Note: The problem discussed in the following article has been potentially solved by the Rhode Island Legislature, which on June 25, 2002, amended the zoning enabling act to allow zoning boards to grant dimensional variances in conjunction with an application for a special-use permit, provided that the local zoning ordinance is amended to allow such relief.

Zoning Relief:

Why NOT Both a Variance and a Special-Use Permit?

by

Roland F. Chase, Esq.
Miller Scott & Holbrook
Newport, Rhode Island

Your client has a wonderful idea for a new kind of coffee shop down on the waterfront, and she's found a good location. All you need to do for her is apply to the zoning board for a special-use permit, which should be a slam dunk because all the neighbors have seen the plans and they think it's great.

However, there is one other little problem. The parking lot is not quite big enough for the required 12 parking spaces, so you'll have to ask the zoning board for a dimensional variance too. But she's only short one parking space ... how could the zoning board say no?

The board could say no, perhaps, because one of the members, or the solicitor advising the board, had read the Newton case.1 In that case the Rhode Island Supreme Court, in a brief opinion by Chief Justice Weisberger, ruled that a dimensional variance2 cannot be granted in conjunction with the issuance of a special-use permit.3

But why? That seems like such an arbitrary rule, especially when applied to the facts of your client's case. If the standards set out in the zoning ordinance for granting a special-use permit are satisfied,4 and denying the requested dimensional variance would cause your client to suffer more than a mere inconvenience,5 then why should the zoning board be barred from giving her both forms of zoning relief?

In the Newton case, the applicants sought to construct a six-unit multifamily dwelling on an undersized lot in the City of Warwick. The multifamily use was authorized by special-use permit, but because the lot was so small the applicants also needed relief from several dimensional requirements of the ordinance. The Supreme Court gave two reasons for refusing to allow the applicants to combine the special-use permit with the requested dimensional variances.

First Newton Rationale

First, the court emphasized the provision in the Warwick Zoning Ordinance requiring the zoning board, in granting a special-use permit, to find that "the special use meets all of the criteria set forth in the subsection of this ordinance authorizing such special use." Since it was undisputed that the applicants could not meet several of the dimensional requirements, the court held that the board could not grant the special-use permit.

In effect, the court in Newton was saying this: One of the requirements for a special-use permit is that all dimensional requirements must be met; since you can't meet the dimensional requirements, you are not entitled to the special-use permit. You can't relax those dimensional requirements by getting a dimensional variance - in effect, piggy-backing a dimensional variance on top of a special-use permit - because that would effectively allow a special-use permit to be granted for little more than the applicant's inconvenience, without meeting the standards established by the city council for a special-use permit.

As authority for this rationale, the Newton court cited Northeastern Corp. v. Zoning Board of Review,6 which it said had "held in effect that a dimensional deviation could not be granted in a situation in which a use was permitted by way of a special exception."7

Although the court did make this statement in Northeastern,8 its actual holding was much narrower. In that case the applicant sought a special exception to build a "boatel" on a navigable saltwater pond on Block Island and also asked for a variance from parking requirements. However, the court did not reject the Viti rule because these two forms of relief were requested; it said that rule had no application to the establishment of the boatel use because the zoning ordinance authorized boatels in a business district "provided that the lot ... contains a minimum of 40,000 square feet of land." Since the parcel in question only contained 32,000 square feet, the applicant did not meet the basic requirement for the use requested and therefore the zoning board was powerless to sanction the project.

The Court's language in Northeastern about not applying the Viti standard had no bearing on the issue of whether the special exception for the boatel use could be combined with a dimensional variance for the parking requirements. In fact, the opinion did not even discuss the parking requirements. The Court was simply saying that the lot size requirement for the special exception could not be relaxed under the Viti "more than a mere inconvenience" standard because that would, in effect, gut one of the main requirements for the special exception; it would allow the establishment of a boatel on any size lot merely by satisfying the lenient Viti standard.9 If, for example, the applicant in Northeastern did have the required 40,000 square feet of land but lacked the required number of parking spaces, there is nothing in the rationale of the court's opinion that would prevent the zoning board from granting a Viti dimensional variance from the parking requirements even though the boatel use required a special exception.

So, the first reason given by the Supreme Court in the Newton case for not allowing a special-use permit to be combined with a dimensional variance only applies where criteria for the special-use permit under the local zoning ordinance include the very requirement for which the dimensional variance is sought. To get the special-use permit in Newton the applicant had to meet all dimensional requirements in the ordinance; therefore these requirements could not satisfied under the Viti rule. In the same way, to get the special exception in Northeastern the applicant had to have a lot that was at least 40,000 square feet in size; therefore the square footage requirement could not be overcome with a dimensional variance.

If this were the only reason for the rule against combining a special-use permit with a dimensional variance, your client should be able to get the dimensional variance for one parking slot, as long as the applicable zoning ordinance does not require satisfaction of parking standards (or all dimensional standards) as part of the criteria for the special-use permit.

Second Newton Rationale

Unfortunately for your client, the Supreme Court in Newton articulated a second, more troublesome reason for not allowing both a special-use permit and a dimensional variance. The court pointed to the 1991 enabling act's definition of a dimensional variance and said

The terms of this portion of the statute would unequivocally command that a dimensional variance be granted only in connection with the enjoyment of a legally permitted beneficial use, not in conjunction with a use granted by special permit.10

Here the court is focusing, not on whether the criteria for the special-use permit include adherence to dimensional requirements, but on whether the use for which the dimensional variance is sought is a legally permitted use. And "legally permitted" under Rhode Island zoning law means permitted as a matter of right, not permitted by special-use permit.11

Since neither the local zoning board nor the city or town council can change the meaning of words defined in the Enabling Act,12 this second reason stated in Newton apparently dooms your client's coffee shop.13 She cannot lawfully get a dimensional variance for even one parking space because the use she intends to put on the property does not qualify as a "legally permitted" use, which according to Newton is the only kind of use that can be established with the aid of dimensional variances.

Even before the enabling act restricted dimensional variances to uses available by right, this limitation was recognized in Rhode Island case law.14 In two somewhat similar cases, for example, the Supreme Court held that setback relief could not be obtained under the Viti standard where the use sought to be established - a gasoline service station - required a special exception. In Sun Oil Co. v. Zoning Board of Review,15 the Court began its discussion of this issue by stating the Viti rule:

[A] landowner, precluded from the full enjoyment of the use of his property for permitted purposes by an insistence upon a literal enforcement of area restrictions, is entitled to relief upon a showing that the adverse effect of such enforcement will amount to something more than a mere inconvenience.16

The key word is the one the court emphasized - only permitted uses, not prohibited uses, or uses that are only available with a special exception, are entitled to receive the lenient Viti standard for dimensional variances. The court, therefore, refused to apply the Viti rule to the request for reduced setbacks, stating that relief from the setback requirements "could have been granted in this case only as an exception and not as a Viti type deviation.". 17

Similarly, in V.S.H. Realty, Inc. v. Zoning Bd. of Review of East Greenwich18 the court, in rejecting use of the Viti standard for setback requirements where the applicant needed a special exception to use property for gas station, went so far as to say that the Viti rule "never" applies where the applicant seeks both a dimensional variance and a special exception.19

Therefore, based on both the statutory definition of "dimensional variance" as interpreted by the Newton case, and on substantial case law, your client will not be able to get around that parking requirement by demonstrating how inconvenient it is to her plans.

Another Approach to the Problem

All is not lost, however. Suppose your client does have the support of local legislators in her quest to establish the waterfront coffee shop. Although they cannot change the definition of "dimensional variance" to let her open her business without that twelfth parking space under the Viti standard, there is another way to accomplish the same objective.

The Northeastern court cited Zammarelli v. Beattie20 for the rule that a deviation or dimensional variance is not available where the use is granted by way of a special-use permit.21 But the Zammarelli case did not involve a request for both of those types of zoning relief. In that case only one kind of relief was sought, a variance to build a house on an undersized lot in a residential area. The use was a permitted use but the applicant could not meet the lot size requirements. The Zammarelli court based its decision on the fact that the zoning ordinance expressly authorized relief from area and setback requirements by way of special exception.22 Thus this case was based on a different rule, not that the Viti standard is unavailable when an applicant needs both a special exception and a dimensional variance, but rather that Viti cannot be employed when the specific relief sought is authorized in the zoning ordinance by some other legal standard.23

For this rule the Zammarelli court cited a similar case, DeStefano v. Zoning Bd. of Review,24 in which the owner of a small lot wanted to construct a single family dwelling, a permitted use, but needed relief from lot area and setback requirements. The court, commenting that "the Viti doctrine ... was never intended to operate where the requested relief can be obtained through local zoning ordinances," relied on a provision of the local zoning ordinance allowing the zoning board to grant a special exception for the construction of a permitted use on an undersized lot. With respect to the applicant's need for setback relief, the court noted that another provision of the ordinance empowered the board to grant relief from setback requirements, which precluded use of the Viti standard. On this issue the court held that the true variance "loss of all beneficial use" standard, not the Viti standard, applied.25

Thus the Zammarelli and DeStefano cases establish a rule about the availability of dimensional variances that is quite different from that expressed in the Newton and Northeastern cases. This rule holds that relief from the dimensional requirements of a zoning ordinance cannot be obtained under the Viti "more than a mere inconvenience" standard if the ordinance provides another standard for granting such relief.

Therefore if your coffee-loving council members want to help your client establish her business, all they have to do is amend the zoning ordinance to provide something like this:

In the case of a use allowable by special-use permit, relief from parking requirements may be authorized by the zoning board under the same requirements and conditions as apply to the special-use.

Under this provision, neither rationale articulated by the Newton court would prevent your client from getting the parking relief she needs. Of course, she would need to meet the theoretically higher standard of proof of a special-use permit rather than the "more than a mere inconvenience" standard of a dimensional variance.26 But in your client's case that should not be a problem since neighborhood support for the special use itself (the coffee shop) will undoubtedly extend to the minor relaxation of the parking requirements.

Footnotes:

  1. Newton v. Zoning Board of Review of City of Warwick, 713 A.2d 239 (R.I. 1998).  (back to text)

  2. Dimensional variances are also called deviations, regulatory variances, or "Viti" variances, and require proof that denial of relief will cause the applicant "more than a mere inconvenience." See Viti v. Zoning Bd. of Review of Providence, 92 R.I. 59, 166 A.2d 211 (1960) and R.I.G.L. 45-24-41(D)(2). Such a variance is distinguished from a "true" or "use" variance, which requires proof of a loss of all beneficial use.  (back to text)

  3. Prior to the adoption of the Zoning Enabling Act of 1991, special-use permits were called special exceptions. Both terms are used in this article.  (back to text)

  4. R.I.G.L. 45-24-42(1)-(3).  (back to text)

  5. R.I.G.L. 45-24-41(D)(2).  (back to text)

  6. Northeastern Corp. v. Zoning Board of Review, 534 A.2d 603 (R.I. 1987).  (back to text)

  7. Id., 534 A.2d at 241. The Court also said the rule of the Northeastern case was unaffected by the adoption of a new zoning enabling act in 1991.  (back to text)

  8. 534 A.2d at 605.  (back to text)

  9. As an illustration, see Sprague-Covington Co. v. Zoning Board of City of Cranston, 102 R.I. 317, 230 A.2d 419 (1967), in which the court rejected a claim that the relaxed Viti standard should be applied to allow a landowner to use two lots as a private driveway to his other property, where such use was not authorized by the zoning ordinance.  (back to text)

  10. 713 A.2d at 242 (emphasis by court).  (back to text)

  11. Lindberg's Inc. v. Zoning Board of Review, 106 R.I. 667, 262 A.2d 628 (1970); V.S.H. Realty, Inc. v. Zoning Bd. of Review of East Greenwich, 120 R.I. 785, 390 A.2d 378 (1978) (both cases rejecting argument that use permitted by means of special exception is synonymous with phrase "permitted use" for purposes of Viti rule).  (back to text)

  12. R.I.G.L. 45-24-31 ("the words and phrases herein defined shall be controlling in all local ordinances"). See Mongony v. Bevilacqua, 432 A.2d 661 (R.I. 1981) (ordinance defining "family" was inconsistent with [former] R.I.G.L. 45-24-22 and therefore was invalid).  (back to text)

  13. Two bills that would solve this problem by amending the definition of "dimensional variance" in the enabling act, H7447 (applicable generally) and S2131 (applicable only to the Town of Westerly), were introduced in the 2000 session of the General Assembly. However, neither was enacted into law.  (back to text)

  14. However, there is also some authority allowing dimensional relief under the Viti standard even though the use required a special exception. See Apostolou v. Genovesi, 120 R.I. 501, 388 A.2d 821 (1978), in which a manufacturing company applied to the zoning board for a special exception, required to extend its manufacturing use of the property, and a variance, required because the extension would violate the setback requirements. The court ignored the fact that both kinds of relief were involved and applied the Viti "more than a mere inconvenience" standard to the variance request.  (back to text)

  15. Sun Oil Co. v. Zoning Board of Review, 105 R.I. 231, 251 A.2d 167 (1969). In this case the subject parcel was located in two zoning districts and it is not clear whether the applicant required a use variance or a special exception to erect and operate a gasoline service station. However, the court did not decide that question but dealt solely with the standard to be applied to the requested relief from setback requirements.  (back to text)

  16. 241 A.2d at 169 (emphasis by court).  (back to text)

  17. 251 A.2d at p. 170.  (back to text)

  18. V.S.H. Realty, Inc. v. Zoning Bd. of Review of East Greenwich, 120 R.I. 785, 390 A.2d 378 (1978).  (back to text)

  19. 390 A.2d at 382. For other cases rejecting application of the Viti standard for relief from dimensional requirements where the use itself is only available by special exception, see Goelet v. Board of Review of City of Newport, 99 R.I. 23, 205 A.2d 135 (1964) (zoning board was without jurisdiction to vary frontage requirement under Viti rule where applicant needed special exception to add three apartments to dwelling); Dean v. Zoning Bd. of Review of Warwick, 120 R.I. 825, 390 A.2d 382 (1978) (rejecting use of Viti standard for setback relief where applicant needed special exception to extend nonconforming warehouse use of property). But compare Gardiner v. Zoning Board of Review of Warwick, 101 R.I. 681, 226 A.2d 698 (1967) (relief from side-line restrictions was available under Viti rule even though ordinance required special exception to build on undersized lot, where ordinance also provided that dwelling was permitted use on lot in question and thus its requirement for zoning board approval to build on undersized lot was not "true special exception").  (back to text)

  20. Zammarelli v. Beattie, 459 A.2d 951 (R.I. 1983).  (back to text)

  21. 534 A.2d at 605.  (back to text)

  22. Zammarelli, 459 A.2d at 954.  (back to text)

  23. Actually, the court in Zammarelli seems to have applied a combination of the Viti "more than a mere inconvenience" standard and the special exception standard measured by the impact of the relief upon surrounding property. See 459 A.2d at 953-954. But the important point is that the court rejected sole application of the Viti standard because the zoning ordinance expressly provided for relief from area and side-yard requirements by obtaining a special exception.  (back to text)

  24. DeStefano v. Zoning Bd. of Review, 122 R.I. 241, 405 A.2d 1167 (1979).  (back to text)

  25. Id., 405 A.2d at p. 1171.  (back to text)

  26. See Dean v. Zoning Bd. of Review of Warwick, 120 R.I. 825, 390 A.2d 382, 385 (1978) (stating that applicant "must sustain the burden of proof for a special exception to each relaxation of the ordinance requirements, both as to area and as to use").  (back to text)