Bilodeau v. Zoning Bd. of Review of City of Woonsocket

• Court: Rhode Island Supreme Court
• Writing for the Court: ROBERTS
• Citation: Bilodeau v. Zoning Bd. of Review of City of Woonsocket, 235 A.2d 665, 103 R.I. 149 (R.I. 1967)
• Decision Date: 29 November 1967
• Docket Number: No. 1745,1745
• Parties: Yolande P. BILODEAU v. ZONING BOARD OF REVIEW OF the CITY OF WOONSOCKET. M.P.

Page 665

235 A.2d 665

103 R.I. 149

Yolande P. BILODEAU v. ZONING BOARD OF REVIEW OF the CITY OF WOONSOCKET.

M.P. No. 1745.

Supreme Court of Rhode Island.

Nov. 29, 1967.

[103 R.I. 154] Laurent C. Bilodeau, Woonsocket, for petitioner.

Lewis Z. Lavine, M. Durkan Cannon, Asst. City Sol., Woonsocket, for respondent.

OPINION

ROBERTS, Chief Justice.

This petition for certiorari was brought to review a decision of the zoning board of review of the city of Woonsocket granting an application for permission to erect an addition to a building used as a nursing home located on Greene street in that city. The writ issued, and pursuant thereto the respondent board has returned the records in the case to this court.

On a prior occasion the application for permission to erect such an addition to the premises here under consideration was granted by the board of review of said city, and that decision was reviewed by this court on certiorari. See Bilodeau v. Zoning Board of Review of City of Woonsocket, R.I., 220 A.2d 224. After hearing we concluded that we were unable to determine from the language of the decision of the respondent board granting permission to erect the addition whether it misconceived the test of entitlement to a variance and gave the permission to these applicants in order to secure to them a more beneficial use of the property than they were then enjoying. We noted there the necessity for establishing that a literal application of the terms of the pertinent ordinance would deprive the owners of all beneficial use in order to be so entitled. We, therefore, remanded the case to the respondent board with a direction that it give consideration to a clarification of the decision it had set out therein.

After our remand to the respondent board, the membership thereof changed, and the reconstituted board decided to hold a hearing de novo upon this application rather than to attempt to clarify the record of the prior hearing. At the conclusion of the de novo hearing, the board again granted the application for such use.

The rather voluminous record in this case discloses that the members of the board, in deliberating upon the application, discussed at some length the question whether this property could be converted to multi-residence uses within the limits of enconomic possibility, and the conclusion reached by at least four of the members is that such was not possible. The reasons given by the board for granting the variance were stated as follows:

'Case hinges on testimony of real estate experts Goffart and Zifcak that the property cannot be used for any other purpose under the ordinance and applicants will be deprived of all beneficial use.

'Requirements of local and state ordinances will impose unnecessary hardship by depriving applicants of all beneficial use. Property cannot be used as a duplex or multi-family use under the ordinance infofar as this is an antiquated and old style building and cannot be converted to uses permitted in R-5 Residential District.

'Special conditions in this particular instance are such that they will result in unnecessary hardship on applicants and public convenience will be served; nursing home will not be contrary to public interests; Board must be fair and reasonable to neighborhood.'

When the decision of the board is examined in the light of the discussion of its members concerning the evidence, it becomes clear that it intended to establish the unnecessary hardship entitling the applicants to a variance. It is equally clear that this conclusion was reached in reliance on the testimony adduced through two realtors who testified as expert witnesses and through an accountant who testified that he supervised the keeping of the financial records of the applicants. On the basis of this testimony, they concluded that a continuation of the present use of the building as a nursing home would be economically prohibitive.

It appears to us to be obvious also that the finding of unnecessary hardship was based on evidence adduced to prove that a conversion of the property to one of the other uses permitted in a Residence 5 District was similarly economically prohibitive. This was the evidence that...