                                                                        Supreme Court

                                                                        No. 2011-338-M.P.
                                                                        (PC 09-1565)

          Steven Iadevaia                    :

                 v.                          :

Town of Scituate Zoning Board of Review.     :




             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. 2011-338-M.P.
                                                                             (PC 09-1565)

           Steven Iadevaia                       :

                   v.                            :

Town of Scituate Zoning Board of Review.         :

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

                                          OPINION

       Chief Justice Suttell, for the Court. This Court issued a writ of certiorari to review a

judgment of the Superior Court affirming a decision by the Town of Scituate Zoning Board of

Review (zoning board). The petitioner, Steven Iadevaia, had applied to the Scituate Building

Official for a building permit, which was denied due to, inter alia, a lack of street frontage. The

petitioner then appealed the building official’s denial to the zoning board and, alternatively,

applied for a dimensional variance. The zoning board denied both the petitioner’s appeal and his

request for a dimensional variance, and the Superior Court affirmed. For the reasons set forth in

this opinion, we vacate the judgment of the Superior Court.

                                                I

                                 Facts and Procedural History

       The petitioner is the owner of a 9.09-acre parcel of land (the parcel), located east of

Chopmist Hill Road in the Town of Scituate (town). The parcel was conveyed to him by his

parents on February 26, 1982, by a deed describing the parcel as “[a] certain lot or tract of

woodland,” and then describing the boundaries of the property by its contiguous landowners.

The deed continued:

                     “However otherwise bounded and described, said lot is
               comprised of those two certain lots of land on the easterly side of
                                               -1-
               Chopmist Hill Road as are numbered 1 (one) and 2 (two) in the
               Division of the Estate of Ezekiel Bishop, late of the Town of
               Scituate, deceased, and recorded in Scituate Land Records in Plat
               Book 1 at page 19.” 1

This latter reference is to a plat map recorded in 1848 depicting the 9.09-acre parcel as two

discrete, landlocked lots. When the town adopted a zoning ordinance on December 30, 1965, it

implemented the tax assessor’s map as the zoning ordinance map. Unlike the 1848 plat map

which depicted petitioner’s parcel as two separate lots, the tax assessor’s map identified the

parcel as Assessor’s Plat No. 35, lot No. 24, a single, 9.09-acre lot of land.

       In 1983, petitioner’s neighbors, Serafino and Anna Raponi, requested a dimensional

variance from the zoning board in order to sell a fifty-foot strip of land to petitioner. The

petitioner appeared before the zoning board and stated that he needed the strip of land to access

his adjacent, landlocked parcel, on which he wanted to build a house. 2 On October 25, 1983, the

zoning board granted the variance to the Raponis; they then sold the land to petitioner, thereby

providing him access to his property from Chopmist Hill Road.

       In 2006, petitioner appeared before the Town of Scituate Plan Commission (plan

commission) and applied for a subdivision of his 9.09 acres into two separate lots.

Notwithstanding the fact that he applied for the subdivision, petitioner contends that he was

simply clarifying to the plan commission the existence of two lots, as described in his deed and

as depicted in the 1848 plat map.         In support of his contention, petitioner referenced a



1
  The petitioner submitted to the zoning board six previous deeds recorded as far back as 1929,
each of which contain nearly identical descriptions of the property.
2
  The minutes from the 1983 zoning board meeting read, in part:
               “[Petitioner] said he wants to purchase a 50′ strip of land to have
               access to his 9 acres which is land locked [sic]. He wants to build
               a house in the future. * * * Hans Bergey asked how long
               [petitioner] has owned his lot? He said his parents gave it to him
               in 1982 and his parents has [sic] owned since 1971.”
                                                -2-
memorandum from the building official, David Provonsil, to the plan commission dated March

16, 2006, stating that he (Provonsil) believed that petitioner’s property has “probably” always

contained two lots. 3 Minutes from the 2006 plan commission meeting read, in part:

              “[Petitioner] explained that his father purchased this piece and a lot
              with the school on Chopmist Hill Road. [Building Official] David
              Provonsil explained that each of the original lots have a description
              in the deeds.       David Provonsil made a motion to send
              correspondence to the Tax Assessor regarding the reestablishment
              of Plat 34 Lot 24 to [two] separate lots as the 1848 recorded plat.”

The plan commission granted the application, resulting in the creation of Plat No. 35, lot No. 65

(the unimproved lot), as identified on the 2006 tax assessor’s map. The petitioner’s lot No. 24

(the improved lot), which had previously encompassed the entire 9.09 acres, now consists of

roughly five acres and contains petitioner’s house, accessible from Chopmist Hill Road by way

of the fifty-foot strip of land purchased from the Raponis in 1983. The newly recognized,

approximately four-acre unimproved lot directly adjacent to the improved lot, is landlocked.

       On October 21, 2008, petitioner submitted an application to the Scituate Building Official

to build a single-family home on the unimproved lot. On October 28, 2008, the building official

denied petitioner’s request. The building official cited numerous deficiencies with petitioner’s

proposed plans, including a lack of street frontage.       The building official found that the

unimproved lot “[h]as no street frontage, therefore no width[,] therefore is not eligible for a

Building Permit under Article IV – Section 3 of the Zoning Ordinance.” 4



3
  The memorandum states in part: “[petitioner’s property] probably has ‘2 lots’ – because of
recorded plat; Even though 50’s/60’s Assessor map shows [one lot] they cannot merge; Town
would need ‘proof/possitive’ [sic] that an Owner of Record asked lots to be merged.”
4
  Article IV – Section 3 of the Town of Scituate Zoning Ordinance, entitled “Substandard lots of
record,” provides in pertinent part:
                       “Except for lots on recorded plats which have received
               final approval from the plan commission pursuant to the ordinance
               and rules and regulations governing and restricting the platting and
                                              -3-
       The petitioner then filed an appeal to the Town of Scituate Zoning Board of Review,

arguing that the zoning ordinance does not mandate frontage and that the unimproved lot met all

the dimensional requirements in its particular zoning district (RR-120). 5 Alternatively, in the

event that the zoning board determined that there is a frontage requirement, petitioner applied for

a dimensional variance for lot width and height on the unimproved lot. On January 27, 2009, the

zoning board held a hearing for the two companion cases. The zoning board unanimously denied

both petitioner’s appeal and request for variance, and on February 27, 2009, issued its findings of

fact in an eight-page written decision.

       In denying petitioner’s appeal, the zoning board determined that the building official was

correct in his conclusion that the zoning ordinance contains a frontage requirement.              The

dimensional regulations for zoning district RR-120 do not explicitly require frontage, but the

zoning board extrapolated a frontage requirement from the “lot width” requirement. Article

IX(45) of the Town of Scituate Zoning Ordinance defines “lot width” as “[t]he horizontal

distance between the side lines of a lot measured at right angles to its depth along a straight line

parallel to the front lot line at the minimum front setback line”; “front lot line” is defined as

“[t]he lot line separating a lot from a street right of way.” Id. Art. IX(43)(a). Reading these two

definitions together, the zoning board concluded that “a lot must possess frontage although there

is no minimum dimension.” The zoning board reasoned that because the unimproved lot is

landlocked, it has “no lot line that exists along a street right-of-way, thus, [it] has no frontage

* * * .” The zoning board therefore upheld the building official’s denial of a building permit.



               other subdivision of land, no lot area shall be reduced below the
               dimensional requirements prescribed for the district in which the
               lot is located.”
5
  The petitioner did not appeal the other deficiencies to the zoning board, and thus those issues
were not before the Superior Court.
                                               -4-
       In addition to denying petitioner’s appeal, the zoning board also denied petitioner’s

application for a height and width dimensional variance. 6 The zoning board found that it was

petitioner’s application for a subdivision to the plan commission in 2006 that resulted in the

landlocked unimproved lot, thereby creating the hardship, i.e., the lack of frontage, necessitating

the variance. Additionally, the zoning board found that petitioner had “already received the

benefit of zoning relief” when he purchased the strip of land from the Raponis in 1983 to

construct a house. 7 With respect to the issue of merger, the zoning board ruled:

               “[W]hile the record of evidence is not clear as to whether or not
               the two smaller lots were merged by [petitioner] or his
               predecessors in title, (there is no municipal merger
               ordinance/requirement), [petitioner] clearly believed that he had a
               single 9.09 acre parcel in 1983 when he [sic] applied for [z]oning
               relief to build his residence.[8] The relief granted to [petitioner] in
               1983 was based on [petitioner’s] testimony that he had a 9.09 acre
               woodland lot which was landlocked (hence the request for the 50′
               strip of land for access). Therefore, the issue of merger is not
               dispositive to the [b]oard’s decision.”

       On March 18, 2009, petitioner filed a complaint in Superior Court appealing the zoning

board’s denial of both his appeal of the building official’s decision and his request for a

dimensional variance, 9 and on April 19, 2010, the trial justice issued a written decision

upholding both of the zoning board’s rulings. The trial justice agreed with the zoning board’s

interpretation of the ordinance as requiring frontage and found that petitioner’s parcel did not

have the frontage required. With respect to the dimensional variance, the trial justice found that

6
  The petitioner did not appeal the denial of a height variance to the Superior Court.
7
  The zoning board noted that, despite the plan commission’s grant of the subdivision, it “did not
grant the [petitioner] the right to apply to the [zoning board] for a variance on property he’s
already using as a single-family residence” and, even if it had, the zoning board was not bound
by the plan commission’s decision to subdivide the property.
8
  We note that it was not petitioner who filed for zoning relief in 1983; rather it was the Raponis,
albeit for the benefit of petitioner.
9
  “An aggrieved party may appeal a decision of the zoning board of review to the [S]uperior
[C]ourt for the county in which the city or town is situated * * * .” G.L. 1956 § 45-24-69(a).
                                                -5-
the zoning board had correctly concluded that petitioner’s unimproved lot was not a buildable lot

because (1) the plan commission did not create a lot for purposes of the zoning ordinance, and

(2) petitioner “failed to submit satisfactory evidence that he did not create his own hardship

because of his prior actions * * * .”

       On January 7, 2011, the trial justice granted petitioner’s motion for reconsideration of her

decision, but on June 16, 2011, she issued a second written decision in which she declined to

vacate the April 19, 2010 decision. In his motion for reconsideration, petitioner asserted that he

had always owned and treated the 9.09-acre parcel as containing two separate lots and that the

two lots had never merged. The trial justice disagreed, finding that “there is ample evidence on

the record that supports the [z]oning [b]oard’s finding that [petitioner] treated his property as one

lot.” 10 She also reiterated her original finding that petitioner’s 2006 subdivision was a self-

created hardship. The trial justice then invoked the doctrine of judicial estoppel, precluding

petitioner from arguing that the zoning board should have determined that the parcel had always

consisted of two lots and had never merged.

       On September 30, 2011, the trial justice entered final judgment in accordance with Rule

54 of the Superior Court Rules of Civil Procedure. The petitioner then filed a petition for a writ

of certiorari, which this Court granted on February 2, 2012. Before us, petitioner argues that: (1)

the two lots on his property are separate and have never merged; (2) without such a merger,

petitioner could not have created his own hardship; (3) the zoning ordinance does not contain a

dimensional requirement for lot frontage; (4) the zoning board’s use of the “lot width” definition

to impose a frontage requirement violates Rhode Island Supreme Court precedent; (5) assuming

the zoning ordinance does require frontage, he is entitled to dimensional relief for the landlocked

10
   The trial justice specifically referred to the 1965 zoning map, the property deed, petitioner’s
testimony before the zoning board in 1983, and the ownership history of the property.
                                                -6-
lot; (6) he never treated his property inconsistently and the trial justice’s invocation of judicial

estoppel was an abuse of discretion; and (7) the trial justice abused her discretion by relying on

evidence not advanced by the zoning board.

                                                II

                                       Standard of Review

       The Superior Court’s authority to review a zoning board’s decision derives from G.L.

1956 § 45-24-69(d), which provides:

                       “The [Superior] [C]ourt 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.”

“On a petition for certiorari from a Superior Court judgment that has entered after an appeal from

a municipal zoning board’s decision, we confine our review to a determination of whether the

trial justice acted within his or her authority as set forth in § 45-24-69.” Sciacca v. Caruso, 769

A.2d 578, 582 (R.I. 2001). When reviewing a trial court’s zoning decision, this Court “[does]

not weigh the evidence; instead we review the record to determine whether substantial evidence

existed to support the Superior Court justice’s decision.” Pawtucket Transfer Operations, LLC v.

City of Pawtucket, 944 A.2d 855, 859 (R.I. 2008) (quoting OK Properties v. Zoning Board of



                                               -7-
Review of Warwick, 601 A.2d 953, 955 (R.I. 1992)). Substantial evidence is defined as “such

relevant evidence that a reasonable mind might accept as adequate to support a conclusion, and

means [an] amount more than a scintilla but less than a preponderance.” Id. (quoting Caswell v.

George Sherman Sand & Gravel Co., 424 A.2d 646, 647 (R.I. 1981)). “We do not reverse a

Superior Court justice’s decision unless it can be shown that the justice misapplied the law,

misconceived or overlooked material evidence, or made findings that were clearly wrong.” Id.

(quoting von Bernuth v. Zoning Board of Review of New Shoreham, 770 A.2d 396, 399-400

(R.I. 2001)).

       A trial justice has the discretion to invoke judicial estoppel “when he or she finds that a

party’s inconsistent positions would create an unfair advantage.” State v. Lead Industries

Association, Inc., 69 A.3d 1304, 1310 (R.I. 2013). Therefore, “our review is deferential and

considers whether judicial acceptance of that party’s subsequent position would be perceived as

misleading as to either the first or second court,” id. at 1310-11, and this Court will not disturb a

trial justice’s invocation of judicial estoppel absent an abuse of discretion.

                                                 III

                                              Analysis

                                                  A

                                         Judicial Estoppel

       This Court has often recognized the judicial estoppel doctrine. See, e.g., Gaumond v.

Trinity Repertory Co., 909 A.2d 512, 519 (R.I. 2006); D & H Therapy Associates v. Murray, 821

A.2d 691, 693-94 (R.I. 2003). We have also applied the principle of judicial estoppel to zoning

cases. See Pascalides v. Zoning Board of Review of Cranston, 97 R.I. 364, 369, 197 A.2d 747,

751 (1964) (precluding applicant from claiming his parcel was two separate lots after having



                                                 -8-
previously treated the parcel as one lot to obtain zoning relief). “The invocation of judicial

estoppel is ‘driven by the important motive of promoting truthfulness and fair dealing in court

proceedings.’” Lead Industries Association, Inc., 69 A.3d at 1310 (quoting D & H Therapy

Associates, 821 A.2d at 693). “Unlike equitable estoppel, which focuses on the relationship

between the parties, judicial estoppel focuses on the relationship between the litigant and the

judicial system as a whole.” Id. (quoting D & H Therapy Associates, 821 A.2d at 693).

“Because the rule is intended to prevent improper use of judicial machinery, * * * judicial

estoppel is an equitable doctrine invoked by a court at its discretion.” Gaumond, 909 A.2d at 519

(quoting New Hampshire v. Maine, 532 U.S. 742, 750 (2001)). “One of the primary factors

courts typically look to in determining whether to invoke the doctrine in a particular case is

whether the party seeking to assert an inconsistent position would derive an unfair advantage

* * * if not estopped.” Lead Industries Association, Inc., 69 A.3d at 1310 (quoting D & H

Therapy Associates, 821 A.2d at 694). We have further stated that:

               “Courts often inquire whether the party who has taken an
               inconsistent position had succeeded in persuading a court to accept
               that party’s earlier position, so that judicial acceptance of an
               inconsistent position in a later proceeding would create the
               perception that either the first or the second court was misled.” Id.
               (quoting D & H Therapy Associates, 821 A.2d at 694).

       In the case under review, the trial justice concluded that the zoning board’s findings of

fact that petitioner treated his land as a single lot prior to the 2006 subdivision proceedings was

clearly based upon substantial evidence in the record. The trial justice specified the following

items of evidence available to the zoning board: the 1965 zoning map depicting petitioner’s

parcel as a single lot; petitioner’s deed describing the parcel as “a certain lot or tract of

woodland”; petitioner’s 1983 testimony before the zoning board in which he referred to the

parcel in the singular as “it” and “his lot”; and the ownership history of the parcel. The trial

                                               -9-
justice found that “[t]hese factors, in their totality, legitimately raised a question for the [z]oning

[b]oard with respect to whether [p]laintiff treated his land one way before the zoning board, and

then after getting zoning relief, proceeded to treat his land in an inconsistent manner.” In light of

this evidence, the trial justice precluded petitioner from “asserting that the [z]oning [b]oard

should have found the subject property always consisted of two lots.” We deem this to be error.

       We have scoured the record, as we are required to do when reviewing a case on certiorari,

Huntley v. State, 63 A.3d 526, 530 (R.I. 2013), and we conclude that the evidence before the

zoning board was simply too tenuous to support the application of the doctrine of judicial

estoppel under the circumstances of this case. We first note that the 1965 zoning map is

irrelevant to the inquiry of how petitioner treated the parcel in question. The adoption of the

zoning ordinance and corresponding maps predate petitioner’s acquisition of the parcel by over

sixteen years, and there is no evidence in the record suggesting that any of his predecessors in

title affirmatively sought to merge the two lots. Moreover, both petitioner and the zoning board

acknowledge that the zoning ordinance has never contained a merger provision and that,

therefore, the two lots did not merge by operation of law.

       We also conclude that the deeds to the property are of little assistance. Although it is true

that all deeds from 1929 on describe the property in the singular as “a certain lot or tract of

woodland,” they also consistently identify the property as consisting of “two certain lots of land”

as depicted in the Ezekiel Bishop plat map. 11



11
   Although this Court has not specifically decided whether verbal or written property
descriptions trump a reference to a plat map, we have addressed deed description and lot
designation generally. This Court held that what constitutes a “lot” for zoning purposes is a
question of fact and that, while persuasive, tax assessor’s maps are not conclusive in that
determination. Sanfilippo v. Board of Review of Middletown, 96 R.I. 17, 20, 188 A.2d 464, 466
(1963). As for a reference to a plat map contained in a deed, “when a plat is referred to in a
deed, for a description of the premises intended to be conveyed, it becomes for this purpose a
                                                 - 10 -
       It is also our considered opinion that petitioner’s testimony before the zoning board in

1983 is far too slender a thread with which to weave the preclusive fetters of judicial estoppel.

We initially observe that it is somewhat of a misnomer to characterize the evidence before the

zoning board as petitioner’s “testimony.” The evidence in question is the minutes of the zoning

board meeting of October 25, 1983, at which the board considered the application of Serafino

and Anna Raponi. The minutes do not purport to contain a verbatim transcription of petitioner’s

presentation, although they do indicate that the proceedings were tape-recorded and that

petitioner was sworn.    Rather, the minutes summarize petitioner’s “testimony,” in total, as

follows:

               “[Petitioner] (sworn in) said he wants to purchase a 50′ strip of
               land to have access to his 9 acres which is land locked [sic]. He
               wants to build a house in the future.
               “Chairman Sprague asked why 50′? [Petitioner] said he wants to
               have enough room so that he can maintain his driveway and plant
               trees all along the drive.
               “Chairman Sprague asked how far the house is from the strip of
               land? [Petitioner] said about 100′.
               “Hans Bergey asked about how long [petitioner] has owned his
               lot? He said his parents gave it to him in 1982 and his parents has
               [sic] owned since 1972.”

       We believe that the trial justice and zoning board have placed far too great an emphasis

on petitioner’s purported use, as chronicled by the scrivener of the zoning board hearing, of the

singular pronoun “it” to describe his property, and to draw therefrom the conclusion that he



part of the deed.” Catalano v. Woodward, 617 A.2d 1363, 1366 (R.I. 1992) (quoting Kenyon v.
Nichols, 1 R.I. 411, 414 (1851)). Furthermore, when interpreting the language of a deed (as well
as the plat maps referenced therein), “this [C]ourt ‘will consider all of the facts and
circumstances existing at the time of its execution * * * and effect will be given to the intention
of the parties whenever that intent can be ascertained.’” Id. (quoting Sullivan Granite Co. v.
Vuono, 48 R.I. 292, 294-95, 137 A. 687, 688 (1927)); see Gammons v. Caswell, 447 A.2d 361,
364 (R.I. 1982) (upholding a trial justice’s ruling in an adverse possession case based in large
part on the identification of the subject property on a plat map, as well as the description of the
property in the deed, which was by reference to a tax assessor’s map).
                                              - 11 -
created his own hardship when he obtained a subdivision from the plan commission in 2006. We

agree with petitioner that a casual reference to his property by the word “it” in this context does

not constitute an assertion that he owned the entire 9.09-acre parcel as a single lot.

        Accordingly, we are satisfied that there is not substantial evidence in the record to

support the zoning board’s decision that petitioner “clearly believed that he had a single 9.09

acre parcel in 1983.” We hold, therefore, that the trial justice erred by applying the doctrine of

judicial estoppel to prevent petitioner from arguing that his property always existed as two

separate lots.

                                                  B

                                              Merger

        We turn next to petitioner’s contention that the unimproved lot and the improved lot are

two separate, lawfully created lots that have never merged. The petitioner argues that the parcel

has always consisted of two lots because “[n]o evidence exists that any owner voluntarily

merged the lots and the Zoning Ordinance does not contain a merger provision.” We agree.

        Cities and towns in Rhode Island have the power to promulgate and regulate the merger

of contiguous lots by “specify[ing] the standards, on a district by district basis, which determine

the mergers.” Section 45-24-38. Both petitioner and the zoning board acknowledge that the

Scituate Zoning Ordinance does not contain a merger provision. Because Scituate does not have

a provision for the merger of contiguous properties, in order to merge such lots, a property owner

must apply for a subdividision. Scituate, Code of Ordinances, ch. 14, art. II, sec. 14-27. 12 The

subdivision and land regulations of the Town of Scituate require a landowner to submit a

proposal to the plan commission and gain approval before subdividing or merging his property.


12
  “Any adjustment to existing lot lines of a recorded lot by any means shall be considered a
subdivision.” Scituate, Code of Ordinances, ch. 14, art. II, sec. 14-27.
                                                - 12 -
Id. sec. 14-28(a). 13 Therefore, in the absence of a merger provision or an affirmative act by a

landowner to merge his or her property, two lots do not merge automatically.

       It does not appear to us that there was substantial evidence before the zoning board

demonstrating that the two lots, as depicted on the 1848 plat map, ever merged. The zoning

board seemingly recognized that the property originally consisted of two lots that at some point

in time had merged. As the zoning board explained, “the record of evidence is not clear as to

whether or not the two smaller lots were merged by [petitioner] or his predecessors in title.”

Additionally, all of the six deeds submitted to the zoning board contained the contradictory

language “a certain lot or tract of woodland * * * comprised of those two certain lots of land.”

       In her decision, the trial justice affirmed the zoning board’s finding that petitioner created

his own hardship by applying for a subdivision in 2006 and creating a landlocked lot. However,

as petitioner correctly contends, but for the purported merger, he would not have needed to

appear before the plan commission in 2006 to subdivide his property, 14 and, therefore, he could

not have created his own hardship by subdividing property that already consisted of two lots.

Because the trial justice never addressed this contention in her first decision, petitioner again

raised the issue in a motion for reconsideration, which the trial justice granted. However, after

reconsideration, the trial justice once again failed to address the merger issue, instead focusing

her analysis on the “ample evidence on the record that supports the [z]oning [b]oard’s finding

that [petitioner] treated his property as one lot.” Based largely on petitioner’s 1983 appearance

13
   Section 14-28(a) provides, in pertinent part:
               “There shall be no subdivision (as defined herein and in Title 45,
               Chapter 23 of the General Laws) of any lot, tract or parcel of land
               within the town * * * without the prior submission to, and approval
               of, the Plan Commission of a plan of such subdivision * * * .”
14
    The petitioner claims that he appeared before the plan commission “to correct the
administrative mistake the Scituate Tax Assessor made depicting [his] two (2) lots on its tax map
as only one (1) parcel.”
                                               - 13 -
before the zoning board in which he described his property by the singular pronoun “it,” the trial

justice concluded that he “represented his land as a single parcel.” The trial justice then stated

that whether “the 9.09 acre parcel actually consisted of one or two separate lots dating back to

1848, is of no importan[ce] to this matter * * *,” and proceeded to invoke the doctrine of judicial

estoppel to prevent petitioner from advancing his merger argument.

       As discussed supra, we are satisfied that the trial justice abused her discretion by

applying the doctrine of judicial estoppel and preventing petitioner from arguing that his

property has always existed as two separate lots. Moreover, we are of the opinion that there was

not substantial evidence before the zoning board to support its findings that the two lots had

merged (either by petitioner or by a predecessor in title) and that petitioner “clearly believed that

he had a single 9.09 acre parcel.” Accordingly, we are satisfied that the record demonstrates that

petitioner’s property originally consisted of two lots, as depicted in the 1848 plat map, and that

there is not substantial evidence that they were ever merged.

                                                 C

                                     Frontage Requirement

       The petitioner argues that the zoning ordinance does not mandate a frontage requirement

and that the zoning board’s interpretation of the ordinance imposing such a requirement was in

error. The zoning ordinance requires that residential properties in zoning district RR-120 meet

certain requirements for the following dimensions: lot size; lot width; front yard depth; side yard

depth; rear yard depth; building coverage; and building height. Scituate Zoning Ordinance, App.

A, art. III, § 1. A key issue in this case is the width of petitioner’s unimproved lot. In upholding

the building official’s denial of a building permit, the zoning board found that the unimproved lot

does not meet the ordinance’s minimum 300-foot width requirement. The board made this



                                               - 14 -
determination despite the fact that the unimproved lot contains over 700 feet of horizontal

distance between its two side lines. 15     To reach this conclusion, the board looked to the

definitions section of the ordinance, which defines “lot width” as “[t]he horizontal distance

between the side lines of a lot measured at right angles to its depth along a straight line parallel

to the front lot line at the minimum front setback line.” Id. at art. IX(45). The board continued

its analysis by looking to the definition of “front lot line,” defined in the ordinance as “[t]he lot

line separating a lot from a street right-of-way.” Id. at art. IX(43)(a). The board therefore

concluded that, because the unimproved lot is landlocked, “there is no lot line that exists along a

street-right-of-way, thus, [the unimproved lot] has no frontage and therefore no front setback.”

Based upon an interpretation of both definitions, the board stated that the ordinance “clearly has

a minimum standard that a lot must possess frontage although there is no minimum dimension.”

       This Court reviews the construction of a zoning ordinance, as we review all issues of

statutory construction, in a de novo manner. Pawtucket Transfer Operations, LLC, 944 A.2d at

859. “[A] zoning board’s determinations of law * * * ‘are not binding on the reviewing court;

they may be reviewed to determine what the law is and its applicability to the facts.’” Id.

(quoting Gott v. Norberg, 417 A.2d 1352, 1361 (R.I. 1980)). Based on our de novo review, we

hold that the zoning ordinance does not require frontage in zoning district RR-120. Because the

language of the ordinance clearly and unambiguously delineates the dimensional requirements,

we apply the plain meaning of the requirements in the context of the entire ordinance. See

Peloquin v. Haven Health Center of Greenville, LLC, 61 A.3d 419, 425 (R.I. 2013). The

definitions section defines scores of terms contained throughout the ordinance, including: lot

depth; lot frontage; lot line; front lot line; lot width; and setback lines. Scituate Zoning

15
   The dimensions of the trapezoidal unimproved lot, are 165′ x 746′ x 328′ x 752′, with the 746′
side bordering petitioner’s lot No. 24.
                                               - 15 -
Ordinance, App. A, art. IX(41), (42), (43), (43)(a), (45). The ordinance defines “lot frontage” as

“[t]hat portion of a lot abutting a street. Frontage must be contiguous to be considered with

regard to minimum frontage requirements.” Id. at art. IX(42).            By defining the term “lot

frontage,” the ordinance clearly contemplates a frontage requirement for certain properties. 16

Although the ordinance explicitly requires that certain other classes of properties contain

minimum frontage, 17 the dimensional requirements for zoning district RR-120 entirely omit any

reference to frontage. Id. at art. III, § 1.      Because the ordinance clearly requires frontage in

certain situations, the omission of a frontage requirement in district RR-120 leads us to conclude

that, notwithstanding the board’s interpretation, no such frontage requirement exists. We decline

to read into the ordinance a requirement that the drafters of the ordinance clearly omitted.

                                                    IV

                                               Conclusion

       For the reasons stated herein, we vacate the judgment of the Superior Court. The record

shall be remanded to the Superior Court with directions to remand the case to the Scituate

Zoning Board of Review for a new hearing. Consistent with this opinion, the zoning board shall

treat the unimproved lot as a separate lot, and it shall not apply a frontage requirement to the

petitioner’s application for a building permit.




16
   This point is underscored by the use of the words “minimum frontage requirements” in the
definition of “lot frontage.”
17
   See, e.g., Scituate Zoning Ordinance, App. A, art. VIII, sec. 4.A. (“[a] compound shall include
not more than three (3) single-family dwelling units having frontage in common on a public road
and sharing a private access road held in common”); id., §4.E.(2). (“[t]he minimum frontage on
the entire compound on a public highway shall be at least fifty (50) feet”) (emphases added).
                                                  - 16 -
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        Steven Iadevaia v. Town of Scituate Zoning Board of Review.

CASE NO:              No. 2011-338-M.P.
                      (PC 09-1565)

COURT:                Supreme Court

DATE OPINION FILED: December 23, 2013

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

WRITTEN BY:           Chief Justice Paul A. Suttell

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Susan E. McGuirl

ATTORNEYS ON APPEAL:

                      For Petitioner: Brian LaPlante, Esq.

                      For Respondent: Dianne L. Izzo, Esq.
