Administrative Law:

Bethany M. Whitmarsh, LeClairRyan Providence, R.I.
Experienced litigator represented clients in a wide range of financial service and real estate litigation.

Strafford, No. 2017-0501, September 7, 2018


  • Whether the trial court improperly denied a motion to expand the record on appeal from an administrative decision and erred in affirming the decision to grant a variance by the Zoning Board of Adjustment.

Defendants owned a manufactured housing park in Rochester and acquired an additional parcel adjacent to the park with the intention to expand its manufactured housing park. Prior to the purchase of the parcel, the Rochester City Council (Council) passed a zoning ordinance eliminating manufactured housing parks as permitted uses within Rochester. Defendants requested, and obtained, a variance from the Zoning Board of Adjustment (ZBA) over the Council’s objection. The Council filed a motion for rehearing with the ZBA, which was denied and the Council appealed to the trial court.

The trial court affirmed the ZBA’s decision and the Council appealed on two grounds, the trial court: (1) erred in its affirmation of ZBA’s decision to grant the variance and (2) unsustainably exercised its discretion in its denial of the Council’s motion to expand the record on appeal to the trial court.

The court found that the Council’s efforts to expand the record constituted a new issue not raised below, which was improper.  The Council attempted to include evidence that the ZBA’s chairman exhibited a potential conflict of interest or bias through comments he made at the ZBA hearing. The court noted the well-established principle that unless there is good cause, the superior court cannot consider any ground for appeal that was not presented to the ZBA in a motion for rehearing. As the Council did not raise the issue regarding bias before the ZBA, which it had ample opportunity to do, it could not be raised for the first time on appeal and therefore the Council’s motion to expand the record was denied properly.

The Council also directly challenged the ZBA’s decision in approving the variance based primarily on the ZBA’s failure to issue findings relative to the unnecessary hardship requirement, which must be satisfied to obtain approval for a variance.

In affirming the lower court’s conclusion that the ZBA’s failure to make specific findings of fact on hardship was not erroneous, the court agreed that the act of granting the variance by the ZBA established that the ZBA implicitly found the requisite unnecessary hardship. The fact that the ZBA did not address the requirement in its written decision did not mean that it was not considered or that the decision was not proper.  Further, this was especially true where the Council did not request specific findings of fact. Thus, the trial court’s assumption that the ZBA made a finding of unnecessary hardship, which was required to support its decision to grant a variance, was proper.


Terence M. O’Rourke, city attorney, Rochester, for the plaintiff; Donald F. Whittum, Donald F. Whittum Law Office, Rochester, for the defendants, Donald and Bonnie Toy.