                                                             Supreme Court

                                                             No. 2009-303-M.P.
                                                             (NC 07-621)


         W. Bart Lloyd et al.             :

                  v.                      :

Zoning Board of Review for the City of    :
           Newport et al.




            NOTICE: This opinion is subject to formal revision before
            publication in the Rhode Island Reporter. Readers are requested to
            notify the Opinion Analyst, Supreme Court of Rhode Island,
            250 Benefit Street, Providence, Rhode Island 02903, at Telephone
            222-3258 of any typographical or other formal errors in order that
            corrections may be made before the opinion is published.
                                                                   Supreme Court

                                                                   No. 2009-303-M.P.
                                                                   (NC 07-621)


             W. Bart Lloyd et al.              :

                      v.                       :

    Zoning Board of Review for the City of     :
               Newport et al.


               Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                          OPINION

         Justice Goldberg, for the Court. The Supreme Court granted a petition for writ of

certiorari filed by the petitioners, W. Bart Lloyd (Lloyd) and Elizabeth Lloyd (collectively,

petitioners or Lloyds), seeking review of a judgment of the Superior Court affirming the decision

of the Zoning Board of Review for the City of Newport (zoning board or board), which granted a

special-use permit to Mark Bardorf and Diana Bardorf (respondents or Bardorfs).1 The trial

justice decided two consolidated appeals from the zoning board.2            However, we granted

certiorari only with respect to the decision of the trial justice that affirmed the zoning board‟s

grant of a special-use permit to the respondents, the petitioners‟ abutting landowners. For the

reasons set forth in this opinion, we affirm the judgment of the Superior Court.


1
 Lloyd appealed the zoning board‟s September 1, 2006 denial of his application for a special-use
permit (NC 06-467) to the Superior Court and subsequently appealed the November 28, 2007
decision of the zoning board, which granted a special-use permit to his neighbors, the Bardorfs
(NC 07-621). The trial justice‟s decision encompassed both appeals. Only the Bardorf matter is
before us.
2
 The trial justice indicated in his decision that an order granting the motion to consolidate was
entered on October 8, 2008, but the record does not reflect that the motion was in fact granted.
Nevertheless, the Superior Court‟s decision treats the cases as consolidated, and judgment has
entered as to both.
                                                -1-
                                              Facts and Travel

        The respondents own property located at 18 Chestnut Street in Newport, Rhode Island,

which is zoned R-10, located in the city‟s Historic District, and designated as Lot 249 on Tax

Assessor‟s Plat 12. The petitioners own the abutting property at 16 Chestnut Street, which also

is zoned R-10.3 The Bardorfs‟ residence is a dimensionally nonconforming development as

defined by both § 17.08.010 of the Code of Ordinances of the City of Newport (Newport

Ordinances or zoning ordinance) and G.L. 1956 § 45-24-31(49) of the Rhode Island Zoning

Enabling Act of 1991 (P.L. 1991, ch. 307, § 1) (zoning enabling act).         Specifically, it is

nonconforming in three respects: lot size, lot coverage, and front setback. The record discloses

that in January 1992, the zoning board granted a dimensional variance to allow a former owner

of the property to maintain a deck and veranda that had been constructed without a permit and

that resulted in an increase in the building‟s lot coverage and a commensurate increase in its

dimensional nonconformity. Nonconforming lot coverage and the overall mass of the new

structure lay at the heart of this dispute.

        The Bardorfs purchased the property in December 2006. They planned to live there with

their three children and sought to construct a two-story addition that would include another

bedroom and expand the first floor. To avoid any “zoning issues,” the Bardorfs hired an

architect to develop plans that would conform to the zoning requirements. On May 31, 2007, the

Bardorfs filed an application for a special-use permit pursuant to §§ 17.72.030(C) and

17.108.020(G) of the Newport Ordinances. The application proposed the removal of a deck and

an existing two-story addition on the rear of their home and the construction of an addition

3
  R-10 zoning mandates a minimum lot area of 10,000 square feet with minimum lot width of
eighty feet; minimum setback requirements are fifteen-foot front line, ten-foot side line, and
twenty-foot rear line; and the portion of a lot covered by buildings shall not exceed 20 percent.
Code of Ordinances of the City of Newport Rhode Island §§ 17.20.030; 17.20.040; 17.20.050.
                                                    -2-
measuring twenty-two by thirty-four feet. The Bardorfs also sought to include a deck or veranda

off the second-floor bedroom, measuring four feet by eleven feet. The application stated that the

addition would otherwise comply with R-10 zoning setback requirements: it would not exceed

the thirty-foot height limitation and—because it would replace the previously-authorized veranda

and deck—respondents posited that it would result in an actual decrease in building lot coverage

from 36 percent to 34 percent. The petitioners objected to the application.

         The Bardorfs‟ application was considered by the zoning board at two meetings, on

October 11 and October 22, 2007.4 In addition to the testimony from the respective parties, both

sides presented real-estate experts.      Counsel for the Bardorfs asserted that, although the

applicants were seeking a special-use permit to construct the four-foot by eleven-foot second-

story deck, zoning relief was not necessary to build the addition because it was an alteration that

could be made “as a matter of right.”5 Section 17.72.030(C). According to counsel, the Bardorfs

applied for both a special-use permit and a variance to “cover[] all of the bases,” but, he

contended, according to the zoning ordinance, the Bardorfs were entitled to construct the

addition as “a matter of right” because it would not increase the dimensional nonconformity and

would otherwise conform to the zoning ordinance‟s dimensional requirements. The zoning

board did not pass on this argument, although the trial justice made reference to it in his decision.

4
  Before the board meetings, the application was approved by the Newport Historic District
Commission, which found that the plans were compatible with the surrounding neighborhood
and the house itself.
5
    Section 17.72.030(C), “Alteration to nonconforming development,” states, in pertinent part:

         “Excepting Proposed Decks * * *. Alteration to dimensionally nonconforming
         structures that otherwise conform to the use regulations of the zoning district shall
         be allowed as a matter of right if the alteration in and of itself: (1) conforms to
         the current dimensional requirements of the zoning district in which the property
         is located; and (2) does not increase or intensify the element(s) of the dimensional
         nonconformity.”
                                                 -3-
       The Bardorfs presented Peter M. Scotti (Scotti), a real-estate expert, who had reviewed

the proposed plans, inspected the property, and examined the petition and applicable zoning

regulations. He had considered the characteristics of the neighborhood, the site, the structure

itself, and the planning department‟s approval of the plans as consistent with Newport‟s

comprehensive plan. Scotti testified that lot size would remain the same, as would the setbacks;

the building footprint—its lot coverage—would diminish by approximately 2 percent.              He

concluded that the proposal met the standard set forth in the zoning ordinance‟s special-use

permit section.

       William E. Coyle III (Coyle) testified as a real-estate expert for petitioners. Like Scotti,

Coyle had visited the site, reviewed the proposed plans, the application, the neighborhood, and

reports from the planning department and the Historic District Commission. Unlike Scotti,

however, Coyle opined that the proposed addition on the rear of the Bardorfs‟ house would

reduce neighborhood property values, diminish the Lloyds‟ sunlight, and obstruct their view.

Although he maintained that the zoning board should “concern itself with the size and the mass”

of the structure to be situated on the lot, Coyle conceded that the zoning ordinance makes no

reference to the building mass in determining compliance with the Newport Ordinances.

       The zoning board unanimously approved the Bardorfs‟ application. The board issued a

written decision that set forth its findings and conclusions and declared that, based on the

testimony of the parties and their witnesses, as well as the Historic District Commission Staff

Report and the Newport planning board‟s determination that the proposal conformed to the city‟s

comprehensive community plan, the application was approved.6



6
  The zoning board‟s findings of fact tracked the language of the zoning ordinance and included
the following: the proposed alterations were compatible with the neighborhood and were in
harmony with the surrounding area; the physical improvements would be organized in a manner
                                               -4-
       The petitioners appealed the decision to the Superior Court; and, in a written decision, a

justice of the Superior Court affirmed the board‟s decision. The trial justice found no error on

the part of the zoning board in granting a special-use permit; he further found that the board did

not err in rejecting petitioners‟ contention that respondents were required to seek a dimensional

variance.      The trial justice concluded that there was sufficiently reliable, probative, and

substantial evidence on the record before the board to support its decision. An order affirming

the decision of the board was entered on September 9, 2009, and judgment entered nunc pro tunc

on December 1, 2011.7

       In his decision, the trial justice first addressed petitioners‟ argument that the zoning board

erred in failing to require respondents to seek dimensional relief in conjunction with this

application.     The trial justice correctly observed that a special use may coexist with a

dimensional variance only if both forms of relief coextensively are allowed by the municipality‟s

ordinance and that the Newport Ordinances do not contain such a provision; he also found that

the zoning board did not err when it refused to apply the dimensional variance standard of review

to this application and that the decision of the board was not affected by error of law.

       The trial justice also rejected petitioners‟ argument that respondents may not alter their

building because the addition would increase or intensify the existing nonconformity associated


that would allow reasonable use and enjoyment of the property; the improvements would be of
an appropriate size and scale as shown on the plans and had earned the approval of the Historic
District Commission; the percentage of lot coverage would decrease as a result of the
improvement to the structure, and all improvements would conform to all minimum setback
requirements; the proposed alterations would not increase or intensify the elements of the
property‟s dimensional nonconformities; and the relief sought was a special-use permit.
7
  The record reflects that judgment was entered in September 2009, but only as to NC 06-467,
the case involving petitioners‟ own application for a special-use permit. Consequently, judgment
for this matter, NC 07-621, was necessarily nunc pro tunc. See Black‟s Law Dictionary 920 (9th
ed. 2009) (“A judgment entered on a day after the time when it should have been entered, as of
the earlier date.”).
                                                -5-
with building lot coverage. Throughout these proceedings, an increase in the structure‟s size or

overall mass has been characterized as the “building envelope.” The petitioners have argued

before the zoning board, in Superior Court, and again before this Court, that an increase in a

structure‟s mass or “building envelope” is tantamount to an increase in building lot coverage

under the ordinance. The trial justice contrasted the definitions of “building envelope” and “lot

building coverage” as set forth in the zoning ordinance. He noted that § 17.08.010 of the zoning

ordinance defines the term “[b]uilding envelope” as “the three-dimensional space within which a

structure is permitted to be built on a lot and which is defined by regulations governing building

setbacks, maximum height, and bulk” and that the term “lot building coverage” was defined as

“that portion of the lot that is or may be covered by buildings and accessory buildings.” 8 He

concluded that each term has independent meaning and that the terms were not intended to be

used interchangeably.

       Before this Court, petitioners contend that the zoning ordinance was misapplied and that

the Bardorfs should have been required to obtain a dimensional variance rather than a special-use

permit. Second, petitioners assert that allowing the Bardorfs to make use of lot coverage that

was authorized by a previously-obtained dimensional variance was error. Third, petitioners

argue that the failure to evaluate whether the proposed addition would constitute an

intensification of the nonconforming lot coverage was erroneous. Finally, petitioners maintain

that the record evidence does not support the granting of a special-use permit. We address these

issues seriatim.




8
  These definitions are synonymous with the definitions set forth in G.L. 1956 § 45-24-31(11),
(40).
                                              -6-
                                        Standard of Review

       When an aggrieved party appeals a decision of a zoning board of review to the Superior

Court, the Superior 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.” Section 45-24-69(d). On appeal, the

Superior Court may

               “[r]everse 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.” Id.

It is the function of the Superior Court to “examine the whole record to determine whether the

findings of the zoning board were supported by substantial evidence.” Apostolou v. Genovesi,

120 R.I. 501, 507, 388 A.2d 821, 824 (1978). Substantial evidence has been defined “as more

than a scintilla but less than a preponderance.” Id. at 508, 388 A.2d at 824-25. The trial justice

may not “substitute [his or her] judgment for that of the zoning board if [he or she] can

conscientiously find that the board‟s decision was supported by substantial evidence in the whole

record.” Id. at 509, 388 A.2d at 825.

       On certiorari, this Court confines its review to a determination of whether the trial justice



                                               -7-
acted within the authority granted to the Superior Court under the statute. Sciacca v. Caruso, 769

A.2d 578, 582 (R.I. 2001); see also Almeida v. Zoning Board of Review of Tiverton, 606 A.2d

1318, 1320 (R.I. 1992). We must “scrutinize the record as a whole to determine „whether legally

competent evidence exists to support the findings of the court below.‟” Mill Realty Associates v.

Crowe, 841 A.2d 668, 672 (R.I. 2004) (quoting Caswell v. George Sherman Sand & Gravel Co.,

424 A.2d 646, 648 (R.I. 1981)); see also Toohey v. Kilday, 415 A.2d 732, 735 (R.I. 1980). This

Court will not disturb a decision unless it is shown that the Superior Court justice “misapplied

the law, misconceived or overlooked material evidence, or made findings that were clearly

wrong.” Lischio v. Zoning Board of Review of North Kingstown, 818 A.2d 685, 690 (R.I. 2003)

(quoting Bernuth v. Zoning Board of Review of New Shoreham, 770 A.2d 396, 399 (R.I. 2001));

see also R.J.E.P. Associates v. Hellewell, 560 A.2d 353, 354 (R.I. 1989).

                                            Analysis

                                Expansion as a Matter of Right

       We address at the outset the argument that respondents were entitled to expand their

dimensionally nonconforming development “as a matter of right” and whether the zoning board

made such a determination. Specifically, ordinance provision § 17.72.030(C) contains three

discrete paragraphs which are not identified separately; we shall refer to them as paragraphs one,

two, and three of § 17.72.030(C). Section 17.72.030(C) provides:

               “No nonconforming use of land or nonconforming use of a
               structure shall be changed except to a conforming use or structure.
               No nonconforming use of land or nonconforming use of a
               structure, if once changed to conform, shall thereafter be changed
               so as to be nonconforming by use again.

                       “Dimensionally nonconforming―Excepting Proposed
               Decks (as defined in the Rhode Island State Building Code and
               regulations adopted thereby). Alteration to dimensionally
               nonconforming structures that otherwise conform to the use

                                              -8-
               regulations of the zoning district shall be allowed as a matter of
               right if the alteration in and of itself: (1) conforms to the current
               dimensional requirements of the zoning district in which the
               property is located, and (2) does not increase or intensify the
               element(s) of the dimensional nonconformity.

                       “A structure or land which is nonconforming by dimension,
               but the use of which is a use permitted by right in the district in
               which the land or structure is located, shall only be altered,
               changed, enlarged or subject to addition or intensification with
               respect to its nonconforming element(s) by obtaining a special use
               permit from the zoning board of review.”

       Accordingly, an expansion of a nonconforming structure that falls within paragraph two

of § 17.72.030(C) is allowed “as a matter of right” and does not require application to or

approval by the zoning board; a building permit generally is granted by the appropriate building

official. In this case, respondents applied for and received a special-use permit from the zoning

board in order to construct a significant addition to a dimensionally nonconforming structure.

By doing so, they invoked the jurisdiction of the zoning board. In issuing its decision, the board

did not declare, as petitioners contend, that respondents were entitled to the expansion “as a

matter of right.” Rather, the board applied the appropriate criteria set forth in the zoning

ordinance for the grant of a special-use permit. Therefore, we are satisfied that the trial justice

erred when he concluded that the zoning board allowed the expansion “as a matter of right.”

This error is of no moment, however, because the trial justice also carefully examined the

sufficiency of the zoning board‟s decision in light of the criteria set forth in the zoning ordinance

and concluded that the special-use permit properly was granted.

                                     The Special-Use Permit

       The petitioners assert that both the zoning board and the trial justice erred in applying the

standard governing a special-use permit to the Bardorfs‟ application. The Bardorfs argue that

they applied for both a special-use permit and a variance only to “cover[] all of the bases” and

                                                -9-
that they were seeking a special-use permit only to construct the second-story deck. They argue

that they did not need zoning relief to construct the remaining portion of the addition because it

was an alteration that could be made “as a matter of right.” However, this “belt and suspenders”

argument is not supported by the record before this Court. The respondents‟ written application

makes no reference to a second-story deck, nor does it suggest that they are entitled to this relief

as a matter of right. Accordingly, we are satisfied that respondents sought and obtained a

special-use permit for their proposed project. Therefore, we shall address whether a special-use

permit was the appropriate relief and, if so, whether it properly was granted.

       The zoning enabling act, set forth in chapter 24 of title 45 of the General Laws, mandates

that local zoning ordinances provide for the issuance of special-use permits, to be approved by

the zoning board of review. See § 45-24-42(a). Generally, a special-use permit relates to a

specific use the owner wishes to undertake on the parcel―a use that is not allowed under the

ordinance absent zoning board approval. See § 45-24-31(57) (defining “special use” as “[a]

regulated use which is permitted pursuant to the special-use permit issued by the authorized

governmental entity, pursuant to § 45-24-42”).

       In addition to establishing procedural requirements for obtaining a special-use permit,

municipal zoning ordinances must:

               “(1) Specify the uses requiring special-use permits in each district;

               “(2) Describe the conditions and procedures under which special-
               use permits, of each or [sic] the various categories of special-use
               permits established in the zoning ordinance, may be issued;

               “(3) Establish criteria for the issuance of each category of special-
               use permit that shall be in conformance with the purposes and
               intent of the comprehensive plan and the zoning ordinance of the
               city or town;

               “(4) Provide for public hearings and notification of the date, time,

                                               - 10 -
              place, and purpose of those hearings to interested parties * * *;

              “(5) Provide for the recording of findings of fact and written
              decisions; and

              “(6) Provide that appeals may be taken pursuant to § 45-24-70.”
              Section 45-24-42(b).

The Newport Ordinances, however, are not confined to proposed uses; the Newport Ordinances

also require a special-use permit in order to expand a dimensionally nonconforming structure.

Although this approach may give rise to confusion, the ordinance specifically provides that an

alteration of a nonconforming development requires a special-use permit as set forth in

§ 17.72.030(C).9   The criteria for the issuance of a special-use permit is set forth in

§ 17.108.020(G), which provides:

              “Special use permits shall be granted only where the zoning board
              of review finds that the proposed use or the proposed extension or
              alteration of an existing use is in accord with the public
              convenience and welfare, after taking into account, where
              appropriate:

                      “1. The nature of the proposed site, including its size and
              shape and the proposed size, shape and arrangement of the
              structure;

                      “2. The resulting traffic patterns and adequacy of proposed
              off-street parking and loading;

                     “3. The nature of the surrounding area and the extent to
              which the proposed use or feature will be in harmony with the
              surrounding area;

                     “4. The proximity of dwellings, churches, schools, public
              buildings and other places of public gathering;




9
  The language of § 17.72.030(C), “Alteration to nonconforming development,” is provided
above.


                                              - 11 -
                      “5. The fire hazard resulting from the nature of the
               proposed buildings and uses and the proximity of existing
               buildings and uses;

                      “6. All standards contained in this zoning code;

                      “7. The comprehensive plan for the city.”

       Thus, any decision by a zoning authority granting or denying a special-use permit must

be based on a finding that the proposed use or extension or alteration of an existing use “is in

accord with the public convenience and welfare.” Section 17.108.020(G). This Court has

declared that these standards essentially are conditions precedent to the board‟s exercise of its

authority to act affirmatively on an application for a special-use permit. See Guiberson v.

Roman Catholic Bishop of Providence, 112 R.I. 252, 258, 308 A.2d 503, 506 (1973). When the

conditions precedent are satisfied, it is an abuse of discretion to deny the requested special-use

permit. See Salve Regina College v. Zoning Board of Review of Newport, 594 A.2d 878, 882

(R.I. 1991).

       In this case, petitioners argue that the dimensional variance standard is more stringent

than that required for a special-use permit; we disagree. According to § 17.108.010(B)(5) of the

ordinance,

               “[i]n granting a [dimensional] variance, the zoning board of review
               shall require that evidence of the following standards shall be
               entered into the record of the proceedings:

               “a. That the reasons set forth in the application justify the granting
               of the variance and that the variance, if granted, is the minimum
               variance that will make possible the reasonable use of the land,
               building or structure;

               “b. That the variance will not be injurious to the neighborhood or
               otherwise detrimental to the public welfare, and will not impair the
               intent or purpose of the zoning code or the comprehensive plan
               upon which this zoning code is based;



                                               - 12 -
               “c. That the hardship from which the applicant seeks relief is due
               to the unique characteristics of the subject land or structure and not
               to the general characteristics of the surrounding area; and is not
               due to a physical or economic disability of the applicant; and

               “d. That the hardship is not the result of any prior action of the
               applicant and does not result primarily from the desire of the
               applicant to realize greater financial gain.” See also § 45-24-
               41(d)(2) (“[I]n granting a dimensional variance, * * * the hardship
               suffered by the owner of the subject property if the dimensional
               variance is not granted amounts to more than a mere
               inconvenience.” (Emphases added.)); Lischio, 818 A.2d at 693.

Although petitioners insisted that the Bardorfs were required to seek a dimensional variance, the

zoning board declined to apply this standard to the Bardorfs‟ application. The trial justice agreed

with the zoning board. Our careful review of the relevant ordinances convinces us that a special-

use permit was the appropriate relief in this case.

       The record is clear: respondents sought zoning board approval to alter and increase a

dimensionally nonconforming development, as that term is defined in the ordinance. According

to the ordinance, the appropriate form of relief for a party seeking to expand a dimensionally

nonconforming structure is a special-use permit. We conclude that the zoning board granted the

application that was before it, a special-use permit.

                                        The 1992 Variance

       The petitioners next allege that the trial justice overlooked “the effect of the sources” of

the nonconforming lot coverage.        According to petitioners, the trial justice should have

considered how the parcel “came to be so significantly overburdened.” This argument centers on

the 1992 dimensional variance and whether that variance, which increased lot coverage by

5 percent, was a factor that should have been considered in granting the special-use permit or

whether it was a disqualifying event.        Specifically, petitioners contend that the Bardorfs

improperly were permitted to bootstrap “the mere authorization of a harmless deck pursuant to


                                               - 13 -
the 1992 [v]ariance into a very broad authorization for a two-story building,” which, they

contend, is in contravention of § 17.72.030(D) of the Newport Ordinances.10 The petitioners

argue that any alteration to the deck that was the subject of the 1992 dimensional variance could

only occur if further dimensional relief was granted. We deem this incorrect.

       This Court previously has declared that “a dimensional variance [may] be granted only in

connection with the enjoyment of a legally permitted beneficial use, [and] not in conjunction

with a use granted by special permit.” Newton v. Zoning Board of Review of Warwick, 713

A.2d 239, 242 (R.I. 1998). After our decision in Newton, the Legislature amended chapter 24 of

title 45 to address situations in which both dimensional variances and special-use permits could

be allowed, but only if the zoning ordinance so provided. Section 45-24-42(c) provides:

                      “The ordinance additionally may provide that an applicant
               may apply for, and be issued, a dimensional variance in
               conjunction with a special use. If the special use could not exist
               without the dimensional variance, the zoning board of review shall
               consider the special use permit and the dimensional variance
               together to determine if granting the special use is appropriate
               based on both the special use criteria and the dimensional variance
               evidentiary standards.”

Meanwhile, § 45-24-41(d)(2) provides, in pertinent part, that “[t]he zoning board of review has

the power to grant dimensional variances where the use is permitted by special use permit if

provided for in the special use permit sections of the zoning ordinance.”

       Reading these sections together, we agree with the trial justice that the General Assembly

intended that a use granted by special-use permit may coexist with a dimensional variance only

when a municipality‟s zoning ordinance so provides. The Newport Ordinances do not allow a

special-use permit and dimensional variance to be granted in conjunction with each other. In this



10
  Section 17.72.030(D) reads: “A use established by variance or special use permit shall not
acquire the rights of this section.”
                                              - 14 -
case, however, the dimensional variance was granted fifteen years before application was made

for a special-use permit. This circumstance is inapposite to our holding in Newton, 713 A.2d at

240, because, in this case, respondents did not seek permission to engage in a use of the property

that required the approval of the zoning board. The respondents applied for permission to

expand a dimensionally nonconforming structure—for a permitted use—and that was the issue

that was addressed by the zoning board. The board agreed with respondents that the percentage

of lot coverage would decrease as a result of the proposed addition and that the proposal,

including the second-floor deck, constituted “minimum requests for the reasonable use of the

property.” We discern no error in this conclusion.

       Furthermore, contrary to petitioners‟ contention, the 1992 dimensional variance was

neither limited nor conditioned in any way, and there is no evidence that any express terms or

special conditions were incorporated into the board‟s approval. See § 45-24-43 (providing, in

pertinent part, that where a zoning board of review grants a variance, the board may apply

special conditions that “may include, but are not limited to, provisions for * * * [m]inimizing the

adverse impact of the development upon other land”); see also Town of Warren v. Frost, 111 R.I.

217, 220, 301 A.2d 572, 573 (1973) (noting that the enabling legislation authorized a zoning

board to impose “reasonable conditions” when granting a variance). In this case, the application

sought “a variance to the dimensional requirements for permission to maintain a 12‟ X 13‟

veranda and an 8‟ X 13‟ porch.” However, petitioners argue that the variance merely allowed

the owners to “maintain” the structure and that if the deck is not preserved or “maintained,” the

variance is lost. We disagree. The 1992 decision that allowed a prior owner to maintain a deck

and veranda means simply that: the deck and veranda originally were built in contravention of

the zoning ordinance, such that the owners were required to obtain a dimensional variance in



                                              - 15 -
order to preserve the structure. There were no express conditions attached to the relief granted

by the board.

          We are of the opinion that neither the Superior Court nor the zoning board erred as a

matter of law in allowing the Bardorfs to utilize the expanded lot coverage authorized by this

1992 dimensional variance.

                                Intensification of the Nonconformity

          The petitioners next argue that the two-story addition11 to a dimensionally

nonconforming structure would “increase or intensify” the nonconformity associated with lot

building coverage and was erroneously granted by the zoning board.12 The petitioners suggest

that an increase in the mass of a structure or in the square footage of a structure‟s “building

envelope” is akin to an increase in a structure‟s “lot building coverage,” even with no change in

the “footprint” of the building. In fact, petitioners contend that the mass of a structure, or its

density or bulk, must be taken into consideration when calculating the portion of the lot covered

by buildings. Although these factors may be good policy considerations, they are not addressed

in the Newport Ordinances.

          The petitioners‟ contention that an increase in the three-dimensional space above the site

of the proposed addition would “intensify” the building lot coverage wholly depends on whether

“building envelope” and “lot building coverage” are synonymous terms. The zoning board,

however, did not accept that proposition. Rather, the zoning board concluded that, despite an

increase in “bulk” of the overall structure, the proposed two-story addition would result in a



11
     At oral argument, it was revealed that the addition has been constructed.
12
  The Newport Ordinances do not define “intensification,” which appears in § 17.72.030(C),
“Alteration to nonconforming development.”


                                                 - 16 -
decrease in “lot coverage.”     Unfortunately for petitioners, the bulk or overall mass of the

structure are not proper considerations under Newport‟s zoning ordinance.

       The trial justice likewise rejected petitioners‟ argument that the Bardorfs were precluded

from altering the structure because it would increase or intensify the existing nonconformity

associated with lot building coverage. The Newport Ordinances define “lot building coverage”

as “that portion of the lot that is or may be covered by buildings and accessory buildings.”

Section 17.08.010. That definition is confined to the two-dimensional lot coverage and is

distinct from the definition of “building envelope,” which is defined in terms of three-

dimensional space. The zoning ordinance fails to address building density. Therefore, the trial

justice reasoned that, “[b]ased on the unambiguous language of § 17.08.010 of the Newport

[Ordinances] and its corollary, § 45-24-31 of the [G]eneral [L]aws, it is clear that the drafters of

the [zoning ordinance] did not intend for the terms „building envelope‟ and „lot building

coverage‟ to be employed interchangeably.” We agree with the trial justice‟s reasoning: “„Lot

building coverage‟ is a two-dimensional concept, encompassing the total area of the lot covered

by buildings and accessory buildings; it does not contemplate a vertical dimension.” In fact, as

the trial justice observed, this conclusion is consistent with the zoning ordinance‟s definition of

“lot” as “[a] parcel of land whose boundaries have been established by some legal instrument.”

Section 17.08.010.

       We discern no error in the trial justice‟s analysis.      The zoning ordinance does not

contemplate a calculation of building mass or three-dimensional spaces in the criteria for

alterations of dimensionally nonconforming structures. The city could, of course, consistent with

its enabling authority, more carefully define “intensification” or amend its zoning ordinance to

incorporate a three-dimensional calculation into lot coverage concepts and thereby more



                                               - 17 -
equitably, and perhaps more fairly, evaluate proposals such as those contained in respondents‟

application for zoning relief.13

                                                  D

                                   Sufficiency of Record Evidence

       Finally, petitioners contend that the zoning board‟s analysis was incomplete and that the

grant of the special-use permit was therefore erroneous. In addition, petitioners argue that the

evidence did not support the ultimate conclusion. In support of these contentions, petitioners cite

to the expert testimony they proffered at the zoning board hearing.

       The trial justice reviewed the evidence and determined that the zoning board‟s decision

was “amply supported by legally competent record evidence.” He concluded that the members

of the board “made an informed and record-supported decision after reviewing the conflicting

expert testimony [and] that the requirements of § 17.108.020(G)(1) of the Newport Code had

been satisfied.” It is well settled that a fact-finder is free to accept or reject the testimony of an

expert witness. Restivo v. Lynch, 707 A.2d 663, 671 (R.I. 1998) (citing Kyle v. Pawtucket

Redevelopment Agency, 106 R.I. 670, 673, 262 A.2d 636, 637-38 (1970)). In this case, the

zoning board accepted the testimony of the respondents‟ expert witness, a decision that was

within the board‟s discretion. The trial justice carefully and comprehensively considered the

13
  For instance, Barrington‟s ordinance provides that “[a]ny increase in the volume or intensity of
use unaccompanied by a structural change of the premises shall not be considered an extension,
addition to or enlargement of a nonconforming use.” Barrington Zoning Ordinance, § 185-
33(A). Additionally, the Bristol Code of Ordinances explains that “[a] conforming use within a
building or structure which is nonconforming by dimension may be intensified, provided that
such intensification is in conformance with the use and lot area per dwelling unit regulations, if
applicable, for the zone in which it is located.” Bristol Code of Ordinances, Art. VII, Sec. 28-
219(6) entitled “Building or structure nonconforming by dimension”; see also North Kingstown
Code of Ordinances, § 14.3 (regulating “massing” of buildings, which is defined in Article 2.0 of
the ordinances as “[t]he three dimensional bulk of a structure consisting of its height, width, and
depth”); Westerly Code of Zoning Ordinances, § 260-64(G)(1), (2) (regulating “massing” and
“bulk” of certain buildings).
                                                - 18 -
evidence and he neither misconceived nor overlooked any material evidence. It is apparent that

legally competent evidence exists to support his findings.

                                           Conclusion

       For the reasons stated, we affirm the judgment and direct that the papers in this case be

remanded to the Superior Court with our decision endorsed thereon.




                                              - 19 -
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        W. Bart Lloyd et al. v. Zoning Board of Review for the City of
                      Newport et al.

CASE NO:              No. 2009-303-M.P.
                      (NC 07-621)

COURT:                Supreme Court

DATE OPINION FILED: March 29, 2013

JUSTICES:             Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia JJ.

WRITTEN BY:           Associate Justice Maureen McKenna Goldberg

SOURCE OF APPEAL:     Newport County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Edward C. Clifton

ATTORNEYS ON APPEAL:

                      For Plaintiff: Stephen M. Richard, Esq.

                      For Defendant: Turner C. Scott, Esq.
