April 15, 20200

Let’s face it: zoning law isn’t the first thing that comes to mind when you think of the most lively and interesting areas of law. Despite that, this area of law is necessary for developing our communities. Until, that is, suddenly zoning law becomes far more dynamic. Usually, this occurs when either your own property and/or activities are affected by zoning law. Sometimes, there is an objection to certain use(s) by a collection of neighbors. A recent case illustrates this scenario and allows us to walk through the steps during an appeals process.

Zoning Board of Review 

In all Rhode Island cities and towns, the Zoning Board of Review (“ZBR”) has several powers. These powers include hearing and deciding appeals, which allege errors in enforcing or interpreting a zoning ordinance by an municipal official. In Rhode Island, the several ZBRs are “boards of appeal” under the state’s Development Review Act. A board of appeals considers the issues on appeal by reviewing the record and findings to determine if “prejudicial procedural error, clear error, or a lack of support by the weight of the evidence” exists in the record.

Notice of Violation

Our illustrative story begins in 2016. A South Kingstown Building Official sent a notice of violation (“NOV”) to a residential property owner (zoned R-80). This occurred after two neighbors requested an investigation into activities on the property. The NOV interpreted the Zoning Ordinance and found that use of a dock to transport, grade, and store oysters and/or oyster farming gear violated the Zoning Ordinance. This decision relied on Use Code 51.3, “Wholesale Trade of Seafood Products (including land based aquaculture support services) – Up to 5,000 s.f.,” which prohibits the subject activity in R-80 zones.

First Stage of Appeal: The ZBR

The owner in this case disagreed and appealed the Notice of Violation to the ZBR, the first level of appeals. At the public hearing for the appeal, the owner stated that the activities are allowed. This, the owner said, is because Use Code 02, livestock farming, is allowed in R-80 and because the activities are protected by the Rhode Island Right to Farm Act. The ZBR heard testimony from the owner, two experts who both testified that oysters are livestock, and from the objectors. Ultimately, the ZBR ruled against the Building Official, “accepting oysters as a type of livestock instead and further concluding that livestock farming was permitted by right in that zone.”

Second Stage of Appeal: The R.I. Superior Court

Not satisfied with the ZBR’s decision, the objecting neighbors appealed the ZBR decision to the next level in the appeals process. In R.I., ZBR appeals are heard by the Superior Court as part of the Development Review Act. In this appeal, the ZBR decision may be reversed only if there is evidence of prejudice to the substantial rights of the appellant within the record and findings. In this case, the Superior Court judge held that the evidence in the record supported the ZBR’s decision. As a result,  oyster farming now constitutes livestock farming. Interestingly, the court noted that no rebuttal existed in the record as to whether oysters were livestock or not.

Post-Superior Court Decision

Superior Court decisions are “not appealable as of right and may only be reviewed in [the Supreme Court] by use of the prerogative writ of certiorari[,]” a discretionary appeal process. Thus, a ZBR appeal case may end after a Superior Court’s decision.

If you have questions about zoning ordinances or zoning law as it relates to your property, contact one of our attorneys today. The firm has decades of experience working with these issues, we are adept with practice before ZBR and the appeals process. We can help you save time and money while moving toward a conclusion that works for you. Call us at 401.477.0023.

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