Agenda - Planning Commission - 11/01/2018

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Zoning Bulletin September 10, 2018 I Volume 12 I Issue 17 required by the state statute that vested the trial court with power to assist towns in the enforcement of zoning ordinances, and, if not, whether that pre- sented a "manifest injustice" justifying relief from a court order to remove a garage that violated zoning setback requirements. The Background/Facts: In 2007, William C. McLaughlin ("McLaughlin") applied for and received a permit from the Building Inspector for the Town of Tiverton (the "Town"). The permit was for the construction of a 40-by-60-foot garage. Later it came to light that the permit was based on an erroneous site plan that inaccurately described the property boundaries. Ultimately, McLaughlin constructed a garage that was built 27 feet short of the side yard setback required by the Town Zoning Ordinance. In 2010, after receiving a notice of zoning violation related to the garage setback, McLaughlin applied for a zoning variance from the Town's Zoning Board of Review (the "Board"). The Board denied the variance request. McLaughlin then appealed his variance denial to the superior court. The superior court affirmed the Board's denial of the variance request. The court concluded that the only hardship McLaughlin faced was a self-created financial hardship, which was not a sufficient ground justifying a variance. McLaughlin then appealed that judgment to the Supreme Court of Rhode Island. That appeal was dismissed as procedurally improper. Subsequently, however, the Board filed a motion with the superior court, under the original zoning appeal case. That motion was entitled "Motion for Order to Comply." Under that motion, the Board asked the superior court to order McLaughlin to "either move or remove the [garage] to comply with local zoning in accor- dance with the decision of the [Board], affirmed by the [superior court]." The Board suggested a penalty of a daily fine for each day, after 90 days, that McLaughlin failed to remove the garage. In its request, the Board specifically asked the superior court to invoke its equitable powers under state statutory law, G.L., 1956, § 8-2-13, and order McLaughlin to comply with the Town Zoning Ordinance by moving or removing his garage. That statute vests the superior court with "exclusive original jurisdiction of suits and proceedings of an equitable character and of statutory proceedings following the course of equity." In April 2014, the superior court granted the Board's motion and entered the requested order (the "April 2014 Order"). When, nearly three years later, McLaughlin had still not removed the non- compliant garage, the Board filed a motion to enforce with the superior court. The Board asked the court to allow the Town to remove the garage. Unlike with the Board's early "Motion for Order to Comply [,]" which pointed to the Superior Court's equity jurisdiction under § 8-2-13, this motion to enforce invoked G.L. 1956 §§ 45-24-62(3) and (4). That statute vests the superior court with jurisdiction to aid towns and cities in their enforcement of their zoning ordinances, "upon due proceedings in the name of the city or town, instituted by its city or town solicitor . . .." That statute also authorizes the superior court to, among other things, "order the removal by the property owner of any building, structure . . . in violation of any zoning ordinance . . . and to authorize some official of the city or town, in the default of the re- moval by the owner, to remove it at the expense of the owner . . .." © 2018 Thomson Reuters