Westminster Corp. v. Zoning Bd. of Review of City of Providence

• Decision Date: 06 February 1968
• Docket Number: Nos. 206-M,s. 206-M
• Citation: 27 A.L.R.3d 1285,238 A.2d 353,103 R.I. 381
• Parties: , 27 A.L.R.3d 1285 WESTMINSTER CORPORATION v. ZONING BOARD OF REVIEW OF the CITY OF PROVIDENCE (two cases). PROVIDENCE BUILDING COMPANY v. ZONING BOARD OF REVIEW OF the CITY OF PROVIDENCE (two cases). P., 207-M.P., 215-M.P., 216-M.P.
• Court: Rhode Island Supreme Court

Page 353

238 A.2d 353

103 R.I. 381, 27 A.L.R.3d 1285

WESTMINSTER CORPORATION v. ZONING BOARD OF REVIEW OF the CITY OF PROVIDENCE (two cases).

PROVIDENCE BUILDING COMPANY v. ZONING BOARD OF REVIEW OF the CITY OF PROVIDENCE (two cases).

Nos. 206-M.P., 207-M.P., 215-M.P., 216-M.P.

Supreme Court of Rhode Island.

Feb. 6, 1968.

Kelly & Butterfield, Charles Butterfield, Jr., Providence, for Westminster Corp

Jordan, Hanson & Curran, Kirk Hanson, William A. Curran, Providence, for Providence Building Co.

Robert J. McOsker, City Solicitor, Edward E. Malloy, Asst. City Solicitor, Temkin, Merolla & Zurier, Martin M. Temkin, Melvin L. Zurier, Providence, for First Hartford Realty Corp.

OPINION

ROBERTS, Chief Justice.

These petitions for certiorari were brought to review two decisions of the zoning board of review of the city of Providence wherein permission was granted for the erection of a twenty-three-story office building 273 feet in height upon land presently zoned C-3 downtown commercial use. In such district an office building up to 300 feet in height is a permitted use subject to certain setback requirements provided for in sec. 53(B)(1) of the zoning ordinance. The applicants were granted permission to erect a building 273 feet in height without full compliance with the setback requirements or with the off-street parking and loading platform provisions contained in secs. 24(C)(2)(d) and 24(D) of said ordinance. The writs issued, and pursuant thereto the respondent board has returned to this court the pertinent records in these cases.

The records disclose that on March 28, 1967, The Narragansett Electric Company of Providence, Rhode Island, owner of a tract of land comprising lots 68 and 69 on assessor's plat 20 and bounded by Weybosset street, Exchange street, Dyer street, Gerry Gangway, and Westminster street, was joined by First Hartford Realty Corporation of Manchester, Connecticut, proposed purchaser of such tract, in an application seeking relief from the provisions of sec. 53(B)(1) of the zoning ordinance. Said section provides for the above-mentioned height restriction and further provides '* * * that where any building or structure exceeds a height of 6 stories or 75 feet each part thereof above 6 stories or 75 feet shall be set back from the required yard lines, or lot lines where no yards are required, at least one foot for each 3 feet above 6 stories or 75 feet.' A plot plan filed with the record discloses that there will be substantial setbacks from the property line along Westminster and Weybosset streets and along Dyer street. It is conceded that these setbacks do not constitute compliance in full with the ordinance provisions above quoted.

A hearing on this application was held on April 25, 1967, and at that time the applicants moved for permission to amend their application and to seek therein relief from the provisions of secs. 24(C)(2)(d) and 24(D) of the ordinance. At the same time they asked for permission either to present evidence on the amended application at the hearing then under way or, in the alternative, to file a new application for such additional relief to be heard at a subsequent hearing. Objection was made to the proposal to adduce evidence relative to the amendment at the hearing then being conducted, and as a consequence thereof, on April 27 the applicants filed a new application specifically seeking relief from the provisions of sec. 24(C)(2)(d) and sec. 24(D).

Sections 24(C)(2)(d) establishes the requirements for the parking of motor vehicles and provides that in the case of business or commercial buildings having a floor area of 1,500 square feet or more '* * * at least one parking space for every 500 square feet of gross floor area in said buildings or structures * * *' must be provided. The applicants note that the pertinent floor area would approximate 192,000 square feet and thus require 400 parking spaces for motor vehicles. The application points out that they desire relief from this regulatory provision to the extent of being permitted to provide a total of 98 parking spaces. Section 24(D) relates to off-street loading space and, in substance, requires a loading space 10 feet by 25 feet for every 20,000 square feet of floor area in excess of 4,000 square feet. The applicants note that a literal reading of this provision would require 14 such loading spaces, and ask relief therefrom.

The board conducted a second hearing on May 16, 1967, at which evidence was adduced on the question of granting relief from the off-street parking and off-street loading provisions of the ordinance. It appears from the record that this hearing was the subject matter of a legal notice published in a local newspaper on May 6, which specifically informed the public that a petition was pending and would be heard on the question of relieving the applicants of the provisions of secs. 24(C)(2)(d) and 24(D) of the ordinance. It might be well to note at this point that the record discloses that the board made an inspection of the premises under consideration, noting its location and the nature of surrounding buildings and the uses to which those buildings were put.

The board rendered its decision on these applications on July 24, 1967, in its Resolution No. 3267. We will consider first whether the decision granting relief from the provisions of sec. 53(B)(1) prescribing the requirements for setbacks constituted an abuse of the board's discretion as is urged by petitioners here. The board found that compliance with the provisions of sec. 53(B)(1) '* * * will create an unnecessary hardship that would constitute more than mere inconvenience but rather would have an adverse effect on petitioners and substantially deprive petitioners of beneficial use of the land.' The board further found that '* * * there is no use other than as an office building, based on land value, that the land could be properly put to' and that '* * * twenty-three floors were needed or an office building could not be built, and that the proposed structure with the setback variation is the only kind of building financially feasible.' The board then went on in express terms to vary the use district regulations under the zoning ordinance by permitting the erection of a twenty-three-story building without full compliance with the provisions of sec. 53(B)(1).

It is clear that the applicants seek relief from ordinance provisions regulatory of the permitted use of land. They do not seek a true variance, so called, pursuant to which they could make a use of the land that is not a permitted use under the terms of the ordinance. We have distinguished repeatedly between ordinance restrictions on the basic use of land and those that regulate the manner in which a permitted use may be made of the land. Where an owner cannot make any permitted use of his land, the authority of a zoning board to grant a variance is conferred by G.L.1956, § 45-24-19(c), and is conditioned primarily upon a showing by the applicant that a literal enforcement of the partinent terms of the ordinance will result in unnecessary hardship. We have construed the term 'unnecessary hardship' to mean that such a literal enforcement of the ordinance restrictions would deprive the owner of all beneficial use of his land. Denton v. Zoning Board of Review, 86 R.I. 219, 133 A.2d 718.

However, in Viti v. Zoning Board of Review, 92 R.I. 59, 65, 166 A.2d 211, 213, we distinguished between the true variance and applications seeking permission to deviate from the provisions of a zoning ordinance that merely regulate the manner in which a use permitted under the terms thereof may be implemented by the owner. In that case we said: 'Although the side and rear yard regulations are contained in the zoning ordinance, * * * such regulations as are here considered do not constitute 'zoning' as that term is generally construed. * * * They are regulations governing a permitted use as distinguished from the limitations on the use which one may make of his property.'

In Viti we held that where an owner seeks to vary the terms of ordinance provisions merely regulatory of the manner in which a permitted use may be implemented, he is not required to prove, in order to obtain such relief, that a literal enforcement of the ordinance would deprive him of all beneficial use of his land, nor is the authority of the board to grant such relief conditioned upon a finding by the board that a grant of the relief requested will serve the convenience or welfare of the public. That is now the settled rule in this state.

Subsequently we attempted to illumine the rule laid down in Viti when in Reynolds v. Zoning Board of Review, 96 R.I. 340, 191 A.2d 350, we said that there is a fundamental difference between zoning enactments that classify land uses and thereby designate the uses to which land may be put and the enactment of rules which are intended only to prescribe the manner in which such uses as are permitted may be exercised. We then went on to say, 96 R.I. 342, 191 A.2d 352: 'It cannot be argued reasonably, except in some peculiar circumstance, that a provision of the zoning ordinance that merely prescribes lot-line restrictions must be found to be confiscatory by a board of review in order to give the owner relief therefrom. We are of the opinion that to impose a burden on a landowner of proving that degree of unnecessary hardship merely to obtain relief from such lot-line restrictions would be to make an extremely illiberal application of the ordinance.'

Shortly after our opinion in Reynolds, we indicated the limitations on the application of the Viti rule in H. J. Bernard Realty Co. v. Zoning Board of Review, 96 R.I. 390, 393, 192 A.2d 8, 11, where we said, in part: 'We further held that in seeking a variance or exception from such regulations a property owner was not required to prove a loss of all beneficial use. We did not hold, however, as petitioner seems to infer, that...