Apostolou v. Genovesi, 77-18-M

• Decision Date: 20 July 1978
• Docket Number: No. 77-18-M,77-18-M
• Citation: 120 R.I. 501,388 A.2d 821
• Parties: Ella APOSTOLOU et al. v. Aurelio B. GENOVESI et al. P.
• Court: Rhode Island Supreme Court

Page 821

388 A.2d 821

120 R.I. 501

Ella APOSTOLOU et al. v. Aurelio B. GENOVESI et al.

No. 77-18-M.P.

Supreme Court of Rhode Island.

July 20, 1978.

[120 R.I. 510] Adler, Pollock & Sheehan, Peter Lawson Kennedy, Richard C. DeYoung, Providence, for petitioners.

Jeremiah S. Jeremiah, Jr., Providence, for respondents.

OPINION

BEVILACQUA, Chief Justice.

This petition for certiorari was brought to review the action of the Superior Court reversing a decision of the Zoning Board of Review of the Town of Warren. The board had granted a variance to permit an addition to a jewelry manufacturing plant. We granted the petition, Apostolou v. Genovesi, R.I., 369 A.2d 663 (1977), and issued the writ on February 24. 1977.

The facts in this case are essentially uncontroverted. One of the petitioners, ¹ R.J. Manufacturing Co., Inc. (R.J.), which is a jewelry manufacturer, occupies a parcel of land situated on Metacom Avenue and designated as lots Nos. 4-7, 55, 57 and 58 on assessor's plat 13C. The entire parcel, which consists of an area of approximately 141,338 square feet, is located in a manufacturing zone. It is abutted on its northerly side by respondents' land, ² which is in a residential zone.

On April 9, 1974, R.J. applied to the Zoning Board of Review of the Town of Warren (the board) for a special exception ³ and a variance to permit the construction of a 152- by 60-foot addition to its facility. It is undisputed that one corner of this addition would violate the 50-foot boundary requirement of section 32-53 ⁴ of the Zoning Ordinance of the Town of Warren. After a hearing before the board, R.J.'s application for a variance was approved.

On June 4, 1974, respondents, as parties aggrieved by the action of the board, sought review in the Superior Court, alleging that the board violated "constitutional, statutory, or ordinance provisions" and exceeded its authority. After hearing the allegations of the parties, a Superior Court justice granted R.J.'s and Warren Development Corporation's motion to remand the case to the board for the presentation of additional evidence.

On remand, R.J. presented the testimony of two witnesses. Manuel Prenda, a real estate expert, testified that the addition to R.J.'s facility, which would extend within 22.16 feet of respondents' boundary, would not impair the value of respondents' abutting residential property. R.J. introduced into evidence a sketch of the proposed extension. After examining this exhibit, Anthony Nunes, a local contractor, testified that the loading and parking facilities of R.J. would be adversely affected if the building was not extended consistent with the terms of the variance originally granted by the board. He stated that the denial of R.J.'s application would adversely affect the traffic condition on Metacom Avenue. The respondent's expert witness, Walter DiPrete, testified that respondents' property would be devalued by the proposed addition to the manufacturing plant. DiPrete further asserted that, in his opinion, to relocate the extension in full compliance with the 50-foot boundary requirement would be economically feasible.

After reviewing the evidence, the board found that the proposed addition would not depreciate the value of respondents' property. It further found that the traffic pattern both inside the R.J. parcel and on Metacom Avenue would be adversely affected if the addition was constructed according to the zoning ordinance. The board concluded that a literal enforcement of the zoning ordinance would result in unnecessary hardship to R.J. Consequently, the board reaffirmed its previous decision granting the variance.

Following remand, the Superior Court justice held that R.J. had failed to present competent evidence to support the testimony of its witnesses and to show that relief from the 50-foot side restriction was reasonably necessary for the full enjoyment of the permitted use. He further held that no evidence was adduced by R.J. to buttress the findings of the board. He concluded, therefore, that the decision of the board was clearly erroneous and arbitrary in view of the reliable and probative evidence in the record. On December 9, 1976, a judgment was entered sustaining respondents' appeal and reversing the decision of the board.

Before discussing the merits of this appeal, we must consider the question of standing. Following the decision of the Superior Court, which reversed the board's decision, R.J., along with the members of the zoning board, Warren Development Corporation, and Henry C. and Mary Amaral, initiated certiorari proceedings in this court seeking review of the Superior Court judgment. On February 24, 1977 we issued the writ.

It is well settled that a zoning board lacks standing to request this court to issue its prerogative writ of certiorari for the purpose of reviewing a Superior Court judgment. Town of East Greenwich v. Day, R.I., 375 A.2d 953 (1977); City of East Providence v. Shell Oil Co., 110 R.I. 138, 290 A.2d 915 (1972). Accordingly, the writ in this case, insofar as it depends for its validity upon the board's standing to institute the proceedings, was improvidently issued. See Hassell v. Zoning Board of Review, 108 R.I. 349, 275 A.2d 646 (1971). However, the writ was properly issued to petitioners R.J., Warren Development Corporation, and Henry C. and Mary Amaral. In this proceeding, we consider only the allegations briefed and argued by petitioner R.J. ⁵

At the time we granted the petition for a writ of certiorari, Apostolou v. Genovesi, R.I., 369 A.2d 663 (1977), we specifically directed the parties to address the issue whether the extent of review by a Superior Court justice under G.L.1956 (1970 Reenactment) § 45-24-20 is identical to the scope of review established by this court in zoning cases decided prior to the enactment of said statute. Section 45-24-20 reads in pertinent part as follows:

"The (superior) court shall not substitute its judgment for that of the zoning board as to the weight of the evidence on questions of fact. The court may affirm the decision of the zoning board or 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 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 an abuse of discretion or clearly unwarranted exercise of discretion."

Prior to the amendment of § 45-24-20 by the Legislature in 1969, this court reviewed decisions of zoning boards by way of certiorari. Buckminster v. Zoning Board of Review, 68 R.I. 515, 30 A.2d 104 (1943). The standard of review applied was the general certiorari standard. Caluori v. Zoning Board of Review, 100 R.I. 402, 216 A.2d 515 (1966); Kelly v. Zoning Board of Review, 94 R.I. 298, 180 A.2d 319 (1962); Laudati v. Zoning Board of Review, 91 R.I. 116, 161 A.2d 198 (1960). On certiorari, this court ordinarily does not weigh the evidence but merely reviews the record to ascertain whether there is any legal evidence to support the decision of the zoning board or whether such decision was arbitrary and an abuse of discretion. Caluori v. Zoning Board of Review, 100 R.I. at 404, 216 A.2d at 517; Dunham v. Zoning Board, 68 R.I. 88, 26 A.2d 614 (1942). If there is some evidence upon which the board's decision may reasonably rest, it cannot be said that it abused its discretion. Beaulac v. Zoning Board of Review, 91 R.I. 459, 165 A.2d 497 (1960); Constantino v. Zoning Board of Review, 74 R.I. 316, 60 A.2d 478 (1948). The obvious thrust of the foregoing cases is that this court must affirm the decisions of the zoning board unless it appears that the board acted arbitrarily or abused its discretion. In zoning cases heard after the amendment of § 45-24-20, this court has reviewed by way of certiorari the decisions of the Superior Court and applied the identical "some" or "any" evidence test to the findings of the Superior Court. Hardy v Zoning Board of Review, R.I., 382 A.2d 520 (1977); Smith v. Zoning Board of Review, 111 R.I. 359, 302 A.2d 776 (1973).

The amendment of § 45-24-20 altered the prior appellate review procedure by providing an avenue of direct appeal from the zoning board to the Superior Court. Additionally, it appears that the Legislature in amending said statute attempted to codify the standards of review which had been employed by this court in reviewing by certiorari decisions of zoning boards and to confine those standards to the Superior Court. However, it is our opinion that the standards of review adopted in zoning cases were not entirely supplanted by the amendment of § 45-24-20. Here, our discussion is limited to subsection (5) of said statute since the other standards of review accurately reflect the scope of review established by decisional law.

Section 45-24-20(5) provides that the Superior Court must examine the decision of the zoning board to ascertain whether the substantive rights of the aggrieved parties have been prejudiced because of findings and inferences which are "clearly erroneous in view of the reliable, probative and substantial evidence of the whole record." In other words, the Superior Court must examine the whole record to determine whether the findings of the zoning board were supported by substantial evidence. On the other hand, zoning cases heard prior to the amendment of § 45-24-20 required this court on certiorari to canvass the record to ascertain whether there was "any" or "some" evidence to...