Posted by: Patricia Salkin | August 16, 2018

RI Court Finds that Denial of Zoning Certificate was Nonbinding and Advisory and Therefore Not Appealable

This post was authored by Amy Lavine, Esq.

The Rhode Island Superior Court held in April that a property owner lacked standing to appeal the denial of her request for a zoning certificate, given that zoning certificates are nonbinding and advisory in nature and therefore cannot establish any basis for aggrievement. Biggs v. Bongiolatti, 2018 WL 1832007 (4/11/18).

Gretchen Biggs owned a nonconforming property in a medium-density residential district in the Town of Westerly. She obtained a special use permit in 2011 to expand her residence on the condition that no future development or additions would be permitted. She subsequently applied for a zoning certificate in 2015 in order to construct a “widow’s walk” recessed into her roof, but the zoning official denied her request on the basis of the restriction contained in her 2011 permit. Rather than apply to the zoning board for a use variance, as the zoning official recommended, Biggs requested administrative review, but the zoning board affirmed the decision denying the zoning certificate. Biggs then filed this appeal, claiming that the board exceeded its authority and misapplied the restrictive language in her earlier special use permit.

The Superior Court began its analysis by noting that zoning certificates are “nonbinding and exist to provide guidance or clarification.” As the statute provided, a zoning certificate was defined as “”[a] document signed by the zoning-enforcement officer, as required in the zoning ordinance, that acknowledges that a use, structure, building, or lot either complies with, or is legally nonconforming to, the provisions of the municipal zoning ordinance or is an authorized variance or modification therefrom.” In this sense, the court explained, zoning certificates are fundamentally distinct from permits in that they do not authorize any construction or development, nor do they vest any rights in the applicant.

Significantly, the court also explained that due to their nonbinding nature, zoning certificates are not appealable. This is because they cannot injure a property owner, as they have no legal effect on the subject property, and the enabling act only provides a right of appeal to “aggrieved parties.” In other words, “because a homeowner cannot be aggrieved by an “advisory” zoning certificate, the homeowner cannot have standing to bring an appeal of the zoning certificate in this Court.” The court additionally noted that there was no provision in the zoning statutes that would allow a zoning board to exercise appellate jurisdiction over the issuance or denial of a zoning certificate. Accordingly, the board erred in this case by hearing Biggs’ appeal at all, as it lacked any authority to do so.

Despite the advisory nature of zoning certificates and the lack of any statutory authority to bring an appeal, Biggs contended that the denial in this case should have been appealable because the town required a zoning certificate in order to grant a building permit. Although the town conceded that it wouldn’t have acted on a building permit application without a valid zoning certificate, the court still rejected this argument, emphasizing that Biggs hadn’t actually applied for a building permit. This was significant, the court explained, because had she applied for a building permit, the denial of her permit application would have constituted an appealable order from which she could have sought further relief.

Biggs v. Bongiolatti, 2018 WL 1832007 (4/11/18).


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