Voluntary Demolition Forecloses Dimensional Variance:
RH McLeod Family LLC & 4 Spray Rock, LLC v. Westerly Zoning Board of Review (R.I. 2025)

1. Introduction

In this consolidated certiorari proceeding the Rhode Island Supreme Court quashed a Superior Court judgment that had affirmed a decision of the Westerly Zoning Board of Review. The zoning board had granted Todd and Karyn Nordstrom (“the Nordstroms”) dimensional variances to tear down a legally non-conforming single-family home and to build a new three-story dwelling that would remain non-conforming as to side-yard setbacks. Neighboring property owners—RH McLeod Family LLC, Margot Perot, and 4 Spray Rock, LLC (collectively “the Petitioners”)—challenged that approval.

The Supreme Court’s decision turns on a single sentence in § 260-32(C)(2) of the Westerly Zoning Ordinance and establishes a clear rule: when a property owner voluntarily demolishes a non-conforming structure, any replacement structure must fully conform to the dimensional requirements; the owner may not obtain a dimensional variance to perpetuate or create new non-conformities.

2. Summary of the Judgment

• The Court granted certiorari, reviewed the Superior Court judgment, and quashed it.
• Applying ordinary rules of statutory (and ordinance) construction, the Court found the language of § 260-32(C)(2) to be “clear”: voluntary demolition of a non-conforming building bars reconstruction that does not meet current dimensional standards.
• Because the zoning board and the trial justice read the ordinance to permit a variance notwithstanding that prohibition, their decisions were affected by legal error.
• Having resolved the appeal on this ground, the Court expressly declined to reach ancillary arguments, including whether the proposed house met the “least relief necessary” prong for dimensional variances.

3. Detailed Analysis

3.1 Precedents and Authorities Cited

• East Bay Community Development Corp. v. Zoning Board of Review (2006) – Emphasized that statutes are not retroactive absent clear legislative intent; used by the Court here to apply 2021 law (pre-2024 amendments).
• New Castle Realty Co. v. Dreczko (2021) & Lischio v. North Kingstown (2003) – Dimensional-variance hardship standards; debated in the lower court but ultimately unnecessary to Supreme Court’s disposition.
• Freepoint Solar LLC v. Richmond ZBR (2022) – Restated scope of judicial review under § 45-24-69 and rules for ordinance construction; cited for interpretive methodology.
• Cohen v. Duncan (2009); Olamuyiwa v. Zebra Atlantek (2012) – “Plain meaning” canon; warning against adding words.
• Town of Richmond v. Wawaloam Reservation, Inc. (2004) – Noted general policy disfavoring expansion of non-conformities.

While none of these cases spoke directly to demolition of non-conforming structures, they provided interpretive scaffolding. The Court synthesized them to reinforce strict textualism and the principle that non-conforming status is a shield allowing the existing structure to remain—not a sword enabling a larger or different non-conformance.

3.2 Legal Reasoning

1. Standard of Review. On certiorari the Court examined whether the Superior Court misapplied the law under § 45-24-69(d). Pure questions of law (ordinance interpretation) receive de novo review.
2. Textual Interpretation. The operative sentence: “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 Court found no ambiguity—“conformity” means meeting present dimensional rules, not securing a variance that by definition is a “departure” (G.L. § 45-24-31(66)(ii)).
3. Exclusio Unius. The ordinance expressly allows one exception—rebuilding after involuntary destruction within one year. The Court inferred that the drafters’ inclusion of that single exception and omission of any “variance” exception was deliberate.
4. Anti-Surplusage. Reading “conformity” to include “variances” would render the demolition sentence meaningless because any owner could sidestep it; therefore, such interpretation was rejected.
5. Deference Limits. Although zoning boards receive some deference in ordinance interpretation, courts remain the “final arbiter.” Thus, erroneous board interpretations command reversal.

3.3 Impact on Future Land-Use Litigation and Practice

• Municipal Boards: Zoning boards must deny variance requests that seek to perpetuate non-conformities following voluntary demolition. They must also alert applicants that demolition forever forfeits “grandfathered” status.
• Property Owners & Developers: Strategic choice becomes critical. Owners may opt to renovate in place to retain non-conforming envelopes or pursue full-conformity new construction. The cost, design, and feasibility calculus shifts substantially, especially in coastal or historic areas with sub-standard lots.
• Litigation Forecast: Expect increased disputes over what constitutes “demolition” versus “substantial renovation,” and over whether destruction was “beyond the control of the owner.”
• Legislative Response: Municipalities that deem the rule too rigid could amend their ordinances to allow variance applications post-demolition—but until then, the Court’s opinion is controlling.
• State-Wide Persuasive Authority: Although the decision construes a Westerly ordinance, many Rhode Island towns contain parallel demolition clauses. The ruling is likely to influence interpretations across the state and inform drafting of new zoning codes.

4. Complex Concepts Simplified

• Non-Conforming Structure: A building that lawfully existed before zoning rules changed but now fails to meet those rules.
• Dimensional Variance: Permission to deviate from zoning dimensional standards (setbacks, height, lot coverage). Distinct from a “use variance,” which allows a prohibited land use.
• Grandfathering: Informal term for the right to continue a lawful non-conformity. It is a status tied to the existing structure, not a perpetual entitlement to recreate it.
• Hardship—“More than a Mere Inconvenience”: The statutory threshold for dimensional variances under G.L. § 45-24-41. It is less stringent than the “no beneficial use” standard for use variances but still requires evidence that compliance is not reasonably possible.
• Certiorari Review: A discretionary appellate mechanism whereby the Supreme Court reviews lower-court zoning decisions for legal error without a full trial record.

5. Conclusion

The Rhode Island Supreme Court’s opinion in RH McLeod Family LLC v. Westerly Zoning Board of Review adopts a bright-line rule that may reshape redevelopment strategies on non-conforming properties: voluntary demolition forfeits the privilege to rebuild outside dimensional norms. The Court’s rigorous textualism underscores that zoning ordinances speak for themselves and that non-conforming rights are narrowly construed. Practitioners must now advise clients that “tear-down and rebuild” plans on sub-standard lots will be permissible only if the replacement structure complies fully with current zoning—unless and until local lawmakers expressly reintroduce variance flexibility. In the broader legal landscape, the case reinforces judicial unwillingness to read implied exceptions into land-use regulations and further clarifies the delicate balance between private property expectations and the public interest embodied in zoning codes.