Lynn Thurston v. Zoning Board of Review for the Town of Portsmouth, et al.

STATE OF RHODE ISLAND
NEWPORT, SC. SUPERIOR COURT
(FILED: March 12, 2024)
LYNN THURSTON :
:
:
:
:
:
:
:
:
:
:
:
:
Appellant,
v. C.A. No. NC–2014–0211
ZONING BOARD OF REVIEW FOR THE
TOWN OF PORTSMOUTH, by and
through its members KEVIN M. AGUIAR,
JAMES E. EDWARDS, JOHN G.
BORDEN, TIA G. SCIGULINSKY and
BYRON J. HALL and JAMES SEVENEY
and VALERIE SEVENEY
Appellees.
DECISION
LANPHEAR, J. Before this Court is Appellant Lynn Thurston’s appeal of the Zoning Board of
Review for the Town of Portsmouth’s (Zoning Board) decision to grant two dimensional zoning
variances and a special-use permit, applied for by James Seveney and Valerie Seveney.
Jurisdiction is pursuant to G.L. 1956 § 45-24-69. For the reasons set forth herein, Appellant’s
appeal is denied, and the Zoning Board’s decision is affirmed.
I
Facts and Travel
The Seveneys applied for two dimensional variances and a special-use permit to construct
a wooden deck on their property at 72 Macomber Lane in Portsmouth, Lot 77 on Assessor’s Plat
34. Hr’g Tr. 7:14-19, Apr. 17, 2014 (Hr’g Tr.); see generally R. at 15-23. The deck would cover
an above-ground septic tank enclosure, which Mr. Seveney described as an “eye sore.” (Hr’g Tr.
8:9-10:7, 12:12.) The Seveneys requested relief from the Town’s minimum setback and maximum
allowed lot coverage requirements. See R. at 15-16; Portsmouth Municipal Code Art. IV § B; see

2
also Hr’g Tr. 9:14, 10:2-6. They also applied for a special-use permit, because the deck would be
constructed on a substandard lot. See R. at 16; Portsmouth Municipal Code Art. VII § A (citing
Art. VI § A); see also Hr’g Tr. 13:18-20.
The Seveneys testified before the Zoning Board on April 17, 2014. (Hr’g Tr. 7:14-8:4.)
Counsel appeared on behalf of Ms. Thurston. Id. at 18:7-9. Ms. Thurston owns Lot 76 on
Assessor’s Plat 34 (the Thurston Property), 66 Macomber Lane, which abuts the Seveney Property
to the north. R. at 15; see also Hr’g Tr. 18:7-9. The attorney expressed concerns that runoff in the
area has caused erosion of the Thurston Property. (Hr’g Tr. at 18:9:19:2, 20:11-20.) To mitigate
the runoff flowing onto the Thurston Property, he requested that the Zoning Board require that the
Seveneys redirect a downspout away from the Thurston Property and construct a berm.1 Id. at
20:20-21:2, 21:19-22. Counsel stated that the parties already agreed to those terms before the
hearing and suggested that the Zoning Board did not need additional evidence to impose the
condition. Id. at 18:18-20, 26:3-10. However, the Seveneys objected to the berm condition during
the hearing. See id. at 20:20-21:6.
Mr. Seveney, Ms. Thurston’s attorney, and Zoning Board members engaged in lengthy
discussion regarding the proposed berm, runoff, and erosion. See generally id. at 20:7-43:15.
Notably, the parties distinguished between runoff that existed at the time of the hearing from any
additional runoff that may be caused by constructing the proposed deck:
“MR. AGUIAR [Zoning Board Member]: You’re concerned with
the runoff, the additional runoff from the deck?
“ . . .
“MR. FOX [Counsel for Ms. Thurston]: Yeah. That’s part of
it. . . . [A]ny runoff [that] comes onto the property . . . continues to
erode the front area on the water . . . between storms and runoff, it
gets eroded considerably.
1 The Seveneys agreed to redirect the downspout as requested by Ms. Thurston. (Hr’g Tr. 29:21-
30:1.) The terms of the condition relating to the downspout are not at issue on appeal.

3
“ . . .
“MR. HALL [Zoning Board Member]: So, it has nothing to do . . .
“MR. SEVENEY: Has nothing to do with [the runoff].
“MR. HALL: With the cover [i.e., the wooden deck at issue here,
which will also serve to cover the septic tank enclosure].
“MR. FOX: Actually, it does, because . . . when you put the cover
on, then that . . . surface, it creates total runoff . . . I don’t know
what the calculations are. I just know . . . part will end up on the
Thurston [P]roperty.” Hr’g Tr. 20:8-18, 34:20-35:6.
The parties went on to discuss whether the Zoning Board should impose a condition to mitigate
runoff from the Seveneys’ property and, if so, how that mitigation should be effectuated. See
generally id. at 35:7-43:15. Ms. Thurston’s attorney relayed that she was “fine with” the
following:
“MR. BORDEN [Zoning Board Member]: . . . [T]his is subject to
be tweaked, but [a] . . . berm [would] be constructed to
eliminate . . . a drainage problem on the property to the north.
[S]hould the berm not . . . alleviate the problem, other forms will be
explored to eliminate the runoff . . . under the supervision of the
building inspector.
“ . . .
“MR. EDWARDS [Zoning Board Member]: You’re, you’re saying
along the property line and . . . the runoff as Mr. Seveney said, um,
is actually not even from his property . . . it certainly has to be runoff
from the Seveney Property.
“MR. FOX: (Inaudible) that’s right.
“ . . .
“MR. EDWARDS: It’s just not water runoff, there’s concern that
there [is] going to be water . . . [c]oming from the [deck.]
“MR. FOX: Yeah.
“MR. AGUIAR: And running back towards their property.
“ . . .
“MR. BORDEN: Okay. So, a berm would be constructed between
the two walls . . . [to] alleviate runoff from the [Seveney
P]roperty . . . going on the property to the north. Should that
solution not be adequate, then other forms shall be investigated
under . . . the building inspector.
“ . . .
“MR. BORDEN: Is that the language . . . you were looking for?
“MR. FOX: Yes.” Hr’g Tr. 44:3-47:14.

4
The Zoning Board then voted to approve the Seveneys’ request for a dimensional variance
and special-use permit, subject to the conditions to mitigate runoff from the Seveney Property.2
Id. at 47:19-53:14. The Zoning Board issued its written decision on May 1, 2014. See R. at 27-
29 (the Decision). The Decision states in pertinent part that the Seveneys will
“install such [a] berm between the two existing cement walls on the
north side of their property as the Building Official, in his sole
discretion, shall deem necessary to control any additional water
runoff from petitioners’ property onto the Thurston property
resulting from the proposed wooden decking, or utilize such other
measures as the Building Official, in his sole discretion, may
determine to be necessary and appropriate to prevent such additional
water runoff[.]” (Decision 2.)
Ms. Thurston appealed the Zoning Board’s Decision to the Superior Court on May 23,
2014. See Compl. She asserts that the terms of the condition, voted on by members of the Zoning
Board in the hearing, requires the Seveneys to prevent all runoff from their property onto the
Thurston Property, not only the additional runoff caused by the proposed deck. See Mem. in Supp.
of Pl.’s Zoning Appeal (Appellant’s Mem.) 4-5.
This Court acknowledges the delay in rendering a decision in this matter and is mindful
that the parties may have been adversely impacted as a result.
II
Standard of Review
Section 45-24-69(a) grants the Superior Court jurisdiction to review decisions from local
zoning boards. Such review is governed by § 45-24-69(d), which provides:
“The court shall not substitute its judgment for that of the zoning
board of review as to the weight of the evidence on questions of fact.
The court may affirm the decision of the zoning board of review or
2 The Zoning Board first voted to add the terms of the conditions to construct a berm and redirect
the downspout away from Ms. Thurston’s property. (Hr’g Tr. 47:19-48:21.) The Zoning Board
voted separately to approve the Seveneys’ amended application. Id. at 48:22-53:14.

5
remand the case for further proceedings, or may reverse or modify
the decision 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.”
In other words, this Court “reviews the decisions of a plan commission or board of review
under the ‘traditional judicial review’ standard applicable to administrative agency actions.”
Restivo v. Lynch, 707 A.2d 663, 665 (R.I. 1998). The Court is “limited to a search of the record
to determine if there is any competent evidence upon which the agency’s decision rests. If there is
such evidence, the decision will stand.” E. Grossman & Sons, Inc. v. Rocha, 118 R.I. 276, 285-
86, 373 A.2d 496, 501 (1977) (emphasis added). The Court may not substitute its judgment for
that of the zoning board’s with respect to the weight of evidence, questions of fact, or credibility
of the witnesses. Lett v. Caromile, 510 A.2d 958, 960 (R.I. 1986). However, this Court conducts
a de novo review of questions of law. Tanner v. Town Council of Town of East Greenwich, 880
A.2d 784, 791 (R.I. 2005). The burden is on the applicant “seeking relief . . . to prove the existence
of the conditions precedent to a grant of relief.” DiIorio v. Zoning Board of Review of City of East
Providence, 105 R.I. 357, 362, 252 A.2d 350, 353 (1969).
The Court must consider ‘“the entire record to determine whether ‘substantial’ evidence
exists to support the board’s findings.”’ Salve Regina College v. Zoning Board of Review of City
of Newport, 594 A.2d 878, 880 (R.I. 1991) (quoting DeStefano v. Zoning Board of Review of City
of Warwick, 122 R.I. 241, 245, 405 A.2d 1167, 1170 (1979)). “Substantial evidence” is defined as

6
“such relevant evidence that a reasonable mind might accept as adequate to support a conclusion,
and means [an] amount more than a scintilla but less than a preponderance.” Caswell v. George
Sherman Sand & Gravel Company, Inc., 424 A.2d 646, 647 (R.I. 1981).
III
Analysis
Ms. Thurston contends the Decision does not accurately reflect the terms approved at the
hearing on April 17, 2014. (Appellant’s Mem. 4-5.) The Zoning Board granted the Seveneys’
variance subject to the condition that they “control any additional water runoff from [the Seveney
P]roperty onto the Thurston [P]roperty resulting from the proposed wooden decking[.]” (Decision
2.) Ms. Thurston argues that the Zoning Board voted “to control all runoff from the Seveney
[P]roperty” (emphasis added). (Appellant’s Mem. 4.) She cites to the hearing transcript to support
this contention. (Hr’g Tr. 46:3-8.)
Appellees assert that the Decision is supported by competent evidence. See Mem. of
Zoning Board of Review in Opp’n (Appellee’s Mem.) 4-6.3 Moreover, Appellee contends that,
even if the members voted to approve the application subject to the Seveneys eliminating all runoff
from their property onto Ms. Thurston’s, such a condition would fall outside the scope of the
Zoning Board’s authority, because it would be unrelated to the application. Id. at 5-6.
Zoning boards may relieve property owners from municipal ordinances by granting
dimensional variances, among other forms of relief. See § 45-24-57(1)(iv)-(v). “[Z]oning
board[s] . . . may apply the special conditions that may, in the opinion of the board or agency, be
required to promote the intent and purposes of the comprehensive plan and the zoning ordinance
3 The Seveneys submitted a memorandum stating they “adopt and incorporate by reference the
arguments and positions set forth in the [Appellee’s Mem.]” (Mem. of James Seveney and Valerie
Seveney).

7
of the city or town. . . . Those special conditions shall be based on competent credible evidence on
the record, be incorporated into the decision, and may include, but are not limited to, provisions
for . . . [m]inimizing the adverse impact of the development upon other land, including the type,
intensity, design, and performance of activities[.]” Section 45-24-43.
Here, the Zoning Board approved a condition that required the Seveneys eliminate
“runoff . . . [c]oming from the [proposed deck.]” (Hr’g Tr. 45:15-46:1.) The Decision
memorialized those terms, stating they would “install . . . [a] berm . . . to control any additional
water runoff . . . onto the Thurston [P]roperty resulting from the proposed wooden decking, or
utilize such other measures as the Building Official . . . may determine to be necessary and
appropriate to prevent such additional water runoff[.]” See Decision 2. The condition was
approved to assuage Ms. Thurston’s concerns that “the [deck] [would] create an [additional]
impervious surface[,]” contributing to the “runoff [which] has become a much greater concern[.]”
(Hr’g Tr. 18:7-13.) Before the vote, Mr. Seveney, Ms. Thurston’s attorney, and Zoning Board
members discussed the sources of runoff onto the Thurston Property at length. See generally id.
at 20:7-43:15. The parties distinguished already-existing runoff from any additional runoff caused
by the proposed deck. See id. at 20:8-18, 34:20-35:6. Ms. Thurston’s attorney asserted that the
deck would be an “impervious surface,” adding to the “total runoff . . . [He] [did]n’t know what
the calculations [were]. [He] just kn[e]w . . . part w[ould] end up on the Thurston [P]roperty.” Id.
at 34:24-35:2, 35:4-6. The Seveneys were amenable to mitigating runoff from the proposed deck,
but disagreed with the specific terms proposed by Ms. Thurston, such as the height of the berm.
Id. at 28:16-30:10. As a compromise, the Seveneys agreed to construct a berm that would control
additional runoff from the deck; if the berm was inadequate, they would implement another
measure as determined by the Building Official. Id. at 39:6-21, 44:3-6, 44:17-45:2, 46:12-18.

8
Specifically, the Zoning Board debate was focused on how to “alleviate runoff,” not eliminate all
runoff. Id. at 46:14. Counsel agreed. Id. at 47:14. The Zoning Board voted 3-2 to impose these
conditions, which it memorialized in writing in its Decision. Id. at 48:6-12; see Decision 2-3.
After a thorough review of the record, this Court finds there was competent evidence on
the record to support the Decision, and that the Decision mirrors the terms the parties discussed—
and the Zoning Board voted to approve—at the hearing. See Decision; Hr’g Tr. 44:2-48:21. The
Zoning Board’s reasoning aligns with one of the express reasons provided by § 45-24-43 to impose
a condition: to “[m]inimiz[e] the adverse impact of the development upon other land . . . .” See
§ 45-24-43(1); see Decision 2-3. Ms. Thurston’s contention that the Zoning Board voted to
eliminate all runoff from the Seveney Property onto the Thurston Property is not supported by
evidence. See Appellant’s Mem. 4. In fact, Appellant also has not provided any evidence that the
proposed deck would actually increase runoff or that the runoff would increase erosion. See Hr’g
Tr. 23:19-24:8, 25:22-26:10; see generally R. 1-33. Furthermore, the Record does not contain any
evidence to support the assertion that the proposed deck would adversely impact the Thurston
Property. See generally R. 1-33.
Additionally, Ms. Thurston’s allegation that she is a victim of Appellees’ “bait and switch”
tactic is unavailing—the parties’ discussion at the hearing clearly distinguished already-existing
runoff on the Thurston Property from additional runoff that would be caused by granting the
application. See Hr’g Tr. 20:8-18, 34:20-35:6; Appellant’s Mem. 5. The transcript reflects that
Ms. Thurston, the Seveneys, and Zoning Board members understood that the condition on the
variance required the Seveneys to prevent any additional runoff caused by the deck, not eliminate
all runoff from their property onto Ms. Thurston’s. See Hr’g Tr. 20:8-18, 34:20-35:6.

9
IV
Conclusion
For the foregoing reasons, Ms. Thurston’s appeal is denied and the Zoning Board’s
Decision granting the Seveneys’ application is affirmed.

10
RHODE ISLAND SUPERIOR COURT
Decision Addendum Sheet
TITLE OF CASE: Lynn Thurston v. Zoning Board of Review for the
Town of Portsmouth, et al.
CASE NO: NC-2014-0211
COURT: Newport County Superior Court
DATE DECISION FILED: March 12, 2024
JUSTICE/MAGISTRATE: Lanphear, J.
ATTORNEYS:
For Plaintiff: David J. Fox, Esq.
For Defendant: Kevin P. Gavin, Esq.