Jack Lefcourt and Richard Foreman v. Town of New Shoreham Zoning Board of Review and Judith Clark
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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
WASHINGTON, SC
Filed 12-8-09
JACK LEFCOURT and
RICHARD FOREMAN
v.
TOWN OF NEW SHOREHAM
ZONING BOARD OF REVIEW and
JUDITH CLARK
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SUPERIOR COURT
C.A. No. WC 2008-0721
DECISION
THOMPSON, J. This matter is before the Court on the appeal of Jack Lefcourt and Richard
Foreman (“Appellants”) from a decision of the Town of New Shoreham Zoning Board of
Review (“Zoning Board” or “Board”). The Board’s decision issued September 25, 2008, granted
Judith E. Clark’s (“Clark”) appeal of a zoning notice violation. The Board granted Clark’s
appeal pursuant to an “incidental to construction” exception contained in the Town of New
Shoreham Zoning Ordinance (“the Ordinance”). Appellants maintain the Board improperly
construed the exception when it allowed a “trade trailer” or “utility trailer” on Clark’s property
so long as she uses the trailer in conjunction with her painting business. Appellants filed the
instant, timely, appeal to this Court on October 1, 2008. Jurisdiction in this Court is pursuant to
G.L. 1956 § 45-24-69.
I
Facts and Travel
Clark owns real property located at 1068 Beacon Hill Road, in the Town of New
Shoreham 1 (“Town”), Rhode Island, designated as Assessor’s Plat 18, Lot 32. Appellants are
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The Town of New Shoreham is the only town on Block Island.
interchangeably throughout the opinion.
As such, the Court uses the two terms
residents of 1069 Beacon Hill Road and 1833 Beacon Hill Road, Assessor’s Plat 18, Lots 33:1
and 33:2. The two lots abut on the southern portion of Clark’s property.
In June 2008, a dispute between the Appellants and Clark arose when Clark began
constructing a fence on her property without obtaining a building permit. After receiving a
complaint from the Appellants about the fence, New Shoreham’s Building Official and Zoning
Enforcement Official, Marc Tillson (“Tillson”), went and inspected the fence.
During the
inspection of the fence Tillson noticed a 1964 Shasta trailer on Clark’s property, which he
believed violated the Ordinance. On June 11, 2008, Tillson wrote Clark a letter issuing a notice
of violation that stated:
When I inspected the fence I noticed that you have placed a trailer
on your property approximately twenty feet from the fence. The
trailer has a kitchen, and I observed bedding on the floor.
The Town’s Zoning Ordinance Section III, General Prohibitions
(3) prohibits “trailers or mobile homes for human habitation or an
accessory use, except incidental to construction.” Please remove
the trailer from your property within ten (10) days of the date of
this letter.
If you should feel aggrieved by this decision, you may appeal to
the Zoning Board of Review within twenty (20) days of the date of
this letter.
On June 23, 2008, Clark appealed Tillson’s decision to the Board. As part of her appeal Clark
submitted a letter stating, “I have purchased a trailer that was previously a small vintage camper
with the purpose of recycling it into my painting utility trailer.” According to Clark, the
“bedding” Tillson had seen in the trailer was “(drop clothes) as the glue from the old flooring
was annoying while I was inside working on it.” In addition to her letter, Clark attached the state
registration for a 1964 Shasta trailer bearing VIN #P297, which was registered to her on May 21,
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2008. Photographs Clark submitted to the Board indicate the trailer is white and has at least two
windows and a door.
On August 25, 2008, the Board heard Clark’s appeal of the notice of violation issued by
Tillson. At the proceeding the Board heard testimony and received evidence. Tillson testified he
had received numerous complaints from both Clark and the Appellants about the various
activities occurring on their respective properties.
(Tr. Notice of Violation Appeal at 5.)
However, Tillson testified the dispute at bar arose when Clark began construction of a fence on
her property without obtaining the appropriate building permit. Id. Tillson explained that after
construction of the fence began he received a complaint from the Appellants about the fence, and
also noted the police responded to complaints about the fence on two separate occasions. Id.
Additionally, Tillson stated the Sergeant of the Police Department asked Tillson if he could step
in and try to resolve the problem between the neighbors. Id. As a result, Tillson testified he
went out to Clark’s property to inspect the fence, but while on Clark’s property he noticed a
trailer within twenty feet of the fence. Id. at 7. After observing what he believed to be bedding
inside the trailer Tillson issued the notice of violation because he believed, “it could have been
used for human habitation.” Id. at 7-8. Although Tillson had not been out to Clark’s property to
conduct a follow-up inspection, he testified the trailer had not moved since he conducted his
investigation. Id. at 8, 12.
Clark testified she purchased the trailer with the intention of converting it into a “utility
trailer” for her construction painting business, and that no one was living in it. Id. at 13-14.
Clark submitted photographs to the Board which showed she removed the bed assembly, the
flooring, the stove, and the toilet from inside the trailer. Clark further testified that when her
renovation was complete she intended to keep her paints, brushes, power washer, and ladders
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inside the trailer. Id. at 16. However, she also testified that the trailer would not remain on her
property permanently. Id. at 17. Clark stated, “I will take [the trailer off the property] when I
need it. I don’t know when I’ll need it, it depends on the job. If the job is small, I wouldn’t take
it. If the job is larger and it takes more time, then I need all the stuff that I have, I would take it.”
Id. at 18. Prospectively, once the trailer was at a construction site Clark “would leave it there
‘till [she] was finished with the job.” Id. at 20. Although she was uncertain as to exactly how
frequently the trailer would be on her property, Clarke testified she generally had ten to fifteen
large jobs over the course of a year. Id. at 18.
After hearing testimony and reviewing the various pictures of the trailer, the Board voted
to reverse Tillson’s decision and allow Clark to keep the trailer on her property. The Board
issued the following findings of fact:
1. Building Official Marc Tillson, in a letter dated June 11, 2008,
required Judith E. Clark to remove a trailer from Plat 18, Lot
32.
2. Ms Clark has appealed that decision testifying that the trailer is
being converted to a utility trailer solely for use in her painting
contracting business, said trailer to be moved from job site to
job site, as required to support her painting contracting
business.
3. The trailer is a State of Rhode Island registered vehicle.
4. Ms Clark stated, and photos introduced at the hearing show,
that the kitchen and toilet formerly located within the trailer
have now been removed.
5. Article 1-Section 111 A. 3. of the Zoning Ordinance provides
an exception allowing trailers incidental to construction and
there are many trailers being used similarly around the Island.
The Board’s decision allowed Clark to keep the trailer on her property subject to two conditions.
First, Clark can use the trailer in connection with only her painting business. Second, the trailer
cannot be used for human habitation or for any storage, other than for storage of Clark’s supplies
incidental to her contracting business and needed on job-sites.
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On appeal, the Appellants argue the Board committed an error of law when it construed
the “incidental to construction” language of Section 111(A)(3) of the Ordinance to permit Clark
to keep the trailer on her property.
II
Standard of Review
Rhode Island General Laws 1956 § 45-24-69 provides this Court with the specific
authority to review decisions of town zoning boards. Under § 45-24-69(d), this Court has the
power to affirm, reverse or remand a zoning board decision. In conducting its review, “[t]he
court shall not substitute its judgment for that of the zoning board . . . as to the weight of the
evidence on questions of fact.” § 45-24-69(d). This Court may reverse or modify the zoning
board’s decision only “if substantial rights of the appellant have been prejudiced because of
findings, inferences, conclusions, or decisions which are:
(1) In violation of constitutional, statutory, or ordinance
provisions;
(2) In excess of the authority granted to the zoning board of
review by statute or ordinance;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable, probative, and
substantial evidence of the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion
or clearly unwarranted exercise of discretion. Id.
Judicial review of administrative action, including zoning decisions, is “essentially an appellate
proceeding.” Notre Dame Cemetery v. Rhode Island State Labor Relations Bd., 118 R.I. 336,
339, 373 A.2d 1194, 1196 (1977); see also Mauricio v. Zoning Bd. of Review of the City of
Pawtucket, 590 A.2d 879, 880 (R.I. 1991).
As to this Court’s review of a zoning board’s factual findings, the Superior Court “lacks
[the] authority to weigh the evidence, to pass upon the credibility of witnesses, or to substitute
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[its] findings of fact for those made at the administrative level.” Restivo v. Lynch, 707 A.2d
663, 665 (R.I. 1998) (quoting Lett v. Caromile, 510 A.2d 958, 960 (R.I. 1986)). Rather, the trial
justice “must examine the entire record to determine whether ‘substantial’ evidence exists to
support the board's findings.” DeStefano v. Zoning Bd. of Review of Warwick, 122 R.I. 241,
245, 405 A.2d 1167, 1170 (1979). “Substantial evidence is relevant evidence that a reasonable
person would accept as adequate to support the board’s conclusion and amounts to ‘more than a
scintilla but less than a preponderance.’” Lischio v. Zoning Bd. of Review of the Town of North
Kingstown, 818 A.2d 685, 690 n. 5 (R.I. 2003) (quoting Caswell v. George Sherman Sand and
Gravel Co., Inc., 424 A.2d 646, 647 (R.I. 1981)). In short, a reviewing court may not substitute
its judgment for that of the board’s if it “‘can conscientiously find that the board’s decision was
supported by substantial evidence in the whole record.’” Mill Realty Assocs. v. Crowe, 841
A.2d 668, 672 (R.I. 2004) (quoting Apostolou v. Genovesi, 120 R.I. 501, 509, 388 A.2d 821, 825
(1978)).
Appellate courts review questions of statutory interpretation de novo. Tanner v. Town
Council, 880 A.2d 784, 791 (R.I. 2005). A zoning board’s determinations of law “are not
binding on the reviewing court; they ‘may be reviewed to determine what the law is and its
applicability to the facts.’”
Gott v. Norberg, 417 A.2d 1352, 1361 (R.I. 1980) (quoting
Narragansett Wire Co. v. Norberg, 118 R.I. 596, 607, 376 A.2d 1, 6 (1977)).
Under Rhode Island law, “the rules of statutory construction apply equally to the
construction of an ordinance.” Mongony v. Bevilacqua, 432 A.2d 661, 663 (R.I. 1981). When
construing statutes, this Court will not interpret statutory schemes in such a manner as to reach
an absurd result. See Peck v. Jonathan Michael Bldrs., Inc., 940 A.2d 640, 643 (R.I. 2008). The
paramount goal in statutory interpretation is to ascertain the intent behind the enactment of the
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statute and effectuate that intent when lawful. See State v. Badessa, 869 A.2d 61, 65 (R.I. 2005).
If the language of a statute is clear and unambiguous, the Court will give the words their plain
and ordinary meaning. Park v. Rizzo Ford, Inc., 893 A.2d 216, 221 (R.I. 2006). If the language
of a statute is unclear and ambiguous the Court will attempt to “establish[] and effectuate[] the
legislative intent behind the enactment.”
State v. Fritz, 801 A.2d 679, 682 (R.I. 2002).
Additionally, if the “provisions of a statute are unclear or subject to more than one reasonable
interpretation, the construction given by the agency, or board, charged with its enforcement is
entitled to weight and deference, as long as that construction is not clearly erroneous or
unauthorized.” Pawtucket Transfer Operations, LLC v. City of Pawtucket, 944 A.2d 855, 85960 (R.I. 2008) (citing Flather v. Norberg, 119 R.I. 276, 283 n. 3, 377 A.2d 225, 229 n. 3 (1977)).
Deference is given because, “a zoning board of review is presumed to have knowledge
concerning those matters which are related to an effective administration of the zoning
ordinance.” Monforte v. Zoning Board of Review of East Providence, 93 R.I. 447, 449, 176
A.2d 726, 728 (1962).
III
Analysis
The dispute between the parties centers on the appropriate interpretation of Article 1,
Section 111 of the Ordinance. Article 1, Section 111 of the Ordinance prohibits the following
uses in all zoning districts:
A. Any structure or building or any use of any structure, building,
premises or land which is injurious, obnoxious, offensive,
dangerous or a nuisance to the community or to the neighborhood
through noise, vibration, concussion, odors, fumes, smoke, gases,
dust, harmful fluids or substances, danger of fire or explosion, or
other objectionable features detrimental to the community or
neighborhood health, safety, convenience, morals or welfare,
including but not limited to the following: . . .
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3. trailers or mobile homes for human habitation or any accessory
use, except use incidental to construction; . . .
23. all temporary and/or mobile facilities for residential,
commercial or industrial use or storage (unless authorized under
Section 112).
The Appellants argue the Board’s decision is unsupported by the record evidence because
the Board improperly construed the Ordinance. Specifically, Appellants contend the Board
completely ignored Section 111(A)(23) when the Board determined Clark’s use of the trailer was
“incidental to construction” under Section 111(A)(3).
According to the Appellants, the
Ordinance permits a trailer on an individual’s property only if it is incidental to the construction
of that individual’s home. Conversely, Clark argues the Board properly construed “incidental to
construction” to include her use of the trailer as a “utility trailer” or “trade trailer” for her
painting business, which she could properly store on her property when not at a work-site.
Article 2, Section 202(A)(128), defines “mobile home” as “a structure designed as a
dwelling unit for residential purposes, capable of being moved on its own wheels and fixed to a
permanent foundation.” However, Article 2, Section 202, does not define the words “trailer” or
“mobile facility.” Without any definitional guidance from the Ordinance, this Court is required
to give the words their plain and ordinary meaning. See Park, 893 A.2d at 221. As such, this
Court accepts the definition provided by G.L. 1956 § 31-1-5(c), which defines a trailer as,
“every vehicle without motive power, other than a pole trailer, designed for carrying persons or
property and for being drawn by a motor vehicle, constructed so that none of its weight rests
upon the towing vehicle.” Additionally, the Court defines mobile as, “movable; not firm,
stationary, or fixed” and facility to mean, “a building, special room, etc. that facilitates or makes
possible some activity.”
Webster’s New Universal Unabridged Dictionary 1153 (1983);
Webster’s New World Dictionary of the American Language 501 (1970).
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After giving Section 111(A)(23) its plain and ordinary meaning, this Court is unable to
read the provision as anything other than an all-encompassing ban on any kind of mobile storage
unit. Section 111(A)(23)’s restriction against any “mobile facilities for residential, commercial
or industrial use or storage” clearly envisions a general prohibition of any trailers or mobile
homes. However, Section 111(A)(3) contains an exception to this general prohibition against
trailers or mobile homes if their use is “incidental to construction.” Thus, it is evident the
Ordinance sets up a general prohibition and a specific exception, which are in direct conflict with
each other. Rhode Island General Laws 1956 § 43-3-26 provides:
[w]herever a general provision shall be in conflict with a
special provision relating to the same or to a similar subject, the
two (2) provisions shall be construed, if possible, so that effect
may be given to both; and in those cases, the special provision
shall prevail and shall be construed as an exception to the general
provision.
It is clear the “preference is for the court to construe the statutes so that both may be given
effect.” Park v. Ford Motor Co., 844 A.2d 687, 694 (R.I. 2004) (citation omitted). As such, the
Court reads the provisions of Article 1, Sections 111(A)(3) and 111(A)(23) together.
Reading the two provisions together it is clear the only permitted use of any type of
mobile unit under the Ordinance is one which is “incidental to construction.” 2 Giving the words
their plain and ordinary definition incidental means “happening or likely to happen as a result of
or in connection with something more important” or “secondary or minor.” Webster’s New
Universal Unabridged Dictionary 922 (1983). Construction is defined as “the act or process of
2
The Court notes Section 111(A)(23) also contains an exception for mobile facilities “authorized under Section
112.” Section 112 allows the Town Council to grant permits “in circumstances of emergency or other urgent
necessity for the public health and safety” “only for [a] use or purpose that cannot be accomplished by compliance
with the provisions of the ordinance.” Assuming arguendo, a trailer or mobile facility being used for a business
purpose could satisfy these requirements, Section 112 allows these permits to last for “six (6) months, however, that
upon similar application one additional period of six (6) months may be allowed in accordance with these
provisions.” Thus, Section 112 grants these special use permits for no more than a year, which would not be
suitable for an individual attempting to operate a construction business that necessitated a trailer or mobile facility.
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building, or of devising and forming; fabrication; erection.” Id. at 392. In this context, and
mindful of Section 111(A)(23)’s general prohibition on trailers, the Court is satisfied the
Ordinance permits a trailer on an individual’s property during the construction or renovation of a
home, or when used as a substitute residence during construction or renovation. 3 During the
course of construction of a new home, or the renovation of an existing residence, a trailer to hold
materials, tools, and supplies is undoubtedly a “secondary or minor” necessity of the
undertaking. Moreover, in the event of fire, windstorm, flooding, hurricane, or other natural
disaster a trailer or mobile home as a substitute residence during the construction repair is a
“secondary or minor” need following the casualty. Such an interpretation gives effect to Section
111(A)(3) and respects 111(A)(23)’s general prohibition, and thereby maintains the integrity of
each provision of the Ordinance.
Clark urges the Court to read “incidental to construction” to allow individuals to keep
trailers on their property if used in conjunction with their trade or business. However, it cannot
be said the storage a “utility trailer” or “trade trailer” “is likely to happen as a result of” or
“secondary or minor” to “the act or process of building, or of devising and forming; fabrication;
erection” at another location.
After a job is completed no “building, devising, forming,
fabrication, or erection” occurs while the trailer sits idly on an individual’s residence. Id. at 392,
3
Section 112 also contains an exception for a:
temporary building or yard for construction materials and/or a temporary trailer
used for residential occupancy necessitated by any loss or damage of a principal
structure by fire, hurricane or other natural disaster shall be permitted in any
district subject [to] approval by the Building Official provided, that any building
permit for any such temporary use shall be valid for not more than six (6)
months unless such time period is extended by the Building Official, for on
additional six (6) month period, for good cause.
Thus, the Court is mindful the Ordinance clearly permits an individual to use a trailer or mobile facility as a
substitute residence after a casualty loss stemming from a natural disaster.
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922. Put simply, no construction occurs, and no construction is ongoing, when a trailer is not at
a job-site.
Moreover, such a reading is clearly in conflict with Section 111(A)(23)’s prohibition on
trailers for “commercial or industrial use or storage.” Indeed, were the Court to adopt Clark’s
proposed reading of the Ordinance, Section 111(A)(23)’s general prohibition on trailers is
rendered a virtual nullity.
In addition to exceptions for renovation, new construction or
substitute housing, Clark’s reading allows any individual engaged in a business or trade to
maintain and store a trailer on their property for an indefinite period of time. Quite apart from the
limited timeframe envisioned by exceptions for home construction, renovation, or substitute
housing, exceptions based upon business or trade practice are potentially limitless in duration.
This interpretation effectively eviscerates provision Section 111(A)(23) from the Ordinance and
renders it inoperative. As Clark correctly points out, there would be no dispute if the Ordinance
read “incidental to construction trade” or “incidental to construction by the owner,” but the
Ordinance does not. Although the Court gives deference to the Board’s interpretation of an
ordinance it administers when consistent with the ordinance’s language, this Court will not adopt
an interpretation contrary to the express plain and ordinary meaning of the ordinance. See
Unistrut Corp. v. State Dept. of Labor and Training, 922 A.2d 93, 99 (R.I. 2007) (“when a statute
is clear and unambiguous, we are not required to give any deference to the agency’s reading of
the statute”).
Further, providing the terms with their plain and ordinary meaning is consistent with
achieving the stated goals of the Ordinance. Article 1, Section 102(C)(1) states one of the
purposes of the Ordinance is to achieve “[t]he goals and patterns of land use contained in the
Comprehensive Plan.” The Town of New Shoreham Comprehensive Plan’s (“the Plan”) stated
11
objective is to “influence and manage growth adequately to preserve the community and culture
and character that has been the hallmark of Block Island for generations.” (Comprehensive Plan
at 1.) Moreover, one of the goals of the Plan is that “[t]he ultimate amount of development,
together with its location, qualities, and management, should be controlled so that no
environmental or service system’s fundamental carrying capacity or sustainability is threatened.”
(Comprehensive Plan at 14.) The New Shoreham Town Council’s (“Town Council”) adoption
of Article 1, Section 111(A)(3) and 111(A)(23) is clearly responsive to the concern of avoiding
over-development. Prohibiting all trailers, mobiles homes, and mobile facilities for residential,
commercial, or industrial use, subject to certain limited exceptions, allows the Town Council to
maintain strict control over the amount of growth occurring on Block Island. Additionally,
restricting these vehicles from Block Island allows the Town Council to maintain the scenic
“culture and character that has been the hallmark of Block Island for generations.”
(Comprehensive Plan at 1.) This Court refuses to adopt a reading of the statute that is plainly at
odds with the Town Council’s intent in passing the Ordinance. See Dias v. Cinquegrana, 727
A.2d 198, 199-200 (R.I. 1999) (noting it is the court’s goal to determine and effectuate the
legislature’s intent).
Additionally, this Court finds it instructive that amendments with a potentially dispositive
effect on the case at bar have already been considered and rejected by the Town Council. On
March 2, 2009, the Town Council held a public hearing to consider amending the Ordinance’s
sections currently before the Court. Specifically, the Town Council considered changing Article
1, Section 111(A)(3) to read, “[t]railers or mobile homes for residential or residential accessory
use, except on a day-use (non-habitation) basis by a contractor in association with a construction
job site, or on a temporary living basis by a resident under the provisions of Section 112.”
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Additionally, the proposed amendments also altered Section 111(A)(23) to read, “[t]he parking
or use of trailers, shipping containers and similar temporary and/or mobile facilities for any
commercial or industrial activity or storage, with the exception of trades trailers, as provided for
in Section 516.” Finally, the amendments also proposed adding a new Section to the Ordinance
entitled “Section 516-Traders Trailers” which read:
A. General Standards: Commercially used enclosed trailers which
provide for the storage and transport of equipment and supplies
related to the building and other trades are permitted, provided
that any such trailer:
1.
2.
3.
4.
Is currently registered as a commercial vehicle;
Is equipped with wheels so that it is transportable by towing;
Does not include interior plumbing fixtures;
Does not exceed eight (8) feet in width nor twenty-four (24)
feet in length; and
5. Is able to be entirely closed so that the contents are not visible
when not in use.
B. Identification: Trades trailers shall be identifiable from the
exterior by either the business name or the Rhode Island
license number for the business. Any building contractor
making use of a trades trailer shall include either the
contractor’s registration number or the building trade’s license
number on the exterior of the trailer.
C. Use Standards: (sic) Such trailers may be in place or use at any
location, including the owner’s residence, but shall be used
only for storage and transport, and on-site construction activity.
No more than one such trailer shall be allowed on a
contractor’s resident property.
These amendments clearly evidence an intention to provide for the type “trade trailer” or “utility
trailer” currently before the Court.
However, the Town Council elected not to adopt the
proposed amendments and elected to maintain the status quo. Although the Court may prefer the
Ordinance provide for “trade trailers” or “utility trailers,” it is not the province of this Court to
substitute its judgment for the legislature. See Parella v. Montalbano, 899 A.2d 1226, 1256 (R.I.
13
2006) (refusing to “pit two plans against one another and find which one is better” and “second
guess the legislature”).
Therefore, this Court finds the Ordinance allows trailers on an
individual’s property only during the construction or renovation of a home, or while being used
as substitute residence during the construction or renovation of a home; however, after the
construction ends the trailers cannot be stored on Block Island.
As a result, this Court holds the Board violated the Ordinance provisions when it allowed
Clark to maintain a trailer on her property under the “incidental to construction” exception.
Nothing in the record indicates Clark was conducting any type of construction on her premises at
the time she appealed Tillson’s decision. Indeed, Clark’s own testimony indicates her sole goal
is to use the trailer in conjunction with her painting business. Thus, the Court finds the Board’s
decision reversing Tillson’s notice of violation was made in violation of law, contrary to the
Ordinance, and constituting an abuse of discretion.
The Court is mindful of the hardship the Ordinance, as written, places on contractors who
reside on Block Island. The Ordinance allows a contractor to bring a trailer to a construction site
to do work, but leaves the contractor without a location to store the trailer on the island once the
job is completed. Consequently, contractors residing on Block Island must remove their trailers
from Block Island every time a job is finished, and pay the expense associated with transporting
the trailer. Further, once off Block Island, the contractor will need to find a suitable location to
store the trailer, and likely incur a storage related expense. As a result, the Ordinance works a
distinct burden against contractors who reside on Block Island, and likely increases the cost
associated with obtaining contracting work to all residents of Block Island. As the Plan itself
recognizes, “[t]ransporting everything consumed here but not grown or made here has a
transportation penalty, just as making things here for use elsewhere is penalized by transport
14
costs and availability.” (Comprehensive Plan at 2.) For the reasons previously mentioned, the
Ordinance increases the cost of construction services by requiring a contractor to transport and
store a trailer off Block Island, a cost likely to be passed on to Block Island’s residents.
Therefore, the Ordinance is a disadvantage not only to resident contractors, but also any resident
requiring a contractor’s services on Block Island.
Residents aggrieved by the Court’s decision are free to alter the Ordinance by lobbying
the Town Council. “Members of the legislative and executive branches are directly accountable
to the electorate, and such responsibilities as the allocation of property tax burdens and general
state levies are best dealt with through the political process, incorporating informed decisions at
the state and local levels.”
City of Pawtucket v. Sundlun, 662 A.2d 40, 62 (R.I. 1995).
Similarly, under Rhode Island law, significant power is vested in local bodies to adopt zoning
alterations, because localities are best suited to make informed decisions on the uses allowed in a
community. See G.L. 1956 § 45-24-29. 4 As the amendments proposed on March 2, 2009
evidence, the predicament Block Island residents and contractors currently face is readily
curable. However, it is up to the residents of New Shoreham to determine whether or not they
will allow “trade trailers” or “utility trailers” to be stored on Block Island.
4
§ 44-24-29 provides in pertinent part:
(b) Therefore, it is the intent of the general assembly:
(1) That the zoning enabling authority contained in this chapter provide all cities
and towns with adequate opportunity to address current and future community
and statewide needs; . . .
(3) That the zoning enabling authority contained in this chapter empower each
city and town with the capability to establish and enforce standards and
procedures for the proper management and protection of land, air, and water as
natural resources, and to employ contemporary concepts, methods, and criteria
in regulating the type, intensity, and arrangement of land uses, and provides
authority to employ new concepts as they may become available and feasible.
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IV
Conclusion
Based on the foregoing, the decision of the Board granting Clark’s appeal from Tillson’s
notice of violation is reversed. After a review of the evidence, the Court finds the Board’s
decision unsupported by the evidence on the record, in violation of law, contrary to the
Ordinance, and an abuse of discretion.
Counsel shall submit an appropriate order for entry in accordance with this Decision
within ten (10) days.
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