Note: The cases on which the following article is based were effectively reversed on June 28, 2002, by an amendment to the zoning enabling act. This legislative action limits the usefulness of the article to cases arising before the enabling act was changed.
The Supreme Court Knocks Out the Viti Rule
Roland F. Chase, Esq.
Delivering a one-two punch to the familiar Viti standard requiring only proof of "more than a mere inconvenience" to obtain a dimensional variance, the Rhode Island Supreme Court ruled in Sciacca v. Caruso,1 and von Bernuth v. Zoning Bd. of Review,2 that considerably more is required - the landowner must show that he or she had "no other reasonable alternative to enjoy a legally permitted beneficial use" of his or her property.
Unlike the original Viti standard, this one was not judicially created. As the Court in each of these cases pointed out, the Legislature imposed this new standard for a dimensional variance when it adopted the Zoning Enabling Act of 1991. In setting forth that standard the Act retained the "more than a mere inconvenience" language but gave it specific content by adding: "which means that there is no other reasonable alternative to enjoy a legally permitted beneficial use of one's property."3
In Sciacca, a woman who had acquired two adjacent buildable lots built a house on one and a shed on the other. Later she decided to build a separate three-bedroom single-family dwelling on the lot containing only the shed, but in the meantime the Town of Johnston had amended its zoning ordinance to require 20,000 square feet of land area and frontage of 120 feet for such construction. Neither of her lots met this standard.
Furthermore, the new zoning ordinance also contained a "merger" provision, automatically combining adjacent undersized lots in the same ownership. That left the owner with just one lot, on which she already had a house as well as a shed.
Undeterred, she somehow persuaded the Town's Planning Board to subdivide her merged lots back to their original separate lot status. Then she went to the Zoning Board to get relief from the lot area and frontage requirements. Although she presented no evidence to show that she would be denied a legally permitted beneficial use of her property unless she received a dimensional variance, or to contradict or rebut testimony of the objectors' real estate expert, the Board nevertheless granted the requested variance by a four-to-one vote.4
When the Superior Court upheld the Zoning Board's decision, the objecting neighbors turned to the Supreme Court, which lost no time in explicating the new post-1991 dimensional variance standard. In a critical footnote the Court first quoted the two provisions in the Enabling Act defining a dimensional variance 5 and then explained:
These definitions suggest that if a property owner can enjoy a legally permitted beneficial use of the property without the proposed variance - as a reasonable alternative to doing so with the proposed variance - then the application for a dimensional variance should be denied. Thus, under this new definition of "more than a mere inconvenience," it is now more difficult for a property owner to obtain a dimensional variance than it was under the pre-1991 amendment standard of "more than a mere inconvenience" that flourished in the era when the Viti doctrine was still alive. 6
Further in its opinion the Court again employed life-and-death language to make the same point:
This new statutory burden of proof created by the 1991 amendment effectively sounded the death knell for the old Viti doctrine that had allowed a property owner to obtain a dimensional variance simply by demonstrating an adverse impact amounting to more than a mere inconvenience. ... Those cases, as they relate to the burden of proof required to authorize the granting of a dimensional variance, have been superseded now by the 1991 amendment. 7
Although this was more than enough to overturn the lower court's decision granting the dimensional variance, the Supreme Court also invalidated it on the alternate ground of self-created hardship. The Court pointed out that the 1991 Enabling Act did not change the rule that a variance cannot be based on a hardship resulting from the prior action of the applicant.
The Court said that in this case the "undeniable fact" was that the applicant caused the Planning Board to subdivide her single-conforming lot into two substandard-sized parcels, thereby creating the undersized lot in question, and that this "prior action" resulted in the self-created hardship that she later used as the basis for her variance request. 8
Thus, for two reasons - failure to satisfy the "no other reasonable alternative" standard for a dimensional variance, and self-created hardship - the Court reversed the lower court's judgment and ordered the variance denied.
von Bernuth case
Two weeks after delivering the Sciacca opinion, the Supreme Court in von Bernuth v. Zoning Bd. of Review, 770 A.2d 396 (R.I. 2001) hammered home the news that Viti is history. The Court repeated the "death knell for the old Viti doctrine" language and said that from now on,
an applicant seeking a dimensional variance has the burden before the zoning board of showing that a factual basis appears in the record to support the proposition that there is "no other reasonable alternative" that would allow the applicant to enjoy a legally permitted beneficial use of the property. 9
In von Bernuth, a residential lot on Block Island was in a condominium form of ownership, with two buildings on the lot, a dwelling and an accessory building. After purchasing the accessory building, a woman purchased an adjacent undeveloped lot. Then she joined with the owners of the condominium dwelling to seek Planning Board approval for a subdivision that would relocate the property line so that the two existing buildings would be on separate lots.
The idea was that the condominium form of ownership would be dissolved, the former accessory building would be enlarged and transformed into a dwelling unit, and the parties would then be single-family homeowners on adjacent lots.
The Planning Board was willing to go along with this plan and conditionally granted the proposed subdivision. However, the newly created second lot fell far short of meeting the three-acre minimum lot size requirement in the zoning ordinance, and the existing accessory building was too close to the relocated boundary to meet the ordinance's 50-foot setback requirement. To overcome this hurdle, the applicants applied to the Zoning Board for a dimensional variance.
As in the Sciacca case, the Zoning Board granted the requested variance and the Superior Court affirmed this decision. The Supreme Court, however, examined the record for evidence that the applicants had no other reasonable alternative to enjoy a legally permitted use on her property, and found none. For example, said the Court, there was no evidence that the applicants could not have moved the existing accessory structure onto the adjacent undeveloped lot or even built an entirely new house on that lot without a variance. 10
The Court acknowledged that the applicants' proposal was one that offered advantages over other possible plans, but said that fact alone did not establish that no reasonable alternative existed by which they could enjoy the legally permitted use of their property. 11
Although this was enough to dispose of the case, the Court went on to criticize the Zoning Board's opinion in language that suggests what must be shown to meet the new dimensional variance standard:
[The Zoning Board] made no findings of fact specifically addressing the requirements of § 45-24-41(d)(2). There was no discussion in the written decision of what the board considered to be the hardship suffered by the applicants, nor was there any discussion of reasonable alternatives or a lack thereof necessitating relief.12
The Court therefore quashed the Superior Court judgment and ordered the entry of judgment denying the dimensional variance granted by the Zoning Board.
Dimensional Variances After Sciacca and von Bernuth
So, what's the future for dimensional variances in Rhode Island?
One thing is clear: no longer can homeowners, with or without an attorney, just walk into a zoning hearing with a story of how it would be more than just inconvenient to them if they were not allowed to extend their deck or swimming pool into a setback area, and walk out with a dimensional variance.
The Supreme Court in Sciacca and von Bernuth emphasized that the language of R.I.G.L. § 45-24-41(d)(2) is to be taken literally - an applicant for a dimensional variance must demonstrate by evidence in the record that he or she has no other reasonable alternative to enjoy a legally permitted beneficial use of his or her property.
And yet, that doesn't really answer all the questions. Note that both Sciacca and von Bernuth involved placing a new principal use - a single-family dwelling - on undeveloped land. In such cases, the landowner knows ahead of time what the restrictions are, and usually has some flexibility in designing or locating the house to fit within the dimensional restrictions.
But what about the situation, much more prevalent in older, built-up areas, where the landowner purchases an existing house that sits on a small lot in a district full of small lots that were originally laid out for a population that walked or took the bus downtown?
Can the new owner add a garage? A deck? An extra bedroom? Almost every kind of addition will invade a setback.
As formerly interpreted, the "more than a mere inconvenience" standard rarely blocked such proposals, at least in the absence of neighborhood opposition. And it was more than a mere inconvenience - as that word is commonly understood - for many of these landowners to be denied amenities enjoyed by owners of larger lots.
Then the General Assembly stepped in and, according to the Supreme Court, killed the Viti rule. Although retaining the phrase "more than a mere inconvenience" in stating the standard for a "dimensional variance," the 1991 enabling act, in Humpty Dumpty fashion, 13 said this doesn't mean just anything beyond a mere inconvenience; it means only one thing - that "there is no other reasonable alternative to enjoy a legally permitted beneficial use of one's property."
Taking this language literally, it is difficult to see how any owners of developed property will be able to qualify for a dimensional variance, unless they want to change the current use of the property to a different legally permitted use.
Suppose, for example, a person owns a lot in a downtown mixed-use zoning district, in which both residential and commercial uses are permitted. If the lot is vacant, the owner can choose to build either a house or a store, but can only obtain a dimensional variance to do so if plans for the new construction cannot reasonably be made to conform to the setbacks and other dimensional restrictions.
However, if that same lot already contains a house that the owner lives in, but the lot is not big enough for an addition, such as a deck, without impinging upon the setbacks, how can it be said that the owner has no reasonable alternative to enjoy the legally permitted residential use of the property just because he or she cannot build a deck? The very fact that the house has been lived in at that location shows that the owner already has been enjoying a legally permitted beneficial use of the property.
Of course, if the owner decides to convert the house into a restaurant which requires more parking than can be squeezed into the lot, then a dimensional variance becomes feasible. Assuming that the restaurant is a legally permitted use, the owner can introduce evidence before the zoning board to show that without a variance from the parking requirements, "there is no other reasonable alternative to enjoy a legally permitted beneficial use" (a restaurant) on the property.
So what is the solution to this problem? Zoning boards will probably continue to grant dimensional variances in legally doubtful situations by simply ignoring the law, but perhaps a better solution would be legislative. For example, the Legislature could just insert the words "in the case of construction on undeveloped land" into R.I.G.L. § 45-24-41(D), so that it reads:
The zoning board of review shall ... require that evidence be entered into the record of the proceedings showing that: ... (2) in granting a dimensional variance, that the hardship that will be suffered by the owner of the subject property if the dimensional variance is not granted shall amount to more than a mere inconvenience, which shall mean in the case of construction on undeveloped land that there is no other reasonable alternative to enjoy a legally permitted beneficial use of one's property. 14
This change would apply the "no other reasonable alternative" test to new construction only; proposed dimensional variances for existing uses would continue to be governed by the more liberal Viti rule as developed and applied in many cases before Sciacca and von Bernuth were decided.Footnotes:
- 769 A.2d 578 (R.I. 2001). (back to text)
- 770 A.2d 396 (R.I. 2001). (back to text)
- R.I.G.L. § 45-24-41(d)(2). The statutory definition of "dimensional variance" in § 45-24-31(61)(b) varies the wording slightly ("that there is no other reasonable alternative way to enjoy a legally permitted beneficial use;" emphasis added) and does not contain the "more than a mere inconvenience" language. (back to text)
- This was on a reconsideration of her application. The Zoning Board first heard the application and unanimously denied it. About one month later, however, on its own initiative the Board reconsidered the application, for unstated reasons, and voted to grant the requested relief. See Sciacca at 581. (back to text)
- R.I.G.L. §§ 45-24-31(61)(b), 45-24-41(d)(2). (back to text)
- Sciacca at 582 (emphasis by Court). (back to text)
- Sciacca at 583. (back to text)
- Sciacca at 584. (back to text)
- von Bernuth at 401. (back to text)
- von Bernuth at 401. (back to text)
- von Bernuth at 401. (back to text)
- von Bernuth at 402. (back to text)
- "When I use a word," Humpty Dumpty said, in a rather scornful tone, "it means just what I choose it to mean -- neither more nor less." Lewis Carroll in Through the Looking Glass. (back to text)
- Some tinkering with the language in the definition section of the enabling at, R.I.G.L. §§ 45-24-31(61)(b), would also be required. (back to text)