ When the validity of an ordinance is at issue, the court must, if possible interpret the ordinance as valid.’ ”). Moreover, the building officials future decisions under Section 870-871 should be confined by the principle that the building official may deny an application to build a residence on a nonconforming lot of record only if granting it would violate another, independent provision of the ordinance; but not simply because, in his or her unfettered discretion, the official believed the owner can either connect the property to the public water supply or obtain a dimensional variance before the permit would issue.

II

In addition to misconstruing Section 870-871 of the ordinance, the Superior Court also erred in affirming the board’s decision because competent evidence indicated that the board’s decision was arbitrary and capricious. Before applying for a building permit, Mill Realty sought and received approval for a private well and an ISDS from the DEM. Despite DEM’s approval — thereby indicating that Mill Realty could safely construct a private well and ISDS on its property — the building official denied Mill Realty’s application for a building permit because, in her estimation, its half-acre property could be connected to the public water supply. In addition, Mill Realty introduced competent evidence showing that the board frequently granted building permits for single-family dwellings serviced by private wells on lots that did not satisfy the dimensional requirements of the ordinance.

1. The Board Acted Arbitrarily and Capriciously When It Ignored DEM’s Well and ISDS Approval and Found that the Property Could Not Accommodate a Private Well and ISDS

As the Superior Court noted, the DEM is responsible for enforcing “the standards for the quality of air, and water, and the design, construction and operation of all sewage disposal systems.” G.L.1956 § 42-17.1-2(m). Furthermore, no individual “shall install, construct, alter, or repair * * * [an ISDS] until he or she has obtained the written approval of the director of the department of environmental management of the plans and specifications for the work.” G.L.1956 § 23-27.3-113.6.1. Also, the town has enacted Article 7, Section 7160-7162, of the Coventry Zoning Ordinance which makes DEM approval of an ISDS a prerequisite to obtaining a building permit.

Section 45-24-69(d)(6)8 of the General Laws directs the Superior Court, on re*681view of a zoning board decision, to reverse that decision when it was “[arbitrary or capricious or characterized by [an] abuse of discretion or [a] clearly unwarranted exercise of discretion.” Here, Mill Realty obtained DEM approval before it applied for a building permit. Although this approval did not require the building official to issue a building permit, Mill Realty’s ability to obtain DEM approval indicated that its planned private well and ISDS would not create a public safety concern with respect to its use of water on the property. Nevertheless, the building official arbitrarily rejected Mill Realty’s application — apparently because she believed that Mill Realty’s property could connect to the public water supply and, therefore, Mill Realty should not be allowed to build a house using a private well and ISDS. In affirming, the board, in its decision on February 6, 2001, neglected to set forth any findings of fact or reasons explaining why it would not permit Mill Realty to construct a private well and ISDS in light of DEM’s approval of such plans. Instead, it simply reiterated the building official’s conclusion that the property did not comply with the area requirements of Article 6, Table 6-7, and it conditioned issuance of a permit on Mill Realty’s connecting to the public water supply.

“We have repeatedly said that a municipal board or council must, in its decision, set forth findings of fact and reasons for the action that it takes when acting in a quasi-judicial capacity.” Sambo’s of Rhode Island, Inc. v. McCanna, 481 A.2d 1192, 1193 (R.I.1981). In this case, the board’s decision lacked any reasons explaining why it chose to uphold the building official’s decision not to issue the permit — despite the property’s status as a nonconforming lot of record — after Mill Realty had obtained DEM approval for the ISDS system and well. Accordingly, I would hold that the board acted arbitrarily and capriciously because it premised its permit denial on construction plans explicitly approved by DEM and it gave no reasons why it upheld the building official’s denial of the permit. See MC. & S. Realty, Inc. v. City Council of Cranston, 86 R.I. 179, 182, 133 A.2d 765, 766 (1957) (‘We therefore conclude that the action of the council in denying the application was arbitrary and without any lawful reason to support it.”).

2. The Board Acted Arbitrarily and Capriciously by Denying a Building Permit to Mill Realty in Contravention of Its Practice of Granting Permits in Similar Situations

The board also acted arbitrarily and capriciously when it rejected Mill Realty’s application despite its practice of granting permits for the construction of single-family dwellings served by private wells on lots that did not conform to the ordinance’s area requirements. Competent evidence showed that the board treated Mill Realty differently from other similarly-situated developers for no rational reason after Mill Realty successfully sued the town to avoid having to construct an unreasonably expensive access road to its property. For example, Mill Realty introduced into the record building permits for applications submitted by other developers with respect to lots that did not satisfy the dimen*682sional requirements for using a private well instead of the public water supply. Mill Realty then introduced a memorandum from a town official explaining that the town issues building permits regardless of lot size when public water is unavailable. Ostensibly, then, this memorandum reflects the town’s practice, despite the absence of any guidelines or standards stating when the town should deem public water available or unavailable.

By denying Mill Realty’s application because it deemed that public water was available to the property, the building official acted arbitrarily and capriciously, as did the board in affirming that denial. See Tillotson v. City Council of Cranston, 61 R.I. 293, 295, 200 A. 767, 768 (1938) (labeling as “arbitrary and unreasonable” city council decision not based on any “rule or standard”); see also MC. & S. Realty, Inc., 86 R.I. at 182, 133 A.2d at 766. From all that appears in the record, the building official granted some building permits and denied others in the absence of any rational rule or standards for doing so with respect to substandard lots of record; instead, by their own admission, both the building official and the board appeared to condition their approval of building permits for substandard lots of record on whether they deemed access to public water was available to the property. But because there were no guidelines for the building official or the board to rely on in making this determination, any decisions made on this basis necessarily were arbitrary and capricious. See Tillotson, 61 R.I. at 295, 200 A. at 768.

In addition, the board’s decision may also amount to a violation of the equal-protection clause of Fourteenth Amendment to the United States Constitution. For example, in 2000, the United States Supreme Court held that a homeowner could proceed on an equal-protection claim when a town unreasonably conditioned the homeowner’s act of connecting to the municipal water supply on the homeowner’s granting the town a thirty-three-foot easement, even though it required only a fifteen-foot easement from other similarly situated property owners. Village of Willowbrook v. Olech, 528 U.S. 562, 565, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam). Here, the town unreasonably conditioned a building permit on Mill Realty’s obtaining a variance or connecting the property to the public water supply when it granted building permits to other properties that were similarly situated as this property without first requiring the owners of those properties to obtain a variance or to connect to the public water supply.

Ill

Finally, I disagree with the suggestion that Mill Realty possessed an adequate remedy at law because the board, in its denial of Mill Realty’s application for a building permit, stated that Mill Realty could seek a dimensional variance. As a general rule, this Court will not grant a common-law writ of certiorari when another remedy exists that adequately safeguards the petitioner from substantial harm or injustice. See Ratcliffe v. Coastal Resources Management Council, 584 A.2d 1107, 1109-10 (R.I.1991). Here, I do not believe that Mill Realty’s option to apply for a dimensional variance constituted an adequate remedy that thereby precluded this Court from issuing an opinion in favor of Mill Realty on certiorari. I disagree with this conclusion because the so-called adequate remedy — applying for a dimensional variance — decides the very matter that Mill Realty is challenging before this Court. It is Mill Realty’s contention that it need not seek or obtain a dimensional variance because Section 870-871 of the ordinance removed its property from the *683strictures of Article 6, Table 6-7. In other words, because its property qualified as a substandard lot of record, it did not have to apply for a dimensional variance. Construing Mill Realty’s option to apply for a dimensional variance as an adequate remedy would force Mill Realty to effectively concede that its property does not comply with the ordinance’s dimensional requirements and that it needs a dimensional variance to obtain a building permit. Such a remedy is hardly adequate because it forces the property owner to concede the very legal requirement that it is contesting.

Moreover, even if one were to assume, arguendo, that pursuing a dimensional variance would amount to an adequate remedy, this Court still has the authority to rule in favor of Mill Realty when reviewing this case on certiorari. On occasion, in the interests of justice, we will issue the writ to allow a petitioner to obtain immediate review even though another remedy would be available later. Wilkinson v. Harrington, 104 R.I. 224, 227, 243 A.2d 745, 748 (1968). For example, in Ratcliffe, 584 A.2d at 1109-10, we issued a writ of certiorari to review a decision by the Coastal Resources Management Council (CRMC) even though another remedy existed. In that case, the CRMC issued a cease-and-desist order to the petitioners who were constructing a residence after obtaining a building permit and an ISDS permit. Id. at 1108. While noting the existence of other remedies that were available to the petitioners, we granted the writ to prevent “further delay” and to end the “bureaucratic morass” that had overtaken the petitioners’ development plans. Id. at 1110.

Here, even if an adequate remedy had existed — and for the reasons stated, I do not believe seeking a dimensional variance constituted an adequate remedy — I still would decide this petition in favor of Mill Realty to put an end to the “bureaucratic morass” that has engulfed Mill Realty’s plans to develop this lot. Mill Realty purchased the property in 1994 at a tax sale. Since then, Mill Realty and the board have sparred continually over the development plans. As previously noted, this is the second time the parties have appeared before this Court disputing such plans. Therefore, I would rule on certiorari in favor of Mill Realty to prevent “further delay” and to end the “bureaucratic morass” that has ensnared Mill Realty’s development plans. Ratcliffe, 584 A.2d at 1110.

Conclusion

For these reasons, I would quash the judgment of the Superior Court and remand this case to that court with instructions to enter an amended judgment that vacates the boards decision (upholding the building officials denial of the building-permit application) and orders the building official to issue the building permit to Mill Realty.

. In this case, the permit denial occurred only after this Court had granted Mill Realty’s previous petition for certiorari and ordered the town to allow it to build the least expensive type of access road to its property, an option that the town and its officials had refused to extend to Mill Realty until this Court ordered it to do so. See Mill Realty Associates v. Zoning Board of Review of Coventry, 721 A.2d 887, 892 (R.I.1998) (Mill Realty I).

. For this reason, I disagree with the suggestion that Mill Really possessed an adequate remedy by simply applying for and obtaining a dimensional variance. Mill Realty's position was that, as a nonconforming lot of record, it did not have to obtain a dimensional variance to obtain a permit because it was a buildable lot of record. A remedy is not adequate when the petitioning party contends that it is entitled as a matter of law to obtain a permit to build without first seeking or obtaining such a variance.

. General Laws 1956 § 45-24-31(49) provides in pertinent part:

Nonconformance. A building, structure, or parcel of land, or use thereof, lawfully existing at the time of the adoption or amendment of a zoning ordinance and not in conformity with the provisions of that ordinance or amendment. Nonconfor-mance is of only two (2) types:
(ii) Nonconforming by dimension: a building, structure, or parcel of land not in compliance with the dimensional regulations of the zoning ordinance. Dimensional regulations include all regulations of the zoning ordinance, other than those pertain*679ing to the permitted uses. A building or structure containing more dwelling units than are permitted by the use regulations of a zoning ordinance is nonconforming by use; a building or structure containing a permitted number of dwelling units by the use regulations of the zoning ordinance, but not meeting the lot area per dwelling unit regulations, is nonconforming by dimension.

. Section 45-24-69(d) provides:

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;
*681(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.