PodcastEnvironmentally Speaking EP 105: Understanding the Legalities of Land Use

Transcript: Understanding the Legalities of Land Use 

 

CLARICE:  Hello, everybody.  And welcome to this week’s episode of Environmentally Speaking.  We are mixing it up for the new year.  Happy new year, everybody.  I am joined by another member of the Desautel Browning firm.  I am joined by the Browning portion of it.  I’m joined by Kerin.  Welcome.  

KERIN:  Hi.  Great to be here.   

CLARICE:  Great.  We are talking about the land use side of it.  But before we get into that, welcome, welcome.  How are you? 

KERIN:  I’m doing well.  I’m doing well.  It’s a gray but partially sunny day here in Newport and hoping for spring sooner rather than later.   

CLARICE:  Oh, I hope so.  It’s very New England right now.  

KERIN:  It is.  

CLARICE:  But, yeah.  Welcome.  I know you are the newer portion of the firm and we wanted to have you on, join the podcast.  Tell us a little bit about what it’s like being the other half of the firm now.  Congratulations.  

KERIN:  Thank you so much.  It’s so exciting.  It’s been a lifelong dream of mine, so, you know, it’s really exciting, really happy, something I’ve worked for for a long time and it’s been great.  Marisa is an incredible attorney and also an incredible business partner, friend, and I think I’m very lucky to have that all in my life in one person.  She’s amazing.  

CLARICE:  Oh, she’s not here.  You can say what you want.  No.  I’m just kidding.  I think we’re both lucky to have her as a friend, but I was very excited.  We got to meet at Marisa’s — for those of you who don’t know, every year Marisa hosts a holiday party and it was really wonderful that we got to hang out and that was really fun considering that we called — or we spoke about this episode same day and had no idea that we were going to be hanging out that night [inaudible].  

KERIN:  That’s right.  That’s right.  And you were kind enough to point that out and introduce yourself because I was new to the group, so I was happy that you did that.  

CLARICE:  Yeah.  And so today knowing that you are kind of the land use section and that’s your domain, we’re going to be talking about that today and we’re talking about a Block Island, New Shoreham case specifically.  And before we started recording, you and I were chit-chatting about the case.  I didn’t expect to have strong feelings about this one.  

KERIN:  I’m interested to hear more about that.  

CLARICE:  So do you want to tell us a little bit about the facts of the case?  Do you want me to kick us off with just sort of the bear bones of it?  

[0:02:47] KERIN:  Yeah.  I’ll give a little bit of a blurb on it.  So recently the Superior Court issued a decision in a matter entitled Edward Hayde versus New Shoreham Zoning Board.  In that case the court had reviewed a New Shoreham Zoning Board decision regarding variance request and the court said that the town had done everything it needed to do, so it upheld the town’s decision.  Specifically, the two biggest issues that the court was looking at was notice and also whether the appropriate standard had been applied by the town to the applicant’s application materials.  

CLARICE:  And for a little bit of — kind of zooming out even a little bit more, the actual events that were happening, it looks like the applicant was hoping to and ultimately their goal was to build a home and the lot was — I’m not sure if it was too small to build a home at all or if the lot was too small to build the home that they were intending to build.  So they were looking to have a special variance for that home, so that was sort of the end goal.  That was the action they were trying to take.  

KERIN:  That’s right.  

CLARICE:  [inaudible] where it was all kicking off from.  

KERIN:  That is right.  Like many property owners in Rhode Island who own property that is not of a conforming size.  So you have a lot and maybe it’s a postage stamp sized lot and the town is saying in order to build a house you have to have, you know, two or three acres and you’ve got a half acre.  That would be an example of a lot that’s nonconforming by size:  

CLARICE:  Which I don’t know if that’s something a lot of our listeners — I mean, for those who have built a home this is a process that’s very familiar, but for folks who have never built a home it’s not something that you would really think about.  Your house — just because you have a lot doesn’t mean you can build to whatever size you want.  Your home has to be within a certain percentage of your lot.  

KERIN:  That’s right.  So, yeah, whether it’s residential or commercial one of the first things we look at is the lot itself, the acreage of the lot.  And then you have to look at the local requirements which give you what’s called the building envelope.  That’s the highest you can go.  That’s your maximum height.  That’s your maximum lot coverage.  And in some towns they have special requirements if you want to build buildings above a certain number of square feet.  So that all goes into this kind of mix and then we determine what the building envelope looks like, which if you can imagine it it’s like if you imagine a lot that’s flat and then you put a box on top of it you can build within that box.  That’s your building envelope.  

[0:06:11] CLARICE:  Uh-huh.  Yeah.  I used to — I live really close to Little Compton and I used to work with an attorney who did a lot of work for Little Compton and I remember the requirements.  That box was very detailed.  I remember the box could be no bigger than ten percent of your total lot and what that box looked like had lots of other prescriptive elements involved.  And for some odd reason this was like over a decade about.  I still remember all of those requirements.  

KERIN:  That’s right.  

CLARICE:  It’s never left my brain.  

KERIN:  That’s right.  And they all change from city to town, so you may, you know, have an understanding of what’s allowed in one town and then you go to another one and it’s all different because it’s all municipality specific.  By State Enabling Act they can enact their own — to a certain extent their own regulations and they have a lot of say in what can and cannot be built.  

CLARICE:  Yeah.  So keeping with that analogy, this case really focused in two parts.  One was that notice piece which doesn’t relate to this box analogy, but then the second portion had to do with did the zoning board error in allowing the applicant to, you know, build the box that they did, build their house.  And what were your thoughts on both pieces because I almost didn’t take issue with the notice element at all.  I kind of went with that and I was like, yeah, okay, I could see how that goes.  And I thought it was so interesting the amount of — I thought there was more discussion in the actual building portion of it.  What were your thoughts?  Did you kind of switch with that, or?  

KERIN:  Well, notice is typically — when we get calls — well, when we’re either submitting an application for development or we are talking to a potential client who wants to appeal, either way notice is one of the first things that we look at.  When we’re in the driver’s seat and we are applying on behalf of an applicant for a project, notice is very important because it is a jurisdictional requirement.  If notice is not proper, the board that you’re in front of does not have jurisdiction to hear it, so it’s very important that the notice that is submitted is correct.  

And here what the court said was the notice was fine and that you can rely on certified tax records of the municipality for your [inaudible] notice.  So what does that mean?  It means that when you go before a town for a development approval the law requires you to give notice to the neighbors.  And depending on what you’re asking for, you may have to give notice to just a few neighbors or many neighbors.  They do it by a radius.  And once you know who those neighbors are in your radius, then you have to assemble a list of their names and addresses.  

And sometimes the question comes up, well, where do I get all those names and addresses.  And what you do is you go to the tax assessor records and you either — most cities and towns now have a way to generate those lists for you, but it used to be you had to go in and pull them, or the engineer would go in and go to each individual lot on the map within the radius and make the list.  And sometimes errors are made and if you miss somebody or if there’s a condominium next door and you didn’t notice every single owner within the condo because you just thought it was one building, one house, you didn’t realize that there was a condo in there, that is improper notice.  People didn’t get notice.  So, yes, I agree with the court’s decision and I understand why it’s in here.  It’s one of those things that most developers, attorneys who are submitting an application or if you’re on the other side and you’re appealing a decision that’s one of the first things we look at.  

[0:10:40] CLARICE:  Yeah.  I think that’s a better way of addressing it.  It’s important and needs to be discussed and I read that as, yes, this is — I read it as, yeah, that decision was right.  It looks like this was handled okay.  It had to be said.  I didn’t take any issue with it.  I was like, yeah, that looks right.  

KERIN:  Tell me where you got heated.  

CLARICE:  They spent so long talking about a porch.  

KERIN:  Yes, they did.  

CLARICE:  And, please, I need an expert.  I need somebody to either talk me off the porch, help me see the light.  I need help.  They spent so long talking about hardship in relation to a porch and whether this is hardship to the applicant, hardship to the neighbors.  I need legal language to help me understand how hardship relates to the porch.  

KERIN:  Great question.  Any time you’re seeking a variance, when you — so, for example, in our case, you know, you’ve got a lot.  It’s nonconforming by size, or maybe you want to put a house and it’s a little closer to your street than it should be.  You’re in what’s called the front setback.  You need a variance.  You’re supposed to be 50 feet off the street, for example, but you can only — because of the way things are laid out you can only get 25 feet, so you go in and you ask for a variance.  

And the standard for a variance is based in hardship, so that is why you see a lot of discussion about hardship.  There are specific criteria you have to meet under state law to get a variance, but they’re all based in this idea of hardship.  You’ve got to come to the town and say, something is difficult for me to comply with what you’re asking me to comply with.  I need a little relief from or maybe a lot of relief from whatever standard it is that you can’t meet.  

CLARICE:  You know, maybe this is something — I forget.  I’m quickly scanning the decision right now.  I’m trying to find it, but they had put in how far away the porch would make — how far away the porch would be from the road.  And, again, some listener will be cringing somewhere.  I openly admit I’m a person who measures like fingertip to elbow.  Like I’m not good with a tape measure.  I’m not good with numbers.  I can’t visualize.  If you tell me it’s seven feet, I don’t know.  But it felt like a sizable amount away from the road and they talked about — it sounded — I don’t know if they even mentioned how far away it was from the neighbor, but this all sounded sizably far away from each other.  

And I just couldn’t move past the idea — unless I saw pictures of the lots maybe they are — maybe this is truly close to each other where both neighbors couldn’t enjoy their porches without truly all of a sudden all of them have to have a conversation together and maybe that is what it looks like because I haven’t seen photos and I am a visual person.  But I just couldn’t get past this idea of like let everybody have their porch.  It’s Block Island.  

So I appreciate you explaining the idea of hardship isn’t necessarily hardship in the conversational sense of the word.  It is a legal sense and is different.  And I think one of — I liked — there is a quote early on in the decision from a zoning board member of how a porch is a nice feature and it’s something that, you know, the — I think it was children and elderly need to be outside more and that’s what having a home on Block Island is about.  And it was — they spent a really long time talking about it and I was like just — shoot, let everybody have their porch.   

[0:14:53] KERIN:  You’re right.  And I can think of probably 100 other examples of, you know, that.  If it’s not a porch, you know, it’s a deck, or it’s a — I think in one case we had a long discussion about a cornice on the roof, but the key to it is you’re not really so focused on the feature that you’re discussing.  It’s about whether the plan that’s before the board fits the requirements of the town’s ordinance and for the most part, you know, this one did.  It’s just that the porch was a problem and that’s why you’re right.  And even when you argue these things, you’re constantly saying the word porch, or you’re constantly saying the word, your know, cornice.  

CLARICE:  Yeah.  

KERIN:  And it’s really not about that.  It’s about whether whatever the feature is does it fit the standard to grant the relief.  

CLARICE:  And the decision then went into this idea of least relief necessary and I read that as is there a way to do both while fitting in the guidelines.  Is that sort of an adiate way of describing that?  

KERIN:  What do you mean do both?  

CLARICE:  Is there a way to have a porch fit within the guidelines because I read this as having that feature is now in this specific case, so that porch was just large enough to go over the guidelines.  So is there something that can be done to have everything fit within that prescribed box that we talked about in the beginning of our conversation?  And that to me is what least relief necessary is.  Like is there a way to, I don’t know, redesign the shape of the home?  Is there a way to shave off a couple inches so that porch now fits in that prescribed box?  Is it moving the layout a little bit?   

KERIN:  That’s right.  And this is a standard that I think a lot of my clients struggle with and also boards struggle with.  And the courts recently have come out in a couple of cases to talk about this standard and what they have developed is this idea that you have to consider other reasonable alternatives.  So that means if you have a plan and your engineer or your architect comes up with this wonderful plan, it looks amazing, but you need the relief because you’re in, for example, the front setback, you know, and you go to the board, the board is going to ask you, you know, I know you’re asking for this relief.  What else did you consider to try your best to minimize the relief, minimize the variance?  You know, could you move the porch to the other side?  Could you, you know, make it a smaller porch like you said?  Those are the things that you’ve got to come ready to talk about when you’re looking for a dimensional variance.  

It’s been my experience that having your team there, your architect, your engineer there to testify the reason why the alternative that is being presented is really the only one that’s reasonable — and oftentimes it could be a matter of where the septic has to be placed.  That’s a consideration that needs to happen usually in a specific spot of the property and that will determine what you can and can’t do in the other areas of the lot.  

But having those experts on your team, having them at the hearing so that they can explain that to the municipality is important.  It’s one thing for the applicant or the property owner to say it.  It’s one thing for their attorney to say it, but that testimony from the applicant isn’t grounded in science or professional expertise.  Lawyers can speak to the board, but we really can’t be testifying.  It’s our job to get that type of information to the board via a professional or an expert.  

[0:19:44] CLARICE:  That makes sense.  No.  That’s helpful and I think having that explanation and letting the clients or the applicants know that having that conversation of you need to be prepared to explore this idea or understand that — at least have a conversation about we have plan A of what the property or structure will look like whether it’s, like you said, residential, commercial.  Before we go and ask for this variance, have we thought about the other alternatives and why they could or couldn’t work because that will either make — if they could work it will make getting that application a little bit easier because you’re asking for a little less, or we have an answer for why it won’t work so you’re better prepared and you’re not surprised by that question down the road.  

KERIN:  That’s right.  And what’s also important to note is that that type of evidence is important because it should be put into the record so if someone does appeal you as the applicant has a solid record going to Superior Court because like what happened in this case the court is going to look at the record and the decision to see if there is substantial evidence there to support the board’s decision.  So if, for example, a board skips over that element, never discusses it and the applicant’s attorney doesn’t make sure that that element is in the record, you open yourself up for the court to say this piece was missing, so you really — you know, you should not have been granted this relief.  

CLARICE:  That’s a good point.  I didn’t even consider that.  Yeah.  Is there anything else about this case that struck you or anything else that we haven’t touched on yet?  

KERIN:  No.  

CLARICE:  Now that I’ve come off the porch I can see a little clearer.  

KERIN:  Come on off the porch.  I think the only other thing that this reinforces for me is that municipal boards, you know, that sit and hear these applications and have to make these decisions, you know, these are people who are volunteering their time.  Most of them have full-time jobs, full lives and they come to these meetings at night because they care about the community and they have, you know, a certain level of familiarity with the community.  And what is sometimes difficult is making sure that the legal standard — not only is all the evidence in to meet the legal standard, but also that boards are deliberating before they vote in a way that is clear and is thorough and thoughtful.  

And I say that because if a case ever does get appealed like this one did by a neighbor, the court is going to look at the decision of the board to make sure that there were findings of fact, we call them.  The board has got to make findings of fact as to each element necessary to come to a conclusion.  So if there are five, say, elements that they have to think about and decide and kind of mull over before they come to their decision, those things all should be spelled out in their deliberations, in their questioning, in their findings.  

And you see that the court here did a good job of going back into the record and looking to see what the board said, what kind of questions did they ask, what did they talk about, what kind of evidence was presented to them to make sure that all of that that got into the record was appropriate and supported a decision of, in this case, approval.  And I think that I can’t stress that enough.  

It’s sometimes difficult for those sitting on these boards to — you know, it’s a long night.  It’s a long day.  You just want to get it done, but it is important.  It’s an important step to make sure that your findings and your discussion about the project before you vote is grounded in the evidence and talks about the findings of fact.  And that’s probably the most important feature because it just makes the court’s — if it does go on appeal, it makes the court’s work easier.  It makes the lawyer’s work easier, but it is no — sometimes it’s not an easy task.  

[0:24:59] CLARICE:  Yeah.  Absolutely.  And I think another big takeaway is, like you pointed out in the beginning, even if notice is a nonissue it still needs to be discussed and acknowledged just to have it on that record just like you were just saying about this other last piece.  And from a client or a layperson’s — I almost said expectation — perspective, we have to separate ourselves from the structure.  It’s not the actual structure.  It’s the legal hardship and it’s separating yourself from that.  So, you know, we might get in the weeds, but it’s important to lean on our counsel a little bit more and go through that process, have that conversation of the bigger picture.  What does this really mean in terms of process versus actual physical item.  So it’s helpful to have you there to remind us it’s not actually just the porch.  It’s bigger.  

KERIN:  Yeah.  It’s a great point because that is where most property owners — you know, they’re passionate.  Everybody who owns property is — they’re passionate about their property.  They’re paying the taxes on it.  They’re taking care of it.  They’re mowing the grass.  They’re making sure it looks nice and is well maintained and so, yeah, for them the porch is very important, spent a lot of money thinking about and paying for somebody to design this porch.  But from the lawyer’s perspective, it’s important that we meet the legal grounds to get the relief we’re looking for and that’s where I would always advise a client who’s involved in a zoning matter to have counsel.  

CLARICE:  Makes sense.  Thank you so much.  Like I said, I didn’t expect to be riled up, but this was a good conversation.  I loved it.  

KERIN:  Well, I really appreciate your time.  It’s been good.  I was a little nervous, I have to say.  I’ve never done a podcast before.  

CLARICE:  I told you it wasn’t going to be scary.  This is going to be a good one.  

KERIN:  You did and you were totally right.  Very good.  

CLARICE:  So we will put this decision in the show notes if anybody wants to read it.  Let me know your thoughts.  Let me know if you felt emotionally attached to this porch.  Validate me.  Tell me I’m not alone.  Send us your thoughts.  E-mail us at info@DesautelBrowning.com.

KERIN:  Or Kerin@DesautelBrowning.com.  I’d love to get e-mails or questions.  That would be great.  

CLARICE:  Kerin has opened herself up for questions.  I love this.  Yeah, reach out.  

KERIN:  Clarice, you have increased my confidence level in all things podcast.  

[0:27:38] CLARICE:  I have a convert.  I love it.  You can also reach out to us on the socials.  We are on Instagram, Facebook.  I’m still going to call it Twitter.  I know it’s formally known as Twitter and now known as X.  I think that’s silly, but it is also Desautel Browning.  You can watch our videos on YouTube and, shoot, search us on Google, Desautel Browning.  See what comes up.  We hope to see you there.  Thanks, everybody.  

KERIN:  Thanks, Clarice.