Brum v. Conley
| Decision Date | 13 April 1990 |
| Docket Number | Nos. 89-160-M,s. 89-160-M |
| Citation | 572 A.2d 1332 |
| Parties | Manuel BRUM et al. v. William J. CONLEY, Jr., in his capacity as City Solicitor for the City of East Providence. EMPIRE PROPERTIES, Inc. v. Richard CROKE et al. P., 89-414-M.P. |
| Court | Rhode Island Supreme Court |
We have granted a motion to consolidate these matters since these actions present identical issues of law. These matters come before us by means of petitions for writs of certiorari filed by William J. Conley, Jr., to review two separate decisions by the Superior Court reversing the City of East Providence Zoning Board of Review and granting the petitions of both respondents for variances to build on certain undersized lots. We reverse the judgments of the Superior Court and affirm the decisions of the zoning board.
The respondents, Manuel and Maria E. Brum (the Brums), own a parcel of land in East Providence, located in an R-6 zoning district. The minimum-lot-area requirement is 5,000 square feet. The Brums applied to the zoning board for a variance to divide their parcel into two 3,360-square-foot lots and to build a single-family house on the created lot for their daughter (the other parcel would contain the already existing residence). The property was originally purchased as two separate lots in 1977 but was transformed into one conforming lot. A hearing was held on March 25, 1987, and the variance was denied. The board decided that without a variance the applicants would not be deprived of all beneficial use. Additionally, it was pointed out that the division would create two nonconforming, undersized lots. The petition was resubmitted at a hearing on March 30, 1988, and was subsequently denied. The Brums' application for a building permit was denied as well.
The Brums appealed the decision to the Superior Court on April 17, 1987, pursuant to G.L.1956 (1980 Reenactment) § 45-24-20 (). The Superior Court reversed the board's decision, holding that the principle enunciated by us in Redman v. Zoning and Platting Board of Review of Narragansett, 491 A.2d 998 (R.I.1985), should have been applied, thereby precluding the merger provision of the East Providence zoning ordinance (passed in 1966) from taking effect. The court found that the merger provision was rendered ineffective because the original lots were recorded in 1900, long before the relevant ordinance was passed.
The respondent, Empire Properties, Inc., also owns property in East Providence. Its land is located in an R-4 zone (with a minimum-lot requirement of 5,000 square feet) and measures 7,200 square feet. The respondent purchased the property in 1987 as two separately recorded lots (lot Nos. 26 and 27), but the lots were merged to form one conforming lot pursuant to the zoning ordinance. This respondent also applied to the zoning board for a variance to divide its property into two parcels of 3,600 square feet, one containing an existing single-family dwelling and one to be the site of a new single-family dwelling. The respondent had previously been denied a building permit to build a new house because the parcel did not contain 5,000 square feet of land as required by the ordinance. The respondent attempted to establish that the parcel to be created qualified as a prior recorded lot and was entitled to the status of a legal nonconforming use pursuant to the Redman case. The board denied the variance at the hearing on April 27, 1988, since there was no evidence of unnecessary hardship. The respondent appealed its decision to the Superior Court on May 16, 1988.
On August 11, 1989, the Superior Court reversed the decision of the zoning board and held that the board should have applied the principle enunciated in Redman precluding the operation of the merger provision of the zoning ordinance. The court reasoned that since the original lots were recorded in 1919, well before the original ordinance was passed, the lot could be considered as exempt from the minimum-lot requirement.
The petitioner, William Conley, Jr., petitioned us for a writ of certiorari regarding the Brum decision on April 14, 1989, and regarding the Empire Properties decision on August 31, 1989. The petition for the first case was granted on June 15, 1989, and for the second case on November 9, 1989. The order for consolidation of the two cases was issued on February 9, 1990.
The only issue before us on appeal is whether the trial court erred in holding that the zoning board should have applied the principles enunciated by this court in Redman v. Zoning and Platting Board of Review of Narragansett, 491 A.2d 998 (R.I.1985), to the case at bar, thereby precluding the merger provision of the East Providence zoning ordinance from taking effect.
The zoning provisions relevant to this appeal are sections 19-132 and 19-133(a) of the Zoning Ordinance of the City of East Providence:
Pursuant to section 19-133(a) the two sets of contiguous lots in question were merged to form individual lots under single ownership so the parcels would meet the minimum-lot requirements of section 19-145. We have recently noted that the combining of substandard lots, a concept known as merger, is a valid zoning mechanism governed by the provisions of G.L.1956 (1988 Reenactment) chapter 24 of title 45. McKendall v. Town of Barrington, 571 A.2d 565, 567 (R.I.1990). This chapter empowers the city of East Providence to create a merger provision in its zoning ordinance for the purpose of promoting the general welfare. Id. at 566; § 45-24-1. 1
The merger provision in the instant case has a valid purpose. It will, for example, operate to decrease congestion in the streets and to prevent the overcrowding of land by limiting the number of new dwellings built in the residential districts. See § 45-24-3. 2 The merger mechanism is therefore perfectly valid here.
In reviewing this case, we do not weigh the evidence but we review the record to determine whether...
To continue reading
Request your trial
-
Michael West v. Mcdonald
...evidence, or made findings that were clearly wrong.’ ” Munroe, 733 A.2d at 705 (quoting Kirby, 634 A.2d at 290); see Brum v. Conley, 572 A.2d 1332, 1335 (R.I.1990); Taylor v. Marshall, 119 R.I. 171, 178, 376 A.2d 712, 716 (1977). Even though we review the decision below with deference, we n......
-
Kirby v. Planning Bd. of Review of Town of Middletown
...justice "misapplied the law, misconceived or overlooked material evidence, or made findings that were clearly wrong." Brum v. Conley, 572 A.2d 1332, 1335 (R.I.1990); Taylor v. Marshall, 119 R.I. 171, 178, 376 A.2d 712, 716 (1977). After examining the trial justice's decision and the record ......
-
Munroe v. Town of East Greenwich
...misconceived or overlooked material evidence, or made findings that were clearly wrong." Kirby, 634 A.2d at 290 (quoting Brum v. Conley, 572 A.2d 1332, 1335 (R.I.1990)); see Taylor v. Marshall, 119 R.I. 171, 178, 376 A.2d 712, 716 (1977). After reviewing the trial justice's decision and the......
-
In re Richards
...size requirement at the time Nowicki purchased them in 1996. See Drumheller, 155 Vt. at 529-30,586 A.2d at 1152; see also Brum v. Conley, 572 A.2d 1332, 1336 (R.I.1990) (holding that under similar statute, where "no evidence of unnecessary hardship exists and two contiguous lots have been p......