Supreme Court
RH McLeod Family LLC et al. : No. 2023-104-M.P. (WC 21-495) v. :
Westerly Zoning Board of Review et al. :
4 Spray Rock, LLC : No. 2023-117-M.P. (WC 21-497) v. :
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 (401) 222-3258 or Email opinionanalyst@courts.ri.gov, of any typographical or other formal errors in order that corrections may be made before the opinion is published. Supreme Court
RH McLeod Family LLC et al. : No. 2023-104-M.P. (WC 21-495) v. :
Present: Suttell, C.J., Goldberg, Lynch Prata, and Long, JJ.
OPINION
Chief Justice Suttell, for the Court. In these consolidated cases, this Court
issued writs of certiorari to review a Superior Court judgment affirming a decision
by the Westerly Zoning Board of Review. The zoning board granted a dimensional
variance to the respondents, Todd Nordstrom and Karyn Nordstrom (the
Nordstroms), enabling them to demolish the existing house on the property and build
a new three-story house. Before this Court, the petitioners, RH McLeod Family LLC
and Margot Perot (collectively, RH McLeod) and 4 Spray Rock, LLC (4 Spray
Rock), submit that the trial justice erred in affirming the decision of the zoning
board. For the reasons set forth herein, we quash the judgment of the Superior Court.
-1- I
Facts and Travel1
The Nordstroms submitted an application for a dimensional variance to the
Westerly Zoning Board of Review (the board) on April 15, 2021, for their property
located at 2 Spray Rock Road in Westerly, Rhode Island (the property). The
property is a preexisting nonconforming lot of 11,750 square feet, with
approximately sixty feet of frontage. It is located in a Medium-Density Residential
30 (MDR-30) district, which requires a minimum lot size of 30,000 square feet and
120 feet of frontage for a single-family residence. The nonconforming house on the
lot was built in 1957 and is a three-bedroom, two-bathroom, one-story house of
1,741 square feet. It exceeds the maximum impervious surface coverage under the
zoning ordinance and also is not compliant with side yard and rear yard setbacks.
The house is situated on its rear yard property line, as it is connected to a garage/barn
located on another lot at 112 Noyes Neck Road.
1 At the outset, we note that, although new zoning statutes have gone into effect since the time the Nordstroms filed their application for a dimensional variance, “[f]or this Court to interpret a statute as retroactive, the General Assembly must make a clear expression of retroactive application.” East Bay Community Development Corporation v. Zoning Board of Review of Town of Barrington, 901 A.2d 1136, 1144 (R.I. 2006). Our review of the relevant amendments to the Zoning Enabling Act reveals that they were specifically made effective on January 1, 2024 (P.L. 2023, ch. 304, § 2); therefore, we apply “the law in effect at the time when the applicant[] submitted its application for a permit to the zoning board.” Id. Accordingly, we utilize the public laws in citing to the relevant statutes throughout this opinion.
-2- The Nordstroms purchased the property at 2 Spray Rock Road in 2020 and
filed an application to demolish the existing house on the lot and build a new
three-story house situated in the center of the lot. The footprint of the proposed
building would be “less nonconforming” at approximately 1,597 square feet. Also,
locating the new house in the center of the lot would make it conforming with
rear-yard setback requirements. In their application, the Nordstroms requested a
dimensional variance of five feet for the right-side yard setback and five feet for the
left-side yard setback. Neighboring landowners filed objections to the Nordstroms’
application.2
The board held a hearing on the Nordstroms’ application on September 1,
2021, at which it heard testimony from Todd Nordstrom; James Houle, a real estate
expert presented by the Nordstroms; and Stephen Fennell, the architect for the
proposed home. In opposition to the application, 4 Spray Rock presented
Christopher Arner as an expert in architecture and RH McLeod presented Douglas
McLeod, who owned neighboring property and expressed concerns about the size of
the proposed house.
2 RH McLeod and Perot each own 50 percent of real property located at 75 and 79 Meadow Avenue neighboring the Nordstroms’ property. 4 Spray Rock owns real property located at 4 Spray Rock Road, adjacent to the Nordstroms’ property. They all raised objections with the zoning board.
-3- On October 6, 2021, the board voted 4 to 1 to approve the Nordstroms’
application to raze the existing house and replace it with a house requiring side yard
variances of five feet each. The approval also included certain conditions
concerning the porch for the house and the doors and bulkhead on the west side of
the house. The plans would be amended to reflect these conditions.
In a written decision issued on October 14, 2021, the board indicated that it
was accepting the objectors’ argument that the Nordstroms were required to prove
that there was “no other reasonable alternative to enjoy a legally permitted beneficial
use [for the property] absent [the dimensional variance] relief.” The board also
decided that § 260-32(C)(2) of the Westerly Zoning Ordinance did not prohibit the
Nordstroms from demolishing the existing house and then obtaining a dimensional
variance for a new house. The board indicated that the substandard size of the lot
required the Nordstroms to seek the dimensional variances and that the hardship was
not created by the Nordstroms, as they had no role in subdividing the original parcel
and joining the barn on the adjacent lot to their house. Based on the expert opinions
of Houle and Fennell and its own knowledge of the area, the board found “that the
proposed home is within the character of the community * * *.”
The board further found that granting the dimensional variances constituted
the least relief necessary. The board noted that Houle “testified that the proposed
home is within the size of the average American home for new construction” and
-4- that Fennell “explained that the room sizes were customary” and that “making the
rooms narrower would reduce their efficiency and usability.” The board also pointed
out that even Arner indicated that the room sizes were reasonable. The board noted
that the relief sought was such an insignificant amount that it could have been
approved through “the Dimensional Modification process, § 260-30.”
In addition, the board found that the hardship suffered by the Nordstroms
would amount to more than a mere inconvenience if dimensional relief were not
granted. Applying the higher hardship standard, the board concluded that there were
no other reasonable alternatives for the Nordstroms to enjoy their legally permitted
use. In support, the board pointed to the fact that renovation of the home is not a
reasonable alternative because of the existing home being connected to a barn
located in another lot. The board further indicated that the proposed house would
be less nonconforming than the current house and that the objectors’ alternatives to
the Nordstroms’ plan were not reasonable. Ultimately, the board granted the
Nordstroms’ application for a dimensional variance with conditions.
On November 2, 2021, RH McLeod filed a zoning appeal in the Superior
Court asserting that the board did not follow the correct legal standard in approving
the dimensional variance and violated the zoning ordinance in permitting the
Nordstroms to build a new nonconforming house after allowing them to demolish a
nonconforming house. 4 Spray Rock also filed its zoning appeal in the Superior
-5- Court on November 2, 2021, arguing that the board’s decision was unlawful. The
Superior Court consolidated those appeals.3
After the parties submitted memoranda, a justice of the Superior Court issued
a written decision on March 9, 2023. The trial justice began her analysis by
addressing the appropriate hardship standard. In so doing, she addressed petitioners’
argument that New Castle Realty Company v. Dreczko, 248 A.3d 638 (R.I. 2021),
overruled Lischio v. Zoning Board of Review of Town of North Kingstown, 818 A.2d
685 (R.I. 2003), and, therefore, “an applicant for dimensional relief must prove ‘that
there is no other reasonable alternative way to enjoy a legally permitted beneficial
use of the subject property unless granted the requested relief from the dimensional
regulations.’” Citing her decision in the separate case of Watch Hill Fire District v.
Westerly Zoning Board of Review, she disagreed with the contention that New Castle
overruled Lischio and instead indicated that the two cases and statutory sections can
be reconciled and that both standards apply to an application for a dimensional
variance. Applying her reasoning in Watch Hill Fire District, she explained that “a
fair reading of New Castle leads to the conclusion that a petitioner must consider
‘reasonable alternatives’ to satisfy the [G.L. 1956] § 45-24-41(d)(4)[, as amended
3 We note that Paul G. McDermott and Carol McDermott also filed a zoning appeal (WC 21-496) which was consolidated with petitioners’ case in the Superior Court. The McDermotts, however, did not file a petition for the issuance of a writ of certiorari to review the Superior Court’s decision.
-6- by P.L. 2016, ch. 527, § 4] ‘least relief necessary’ requirement for a dimensional
variance.” Therefore, she noted that,
“[a]lthough the New Castle Court stated the § 45-24-31(66)(ii)[, as amended by P.L. 2019, ch. 267, § 1] definitional language in full, the Court’s discussion of a ‘reasonable alternative’ did not otherwise rely on the second half of the definitional clause pertaining to whether the applicant could enjoy a ‘legally permitted beneficial use of the subject property.’ * * * As a result, Appellants read too much into the New Castle Court’s invocation of § 45-24-31(66)(ii). * * * New Castle, Lischio, § 45 24 31(66)(ii)[, as amended by P.L. 2019, ch. 267, § 1], and § 45-24-41[, as amended by P.L. 2016, ch. 527, § 4] can be reconciled without impermissibly undertak[ing] the correction of legislative mistakes.” (Internal quotation marks omitted.)
The trial justice then turned to whether the Nordstroms experienced a hardship
amounting to more than a mere inconvenience. Citing the narrow lot and the fact
that their current house is situated on the rear lot line attached to a barn located on
an adjacent lot, the trial justice determined that the Nordstroms experienced a
“hardship amounting to more than a mere inconvenience.”
The trial justice also agreed with the board that the Nordstroms’ proposal
represented the least relief necessary to ameliorate their hardships. She noted that
renovating the existing house would not address the fact that the house is located on
its rear lot. She also indicated that narrowing the width of the proposed new home
would not be a reasonable alternative in light of the evidence before the board. She
reasoned that the evidence indicated that a narrower design would not match the
-7- character of the area and would require special design and materials. Therefore, as
to the least relief necessary, the trial justice determined that there was substantial
evidence to support the determination that the alternatives presented by petitioners
“were not reasonable in their design or would involve more severe nonconformities
than the requested five-foot side-yard variances.”
The trial justice then addressed the parties’ arguments as to § 260-32(C)(2) of
the Westerly Zoning Ordinance, which provides:
“Destruction or demolition. A nonconforming structure which is destroyed or damaged by any means which is beyond the control of the owner shall be rebuilt or restored within one year, or thereafter conform to the dimensional provisions of this Zoning Ordinance. If a nonconforming building or structure is demolished or removed by or for its owner, it shall not be rebuilt or replaced except in conformity with the dimensional requirements of this Zoning Ordinance.”
The petitioners argued that the Nordstroms’ proposal should not have been approved
because the Nordstroms were prohibited from building a new nonconforming house
under ordinance § 260-32(C)(2). The trial justice, however, agreed with the board
that the ordinance still allowed for the possibility of the Nordstroms obtaining a
dimensional variance to build a new nonconforming structure. She indicated that
conformity with the dimensional requirements would also include obtaining
approval for a dimensional variance.
-8- The trial justice ultimately concluded that the board applied the correct legal
standard to the Nordstroms’ application for a dimensional variance and that the
board’s decision was supported by substantial evidence in the record. Accordingly,
she affirmed the board’s decision.
Judgment to that effect entered on March 21, 2023. RH McLeod filed a
petition for a writ of certiorari on March 27, 2023. 4 Spray Rock filed a petition for
a writ of certiorari on April 5, 2023. This Court granted the petitions for writs of
certiorari and consolidated the two cases on September 28, 2023.
II
Standard of Review
“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 G.L. 1956 § 45-24-69.” Freepoint Solar LLC v. Richmond Zoning Board of
Review, 274 A.3d 1, 5 (R.I. 2022) (brackets omitted) (quoting New Castle Realty
Company v. Dreczko, 248 A.3d 638, 642 (R.I. 2021)). “Section 45-24-69(d), in turn,
provides that the Superior Court ‘shall not substitute its judgment for that of the
zoning board of review as to the weight of the evidence on questions of fact’ but
may ‘reverse or modify the decision if substantial rights of the appellant have been
prejudiced’ by a decision that, among other things, is ‘affected by error of law’ or is
-9- ‘clearly erroneous in view of the reliable, probative, and substantial evidence of the
whole record.’” Id. at 6 (brackets and deletion omitted) (quoting § 45-24-69(d)(4),
(5)).
“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.” Freepoint Solar LLC, 274 A.3d at 6
(quoting New Castle, 248 A.3d at 643). “In this Court’s de novo review, a zoning
board’s determinations of law, like those of an administrative agency, 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 Pawtucket Transfer Operations, LLC
v. City of Pawtucket, 944 A.2d 855, 859 (R.I. 2008)).
III
Discussion
Before this Court, petitioners argue that (1) the Nordstroms failed to establish
that they have “no other reasonable alternative way to enjoy a legally permitted
beneficial use of the subject property”4 and that (2) “the plain language of
§ 260-32(C)(2) of the [o]rdinance precludes an owner from voluntarily demolishing
a nonconforming structure and building a new structure that does not meet the
4 This question of law was resolved in the separate but related case of Watch Hill Fire District v. Westerly Zoning Board of Review, No. 2022-327-M.P., and it is not necessary for us to restate the resolution here.
- 10 - requirements of the [o]rdinance.” 4 Spray Rock additionally argues that the trial
justice “failed to properly apply the standards for a dimensional variance and, in
particular, failed to hold the Nordstroms to their burden to demonstrate that the relief
sought is the ‘least relief necessary’ pursuant to § 260-33(D)(4) of the Code of
Ordinances of the Town of Westerly * * *.”
We are of the opinion that the trial justice misconstrued § 260-32(C)(2) when
she determined that the ordinance allowed the Nordstroms to obtain a dimensional
variance to demolish the current structure and to build a new nonconforming
structure. Section 260-32(C)(2) provides:
“Destruction or demolition. A nonconforming structure which is destroyed or damaged by any means which is beyond the control of the owner shall be rebuilt or restored within one year, or thereafter conform to the dimensional provisions of this Zoning Ordinance. If a nonconforming building or structure is demolished or removed by or for its owner, it shall not be rebuilt or replaced except in conformity with the dimensional requirements of this Zoning Ordinance.” (Emphasis added.)
“When interpreting an ordinance, we employ the same rules of construction
that we apply when interpreting statutes.” Freepoint Solar LLC, 274 A.3d at 6
(quoting Ryan v. City of Providence, 11 A.3d 68, 70 (R.I. 2011)). “When the
language of a statute or a zoning ordinance is clear and certain, there is nothing left
for interpretation and the ordinance must be interpreted literally.” Cohen v. Duncan,
970 A.2d 550, 562 (R.I. 2009) (brackets omitted) (quoting Mongony v. Bevilacqua,
- 11 - 432 A.2d 661, 663 (R.I. 1981)). It is also true that “we must presume that the drafters
intended every word of the ordinance to have a useful purpose and to have some
force and effect.” Id. (quoting Ruggiero v. City of Providence, 893 A.2d 235, 238
(R.I. 2006)). “[N]o construction of a statute should be adopted that would demote
any significant phrase or clause to mere surplusage.” In re Harrison, 992 A.2d 990,
994 (R.I. 2010) (quoting State v. Clark, 974 A.2d 558, 572 (R.I. 2009)).
The plain language of § 260-32(C)(2) is clear: A nonconforming building or
structure cannot be demolished and rebuilt by or for its owner unless it is “in
conformity with the dimensional requirements of this Zoning Ordinance.” The same
section of the ordinance carves out only one exception to this requirement: damage
or destruction “beyond the control of the owner,” and then only for a one-year period.
Section 260-32(C)(2) (emphasis added). “It is axiomatic that ‘where there is no
ambiguity, this Court is not privileged to legislate, by inclusion, words which are not
found in the statute [or ordinance].’” Olamuyiwa v. Zebra Atlantek, Inc., 45 A.3d
527, 536 (R.I. 2012) (brackets omitted) (quoting Wayne Distributing Co. v. Rhode
Island Commission for Human Rights, 673 A.2d 457, 460 (R.I. 1996)). If the town
desired to create an additional exception to § 260-32(C)(2), such as obtaining a
dimensional variance, “we do not doubt that it could have done so; but the blunt fact
is that it did not do so.” Id.
- 12 - Furthermore, the inclusion of the language “in conformity with the
dimensional requirements of this Zoning Ordinance[,]” § 260-32(C)(2) (emphasis
added), signifies the unremarkable proposition that nonconformances—whether
they be nonconforming uses or nonconforming structures—are disfavored as they
are contrary to the overall purpose of a zoning scheme. Cf. Town of Richmond v.
Wawaloam Reservation, Inc., 850 A.2d 924, 934-35 (R.I. 2004); § 45-24-40(B), as
enacted by P.L. 1991, ch. 307, § 1 (entitled “General provisions—Alteration of
nonconforming development”) (“The ordinance may require that such alteration
shall more closely adhere to the intent and purposes of the zoning ordinance.”). We
reject the notion that § 260-32(C)(2) should be read such that “conformity with the
dimensional requirements” would include the possibility of obtaining a dimensional
variance. “This argument ignores longstanding precedent that, when faced with an
otherwise plain and unambiguous ordinance, this Court will not seek out ambiguity
where none otherwise exists.” Freepoint Solar LLC, 274 A.3d at 7. We also note
that the definition of the term “dimensional variance,” which is controlling on all
local ordinances, is “[p]ermission to depart from the dimensional requirements of a
zoning ordinance * * *.” Section 45-24-31(66)(ii), as amended by P.L. 2019, ch.
267, § 1. Thus, the Westerly Ordinance contemplates conformance with its
dimensional requirements, not a departure therefrom.
- 13 - Although we have said that “‘some deference should be paid’ to the
‘interpretation placed on an ordinance by the municipal official responsible for
enforcing it[,]’ * * * in no case may blind deference be paid to the construction given
by any official, agency, or board, as ‘this Court is the final arbiter with respect to
questions of * * * construction.’” City of Woonsocket v. RISE Prep Mayoral
Academy, 251 A.3d 495, 502 (R.I. 2021) (quoting New England Expedition-
Providence, LLC v. City of Providence, 773 A.2d 259, 263 (R.I. 2001)). Here, we
disagree with the interpretation of the board and the trial justice because we are of
the opinion that the plain language of § 260-32(C)(2) prevents the Nordstroms from
obtaining dimensional variances if they should demolish the existing nonconforming
structure.
The second sentence of § 260-32(C)(2) speaks to a very limited and specific
audience: property owners who voluntarily seek to demolish a nonconforming
structure and replace it with another structure. We think the language of the
ordinance is very clear that, to do so, they must adhere to the dimensional
requirements of the ordinance. To interpret the sentence as allowing such owners
the ability to apply for dimensional variances would render said sentence as mere
surplusage.
- 14 - Accordingly, we hold that the trial justice erred in affirming the decision of
the board.5
IV
Conclusion
For the reasons set forth herein, we quash the judgment of the Superior Court.
The record shall be returned to the Superior Court with our decision endorsed
thereon.
Justice Robinson did not participate.
5 Because we quash the judgment on these grounds, we need not reach 4 Spray Rock’s argument as to whether the Nordstroms met their burden in demonstrating that the relief sought is the “least relief necessary.”
- 15 - STATE OF RHODE ISLAND SUPREME COURT – CLERK’S OFFICE Licht Judicial Complex 250 Benefit Street Providence, RI 02903
OPINION COVER SHEET
RH McLeod Family LLC et al. v. Westerly Zoning Board of Review et al. Title of Case 4 Spray Rock, LLC v. Westerly Zoning Board of Review et al. No. 2023-104-M.P. (WC 21-495) Case Number No. 2023-117-M.P. (WC 21-497)
Date Opinion Filed July 18, 2025
Justices Suttell, C.J., Goldberg, Lynch Prata, and Long, JJ.
Written By Chief Justice Paul A. Suttell
Source of Appeal Washington County Superior Court
Judicial Officer from Lower Court Associate Justice Sarah Taft-Carter
For Petitioners:
Gerald J. Petros, Esq. Stephen J. MacGillivray, Esq. Attorney(s) on Appeal For Respondents:
Scott D. Levesque, Esq. Kelly M. Fracassa, Esq.